CALIFORNIA COURT OF APPEAL HOLDS THAT INSERTING A KEY IN DOOR OF A RESIDENCE WITHOUT A WARRANT DOES NOT VIOLATE THE FOURTH AMENDMENT

In People v. Robinson, the defendant made an alleged assault on a police officer and abandoned his vehicle. Leaving his keys behind, the police officers followed defendant's expended gun cartridges and tested the keys. One of the keys fit into the door of a residence and without obtaining a warrant, police found heroin, marijuana, additional ammunition, and drug packaging materials. On appeal, the defendant contended that the evidence found in the home was inadmissible because the warrantless entry of the home was unlawful and therefore all evidence during that illegal search was inadmissible.

The independent source doctrine says in order for evidence to be admissible, it must have been discovered by means wholly independent of any constitutional violation. People v. Weiss (1999) Cal.4th 1073, 1077-78. Where the probable cause for a search warrant contains information obtained by unlawful conduct, the courts apply a two-part test.

1. The affidavit must be sufficient to establish probable cause without the information obtained through the unlawful conduct; and

1. The police would have subjectively sought the warrant even without the information that was obtained illegally.

Whether the warrant was supported by probable cause under the independent source doctrine depends upon whether the act of inserting a key into the door violated the Fourth Amendment. The court determined that inserting the key into the lock, even if it constituted a search, was not unreasonable and thus not violative of the Fourth Amendment. The court did not decide whether inserting the key into door was a search but assuming it was, the search was based on "reasonable suspicion" and "served legitimate investigative purposes. Because the search was not unreasonable and did not violate the Fourth Amendment, the information gained was therefore found to be admissible.

Scott Hughes is a criminal defense attorney in Orange County, California practicing in State and Federal Court.