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LU Ref# CAI00006
January 17, 2021
Author Ref. No: Vol.26 No. 2
LU Ref# CAI00006
January 17, 2021
Author Ref. No:   Vol.26 No. 2

Robert Phillips
Deputy District Attorney (Retired)

A Key Insertion into a Vehicle’s Door Lock as a Fourth Amendment Search
COURT CASE REFERENCE: United States v Dixon (9th Cir. Dec. 31, 2020) __ F.3rd __ [2020 U.S. App. LEXIS 40827]

Fourth Amendment search occurs when a law enforcement officer physically inserts a key into the lock of a vehicle for the purpose of determining a suspect’s ownership of, or control over, that vehicle.  Absent probable cause, such a search is unlawful.  Before officers may conduct a warrantless search of a vehicle pursuant to a Fourth waiver condition, they must first have probable cause to believe that the defendant owns or controls the vehicle to be searched.
Defendant Howard Dixon—a convicted felon on federal “supervised release” with a Fourth waiver—was suspected by the San Francisco Police Department of being involved in an earlier shooting.  SFPD Officer Edward Ochoa began surveilling defendant in January, 2018, observing him as he drove around a particular neighborhood near the Oakdale Apartments in several different vehicles—a black BMW and a blue Honda minivan—on different occasions.  Although defendant reported to his federal probation officer that he lived at the Oakdale Apartments, Officer Ochoa was unaware of this, inexplicably failing to check with defendant’s P.O.  Other databases Ochoa did check listed other possible addresses for where he might be living.  On March 9th, Officer Ochoa observed defendant at the Oakdale Apartments, exiting the building, reentering it, and then exiting it again; this time carrying two garbage bags and walking towards the Blue Honda minivan he’d been observed driving on prior occasions.  Defendant was stopped and detained, prompting him to drop the garbage bags along with a set of keys.  Using these keys, Officer Ochoa entered the apartment from where defendant had come.  In the apartment was discovered illegal drugs and paraphernalia.  Using the same keys, Officer Ochoa unlocked the Honda and searched it, finding a large bag of marijuana in a backpack.  Defendant was transported to SFPD’s Bayview Station where he was searched.  Twenty-one baggies containing cocaine, heroin, and methamphetamine were recovered from his person.  Indicted in federal court for possession with the intent to distribute heroin, cocaine, and methamphetamine, defendant filed a motion to suppress with written declarations in support of his arguments.  The Government filed declarations in response. The federal district court judge ruled on the suppression motion without conducting an evidentiary hearing, relying solely on the opposing declarations.  In defendant’s declaration, he noted that there were two “sky blue” minivans parked side-by-side at the scene of his arrest—a fact that was confirmed by an officer’s body camera—and that the officers first used the keys in an unsuccessful attempt to open one of the minivans that, as it turned out, belonged to someone else.  The district court judge granted defendant’s motion as to the search of the apartment, ruling that Officer Ochoa did not have the necessary “probable cause” (see Note, below) to believe defendant lived there (which, by the way, would not have been an issue had Officer Ochoa checked with defendant’s probation officer first).  The judge denied defendant’s motion as to the search of the Honda, however, reasoning that under the Ninth Circuit’s prior decision in United States v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3rd 1080, the law was that the insertion of the key into the minivan’s lock was not itself a search, and that possession of a key that fit the minivan’s lock amounted to probable cause to believe that defendant exercised control over that minivan.  The trial court further held that this “intervening” lawful search of the Honda minivan, producing a large bag of marijuana, attenuated any taint from the apartment search, and therefore declined to suppress the evidence found on defendant’s person when he was searched at the station.  At trial, somehow the large bag of marijuana found in the Honda got mixed up with the suppressed evidence from the apartment, necessitating the exclusion of that evidence as well.  The jury subsequently hung on the “intent to distribute” charges, convicting defendant only on the lesser included offense of simple possession.  Sentenced to a year and 9 months in prison, defendant appealed.