US v. Dixon, No. 19-10112 (12-31-20)(Wardlaw w/Siler & M. Smith). The 9th finds it is a “search” when a police officer inserts a car key into a vehicle to determine ownership. The defendant was on SR, but it was unclear who owned or controlled the car. The 9th vacated the denial of the suppression motion and remanded for a hearing to determine who owned the car. Last, the defendant was convicted of simple possession of drugs. The court had categorically denied acceptance of responsibility because he did not admit possession with intent (the jury hung on that charge). This was error. If the officer’s acts of checking the car were reasonable and constituted probable cause of ownership or control, then a resentencing is necessary.

The SCOTUS decision in US v. Jones, 565 US 400 (2012) required the vacating of the denial of the suppression motion. Jones stressed that the 4th amendment protects reasonable expectations of privacy and physical trespass of property.  It is a two-part analysis.  Jones is irreconcilable with prior 9th precedent, US v. $109,179 in US Currency, 228 F.3d 1080 (9th Cir. 2000), which allowed an officer to use a vehicle key to ascertain ownership. $109,179 in US Currency is thus abrogated.

On remand, the court has to determine if the defendant owned or control the vehicle (a blue minivan). There were two in the parking lot. When the defendant was stopped leaving an apartment complex, he dropped bags of groceries and keys. The 9th stresses that the standard for ownership or control is probable cause; it isn’t reasonable suspicion because an innocent person could own the car.

Congrats to Jonathan Abel, Juliana DeVries and Elizabeth Falk of Cal N FPD (San Francisco).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/31/19-10112.pdf