Petition for Writ of Certiorari — Redmon v. United States

R\ Supreme Court. U.5.

1) FILES

“98 248 JUN 34-19%

OFFICE OF THE CLERK

in the

Supreme Court

of the

United States

October Term 1997

JOSEPH REDMON,

Petitioner,

vs

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Kevin M. Schad

6310 East Kemper Road

Suite 125

Cincinnati, OH 45241

(513) 489-8990

Counsel for Petitioner

ii

QUESTION PRESENTED

he

Whether police violated the Petitioner's

Fourth Amendment rights by seizing and

searching a trash can which was located

within the curtilage of the Petitioner's

residence, and which was touching the

‘Petitioner's home?

iii

TABLE OF CONTENTS

Page

OQUBSTION PRESENTED. ... +--+ «ee a3

TABLE OF AUTHORITIES ....-+.. « iv

ooo ite @ | (0: ses res he So 2

VURAL GE EU «ss «646 &:38 2 eee 2

CONSTITUTIONAL PROVISION INVOLVED. . 3

STATI. OF The Gaees« bio we e 8 3

REASON FOR GRANTING THE WRIT.

The Seventh Circuit erred in

holding that the Petitioner's

trash cans were not located in an

area which contained a reasonable

expectation of privacy

yj

CORNCIUGIOGON . « « » te 5 © eee 15

APPEEEJLa& « 3 «ee 8 eee ee ee eee X

CERTIFICATE OF SERVICE

iv

TABLE OF AUTHORITIES

Florida v. Riley 488 U.S. 445, 109 S.Ct. 693

DPE RPGhESGE ERO SECO ESOC Ree Sod Dee S ES 12

Greenwood v. California. 486 U.S. 35, 108

Nc ee ke ebb ee ee eases 8

United States v. Comeaux, 955 F.2d 586 (8th

es Se bas 5 6 66-04 6-6 080-9 ce ee ee ee 13

United States v. Dunn, 480 U.S. 294, 107

Ey 10

United States v. Hedrick. 922 F.2d 396 (7th

DT ee ate eee e senses =

United States v. Kramer, 711 F.2d 789 (7th

ET er 13

United States v. Redmon, 138 F.3d 1109 (7th

EN OES a rr 2

United States v. Scott, 975 F.2d 927 (lst C.

ES Ee 13

Ss eel Oe

ee ee

— oy

eiranies

: —

i

in the

Supreme Court

of the

United States

Term,

JOSEPH REDMON

Petitioner,

Vs

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioner, Joseph Redmon,

respectfully prays that a writ of cert-

iorari issue to review the judgement and

opinion of the United States Court of

2

Appeals for the Seventh Circuit, sitting en

banc, entered in the above-entitled

proceeding on March 10, 1998.

OPINION BELOW

The en banc opinion of the Court of

Appeals for the Seventh Circuit is reported

at United States v. Redmon, 138 F.3d 1109

(7th C. 1998) That determination is

attached hereto in Appendix 1. The

district court's order denying suppression

of the evidence was not published, but is

attached to this petition in Appendix 2.

JURISDICTION

The judgement of the United States

Court of Appeals for the Seventh Circuit

was entered on March 10, 1998. This

petition for a writ of certiorari has been

filed and docketed within the time

prescribed. The jurisdiction of this Court

is invoked under 28 U.S.C. §1291 and

Supreme Court Rule 12.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United

States Constitution provides: __ |

“The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and —

seizures, shall not be violated,

and no Warrants shall issue, but

upon probable cause, supported by

Oath or affirmation, and

particularly describing the place

to be searched, and the persons

or things to be seized.

STATEMENT OF THE CASE

On April 10, 1996, the Petitioner was

indicted for a violation of 18 USC § 841

for possession with intent to distribute

over 400 grams of cocaine. The Appellant

subsequently filed a motion to suppress

evidence obtained from trash pickups, which

were done without a warrant. A hearing on

4

this motion was held on June 3, 1996.

Evidence at this hearing revealed that

on January 4, January 22, and March 14,

a 1996, without a warrant, government agents

conducted searches of trash taken from the

Petitioner's residence. On each of these

dates, agents removed the contents of the

trash cans, tocated in the Petitioner's

driveway next to the garage door, less than

twenty feet from the residence's front

door. The Petitioner's residence at 1319

E. Harding, was a two-story townhouse

located at the end of a row of eight

adjoining townhouses with one common wall.

The townhouse was located on the corner of

Harding and Vawter Streets and was the

easternmost townhouse. The Petitioner's

front door faced the east and the garage

faced north onto Harding. ‘The Petitioner's

garage was adjacent to 1317 E. Harding and

a double driveway was shared by the two

residences. The Petitioner's garage was 23

feet 9 inches from a public sidewalk. The

5

closed garbage containers were located in

the Petitioner's driveway next to the

garage door The evidence revealed that in |

order for the police 6 enka access to the

trash cans, the police needed to travel

completely up the Petitioner's driveway, to

the garage which was attached to the

Petitioner's townhouse. From these trash

recoveries, agents found clear plastic

bags, packaging tape, and a vial, which

contained a cocaine residue. On March 14,

1996, based upon these trash recoveries

agents submitted an affidavit in

application of a search warrant and were

granted a warrant to search the

Petitioner's residence.

After the hearing on the motion, the

district court in a written order on June

4, 1996 denied the Petitioner's motion to

suppress finding that the "garbage was

knowingly exposed to the public" and that

there "was no objective reasonable

expectation of privacy in the garbage

i ili aie,

cans." (Order on Motion to Suppress,

p.2) (Appendix 2).

The Petitioner then entered into a

conditional guilty plea, which was taken on

June 3, 1996. On September 18, 1996, the

Petitioner was sentenced to 188 months

incarceration, six years supervised

release, and a $50 special assessment.

The Petitioner appealed his conviction

to the Seventh Circuit, raising two issues:

(1) Whether the court erred in denying the

motion to suppress; and (2) whether the

Petitioner was incorrectly labelled a

seveie setediber. On June 27, 1997, a panel

of the Seventh Circuit denied the appeal.

117 F.3d 1036 (7th C. 1997) On September

18, 1997, the Seventh Circuit agreed to

hear the case en banc, and vacated the

panel opinion. 122 F.3d 1081 (7th C. 1997)

On March 10, 1998, the en banc Court

decided to affirm the conviction. In the

majority opinion, the Court held that the

Petitioner had no reasonable expectation of

7

privacy in his trash cans. The Court

determined that it could consider whether

the Petitioner abandoned his trash in

determining the reasonableness of his

expectation of privacy. The majority also

held that the trash was not within the

curtilage of the home. Finally, the

majority determined that each case of this

type was to be considered on a case by case

basis.

REASONS FOR GRANTING THE WRIT

The Petitioner submits that his Fourth

Amendment right to be free from an

unreasonable search and seizure was

violated in this case. Trash cans which

are within the Petitioner's curtilage, and

are not accessible to the public at large,

should be afforded Fourth Amendment

protections.

» The Seventh Circuit erred in

holding that the Petitioner's

trash cans were not located in an

8

area which contained a reasonable

expectation of privacy

The Petitioner Submits that he had a

reasonable expectation in privacy as to

trash cans which were placed immediately

Outside his home, such that police violated

his Fourth Amendment rights by seizing the

contents of those trash cans.

This issue is governed by this Court's

opinion in Greenwood v. California. 486

U.S. 35, 108 S.Ct. 1625 (1988) In

Geueiead, the Court held that the

defendant did not have a reasonable

expectation of privacy in trash cans which

were placed at the curb of his residence

for pick up by garbage men. The Court

found that because trash cans left at the

curb were accessible to the public,

including snoops and scavengers, that no

reasonable expectation in privacy existed.

108 S.Ct. at 1628 The Court determined that

police officers were ina Similar position

as that of the public, and therefore, no

9

unreasonable intrusion occurred.

The Seventh Circuit interpreted the

Court's Greenwood holding in the case of

United States v. Hedrick. 922 F.2d 396 (7th

C. 1991) In Hedrick, the defendant's trash

was placed approximately halfway between

the defendant's home and the curb. From

this point, police came onto the property

and seized the trash. The Seventh Circuit

determined that, in determining whether the

defendant had a reasonable expectation of

privacy, proximity to the defendant's home

was a key factor. The court reasoned that

although cans placed next to the curb would

not have any reasonable expectation of

privacy, “cans placed next to the home or

the garage are not so accessible to the

public that any privacy expectations are

objectively unreasonable.” Id. at 400 The

court further held “As a general rule, the

reasonableness of the expectation [of

privacy] will increase as the garbage gets

closer to the garage or home.” Id.

10

The Seventh Circuit departed from this

Standard, and from the Greenwood decision,

in the instant case. In the present case,

the trash cans were placed by the

Petitioner directly in front of his

attached garage, some 20 feet from his

front door. The Seventh Circuit ruled that

the Petitioner had no reasonable

expectation of privacy in cans placed in

this area.

It is clear that the trash cans in

question were within the curtilage of the

Petitioner's home. In the case of United

States v. Dunn, 480 U.S. 294, 107 S.Ct.

1134 (1987), this Court defined curtilage

as the area surrounding a house which is

“intimately tied to the home itself”. 107

S.Ct. at 1140 The Court outlined four

factors which are to be considered in

determining whether an area is curtilage,

including: (1) the proximity of the area to

the home, (2) the nature of uses to which

the space is put, (3) whether the area is

11 |

within an enclosure, and (4) the steps the

resident has taken to protect the area from

observation by the public. 107 S.Ct. at

1139

Applying this standard to the

Petitioner's case, it is clear that the

cans were within the curtilage. First, the

cans were touching the garage, which was in

turn attached to the home. Second, the

area where the cans were placed was used By

the Petitioner and his neighbor as a means

of entering his garage, which was not open

to the public. Although there was no fence

in the Petitioner's yard, the area in

question was almost as far away froma

public street as the Petitioner could have

placed the cans, absent keeping them

inside. Finally, the trash was kept in

cans which were opaque, keeping the

contents from view by the public.

