holding that “[a] defendant who plays a lesser role in a criminal scheme may nonetheless fail to qualify as a minor participant if his role was indispensable or critical to the success of the scheme, or if his importance in the overall scheme was such as to justify his sentence”
How later courts described this case
- holding that “[a] defendant who plays a lesser role in a criminal scheme may nonetheless fail to qualify as a minor participant if his role was indispensable or critical to the success of the scheme, or if his importance in the overall scheme was such as to justify his sentence”
- concluding that statements informing coconspirators of fact that replacement driver was used to transport cocaine were not “idle chatter” but were “in furtherance” of conspiracy by informing members of conspiracy of coconspirator’s activities
- holding that 18 U.S.C. sec. 3161, which specifies that certain "periods of delay shall be excluded in computing the time," leaves rule 45 of the Federal Rules of Criminal Procedure operative in other respects
- accepting the district court’s factual findings as not clearly No. 09-5054 United States v. Moore Page 19 erroneous but reviewing de novo and affirming the district court’s ruling that the insertion of a key into a lock was not a search under the Fourth Amendment
Written by the judges who cited it.
The opinion
COLE, Circuit Judge,
concurring.
Although I concur in the Court’s decision affirming the judgment of the district court, I write separately to register my disagreement with the Court’s analysis of the admissibility of police testimony relating to an officer’s insertion of a key into the lock on Defendant Jambu’s apartment door. Specifically, I do not agree with the majority’s conclusion in Part VI of its opinion that the officer’s use of the key for identification purposes was not a search.
The majority relies too heavily on our decision in United States v. DeBardeleben, 740 F.2d 440 (6th Cir.1984), where we held that the insertion of a key into the lock of a car door for the purposes of ascertaining the car owner’s identity was not a search. See id. at 445 . Our decision in DeBardele-ben merely reflects our long-standing view that, for Fourth Amendment purposes, individuals are entitled to a lesser degree of privacy in their cars than in their homes. See United States v. McClellan, No. 93-4084, 1994 WL 589497, at *4 (6th Cir. Oct.25, 1994) (unpublished) (“The courts have traditionally interpreted the Fourth Amendment to allow law enforcement officers greater leeway when conducting war-rantless searches inside vehicles than they enjoy when searching homes....”). In this instance, the officer’s turning of the key in the lock to Jambu’s apartment door encroaches on the “zone of privacy” held most sacrosanct under the Fourth Amendment. See Smith v. Stone, No. 99-3208, 2000 WL 687672 , at *4 (6th Cir. May 19, 2000) (unpublished) (“[T]he Fourth Amendment protects an individual’s privacy in many different settings, but ‘[i]n none is the zone of privacy more clearly defined than when bounded by the unambiguous dimensions of an individual’s home.’ ”) (quoting Payton v. New York, 445 U.S. 573, 589 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980)).
*462 I would adopt the reasoning set forth by the Seventh Circuit in United States v. Concepcion, 942 F.2d 1170 (7th Cir.1991), where, on facts very similar to those presented here, the court held that the insertion and turning of a key in the defendant’s apartment door lock to determine whether the key fit constituted a search for Fourth Amendment purposes. See id. at 1172 . The court went on to conclude, however, that such search did not violate the Fourth Amendment because the defendant’s privacy interest in the keyhole was minimal. See id. at 1173 . The same is true here. The Fourth Amendment’s historic protection of the privacy of the home suggests that, on different facts, the same investigative technique at issue here might require a showing of probable cause or a warrant; on these facts, however, Jambu’s privacy interest in his door lock was so minimal that the officer’s conduct cannot be said to have been unreasonable, and thus did not violate the Fourth Amendment. I write separately, therefore, because I believe that the Court need not reach as broad a holding as it does.