CA7: Using several garage door openers in def’s vehicle to locate his stash house was a reasonable search

Defendant’s vehicle was stopped and several garage door openers were found. Using them to try to find defendant’s stash house was a search and it was reasonable, although close to the edge. United States v. Correa, 2018 U.S. App. LEXIS 31204 (7th Cir. Nov. 5, 2018):

Agent Asselborn used the openers to learn an address—the kind of information officers may lawfully obtain as part of the booking process. And in that context, even Miranda protections do not apply, at least where the address is collected for record-keeping purposes. Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990) (opinion of Brennan, J.); see also United States v. Ceballos, 385 F.3d 1120, 1123 (7th Cir. 2004) (noting that officers may question arrestee “to collect booking information incident to processing”), citing United States v. Kane, 726 F.2d 344, 349 (7th Cir. 1984).

At oral argument, counsel for Correa and Melero argued that garage door openers, unlike an arrestee’s residential address provided at booking, do not necessarily indicate residence. But address books and wallets can provide officers with information beyond an arrestee’s address. Courts have long held that officers may search wallets and address books found on arrestees without obtaining separate warrants for those searches, even if those searches are not conducted at the scene of an arrest. E.g., United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (affirming denial of motion to suppress address book found on arrestee’s person; searching and photocopying address book was permissible search incident to arrest even though search was conducted away from scene of arrest), citing United States v. Molinaro, 877 F.2d 1341, 1346-47 (7th Cir. 1989) (affirming denial of motion to suppress evidence seized from arrestee’s wallet). Riley did not undo our approach to searches of wallets and address books incident to arrest. See Riley, 134 at 2493 (rejecting argument that “officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart,” but not expressly rejecting lower courts’ approach to searches of those pre-digital counterparts); see also id. at 2496 n.* (Alito, J., concurring in part and concurring in judgment), citing Rodriguez and Molinaro.

Correa argues, though, that Riley resolves this case because its holding prohibiting warrantless searches of cell phones seized incident to arrest should be read more broadly to apply to searches of “non-contraband electronic items that contain and/or can lead to privately held information in the home or about the home.” Riley should not be read that broadly. Its holding was based on the Court’s recognition that “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” 134 S. Ct. at 2489. Garage door openers do not implicate the same differences. Riley noted that cell phones “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Id. Nevertheless, Riley helps to explain why Agent Asselborn’s searches did not violate the Fourth Amendment.

As Riley reiterated, when “‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.'” Id. at 2488, quoting Maryland v. King, 569 U.S. 435, 463, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2018); see also Carpenter v. United States, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507 (2018) (collection of cell-site location information “implicates privacy concerns far beyond those considered in Smith [pen register] and Miller [checks]”); but see id. at 2232 (Kennedy, J., dissenting) (“Still the Court errs, in my submission, when it concludes that cell-site records implicate greater privacy interests—and thus deserve greater Fourth Amendment protection—than financial records and telephone records.”). Those concerns are not weighty enough here because the search of the garage door openers revealed only Correa’s association with an address.

Like an officer searching an arrestee’s wallet or address book, Agent Asselborn searched the garage door openers to generate investigative leads. Riley does not condemn that investigative step. In Riley, the Court warned that using an arrestee’s cell phone to search files stored remotely “would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.” Id. at 2491. Nothing comparable happened here. Agent Asselborn did not search or even enter the garage. We recognize that law enforcement creativity may call for judicial vigilance. See Baude & Stern, 129 Harv. L. Rev. at 1861 (“When police are intentionally pushing the limits of their power is precisely when we can ask them to check whether they are pushing too far.”). But Agent Asselborn’s searches of the garage door openers were good—or at least lucky—police work, not Fourth Amendment violations.

Officers are, of course, allowed and expected to investigate to build probable cause for an arrest. See United States v. Prewitt, 553 F.2d 1082, 1085 (7th Cir. 1977) (tracing origin of fraudulent money orders “in no way impinged on Prewitt’s rights”). And if officers have probable cause to arrest someone, there is a good chance they also have probable cause to search his home for evidence. See United States v. Kelly, 772 F.3d 1072, 1080 (7th Cir. 2014) (officer obtained warrant for suspect’s home on ground that drug dealers are likely to keep contraband in their residences); United States v. Aljabari, 626 F.3d 940, 946 (7th Cir. 2010) (“When probable cause exists to believe an individual has committed a crime involving physical evidence, and when there is no articulable, non-speculative reason to believe that evidence of that crime was not or could not have been hidden in that individual’s home, a magistrate will generally be justified in finding probable cause to search that individual’s home.”), citing United States v. Ressler, 536 F.2d 208, 213 (7th Cir. 1976).