The Seventh Circuit determined that

even if the cans were in the curtilage,

that the Petitioner still needed an

12

expectation of privacy in that area for the

Fourth Amendment to apply. However, the

definition of curtilage in Dunn would seem

Synonymous with an area having a reasonable

expectation of privacy. Further,

intrusions into curtilage which have been

upheld by this Court have been non-physical

in nature. See Florida v. Riley 488 U.S.

445, 109 S.Ct. 693 (1989) Therefore, the

Petitioner would submit that police had no

right to enter curtilage to seize the trash

cans in this case.

Further, the Seventh Circuit erred in

determining that these trash cans were in a

location where there was no reasonable

expectation of privacy. The cans were

placed immediately outside the Petitioner's

garage, which was attached to his home. To

gain access to these cans, police had to

walk up the entire length of the

Petitioner's driveway, and be within

touching distance of the garage. Had the

police been the public, they would have

na na

ee ee

i3

been subject to a trespassing charge.

The Seventh Circuit found that the

area in question was accessible to the

public. In other cases addressing the

accessibility issue, courts have found that

accessibility required easy and

uninstrusive access from the public

thoroughfare. See United States v. Comeaux,

955 F.2d 586 (8th C. 1992) (access to cans

from van on public street); United States

v. Kramer, 711 F.2d 789 (7th C.

1983) (access to cans be reaching over fence

from public street); United States v.

Scott, 975 F.2d 927 (lst C. 1992) (cans

placed by curb accessible from street)

In the present case, the cans were not

accessible from the street. Police had to

intrude significantly into the Petitioner's

property to obtain the cans. Further,

police had to enter the area intimately

surrounding the home. : Police could have

touched the home from their position in the

area where the cans were located.

14

This case presents one of exceptional

importance to Fourth Amendment standards.

If police are allowed to the edge of a

defendant's home, then there is no right to

privacy outside of the four walls of the

Petitioner's home. For instance, if the

cans were located under a window, then

presumably if police saw something they

believed was contraband or evidence of a

crime, they could use the plain view

doctrine to then proceed into the house or

garage. Further, if other containers are

located’ around the garage, these too may be

subject to inspection by police. The

Petitioner would submit that this is too

far. Even the district court recognized

that this holding is a further erosion of

the Fourth Amendment. Police should not

have access to the intimate area

surrounding the Petitioner's home. For

this reason, the Court should reverse the

decision of the Court of Appeals.

15

CONCLUSION

The Petitioner requests that this

Court reverse the findings of the Court of

| Appeals and the district court, and order

suppression of the evidence.

Respectfully submitted,

Kevin M. Schad

Attorney for Petitioner

Schad, Buda, Cook, L.L.C

6310 E. Kemper Rd.

Suite 125

Cincinnati OH 45241

APPENDIX

SEVENTH CIRCUIT COURT OF APPEALS

ORDER MARCH 10, 1998.

DISTRICT COURT ORDER JUNE 4,

1996.

APPENDIX 1

COURT OF APPEALS OPINION

3/10/98

he 6 ir Breas ine AA Ta LINN i Aaa Tit oat Eater

In the

Gnited States Court of Appeals

For the Seventh Circuit

No. 96-3361

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH R. REDMON,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 96-CR-20013—Harold A. Baker, Judge.

ARGUED FEBRUARY 27, 1997—-REARGUED EN BANC

NOVEMBER 25, 1997—DECIDED MARCH 10, 1998

Before POSNER, Chief Judge, and CUMMINGS, BAUER,

HARLINGTON WOOD, JR., COFFEY, FLAUM, EASTERBROOK,

RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, and

EVANS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. While most people

have a good idea what “garbage” is, many people do not

realize that garbage can cause some serious constitutional

issues. This is such a case.

The defendant, Joseph R. Redmon, was indicted in April

1996, charged with the possession of over 400 grams of

cocaine, with intent to distribute in violation of 21 U.S.C.

§ 841(aX1). After the district court denied his pretrial

motion to suppress evidence, Redmon entered a conditional

2 No. 96-3361

plea of guilty reserving the right to appeal the denial of his

motion. In September 1996 the district court sentenced

Redmon as a career offender, and this appeal followed.!

Redmon raises two issues: first, whether the warrantless

searches of his garbage cans violated his Fourth Amend-

ment right of protection from “unreasonable searches,” and

secondly, a sentencing issue. The facts follow in more detail

as they are critical to the consideration of the search

warrant constitutionality problem.

Factual Considerations

In early 1993 a joint federal and local drug enforcement

task force in Urbana, Illinois began tracing a shipment of

about a pound of cocaine sent from California to a fictitious

address in Urbana, Illinois. From an informant the task

force determined a man named Shaw was expecting such a

package. An undercover agent delivered the package to

Shaw who, when interrogated, claimed he had received it,

not for himself but for another person who used the alias

“Blackbelt.” Blackbelt was later identified as defendant

Joseph Redmon, residing at 1319 Harding Drive in Urbana.

Redmon’s Harding Drive address was found to be the

eastern-most unit of an eight-unit townhouse, all units

sharing a common wall. The structure is located on the

southwest corner of the intersection of Vawter Street and

Harding Drive. Redmon’s townhouse and its entrance actu-

ally face east on Vawter Street, although his one-car con-

nected garage faces north on Harding Drive. His garage is

also connected to his neighbor’s garage. The two neighbors

share a common driveway which extends north from their

connecting garages about twenty-four feet to a four-foot

wide public sidewalk and then slightly less than an addi-

' Redmon was sentenced to 188 months of imprisonment, six

years of supervised release following his imprisonment, and a $50

special assessment.

bats —" a cat Saad

SA ae ters Rnleaitihel c,d dphasisin

No. 96-3361 3

tional ten feet to Harding Drive. The common driveway is

about twenty-five feet wide.??

Access to the townhouses of Redmon and his neighbor

could be gained only by first proceeding up their common

driveway towards the front of the connected garages. Then

from the corner of his side of the garage, Redmon’s side-

walk leads to the left around the corner of the garage to his

front door. Access to his adjacent neighbor’s townhouse is

also gained by proceeding up the common driveway towards

the garages and then proceeding to the right on a sidewalk

around the opposite corner of the garage to the neighbor’s

front door which faces Harding Drive.

back inside his garage. At times Redmon also placed plastic

trash bags outside for collection in addition to his garbage

cans. The cans were customarily placed for collection be-

* Government Exhibit #3, a photo reproduced in the addendum,

shows the view of the east side and entrance to Redmon’s town-

house as seen from Vawter Street. The windowless wall to the

right of the entrance is the side of Redmon’s part of the garage.

Some of the driveway can be seen.

* Government Exhibit #1, included in the addendum, illustrates

the layout of Redmon’s and his attached neighbor’s townhouses.

Redmon’s side is indicated on the plat as “1319” and his neigh-

bor’s as “1317.”

“ Government Exhibit #2, reproduced in the addendum, is a view

of the connected garages of Redmon and his neighbor and the

shared driveway. Redmon’s walk to his front door extends to the

(continued...)

4 No. 96-3361

ordinance at that time prohibited garbage from being put

curbside for collection.

The police acted on their Suspicions on January 4, 1996,

January 22, 1996, and March 14, 1996, when without

search warrants they removed the contents of Redmon’s

garbage cans while the cans were sitting just outside his

garage on the common driveway awaiting collection. The

garbage can searches not only confirmed the fact that

Redmon resided at that address, but also confirmed police

tested positive for cocaine. Rubber and tape packages were

found, commonly used in packaging shipments of cocaine.

Those packages also tested positive for cocaine. Based on

this garbage can evidence a search warrant for Redmon’s

residence was issued in March 1996 by the district judge.

That residence search, as anticipated by the police, pro-

duced the packages of cocaine charged in the indictment.

Search leoue

Redmon objects to the search of his house accomplished

with a warrant which was issued based on evidence

uncovered during the warrantless garbage can searches.

First, it is claimed that the garbage cans were located with-

in the curtilage of Redmon’s residence.® Secondly, Redmon

* (...continued)

left around the corner of the garage and his neighbor’s walk to

his front door extends to the right around the garage to the

neighbor's front door. Government Exhibit #5 shows the garbage

cans placed in front of the garage on collection day for pickup.

* At one point Redmon’s counsel objected to characterizing the

garbage cans as garbage cans instead of as some variety of all-

(continued...)

No. 96-3361 5

argues that the containers and their contents had not been

“abandoned.” Thirdly, it is claimed that Redmon had a.

“reasonable expectation of privacy in the contents of his

garbage cans.” The warrantless searches of the garbage

cans, Redmon argues, were therefore in violation of the

Fourth Amendment. Redmon sought to quash the residen-

tial search warrant obtained on the basis of the garbage

can evidence and to suppress the resulting evidence.

Redmon’s motion was denied by the district judge.

Discussion of the Searches

As we approach this search problem we shall not endeav-

or to fashion some convenient rule to fit all situations. That

might be useful in some difficult cases for the police and

others, including drug dealers, but many situations, as is

this one, can reasonably be expected to be primarily fact-

based not lending themselves to bright line rules. We do

not mean to imply that the decision in this case upholding

the garbage can searches means that anybody’s garbage

cans placed on the driveway adjacent to his or her garage,

regardless of the other facts and circumstances, can hence-

forth be searched without a warrant. Each case of this

nature will involve the weighing of all the relevant factors

and the exercise of a fair judgment with due regard for the

important constitutional guarantees as defined by Supreme

Court and other conforming precedents. Nor does the af-

firmance of this conviction mean that this court is issuing

a pass to the police to violate the Fourth Amendment. The

police, whenever they have sufficient grounds and a war-

rant would be required, absent urgent circumstances, must

* (...continued)

purpose plastic containers. That argument appears to have been

abandoned, likely because the particular cans looked like garbage

cans and smelled like garbage cans and not like some all-purpose

containers. This distinction was noted in our case of United

States v. Hedrick, 922 F.2d 396, 399 (7th Cir. 1991).

6 No. 96-3361

seek search warrants to properly serve their own and the

public purposes. Nor are we suggesting on the other hand

that every police peek into a suspicious garbage can, re-

gardless of the surrounding circumstances, requires a war-

rant. Nor do all those who want to keep their garbage

secret need, because of this decision, resort to storing it

under their beds. Nor do the important drug war efforts

justify the commission of constitutional violations by the

police. However, after considering all the factual circum-

stances of this case, these police searches, in our judgment,

do not violate the constitution.

