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On appeal, Wiley challenged the trial judge’s denying his
motion to suppress evidence. Wiley v. State, supra. This is how the
case, and the motion to suppress, arose:
Houston Police Department Officers A.
Robles and K. Wagner went to a part of Houston known for narcotics activity to
serve felony warrants. It was approximately 10:45 p.m., and it was dark. The
officers saw a person leaning into the open window of a parked vehicle.
The man put his hand into the vehicle
through the window and then removed it. Robles believed he had witnessed a drug
transaction, and he pursued the suspect on foot. Wagner followed them in the
patrol car.
Robles walked back toward the spot where he saw an
object thrown to the ground, and he saw Wiley `looking like he was bending down
to pick something up.’ Robles testified, `I saw . . . [Wiley] -- looked like he
had picked something up. And he looked back and saw me and then went and turned
away from me like he was attempting to conceal or hide something he had just
picked up.’ Robles detained Wiley on the suspicion that he had picked up
narcotics or tampered with evidence.
Robles asked Wiley if he lived nearby. Wiley [said]
he did not, and . . . stated that he had gotten a ride from a friend. In
response to Robles's inquiry, Wiley said he did not have a car. After Wiley
provided his name, birthdate, and address, Robles determined there was a
warrant for his arrest, and placed him under arrest. He found that Wiley had a
set of car keys and a wad of money, more than $2,000, mostly in $20 bills.
As they drove away in the patrol car,
Robles pushed the car alarm button on Wiley's keys. Less than a block from
where the arrest took place, a car alarm went off. The car was legally parked
on a public street.
The officers stopped beside the car,
checked the license plate, and determined it was registered in Wiley's name.
They approached the car and used their flashlights to look through the windows.
They saw what they believed to be crack cocaine and cocaine . . . on the rear
seat side of the car. They opened the car door, retrieved the suspected
narcotics, and conducted a field test, which was positive for cocaine. Then
they had the car towed.
Wiley v. State, supra.
Prior to his trial, Wiley’s attorney filed a motion to
suppress, in which he argued that
[Wiley] was stopped because the
officers claim . . . they observed [him] picking up something from the street
that may have been thrown down by a suspect they were chasing. Then they
arrested him for an outstanding warrant. Then they found his car and searched
it. The search of his car violated the 4th Amendment of the U.S. Constitution
and the Texas Constitution. Therefore [Wiley] moves this [sic] matters be
suppressed.
Wiley v. State, supra.
The trial judge did not rule on the motion to suppress prior
to the trial. Wiley v. State, supra. At
Wiley’s trial, Wagner and Robles testified about the
events that led up to [his] apprehension
and arrest. As to his use of the alarm button to locate Wiley's car, Robles
testified that when his search of Wiley revealed keys to a vehicle, his
suspicion was aroused because Wiley had told him that he did not have a car,
not that he simply had not driven his car that night.
Wiley v. State, supra.
After both sides had presented their evidence and rested,
Wiley presented
arguments on his motion to suppress
evidence. He argued that Robles did not have reasonable suspicion sufficient to
justify his initial stop nor was his detention reasonable. Wiley argued that
the officers' use of the remote car alarm to locate his car was unreasonable
because they did not have a search warrant and that it was unlikely that the
narcotics were in plain view because it was dark outside. . . .
Wiley v. State, supra.
The trial judge denied the motion to suppress, explaining
that
`It's my understanding . . . that they
come upon the scene and . . . indicated that they observed something that
appeared to be a narcotics transaction. They were in a high-narcotics area. And
so, when they stopped to get out, the fellow who was standing ... took off
running. And even he admitted he was smoking a marijuana cigarette and threw it
down on the ground.’
` . . . Officer Wiley [sic] said he saw
the defendant come over. And he thought he may have been picking up something.
He went back to the scene and couldn't find anything that was thrown on the
ground. And he said he went back and I think Wiley was behind the vehicle and
he did make some move or something. . . . But anyway, he went up to Wiley. And
at that particular point in time in order to find out what was going on, he
patted him down and found the large roll of money in his pocket. . . .
