UNIVERSITY OF THE DISTRICT OF - UDC Law Review

68 Dinkens v. State, 291 So.2d 122 (Fla.App.1974).
69 Compare the investigative techniques discussed in note 57 supra.
70 E.g., United States v. Pacheco-Ruiz, 549 F.2d 1204 (9th Cir.1976); People v. Hurst, 325 F.2d 891 (9th Cir.1963).
71 Marullo v. United States, 328 F.2d 361 (5th Cir.1964).
See also United States v. Romano, 388 F.Supp. 101 (E.D.Pa.1975) (officer found cocaine in newspapers concealed in drainpipe
attached to rear wall of townhouse on college campus occupied by defendant and four other students; held, no search, as common
areas of multiple dwellings are “not within the curtilage of the individual tenant,” and defendant had no justified expectation of
privacy because the area was not in his “exclusive control”).
72 As explained in Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 389–90 (1974), this thinking may
underlie Marullo. The court first declared that this was a reasonable warrantless search, but when the defendant in his petition for
rehearing pointed to authority that a warrantless search of a dwelling is per se unreasonable, the court then asserted that no search
had occurred. As Amsterdam says, id. at 390: “Confronted with the necessity of enforcing the warrant requirement all the way to
the boundary line of the fourth amendment, the court moved the boundary line over a couple of feet.”
73 United States v. Concepcion, 942 F.2d 1170 (7th Cir.1991).
73.1 In Reeves v. Churchich, 484 F.3d 1244 (10th Cir.2007), where a police officer pointed a rifle at an occupant of a duplex from a
noncurtilage space, see note 225 infra, but the end of the rifle intruded into the home’s interior, the court distinguished Concepcion
and held the insertion of the rifle “was not a search because the rifle was incapable of obtaining information and did not obtain any
information,” and was at most “a common law trespass.”
74 The court found “a close parallel” in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), holding it is a search
to turn over a phonograph to read its serial number.
Accord: United States v. DeBardeleben, 740 F.2d 440 (6th Cir.1984); United States v. Portillo-Reyes, 529 F.2d 844 (9th Cir.1975),
questioned in United States v. Grandstaff, 813 F.2d 1353 (9th Cir.1987); Cole v. State, 858 S.W.2d 915 (Tenn.Crim.App.1993)
(but “the intrusion requires neither a search warrant nor probable cause, only a founded suspicion”).
But see United States v. Salgado, 250 F.3d 438 (6th Cir.2001) (trying key in lock of defendant’s apartment, “accessible by means
of an unlocked, common hallway,” no search, as “the mere insertion of a key into a lock, by an officer who lawfully possesses the
key and is in a location where he has a right to be, to determine whether this key operates the lock, is not a search”); United States
v. $109,179 in U.S. Currency, 228 F.3d 1080 (9th Cir.2000) (insertion of car key into a nearby parked car “for the sole purpose of
aiding the police in identification of an individual” detained on reasonable suspicion deemed not an unreasonable search, as it was
“a ‘minimally intrusive’ action” serving “the strong governmental interests in investigating drug crimes”; court says Portillo-Reyes
only said insertion of key “constituted the beginning of the search” and thus “is inapplicable here since there was no search that
followed”) United States v. Hawkins, 139 F.3d 29 (1st Cir.1998) (trying key found in defendant’s apartment during execution of
search warrant there in storage locker found in common area of basement no search); United States v. Lyons, 898 F.2d 210 (1st
Cir.1990) (trying key in rented storage compartment no search); People v. Trull, 64 Ill.App.3d 385, 20 Ill.Dec. 960, 380 N.E.2d
1169 (1978) (determining key fit lock no search); Commonwealth v. DeJesus, 439 Mass. 616, 790 N.E.2d 231 (2003) (“Inserting a
key into a lock and turning it to see whether it fits cannot be construed as a warrantless search of a lock tumbler”); State v. Jackson,
268 N.J.Super. 194, 632 A.2d 1285 (1993) (“the ‘testing’ of Jackson’s validly seized keys” in two doors “did not constitute a
search”); State v. Roman, 182 N.J.Super. 297, 440 A.2d 1155 (1982) (using key found in victim’s car to determine whether it fit
lock at defendant’s residence no search).
But see United States v. Moses, 540 F.3d 263 (4th Cir.2008) (“the discrete act of inserting the key into the lock and discovering
whether or not it fit did not offend the Fourth Amendment”); State v. Robinson, 158 N.H. 792, 973 A.2d 277 (2009) (no Fourth
Amendment violation, as “the mere information of ownership obtained from inserting a key into a door is not the type of
information in which a defendant has a reasonable expectation of privacy”).
75 The court noted that Hicks, note 74 supra, said a warrant is unnecessary and that Hicks, requiring probable cause, was
distinguishable because there the privacy interest was more substantial because the officers obtained information “they could not
have come by in any other way.”
See also Commonwealth v. Alvarez, 422 Mass. 198, 661 N.E.2d 1293 (1996) (assuming putting key in lock of apartment a search,
it legal, as “for such an unobtrusive search the police needed only a founded or reasonable suspicion to insert the key”).
76 On the use of various aids to the senses, see § 2.2.
77 Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 (1973).
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