This case would be over if there was a Supreme Court

case “on all fours,” but there is none, nor are there any

duplicates in any other circuit which we have been able to

find. There are numerous other garbage cases, some similar

and some not so similar. Many of those cases would require

an unproductive effort to sort out or distinguish the various

factual circumstances regardless of the holdings of the

cases. There are, however, some applicable guiding princi-

ples found in the cases.

Many of the cases mention “curtilage” as a factor, that is

an imaginary boundary line between privacy and accessibil-

ity to the public. Sometimes that line may be easy to locate

as where, for instance, a fence or wall around the home

keeps out the public. Sometimes, however, the determina-

tion can be difficult. The district court did not use the term,

but that is of no consequence if the right criteria are other-

wise applied. “The mere intonation of curtilage, however,

does not end the inquiry.” United States v. Hedrick, 922

F.2d 396, 399 (7th Cir. 1991). A curtilage line is not neces-

sarily the property line. Nor can it be located merely by

taking measurements from some other case or precedent

and then by use of a tape measure trying to determine

where the curtilage is in a different case.

Both parties cite our case, United States v. Hedrick, 922

F.2d 396 (7th Cir. 1991), to support their positions. The

defendant first directs us to wording in Hedrick which he

sees as supporting his position. It seems at first to do so.

ea i i oe tae, ioe eh me

il et A IGOE teN AAN Se A ET R AO '

No. 96-3361 7

The quote is as follows, “garbage cans located 20 (sic) feet

from the garage and approximately 50 (sic) feet from the

back door of the house were technically within the curtilage

of the house, in which privacy expectations are most height-

ened.” Jd. at 399. That quote, however, must be considered

in the context of the whole case. Hedrick, based on other

considerations besides mere measurements, held the search

valid. Defendant’s argument reveals the folly of trying to

decide these cases merely by a tape measure comparison.

Redmon then argues with more substance that he had an

objectively reasonable expectation of privacy in the garbage

cans placed next to his attached garage, and that he was

therefore protected from unreasonable searches and sei-

zures of the incriminating evidence. That is the issue. This

reasonableness determination can best be begun by con-

sidering additional language found in Hedrick. Then the

zone of privacy or curtilage may be determined after con-

sidering all the factors, and not just the feet and inches.

In Hedrick, the court looked to California v. Greenwood,

486 U.S. 35 (1988), for guidance. In Greenwood, the police

also had their illegal drug suspicions as in the present case.

A surveillance of Greenwood’s home was conducted. A coop-

erative trash collector picked up the plastic garbage bags in

front of Greenwood’s house and turned the bags over to the

police. A search of the bags revealed items indicative of

narcotics use. That information was used by the police to

secure a warrant to search Greenwood’s home. The search

produced cocaine and hashish leading to the arrest of

Greenwood.*° Greenwood was admitted to bail but soon he

followed the same garbage routine and so did the police.

Consequently, Greenwood was arrested a second time.

The seizure of Greenwood’s garbage bags left at the curb,

the Court held, would be a Fourth Amendment violation

° There is another respondent in Greenwood, who is not specifi-

cally included in this synopsis as his presence makes no differ-

ence for these purposes.

8 No. 96-3361

“only if respondents manifested a subjective expectation of

privacy in their garbage that society accepts as objectively

reasonable.” Greenwood, 486 U.S. at 39. Greenwood did not

disagree with that standard, but he asserted that he did

have an expectation of privacy in his trash. His trash, he

explained, was only temporarily at the street waiting to be

picked up, then to be mixed with other trash and finally to

be deposited at the garbage dump with little likelihood it

would be inspected by anyone. The Court accepted the

personal privacy expectation of Greenwood under those

circumstances, as well as Greenwood’s belief that his trash

would not become known to the police or public. The Court,

however, imposed an important condition on that privacy

expectation if Fourth Amendment protection was to be

justified. That constitutional protection does not arise, the

Court explains, “unless society is prepared to accept that

expectation as objectively reasonable.” Id. at 39-40. The

Court concluded that Greenwood exposed his garbage to the

public sufficiently to defeat his Fourth Amendment claim.

The Court in support of its conclusion notes that curbside

trash is readily accessible to animals, children, scavengers,

snoops, and other members of the public. Jd. at 40. Further-

more, the Court noted that the trash was put at the curb

for “the express purpose of conveying it to a third party, the

trash collector, who might himself have sorted through

{Greenwood’s] trash or permitted others, such as the police,

to do so.” Id. Expecting his trash to be picked up by stran-

gers, it was held that Greenwood could have had no rea-

sonable expectation of privacy in the incriminating evidence

he discarded in his trash. Jd. at 41. That trash was there-

fore not subject to Fourth Amendment protection. We reach

the same conclusion in the present case even though it is

not strictly a curbside collection.

In the present case, Redmon, because of a local ordinance

at the time, could not put his trash at curbside. He there-

fore had little choice except to keep the cans somewhere on

his own property to be available when collection was sched-

uled. Redmon, in effect, chose the front of the joint garage

No. 96-3361 9

on the shared driveway-sidewalk to be his curb for garbage

pickup purposes.

Before Greenwood we had come to a similar conclusion in

United States v. Kramer, 711 F.2d 789 (7th Cir.), cert.

denied, 464 U.S. 962 (1983), cited with approval in Green-

wood. Greenwood, 486 U.S. at 42. In Kramer, this court

went directly to the point in affirming the conviction and

holding “that the special protection the Fourth Amendment

accords people in their ‘persons, houses, papers and effects’

does not extend to their discarded garbage.” Kramer, 711

F.2d at 792 (citations omitted). That may fit the definition

of garbage some use that, “Garbage is garbage.” The district

court found Kramer’s garbage to have been “abandoned.” Jd.

This court noted in Kramer that there are personal things

some do not want other people to see. People sometimes,

nevertheless, just throw those things in their trash. Kramer

then mentions certain alternatives those people can follow

to keep their secrets from being discovered in their garbage

cans. Id. We see no need here, however, to further instruct

drug dealers on how to avoid arrest by not making the

mistake Redmon made in his case. It was Redmon’s mis-

take, not the mistake of the police. His garbage cans were

purposefully placed by him outside his garage for collection

and could not be considered some sort of personal safety

deposit boxes designed for his illegal purposes. Not all good

police work is unconstitutional.

Another pertinent issue in Kramer arose because Kramer

claimed the police had trespassed on his property to collect

the bags from an area apparently inside his low perimeter

fence. Kramer, 711 F.2d at 792. The court assumed for its

purposes that the garbage was on. defendant’s property

when it was collected. In Kramer a distinction is drawn, for

example, from a situation in which the police break into a

defendant’s house without a warrant and take the contents

of the wastebasket in the bedroom. Jd. at 793. If that, or

anything close to that, was the factual situation in our

present case, that evidence, of course, would not be admissi-

ble against Redmon. He would be free to go home to 1319

ER

10 No. 96-3361

Harding Drive to be more careful next time, but we might

consider sanctions against the government for a frivolous

collection purposes was necessarily not at curbside, but on

his joint walk-driveway. The paths to the front doors pass-

ing near the garbage cans without any obstruction were

open to use by friends and guests of himself and his neigh-

bors, as well as solicitors, strangers, postal people, and a

cifically singled out by the Supreme Court, can be very in-

genious in their intrusions of garbage cans. They can easily

have their fun with the garbage, spreading it out on the

driveway for all to see.

Greenwood concludes its garbage discussion by emphasiz-

ing that Fourth Amendment protection must “turn on such

factors as ‘our societal understanding that certain areas

invasion.’” Greenwood, 486 U.S. at 43 (citation omitted).

The Court’s conclusion is that our society would not accept

as reasonable a claim to an expectation of privacy in trash

left for collection in an area accessible to the public. Jd. at

41. After considering all the factual circumstances in the

present case, that is likewise our conclusion.

In Hedrick, we elaborated on the Greenwood holding

which, as we mentioned, had cited our Kramer case, 711

F.2d 789 (7th Cir. 1983), with favor. As noted in Hedrick,

the Kramer decision had been based both upon the theories

of abandonment and exposure to the public. Hedrick, 922

F.2d at 398. The continued viability of the abandonment

approach, we noted in Hedrick, was questionable. Id. But

whether the abandonment approach still remains question-

No. 96-3361 11

able is likewise questionable. Redmon injected the abandon-

ment analysis in his argument in the district court by

claiming that his garbage had “not been abandoned.” At

oral argument Redmon’s counsel was asked whether or not

Redmon’s taking his garbage out of his garage and leaving

it where it was to be picked up by the collectors evidenced

“abandonment.” Counsel’s candid answer was to the effect

that there was “some sort of abandonment,” but he argued

that abandonment was not the proper focus.

It appears, nevertheless, that Redmon’s garbage was

abandoned when he moved it out of his garage and placed

it for collection. We see no reason that Redmon’s abandon-

ment intent should also be abandoned so that it cannot be

considered along with other factors in making the Fourth

Amendment determination. Counsel was asked where he

would draw the curtilage line in the Redmon circumstances.

He had some difficulty, as do we, with that concept when

trying to be specific. The answer can best be found in

Greenwood’s discussion which took note, among other fac-

tors, that the can had been placed so that it would be

picked up by the collector, a third party stranger. Green-

wood, 486 U.S. at 40. Redmon does not claim that the col-

lector was a friend or family member. The Court, in Green-

wood, notes that the garbage collector could have sorted

through it himself, or permitted others including the police

to do so. Id. The same situation is present here.

In Hedrick, we considered the accessibility and exposure

of the discarded garbage to the public. Hedrick, 922 F.2d at

398. We also noted that the visibility of the yard to the

public was a factor rendering the expectation of privacy

unreasonable.’ Jd. at 399. It takes little more than a look at

the plat, government exhibit #1, showing the Redmon loca-

” See also United States v. Shanks, 97 F.3d 977, 980 (7th Cir.

1996) (holding that the defendant in that case could not have an

objectively reasonable expectation of privacy in incriminating

evidence when the garbage was in containers readily accessible

and visible from public thoroughfares).

