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Media > Newsletters > Law Enforcement Bulletin > May 2012 > U.S. v. Cowan — Eighth Circuit Court of Appeals (Arkansas, Iowa, Minnesota, Missouri, Nebraska, Nort

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U.S. v. Cowan — Eighth Circuit Court of Appeals (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota), March 23, 2012

Question: An officer found a key fob in a suspect’s pocket and used the fob’s remote panic alert to identify the suspect’s vehicle in a parking lot. Was a warrant required?
Quick answer: No. If there is reasonable suspicion for a pat-down, an officer can remove keys if there is probable cause to believe they were incriminating evidence. And using the keys to locate a vehicle falls into the automobile exception when it is likely to lead to incriminating evidence.
Facts: From surveillance, a confidential informant’s tip, and a controlled drug buy, police officers believed that crack cocaine was being transported by car from Chicago to an apartment in Davenport, Iowa. Police got a warrant to search the apartment, the apartment’s owner, and the surrounding parking areas for “indicia of occupancy, residency, rental and/or ownership of the premises . . . including . . . keys.” Upon entering, the officers saw at least eight adults and two children inside. Police immediately handcuffed all the adults and Terry frisked them for officer safety. One officer frisked defendant Mauriosantana Cowan and asked how he got to the apartment. Cowan answered that he rode a bus from Chicago. From the frisk, the officer noticed that Cowan had keys in his front pocket. He removed the keys and questioned Cowan about them. Cowan responded that they were keys to his Cadillac back in Chicago. The officer quickly realized that the keys didn’t belong to a Cadillac.
Police searched the apartment and found crack cocaine. The officer who took Cowan’s keys un-cuffed Cowan and told him if the keys didn’t belong to any of the cars in the parking lot, Cowan could leave. The officer used the key fob’s emergency button and found that the keys belonged to a car in the parking lot. Cowan was then re-handcuffed. Officers walked a drug dog around the car, who alerted that drugs were inside. Police searched Cowan’s car and found more crack cocaine.
Why the case is important: The court of appeals found that obtaining the key fob and identifying Cowan’s car did not violate the Fourth Amendment. First, the officer’s seizure of the keys was constitutionally valid. During a lawful pat-down, if an officer can plainly feel an object and immediately believes it is incriminating evidence, the officer can reach into the suspect’s clothing to retrieve it. Here, the police officer immediately knew that Cowan had keys in his pocket, and removing the keys was lawful because the search warrant specifically authorized the seizure of keys.
Second, the officer’s use of the key fob also didn’t violate the Constitution. There is no reasonable expectation of privacy in the identity of a person’s vehicle, and using the key fob only identified Cowan’s car. It didn’t reveal the car’s contents. Plus, because the fob was lawfully seized, the officer didn’t physically intrude into a constitutionally protected area (as in the March 2012 Law Enforcement Bulletin’s U.S. v. Jones case). The automobile exception applied to the officer’s warrantless use of the key fob because the fob, as a part of an automobile, is readily mobile, and there was probable cause to believe the keys belonged to a vehicle involved in the trafficking: (1) Cowan told an officer that he was from Chicago, where officers thought the drugs were from; (2) it was obvious to the officer that Cowan’s keys didn’t belong to a Cadillac, as Cowan claimed; and (3) during surveillance outside the apartment, officers saw several cars come and go, believing the cars to be involved in trafficking the drugs.
Keep in mind: First, don’t forget the “plain feel” rule when you’re patting down a suspect. If during the pat-down you notice an object that is not a weapon or contraband, but have probable cause to believe it could be incriminating evidence, you may seize it.
And, second, the use of a fob to locate a vehicle can fall into the Fourth Amendment’s automobile exception, if the circumstances allow, because the fob is part and parcel to an automobile.
Click here to read the entire opinion.