`And then . . . they ran the warrants
and found out he did have some warrants. And . . . that's when they took
everything out of his pockets and placed him inside the patrol car. And he had
the keys and they activated the car through the remote and found the -- and
found the automobile. And then they found the drugs in the back seat. That's
the way I remember the testimony from basically trying to put everything
together.’
Wiley v. State, supra.
As noted above, in his appeal Wiley argued that Robles’
“pressing the alarm button on his car keys” was an unlawful 4th
Amendment search. Wiley v. State, supra. Here is how the two sides framed their
arguments on this issue:
Wiley argues that the use of the alarm
button to locate his car was not justified as part of a search incident to arrest because he was not within reaching distance of the passenger compartment
at the time of his arrest or at the time the officer activated the alarm, and
because it was not reasonable to believe the car contained evidence of the
offense for which he was arrested.
Wiley's argument presupposes that the
officer's use of the car alarm button was a search under the 4th Amendment and
concludes the search was unlawful because it was warrantless and did not fall
within the `search incident to arrest’ exception to the warrant requirement.
The State contends the use of the alarm button was not unlawful because it was
not a search at all.
Wiley v. State, supra.
In ruling on their arguments, the Court of Appeals noted,
first, that the 4th Amendment creates a right to be free from
“unreasonable” searches and seizures and, second, that “[w]arrantless searches
are per se unreasonable unless the State can prove that the search was
conducted pursuant to a recognized exception to the warrant requirement.” Wiley
v. State, supra. It also noted that
in his appeal Wiley did not challenge the
lawfulness of the officer's search of
his person incident to that arrest or the
seizure of his car keys. Rather, he argues only that the officer's
subsequent use of the alarm button was itself an unlawful search and that the
court therefore should have suppressed the evidence found in his car.
Wiley v. State, supra.
The Court of Appeals explained that a 4th
Amendment “search” violates a “reasonable expectation of privacy”. Wiley
v. State, supra. As I’ve noted in
earlier posts, the Supreme Court held in Katz v. U.S., 389 U.S. 347 (1967) that you have a reasonable expectation of
privacy in a place or thing if (i) you subjectively believe it is private and
(ii) society accepts your belief as objectively reasonable.
The Court of Appeals explained that in a recent federal
Court of Appeals decision, the court considered whether an officer’s
use of a keyless entry device on the
defendant's key fob to locate his car was an unreasonable search under the 4th
Amendment. U.S. v. Cowan, 674 F.3d 947 (U.S. Court of Appeals for the 8th Cir. 2012). The court observed that the defendant did not have a
reasonable expectation of privacy in the identity of his car. Id.
The court rejected the defendant's
assertion that his privacy interest was in the electronic code, because `[t]he
officers did not attempt to discover the code.’ Id. The court stated, `Pressing the alarm button the key fob was a
way to identify the car and did not tell officers anything about the fob's code
or the car's contents.’ Id.
Finally, the court explained that the
use of the key fob was not a physical intrusion on a constitutionally protected
area for the purpose of obtaining information because the officer had lawfully
seized the keys pursuant to a search warrant and because `the mere transmission
of electric signals alone is not a trespass.’ Id.
Wiley v. State, supra.
The court found that Wiley’s car was parked
on a public street. He had no
reasonable expectation of privacy in the identity of his car. . . .
Pressing the alarm button on his car key and activating the car's alarm
revealed only that the keys found on Wiley matched the car parked nearby. .
. .
As in Cowan, Wiley has
not shown how the use of the car alarm button violated a reasonable expectation
of privacy in the encrypted code, which the officers did not attempt to
discover. . . .
Thus, we conclude that the use of the
alarm button to locate Wiley's car did not violate the 4th Amendment under the Katz reasonable-expectation-of-privacy
test because Wiley did not show he had a reasonable expectation of privacy that
was invaded by the officer's actions.
Wiley v. State, supra.
The Court of Appeals therefore held that because Wiley did
not “contest that the officer lawfully possessed his keys as a seizure incident
to his arrest, our conclusion that simply pressing a button to identify the
associated car did not constitute a `search’ for 4th Amendment purposes is
determinative of the issue on appeal.” Wiley v. State, supra. For that and other reasons, it affirmed his
conviction and sentence. Wiley v. State, supra.
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