12 No. 96-3361

tion at the intersection of two city streets and the short

common driveway-sidewalk arrangement with his neighbor

to see how very publicly exposed and accessible Redmon left

his garbage. Redmon, no doubt, did not intend to sacrifice

the privacy of his garbage cans which would reveal illegal

drug materials. Under the particular circumstances, how-

ever, his expectation was not reasonable, and not an ex-

pectation which we believe society is prepared to accept or

should accept whether in downstate Illinois or elsewhere in

this country. The district court came to the same conclu-

sion.

Redmon also suggests that our case, United States v.

Pace, 898 F.2d 1218 (7th Cir. 1990), is inconsistent with the

conclusion reached in the present case. We fail to see the

significance of Pace in Redmon’s circumstances; at least

Pace does not involve garbage. In Pace, police entered the

garage of a suspect to detain the suspect whom they had

cause to believe might be an assassin in a drug situation.

The facts in Pace are interesting, but irrelevant in the Red-

mon conviction. We held in Pace that it was reasonable for

police to enter the garage without a warrant even assuming

the garage was part of the curtilage. Id. at 1228-29. In foot-

note 2, we explained the factors to be considered for a curti-

lage determination which include “the proximity of the area

to the home itself, the nature of the uses to which the home

is put, whether the area is within an enclosure surrounding

the home, and the steps the resident has taken to protect

the area from observation by passersby.” Pace, 898 F.2d at

1229 n.2 (citing United States v. Dunn, 480 U.S. 294, 301).

We believe our decision in Redmon passes all the tests.

Sentencing Issues

At the time of Redmon’s present offense, March 19, 1996,

he was twenty-nine years old. He had a 1989 Illinois felony

conviction for possession of cocaine with intent to deliver

and a 1986 Illinois aggravated battery conviction. In the

Sentencing Commission Enabling Act, Congress directed

fn ee es aw

ee SBR nr ah. an a 0 nl a 1D A TIE CCESAL LAL Po Ps

No. 96-3361 13

the Sentencing Commission to specify a sentence of impris-

onment “at or near the maximum term authorized” for an

adult defendant convicted of a violent crime or felony drug

offense who had two such prior convictions. 28 U.S.C.

§994(h). To implement that congressional requirement, the

Sentencing Commission promulgated §4B1.1 of the Guide-

lines, entitled “Career Offender,” which provides in perti-

nent part this qualification for that enhancement:

two prior felony convictions of either a crime of violence

or a controlled substance offense.

Amendment 506 to the Commentary to §4B1.1 provides

that “offense Statutory maximum” means only “the maxi-

mum term of imprisonment authorized for the offense of

conviction .. . not including any increase in that maximum

term under a sentencing enhancement provision that ap-

plies because of the defendant’s prior criminal record.”

U.S.S.G. §4B1.1, Amendment 506. However, in United

States v. Hernandez, 79 F.3d 584 (7th Cir. 1996), we held

that Amendment 506 is inconsistent with §994(h)’s unam-

biguous statutory direction and therefore is not entitled to

deference.

Following Hernandez, the district court applied §4B1.1 to

Redmon without reference to Amendment 506. As applied

including the enhancements, §4B1.1 raised Redmon’s base

offense level to 34 from 32. Despite our precedent, Redmon

contends that the district court erred in refusing to follow

Amendment 506 in applying §4B1.1 to him. In support of

his argument, he relies on United States v. LaBonte, 70

F.3d 1396 (1st Cir. 1995), rev'd, ___ U.S. __, No. 95-1726,

1997 WL 273644 ( 1997), in which the First Circuit upheld

the validity of Amendment 506. At the time Redmon filed

his appeal, the Supreme Court had granted certiorari in

LaBonte. Thus, Redmon requested this court to hold its de-

14 No. 96-3361

cision on his sentencing issue in abeyance, reasoning that

if the Supreme Court affirmed LaBonte, it would be im-

plicitly reversing Hernandez, and as such, he would be en-

titled to 2 new sentencing.

The Supreme Court recently issued its opinion in

LaBonte, reversing the First Circuit and adopting a holding

consistent with our opinion in Hernandez. Therefore, Red-

mon’s appeal must fail, and his sentence is affirmed.

The sentencing issue as dealt with in the original panel

opinion and set out above was not raised for en banc con-

sideration by the court and therefore remains unchanged.

The district court is AFFIRMED in all respects.

15

ADDENDUM

1) Guppsepy

lle ee

No. 96-3361

Pat | '

322582 —- — —

1009 ebe1ep-——

100Q wos4

citi

Dm SDD © om af

>o F— Ou

Government Exhibit #1

16 No. 96-3361

Government Exhibit #2

View of Redmon’s and his neighbor’s con-

nected garages and joint driveway-walkways.

The garbage cans were placed between the

garage doors for collection.

The exhibit also shows the public walk

where it crosses the driveway and at the

bottom of the photo can be seen a section of

Harding Drive and the street curb.

No. 96-3361 17

Government Exhibit #5

View of Redmon’s garbage cans out for

collection. The walk to his front door goes

around the corner of his garage to the left.

18 No. 96-3361

Government Exhibit #3

View of Redmon’s house from Vawter Street.

No. 96-3361 19

COFFEY, Circuit Judge, concurring. I join and concur in

Judge Harlington Wood’s well-reasoned analysis as set

forth in the majority opinion. Redmon’s garbage simply

does not fall within the scope of protection that the Fourth

Amendment accords persons, their houses, papers and

effects. I write separately to briefly extend several remarks

on an issue that appears to have engendered some debate

among various members of this Court; namely, whether

abandonment theory, that is, the concept of voluntarily and

intentionally relinquishing one’s property right in a discard-

ed res, continues to thrive in our Fourth Amendment “gar-

bage” jurisprudence. I think it does, and the majority as

well as Judge Flaum seem to agree with me, whereas

Judge Rovner opines that the theory has “crept into the

majority’s analysis” (Rovner, J., concurring at 55), thus

claiming that its day came to pass with the Supreme

Court’s decision in California v. Greenwood, 486 U.S. 35,

108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).

Initially, I am forced to disagree with my esteemed dis-

senting colleague, for the Greenwood Court never expressly,

nor impliedly for that matter, rejected the abandonment

theory.’ Try as one might, no one is able to point to a single

passage in the Greenwood majority opinion that suggests

otherwise. Instead, Judge Rovner grasps at the passing ob-

servations of Greenwood’s two dissenting Justices, who tell

us that “[t]he Court properly rejects the State’s attempt to

distinguish trash searches from other searches on the

theory that trash is abandoned and therefore not entitled

to an expectation of privacy,” Jd. 486 U.S. at 51, 108 S. Ct.

at 1634 (Brennan, J., dissenting), and then go on to quote

from another dissent for the proposition that “‘property

interest [in trash] does not settle the matter for Fourth

* I add that the panei in United States v. Hedrick, 922 F.2d 396

(7th Cir. 1991), did not extol that abandonment theory is inap-

plicable in Fourth Amendment cases, but only stated that its con-

tinued viability was “questionable.”

20 No. 96-3361

Amendment purposes, for the reach of the Fourth Amend-

ment is not determined by state property law.’” Jd. (quoting

California v. Rooney, 483 U.S. 307, 320, 107 S. Ct. 2852,

(2958, 97 L. Ed. 2d 258 (1987) (White, J., dissenting)). With

all due respect, the majority in Greenwood spoke for itself,

and I am quite certain that none of its number were in-

terested in having the dissenters write on their behalf. The

Greenwood dissent is indeed an exceedingly small hook

upon which Fourth Amendment abandonment critics can

hang their hats.

In my view, the theory of abandonment survived Green-

wood, and is alive, well and flourishing in our Fourth

Amendment jurisprudence. Simply stated, if it is the cus-

tomary practice for an individual to deposit his garbage in

a receptacle and leave it in a particular place for pick-up by

public or private trash collectors, he has manifested an in-

tent to abandon his refuse at such point in time that he

leaves it unsecured in that place. See, e.g., United States v.

Shelby, 573 F.2d 971, 973 (7th Cir.), cert. denied, 439 U.S.

841, 99S. Ct. 132, 58 L. Ed. 2d 139 (1978) (“In our view the

placing of trash in the garbage cans at the time and place

for anticipated collection by public employees for hauling to

a public dump signifies abandonment.”). Thus, the intent to

relinquish ownership and abandon trash is tantamount to

“throwing away” a subjective expectation of privacy in it

that society accepts as objectively reasonable. In short,

when it comes to abandoned property, “I know it when I see

it,” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676,

1683, 12 L. Ed. 2d 793 (1964) (Stewart, J., concurring)

(identifying what constitutes “obscene” material), and when

the police see abandoned garbage which has been left unse-

cured in its usual place and at its usual time for collection,

it is theirs for the taking.

No. 96-3361 21

FLAUM, Circuit Judge, joined by EASTERBROOK, Circuit

Judge, concurring. In the context of warrantless trash

searches, the Supreme Court has instructed courts to base

their assessments of reasonableness on the degree of public

accessibility of the trash. See California v. Greenwood, 486

U.S. 35, 41 (1988). The Court today concludes that Joseph

Redmon had no reasonable expectation of privacy in gar-

bage that he left at the point of collection where it was

readily accessible to the public. I agree that this is the

proper disposition of the present case. While I am sym-

pathetic to the policy concerns raised by the dissenters, I

cannot reach thei: ultimate conclusion because I do not

believe that Greenwood’s ready accessibility test contains

an “outside the curtilage” limitation. Rather, location is

merely one factor in evaluating the accessibility of garbage.

Until the Supreme Court imposes a curtilage limitation on

Greenwood, I de not believe that we can appropriately infer

it.

I.

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” The Supreme

Court has interpreted this constitutional safeguard to bar

searches and seizures by the Government that violate a

person’s “reasonable expectation of privacy.” See Katz v.

United States, 389 U.S. 347 (1967). The Court has stated

that “[wJhat a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth Amend-

ment protection” and therefore cannot support a reasonable

expectation of privacy. Jd. at 351. In the context of trash

searches, a person is considered to have knowingly exposed

any trash that is “readily accessible” to the public (and

thereby to have forfeited any reasonable expectation of

privacy in the trash). Greenwood, 486 U.S. at 40. The de-

termination of ready accessibility is highly fact-bound, yet

because it is essentially a reformulation of the ultimate

22 No. 96-3361

determination of reasonableness, it receives plenary review

from an appellate court. See Ornelas v. United States, 116

S. Ct. 1657, 1663 (1996).

A review of the applicable case law of this Circuit and the

Supreme Court demonstrates that the search of Redmon’s

garbage was reasonable. The starting point is the Supreme

Court’s decision in Greenwood, 486 U.S. at 35. In that case,

police searched garbage bags that Greenwood had left for

collection on the street curb in front of his house.’ A trash

collector picked up the garbage and then turned it over to

the police, who found evidence of narcotics violations inside

the trash bags. The Court held that there could be no rea-

sonable expectation of privacy in the discarded inculpatory

items because “[iJt is common knowledge that plastic gar-

bage bags left on or at the side of a public street are readily

accessible to animals, children, scavengers, snoops, and

other members of the public.” Jd. at 40 (footnotes omitted).

Moreover, the Court stated, Greenwood left the garbage at

the point of collection for the purpose of conveying it to a

third party, who might have rummaged through the bags

or allowed someone else to do so. Id. at 40-41. Greenwood

could have no reasonable expectation of privacy in his gar-

bage under these circumstances because it was readily ac-

cessible to inspection by the public.

Greenwood concerned a search of garbage outside the

curtilage, but the constitutional standard announced in that

case is not confined to searches outside the curtilage.

Rather, Greenwood mandates that the touchstone of rea-

sonableness in this context is whether the trash is readily

accessible to the public; location is merely one factor in that

inquiry. The Greenwood Court stated that “society would

‘ The Court assumed that the garbage rested outside the curti-

lage of Greenwood’s home. See 486 U.S. at 37 (“The issue here is

whether the Fourth Amendment prohibits the warrantless search

and seizure of garbage left for collection outside the curtilage of

a home.”).

No. 96-3361 23

not accept as reasonable respondents’ slaim to an expecta-

tion of privacy in trash left for collection in an area accessi-

ble to the public”. Jd. at 41. Location is a factor in assessing

the “readiness” of accessibility, but it is not the only or ulti-

mate consideration.

My dissenting colleagues express disagreement with the

holding of Greenwood, but since overruling Greenwood is

not in our power, they draw a proverbial line in the sand at

the curtilage. Under this approach, garbage outside the

curtilage would be fair game for warrantless searches, but

once a court determines that the garbage is located within

the curtilage, the search would become unconstitutional.

While I can identify with the core concerns expressed by

the dissenters, I do not believe that their approach is com-

patible with the controlling authority.

Our Circuit has applied a curtilage-neutral accessibility

standard in approving three warrantless trash searches

since Greenwood.’ Our most recent case of this sort was

* Post-Greenwood cases from other circuits have also applied the

accessibility test without regard to curtilage when evaluating the

constitutionality of warrantless trash searches. See, e.g., United

States v. Hall, 47 F.3d 1091, 1096-97 (11th Cir.) (approving

warrantless search of a dumpster located in the parking lot of the

appellant’s business—his “commercial curtilage”—because it was

readily accessible to the public), cert. denied, 116 S. Ct. 71 (1995):

United States v. Comeaux, 955 F.2d 586, 589 (8th Cir.) (stating

that curtilage was irrelevant to the court’s approval of a warrant-

less search of a garbage bag located next to the appellant’s garage

adjacent to public alley because the bag was readily accessible to

the public), cert. denied, 506 U.S. 845 (1992); United States v.

Wilkinson, 926 F.2d 22, 27 (1st Cir. 1990) (approving a warrant-

less search of a garbage left for collection on the appellant’s lawn

next to the curb based on its ready accessibility and without

mentioning curtilage) (Breyer, C.J.), cert. denied, 501 U.S. 1211

(1991), and overruled on other grounds, Bailey v. United States,

116 S. Ct. 501, 509 (1995). But see United States v. Certain Real

Property Located at 987 Fisher Road, 719 F. Supp. 1396, 1404,

(continued...)

24 No. 96-3361

United States v. Shanks, 97 F.3d 977, 978 (7th Cir. 1996),

cert. denied, 117 S. Ct. 1002 (1997). Police in that case

searched garbage containers located adjacent to a public

alley and next to a garage twenty feet from the appellant’s

residence. The Court did not address whether the contain-

ers were located at the point of collection. In assessing the

reasonableness of the warrantless search, we noted that

“the mere intonation of curtilage does not end the inquiry,”

id. at 979. Shanks did not have a reasonable expectation of

privacy in his garbage “[e]ven assuming that the garbage

containers were within the curtilage of Shanks’ home,” id.,

because the containers were readily accessible from a public

thoroughfare and because such garbage is commonly in-

vaded by snoops, scavengers, and other members of the

public. Jd. at 980.

In United States v. Hedrick, 922 F.2d 396 (7th Cir.), cert.

denied, 502 U.S. 847 (1991), we allowed officers to search

garbage at the point of collection in a location that we

explicitly held to be within the curtilage of the appellant’s

home. See id. at 399 (“Therefore, the garbage cans located

20 feet from the garage and approximately 50 feet from the

back door of the house were technically within the curtilage

of the home, in which privacy interests are most height-

ened.”). We nonetheless emphasized that “applying the

Greenwood analysis to garbage within the curtilage, the

relevant inquiry is whether the garbage cans were so read-

ily accessible to the public that they exposed the contents

to the public for Fourth Amendment purposes.” Id. at 400

(emphasis added); see also id. at 399 (“[C]Jontainers or sheds

within the curtilage would not be protected if their contents

could be viewed by people routinely passing on the street or

overhead.”). We affirmed the search in Hedrick because the

* (...continued)

1405-06 (E.D. Mich. 1989) (holding that a warrantless search of

garbage located within the curtilage of the defendant’s home vio-

lated his Fourth Amendment rights).

No. 96-3361 25

garbage cans were readily accessible to the public in light

of the relatively short distance between the cans and the

public sidewalk, as well as the fact that the cans were nor-

mally collected from that location by a sanitation service.

Id. at 400. The Court’s determination of ready accessibility

also took into consideration Greenwood’s observations re-

garding the common practices of our recurring cast of

“scavengers, snoops, and other members of the public in

sorting through garbage.” Jd.

Our first consideration of a warrantless trash search after

Greenwood occurred in Dunkel v. United States, 900 F.2d

105 (7th Cir. 1990), vacated in part on other grounds, 498

U.S. 1043 (1991). In that case, a government informant

found incriminating financial records in a dumpster located

within an area that the appellant claimed to be the “curti-

lage” of his business. Seven other commercial tenants

shared this dumpster, which was located on the outer edge

of the building’s parking lot. We affirmed the district court’s

holding that the search did not violate Dunkel’s Fourth

Amendment rights because the dumpster was accessible to

the public (especially to the other seven commercial ten-

ants). Id. at 106-07. In doing so, we did not formally ad-

dress Dunkel’s curtilage argument other than to dismiss its

relevance to his Fourth Amendment claim: “Intoning ‘curti-

lage’ does not alter the fact that the parking lot was open

to all comers—not only Dunkel’s invitees but also those of

his seven tenants.” Jd. at 107. Finally, we offered an en-

dorsement of the ready accessibility test: “Someone who

tosses documents into a dumpster to which hundreds of

people have ready access has no legitimate expectation of

privacy in the dumpster or its contents.” Id. Shanks,

Hedrick, and Dunkel therefore reflect our Circuit’s under-

standing that—regardless of curtilage issues—warrantless

searches of readily accessible trash do not violate the

Fourth Amendment.

This view is consistent with our trash search cases that

preceded the Supreme Court’s decision in Greenwood. In

26 No. 96-3361

United States v. Shelby, 573 F.2d 971 (7th Cir.), cert.

denied, 439 U.S. 841 (1978), we held that a warrantless

search of garbage was constitutionally permissible. In that

case, police officers obtained a search warrant of the ap-

pellant’s house based upon evidence found in a warrantless

search of his garbage. At the behest of the police, sanitation

workers—as was their usual custom—removed the trash by

reaching over a small fence on the appellant’s property

adjoining a public alley. The trash was located inside a low

fence on the appellant’s property, and we assumed that

area to be within the curtilage of his home. See id. at 974

n.7. Despite that fact, we nevertheless held that “the ‘sei-

zure’ of the garbage from the defendant’s curtilage did not

violate the Fourth Amendment,” id. (emphasis added), be-

cause the appellant could have no reasonable expectation

of privacy in garbage placed at the point of collection and

within easy public access, see id. at 973-74.

Similarly, in United States v. Kramer, 711 F.2d 789, 794

(7th Cir.), cert. denied, 464 U.S. 962 (1982), we held that

the appellant did not have a reasonable expectation of

privacy in his garbage that the police searched without a

warrant. The police removed plastic garbage bags from con-

tainers located by the roadside in front of Kramer’s house;

the cans were at the point of collection inside a knee-high

fence. Kramer sought to suppress records of marijuana

sales found amidst his garbage. In affirming the district

court’s denial of Kramer’s motion to suppress the records,

we stated quite curtly that “the special protection the

Fourth Amendment accords people in their ‘persons,

houses, papers, and effects’ does not extend to their dis-

carded garbage.” Id. at 792.

I consider the Court’s holding today to be plainly com-

pelled by Greenwood. I do not necessarily share the view of

garbage expounded by the Supreme Court, but that is of

little moment to the present task; Greenwood is the law

and we must apply it. Whatever ambiguities one can mine

from the Greenwood decision with regard to the importance

No. 96-3361 27

of curtilage (which I do not find), I think that our Circuit

precedent fills in those gaps. I recognize that Circuit law is

vulnerable to revision upon en banc review, but I believe

that our cases have executed Greenwood’s mandate faithful-

ly and do not warrant reconsideration. Without further

direction from the Supreme Court, I cannot subscribe to

limiting Greenwood in the manner proposed by the dissent-

ers and thereby overrule a significant body of our prece-

dent.

I agree with the Majority that Redmon’s garbage in this

case was readily accessible to the public. Our decisions

demonstrate that the placement of trash at the point of

collection goes a long way toward establishing ready ac-

cessibility. See Hedrick, 922 F.2d at 400; Kramer, 711 F.2d

at 794; Shelby, 573 F.2d at 973; see also Greenwood, 486

U.S. at 41. In the instant case, Redmon placed his garbage

on his driveway, which served as his usual point of collec-

tion. As the Majority opinion points out, a municipal ordi-

nance forbade Redmon from depositing his garbage for

collection at the curbside. In other words, once Redmon left

the trash for collection in his driveway, it occupied a space

that—for purposes of his expectation of privacy in the

garbage (and, as I will argue later, his abandonment of the

trash)—was not much different than the curbside collection

point chosen in other cases.

Besides its role as the point of collection, the driveway

location severely limited Redmon’s reasonable expectation

of privacy in his trash in other ways, as well. Redmon

shared the driveway with his next-door neighbor. Once he

placed his garbage in an area of property.shared with this

neighbor, he gave the neighbor (and the neighbor’s visitors

and guests) access to the trash. People generally exclude

others from certain areas in order to maintain privacy, and

they understand that their expectation of privacy dimin-

ishes (if not evaporates) as others gain access to those

areas.

28 No. 96-3361

In addition, the driveway served as part of the walkway

to Redmon and his neighbor’s front doors. Invited guests of

both Redmon and his neighbor, as well as members of the

general public (implicit guests, as the Majority notes), were

required to walk past the trash cans sitting in the drive-

way. This does not imply that the guests were likely to

begin rummaging through the contents of the nearby trash

cans or bags; it does, however, suggest that the trash was

readily accessible to members of the public who desired to

do so. The relatively short distance between the garbage in

the driveway and the public sidewalk also supports the

Government’s position that the trash was readily accessible.

The totality of circumstances in this case convinces me that

Redmon did not have a reasonable expectation of privacy in

the searched garbage. The trash was readily accessible to

the public—the applicable standard prescribed by Green-

wood.* Thus, I concur in the decision of the Court today.

* When determining whether trash is readily accessible, courts

must ensure that the term “readily” maintains substantive force.

“Readily” does not mean “possibly,” and trash is not readily acces-

sible just because it is visible to passers-by on the street or vul-

nerable to scavenging expeditions of various enterprising animals

and people. Courts must consider all aspects of the search in

assessing whether trash was indeed readily accessible. Within

this calculus, important factors include the proximity of the gar-

bage to the defendant’s home, the garbage’s distance from any

public thoroughfare, the ease with which the public could reach

the garbage without disturbing the intimate activities of the de-

fendant’s home life, and the unique societal message of abandon-

ment that attaches to trash as opposed to other objects located on

the defendant’s property. This non-exhaustive list illustrates that

the ready accessibility test essentially reformulates the totality-of-

circumstances reasonableness standard itself.

No. 96-3361 29

Il.

My dissenting colleagues make much of the importance

of curtilage in the determination of Redmon’s expectation

of privacy. I must respectfully disagree with their approach.

I believe that the analytical circularity of the curtilage

inquiry only confuses what is already a difficult task in

deciding Fourth Amendment issues. I think that curtilage

is a vestigial concept largely lacking in substantive content,

and I feel the need to comment on its role in our warrant-

less trash search cases.

Curtilage receives protection under the Fourth Amend-

ment because it is “an area intimately linked to the home,

both physically and psychologically, where privacy expecta-

tions are most heightened.” California v. Ciraolo, 476 U.S.

207, 213 (1986). The Supreme Court has stated that curti-

lage is “the area to which extends the intimate activity as-

sociated with the ‘sanctity of a man’s home and the priva-

cies of life.’” Oliver v. United States, 466 U.S. 170, 180

(1984) (quoting Boyd v. United States, 116 U.S. 616, 630

(1886)). The Court has prescribed a multi-factor test to

guide curtilage determinations:

[C]urtilage questions should be resolved with particular

reference to four factors: the proximity of the area

claimed to be curtilage to the home, whether the area

is included within an enclosure surrounding the home,

the nature of the uses to which the area is put, and the

steps taken by the resident to protect the area from

observation by people passing by.

Dunn v. United States, 480 U.S. 294, 301 (1987). The third

of these factors, by the Court’s own admission, is the “cen-

trally relevant consideration,” id., and the “primary focus,”

id. at 301 n.4; this accords with the Court’s long-standing

definition of curtilage from Boyd. Curtilage is thus essen-

tially defined as an area that receives heightened Fourth

Amendment protection by virtue of the uses to which it is

put and the extent to which those uses are exposed to the

public.

30 No. 96-3361

To my mind, this is yet another in a long line of tests

that merely restates the ultimate Fourth Amendment

standard of reasonableness. When we decide that trash is

within the curtilage, we have concluded that a person has

a reasonable expectation of privacy in that trash based,

among other things, on the degree of exposure of that trash

to the public. Indeed, activities are regarded as “intimate”

or “private” precisely because the general public is excluded

from them in some fashion. This is no different than the

inquiry prescribed by the “ready accessibility” test. By

definition, an area containing trash cannot be defined as

curtilage if it is readily accessible to the public; similarly,

by definition, the trash contained therein cannot receive

Fourth Amendment protection if it is readily accessible. Put

another way, if someone takes enough steps to guard the

privacy of a particular area so that it is deemed to be

curtilage, they will also have exhibited a reasonable ex-

pectation of privacy in the trash found in that area. For

this reason, any time that courts declared that trash was

searched in the curtilage of a defendant’s home, they would

have already decided that the defendant had a reasonable

expectation of privacy in the trash.‘

* I recognize the apparent inconsistency of arguing both that

curtilage is co-extensive with Fourth Amendment protection and

that our Circuit has previously held that garbage within the

curtilage may be searched without a warrant. Under my theory,

a determination that the trash was located in the curtilage should

have ended the Fourth Amendment inquiry. I can only answer

this charge by saying that I disagree with the Court’s curtilage

determinations in Hedrick, 922 F.2d at 399, which relied on an

assumption that the entire front yard of a residential home is

ipso facto curtilage, and in Shelby, 573 F.2d at 974 n.7, which

assumed (without deciding) that garbage cans inside a low fence

adjacent to a public alley at the point of collection were located in

the curtilage. Our other cases in this area did not make formal

curtilage determinations because they found it irrelevant (and I

(continued...)

No. 96-3361 31

In this way, curtilage is a descriptive—rather than a pre-

scriptive—term in our Fourth Amendment jurisprudence.

Curtilage cannot define a defendant’s reasonable expecta-

tion of privacy when the very same reasonable expectation

is the basis for defining curtilage in the first place. Thus,

instead of aiding our Fourth Amendment inquiry in trash

search cases, curtilage merely adds another co-extensive

layer of tests and factors to the reasonableness calculus.

For these reasons, I cannot join my colleagues’ dissenting

opinions that rely on curtilage to bring clarity—or a change

of any sort—to our constitutional inquiry in trash search

cases.

ITI.

Finally, I would also like to comment on the role of aban-

donment theory in cases involving warrantless searches of

garbage. Abandonment is a consideration when assessing

the reasonableness of a defendant’s expectation of privacy

in his garbage—specifically, in assessing the degree of pub-

lic accessibility of his trash. Abandonment of property sends

a message to members of the public implicitly granting

them permission to approach, to investigate, and—if they

so desire—to convert the property to their own uses. In this

way, I believe that abandonment principles can inform a

| court’s evaluation of the ready accessibility of garbage.

A. The Continuing Viability of Abandonment Theory

To paraphrase Mark Twain, reports of the death of aban-

donment theory in trash search cases have been greatly

exaggerated. Justice Brennan’s dissenting opinion in Green-

* (...continued)

would argue, redundant) to their ultimate Fourth Amendment

holdings. See Shanks, 97 F.3d at 979-80; Dunkel, 900 F.2d at

107; Kramer, 711 F.2d at 794.

32 No. 96-3361

wood made two references to the Majority’s supposed re-

jection of abandonment theory. See 486 U.S. at 49 n.2

(Brennan, J., dissenting) (noting that many of the courts of

appeals cases cited approvingly by the Majority “rely en-

tirely on an abandonment theory that, as noted infra, at

1629, the Court has discredited.”); id. at 50 (“The Court

properly rejects the State’s attempt to distinguish trash

searches from other searches on the theory that trash is

abandoned and therefore not entitled to an expectation of

privacy.”). A careful reader of Greenwood, however, will

search in vain for the Majority’s purported disavowal of

abandonment theory.

In fact, the page cited by Justice Brennan for this propo-

sition demonstrates that abandonment was an important

component of the Majority’s holding that Greenwood’s gar-

bage was readily accessible. After noting that “respondents

exposed their garbage to the public sufficiently to defeat

their claim to Fourth Amendment protection,” id. at 40, the

Court went on to explain that this conclusion was appropri-

ate because, among other things, “respondents placed their

refuse at the curb for the express purpose of conveying it to

a third party, the trash collector, who might himself have

sorted through respondents’ trash or permitted others, such

as the police, to do so.” Jd. In summing up the rationale for

its holding, the Court again noted the importance of aban-

donment principles: “Accordingly, having deposited their

garbage ‘in an area particularly suited for public inspection

and, in a manner of speaking, public consumption, for the

express purpose of having strangers take it,’ respondents

could have had no reasonable expectation of privacy in the

inculpatory items that they discarded.” Jd. at 40-41 (citation

omitted). The quoted passage in this summation came from

a Third Circuit case which squarely held that placement of

trash at the point of collection signifies abandonment.

United States v. Reicherter, 647 F.2d 397, 399 (3d Cir.

1981).

: Pn a ge ey ee

No. 96-3361 33

|

|

Indeed, Reicherter was not the only lower court opinion

applying abandonment theory that the Greenwood Court

cited with approval. The Court stated that “[o]ur conclusion

that society would not accept as reasonable respondents’

claim to an expectation of privacy in trash left for collection

in an area accessible to the public is reinforced by the

unanimous rejection of similar claims by the Federal Courts

of Appeals.” Greenwood, 486 U.S. at 41. In support of this |

proposition, the Court cited nine cases, seven of which ex-

pressly based their holdings on an abandonment theory. Jd.

at 41-42. In addition, the Court referenced fifteen decisions

from state appellate courts involving warrantless trash

searches; nine of these state courts utilized an abandon- |

ment theory in approving the disputed searches. Id. at 42- |

43. Perhaps in part for these reasons, the First Circuit has

stated that, contrary to Justice Brennan’s interpretation,

Greenwood did not reject abandonment theory as an ele-

ment of its holding. See United States v. Scott, 975 F.2d

927, 930 n.1 (1st Cir. 1992), cert. denied, 507 U.S. 1042

(1993).

One of the federal appellate decisions cited approvingly

by the Greenwood Court was our decision in United States

v. Kramer, 711 F.2d 789, 792 (7th Cir.), cert. denied, 464

U.S. 962 (1983), in which we approved a warrantless trash

search based on abandonment theory. The Kramer Court

stated quite bluntly that all garbage was to be considered

abandoned: “We agree with the trial judge that the special

protection the Fourth Amendment accords people in their

‘persons, houses, papers, and effects’ does not extend to

their discarded garbage. . . . There is nothing unfair about

requiring that people not discard things they want to keep

secret, or destroy them before they do.” Jd. Kramer, in turn,

relied upon our earlier decision in United States v. Shelby,

573 F.2d 971, 973 (7th Cir.), cert. denied, 439 U.S. 841

(1978), which also applied abandonment theory to deter-

mine the constitutionality of a warrantless garbage search:

34 No. 96-3361

In our view the placing of trash in the garbage cans at

the time and place for anticipated collection by public

employees for hauling to a public dump signifies aban-

donment. Defendant may have decided to assume the

risk, calculating no one would think to search in his

garbage can, or he may have been careless, but what-

ever his reason he evidenced an intent in a convenient

but risky way to permanently disassociate himself from

the incriminating contents.

As I explain later, I do not agree that abandonment theory

compels Kramer and Shelby’s broad conclusion that garbage

never enjoys constitutional protection, but I do not interpret

Greenwood to preclude the continued application of aban-

donment principles.

B. The Contours of Abandonment Theory

The basic rule of abandonment theory is that police

inspections of abandoned property are not “searches” and

therefore are not regulated by the Fourth Amendment. For

instance, police may lawfully seize contraband cast away by

a fleeing suspect because the contraband has been aban-

doned by the suspect. See California v. Hodari D., 499 U.S.

621, 629 (1991). Similarly, a closed container is considered

abandoned and therefore subject to search when the sus-

pect disavows ownership of the container. See, e.g., United

States v. Knox, 839 F.2d 285, 293 (6th Cir. 1988), cert. de-

nied, 490 U.S. 1019 (1989). Abandonment, in the sense of

discard, has even been extended by some courts to justify

warrantless thermal scans, although I think these cases

may stretch abandonment theory too far. See, e.g., United

States v. Pinson, 24 F.3d 1056, 1058-59 (8th Cir.) (relying

on abandonment principles to uphold thermal scans be-

cause they detect discarded heat), cert. denied, 513 U-S.

1057 (1994).

Courts often distinguish the concept of abandonment in

the Fourth Amendment context from abandonment as de-

No. 96-3361 35

fined by property law. In property law, abandonment is a

term denoting total relinquishment of property rights,

which thereby enables a finder or subsequent possessor of

the property to assert an unassailable interest. When de-

scribing abandonment in the constitutional sense, however,

many courts explain that the relevant inquiry is not wheth-

er the defendant abandoned the property; rather, the issue

is whether the defendant abandoned his or her reasonable

expectation of privacy in the property by relinquishing pos-

session or disavowing ownership. See, e.g., United States v.

Barlow, 17 F.3d 85, 88 (5th Cir.), cert. denied, 513 U.S. 850

(1994); New Jersey v. Hempele, 576 A.2d 793, 808-09 (N.J.

1990); City of St. Paul v. Vaughn, 237 N.W.2d 365, 370-71

(Minn. 1975).

Understood in this way, however, abandonment in the

Fourth Amendment context becomes circular. Courts have

set forth the following general principle of abandonment

theory: Because there is no reasonable expectation of pri-

vacy in abandoned property, the Fourth Amendment does

not regulate inspections of it. But the purported test for

abandonment in the constitutional sense is whether the

previous owner demonstrates an intent to relinquish his or

her expectation of privacy in the property. Thus, the logic

reduces to the following tautology: Because there is no

reasonable expectation of privacy in property in which the

owner has relinquished his expectation of privacy, the

Fourth Amendment does not regulate inspections of it. This

formulation of abandonment in the constitutional sense

adds nothing to the analysis. See Hempele, 576 A.2d at

809-10. In short, a conclusion that one has “abandoned”

one’s reasonable expectation of privacy is just another way

of saying that there is no reasonable expectation of privacy,

and that therefore a warrantless search may proceed.

Courts have adopted this purported distinction between

constitutional and common-law abandonment because of

the hornbook principle that the boundaries of Fourth

Amendment law are not defined by property-law concepts.

36 No. 96-3361

Oliver v. United States, 466 U.S. 170, 183-84 (1984). In-

deed, there is a real difference between property-law and

constitutional abandonment, for courts have repeatedly

found abandonment for constitutional purposes in situa-

tions that might not support a finding of abandonment in

the common-law understanding. For instance, courts have

held that suspects fleeing the police who discard or hide

incriminating evidence have abandoned that evidence even

where it is clear that they intended to return and retrieve

the evidence had they eluded capture. See United States v.

Thomas, 864 F.2d 843, 845-47 (D.C. Cir. 1989); Vaughn,

237 N.W.2d at 370-71. In light of these cases, the difference

between constitutional and common-law abandonment may

simply be that the level of proof required may be lower, and

therefore abandonment may be easier to establish, in the

Fourth Amendment context.

In my view, if abandonment is to retain some meaning in

the Fourth Amendment context, it cannot be totally di-

vorced from its property-law antecedents. It is true that the

scope of Fourth Amendment protections is independent of

property-law concepts, but this does not mean that proper-

ty-law concepts cannot inform the constitutional inquiry.

The same evidence supporting a conclusion of property

abandonment in the common-law understanding—such as

relinquishment of possession or disavowal of ownership—

will almost always support a conclusion of abandonment for

Fourth Amendment purposes. For instance, placement of

trash at the point of collection sends a strong signal of

abandonment of that property; this factor therefore sug-

gests that the garbage is readily accessible to the public.

As I have indicated earlier, I believe that abandonment

concepts, properly understood, can play a useful role as one

factor to be considered in our Fourth Amendment “reason-

ableness” determinations. The key, as always, is the rea-

sonableness of the disputed search, and the more indication

there is that property has been abandoned, the more rea-

sonable it becomes to conduct a warrantless search of that

No. 96-3361 37

property. Relinquishment of possession, disavowal of own-

ership, and other indicia of abandonment should be consid-

ered along with the other relevant factors in our fact-

intensive Fourth Amendment inquiries. No one factor can

be a talismanic indicator of reasonableness; courts must

consider all factors, and abandonment is only one among

many. But if abandonment concepts can assist courts in

conducting Fourth Amendment inquiries, we should not

assent so readily in critics’ tales of its demise.

IV.

I believe that the Supreme Court’s decision in Greenwood

speaks broadly enough to cover the circumstances of the

present case. Greenwood instructed courts to apply a “ready

accessibility” test in trash search cases, and the Court did

not limit the scope of this test to locations outside the

curtilage. Trash does not enjoy constitutional protection if

it is readily accessible to the public, as was Redmon’s in

this case, and the location of the garbage is merely one

factor in that assessment of ready accessibility. Indeed, I do

not believe that a curtilage-based approach would be help-

ful to our evaluation of reasonableness; it is neither ana-

lytically instructive nor consistent with Greenwood and our

Circuit’s precedent. Abandonment principles, on the other

hand, can provide valuable insights into the ready accessi-

bility of garbage. For these reasons, I concur in the Court’s

decision affirming the district court’s denial of Redmon’s

motion to suppress.

38 No. 96-3361

EVANS, Circuit Judge, concurring. “Curtilage” is a dated

term that relates better to a time when knights in shining.

armor rescued damsels in distress. It is not a particularly

well-suited term for deciding suppression motions alleging

violations of the Fourth Amendment in federal criminal

cases. It is, nevertheless, the term we use, and I join the

majority because I believe the garbage cans, placed as they

were for collection outside of the garage on the driveway

Redmon shared with the occupant of the adjoining

townhouse, was not within the curtilage of the townhouse

unit in which he lived.

An area is considered part of the curtilage of a dwelling

if it “is so intimately tied to the home itself that it should

be placed under the home’s ‘umbrella’ of Fourth Amend-

ment protection.” United States v. Dunn, 480 U.S. 294

(1987). The curtilage is protected because people enjoy a

reasonable expectation of privacy in those areas intimately

associated with the home in which they live. But it’s simply

an unfortunate fact of life that in a modern urban setting—

a multi-family apartment building, or as here an 8-unit

townhouse complex—the area where one can reasonably

expect privacy to prevail is very narrow. In a multi-unit

apartment building there may in fact be no curtilage except

perhaps in a separate area—like a basement storage lock-

er—subject to one’s exclusive control. In a townhouse com-

plex like Redmon’s the curtilage is a bit wider. It includes

the garage itself and those areas close to the living unit,

particularly places where prying eyes can peer into win-

dows. But Redmon’s curtilage does not include the shared

concrete driveway outside of his shared garage. When Red-

mon moved his garbage cans outside of his garage on col-

lection days to his shared driveway, which was less than a

first down’s distance from the public sidewalk, he moved

them beyond his curtilage. As the cans sat there waiting to

be picked up by the garbage collectors, Redmon had no

reasonable expectation that their contents would remain

undisclosed.

No. 96-3361 39

POSNER, Chief Judge, with whom RIPPLE, MANION,

ROVNER, and DIANE P. Woop, Circuit Judges, join, dis-

senting. The defendant lived in a house with an attached

garage that was at the end of a driveway 28 feet from the

public street. He kept his garbage cans in the garage, but

when a garbage pickup was due he would take them out of

the garage and place them on the driveway right next to

the garage rather than, as would be more common but also

unsightly and forbidden by a local ordinance, at the curb

of the public street. Presumably—although the record is

silent on this—the garbage collectors would walk up his

driveway, carry the cans to the street, empty them into

their truck, and return the cans to their place in front of

the garage. The question raised by Redmon’s appeal is

whether the police could, consistently with the Fourth

| Amendment, walk up the driveway and search the cans,

without a warrant or probable cause, while the cans were

up against the garage awaiting the garbage collectors. The

odd thing about the answer given by the majority opin-

ion—“yes”—is that it will complicate the administration of

the law without conferring any practical benefit on law

enforcers. The better answer would be that searches, in-

cluding searches of garbage, that take place within the

curtilage of the defendant’s property must comply with the

Fourth Amendment’s restrictions on searches. The search

here took place within the defendant’s curtilage, and so his

conviction should be reversed.

The Fourth Amendment confers a right to security of per-

son, home, papers, and effects against unreasonable search-

es and seizures by the authorities. It is tempting to suppose

that the search of a garbage can could never violate that

right because the act of discarding something as trash or

garbage is a relinquishment of any interest in it. But that

answer must be wrong, United States v. Kramer, 711 F.2d

789, 793 (7th Cir. 1983); see also United States v. Hedrick,

922 F.2d 396, 400 (7th Cir. 1991); United States v. Bion-

dich, 652 F.2d 743, 745 (8th Cir. 1981), as it would entitle

the police to enter the home itself and rifle the trash cans

40 No. 96-3361

and wastepaper baskets found there, supposing they could

do this without committing a breach of the peace (as they

could by pretending to be servicemen of one sort or anoth-

er). Yet it is equally well established in the case law that

once the garbage is taken away by the garbage collectors,

the (former) owner of the garbage has no right to complain

if the police, without bothering to get a warrant or other-

wise demonstrating the reasonableness of the search, go

through the garbage and find contraband or evidence of

crime to use against him. California v. Greenwood, 486 U.S.

35, 39-41 (1988); United States v. Biondich, supra, 652 F.2d

at 745; United States v. Shelby, 573 F.2d 971, 973, 974 n. 7

(7th Cir. 1978).

To locate this case between these poles requires consider-

ation of the interests that the Fourth Amendment may be

taken to protect, as that will reveal what scope to give the

right that the amendment confers but does not define. For

the right is personal to the person asserting it. E.g., Rakas

v. Illinois, 439 U.S. 128, 138-40 (1978). A search that does

not invade an interest of the kind that the amendment

protects is lawful no matter how unreasonable in the sense

that solid grounds for suspicion of criminal activity are

lacking.

Historically the amendment protected property rights and

was violated only by a trespass or other infringement of

such rights. Goldman v. United States, 316 U.S. 129, 134-

36 (1942); Olmstead v. United States, 277 U.S. 438, 464-66

(1928). The historic construal might seem to help the defen-

dant here, since the police were trespassers to both his real

and his personal property, the driveway and the garbage

cans. But because the sanction for violating the Fourth

Amendment is usually (and would be here) the exclusion of

evidence that might be vital to the conviction of a person

who had committed a serious crime, the courts have long

overlooked minor trespasses, Hester v. United States, 265

U.S. 57, 59 (1924) (Holmes, J.), including the search of a

garbage pail when it is at or right next to the curb awaiting

No. 96-3361 41

pickup. United States v. Kramer, supra, 711 F.2d at 792-94;

United States v. Comeaux, 955 F.2d 586, 588-89 (8th Cir.

1992); United States v. Wilkinson, 926 F.2d 22, 27 (1st Cir.

1991); Magda v. Benson, 536 F.2d 111 (6th Cir. 1976) (per

curiam). To punish a minor trespass by the acquittal of a

criminal would be a disproportionately severe sanction for

a harmless violation of property rights.

It is tempting to view the present case in that light. Al-

though the garbage cans were not adjacent to the curb, they

were awaiting pickup, and it might not seem to make much

difference whether the police sneak up the driveway and

search the garbage there or wait until it has been taken to

the garbage truck at curbside. (I am assuming the garbage

truck does not drive into the driveway for the pickup,

though as I have already noted there is nothing in the

record about the details of the garbage collection.) Both are

trespasses. But reaching a few inches over someone’s prop-

erty line is a petty trespass, Hannabalson v. Sessions, 90

N.W. 93 (Iowa 1902), while marching up his driveway to

rummage through the garbage cans placed at the head of

the driveway is not. It is true that the garbagemen had

permission to march up to the garage to get the cans, just

as there is an implicit permission for friends, service

people, and many others to march up to one’s front door.

Oregon v. Portrey, 896 P.2d 7, 9 (Ore. App. 1995). But one’s

right to complain about a trespass does not depend on one’s

refusing to invite anyone onto any part of his property, for

then only hermits (and not all of them) would have prop-

erty rights.

The courts have distinguished between petty and menac-

ing trespasses with the help of the old common law doctrine

of “curtilage.” The curtilage is the “area intimately linked

to the home, both physically and psychologically,” California

v. Ciraolo, 476 U.S. 207, 212-13 (1986), and is distinguished

from “open fields,” which “do not provide the setting for

those intimate activities that the [Fourth] Amendment is

intended to shelter from government interference or surveil-

42 No. 96-3361

lance.” Oliver v. United States, 466 U.S. 170, 179 (1984);

see also Hester v. United States, supra, 265 U.S. at 59. In

the common law of England the curtilage was the part of a

person’s property that a criminal had to break into in order

to be guilty of burglary. United States v. Dunn, 480 U.S.

294, 300 and n. 3 (1987). Since burglary was a capital of-

fense, there was a felt need to confine it to the most alarm-

ing forms of breaking and entering. The line between curti-

lage and open fields is not precise, but depends primarily

on proximity to the owner’s house, id. at 301, and on the

use to which the part of the property in question is put—

whether it is a private use not open to the public gaze, see,

e.g., United States v. Depew, 8 F.3d 1424 (9th Cir. 1993),

as evidenced by whether the owner has enclosed it or taken

other steps to shield it from public view. United States v.

Dunn, supra, 480 US. at 301.

The curtilage would rarely extend beyond the house itself

if complete, opaque enclosure were required. Few people,

other than the very wealthy, barricade their front yard so

completely that a person seeking to enter must request the

unlocking of a solid gate that is higher than eye level. Most

homeowners extend an implicit invitation to social and

business invitees to walk up to the front door, but in doing

so the homeowner does not, as it were, “waive curtilage.”

The social and business invitee, including a police officer

whether invited or uninvited, must confine himself to the

prescribed route, rather than treating the invitation as one

to roam the property at will, peering into the windows of

the home. Oregon v. Portrey, supra, 896 P.2d at 9; cf.

Horton v. California, 496 U.S. 128, 136 (1990); Walter v.

United States, 447 U.S. 649, 656-57 (1980); United States

v. Garcia, 997 F.2d 1273, 1279 (9th Cir. 1993); United

States v. Thomas, 120 F.3d 564, 568, 571 (5th Cir. 1997).

These may seem fussy distinctions. But ever since the in-

vention of wiretapping, which is a nontrespassory invasion

of home or office, emphasis in the interpretation and ap-

plication of the Fourth Amendment has shifted from the

No. 96-3361 | 43

protection of property to the protection of privacy. See, e.g.,

O’Connor v. Ortega, 480 U.S. 709, 715 (1987); Katz v.

United States, 389 U.S. 347, 353 (1967); United States v.

Concepcion, 942 F.2d 1170 (7th Cir. 1991). The emphasis

that the courts have given to the distinction between “curti-

lage” and “open fields,” and to the association of the former

concept with intimacy, e.g., Oliver v. United States, supra,

466 U.S. at 179; California v. Ciraolo, supra, 476 U.S. at

212-13, are instances of this refocusing of concern from the

protection of property to the protection of privacy. There is

no reason in principle why this development should have

involved substitution rather than addition; addition would

have been entirely consistent with the fact that the eigh-

teenth-century usage of “property” was broader than the

modern, Vail v. Board of Educ., 706 F.2d 1435, 1450 (7th

Cir. 1983) (dissenting opinion), aff'd by equally divided

Court, 466 U.S. 377 (1984), so that modern property-plus-

privacy might be the equivalent of eighteenth-century prop-

erty. But rightly or wrongly, privacy has come not merely

to supplement but to eclipse property as the interest pro-

tected by the Fourth Amendment, e.g., United States v.

Hall, 47 F.3d 1091, 1096 n. 4 (11th Cir. 1995); United

States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991); United

States v. Kramer, supra, 711 F.2d at 794, property’s role

being relegated to that of furnishing evidence of the rea-

sonableness of a defendant’s expectation of privacy. Rakas

v. Illinois, supra, 439 U.S. at 143 n. 12; United States v.

Amuny, 767 F.2d 11138, 1126 (5th Cir. 1985). “Because ex-

pectations of privacy derive in part from the right to ex-

clude others from the property in question, lawful posses-

sion is an important consideration in determining whether

a defendant had a legitimate expectation of privacy in the

area searched.” United States v. Lyons, 992 F.2d 1029,

1031 (10th Cir. 1993).

Even so, if some judges did not misunderstand privacy,

erroneously equating it to secrecy, the shift in emphasis

would not have been fatal to the claims of people whose

44 No. 96-3361

garbage is searched. A garbage can is not a secure reposi-

tory of secrets, though this is not because, as remarked in °

the majority opinion, raccoons can get at the garbage; rac-

coons are not interested in human beings’ secrets. Garbage

cans are insecure because once the garbage leaves your

property you can’t physically prevent anyone from going

into it and piecing together the letters that you tore up and

threw away and reconstructing your balance sheet from

your discarded check stubs, and your diet and drinking

habits from food refuse and empty bottles, and, if the snoop

is a skilled archaeologist, perhaps obtaining over a period

of months a detailed picture of your intimate and maybe

disreputable private life.

So there are no secrets in garbage. But it doesn’t follow

that garbage isn’t private. Most people don’t think about

the possibility of serious snooping in their garbage, or can’t

afford the paper shredders and trash compactors and com-

puter “burn” programs and sink grinders and attics and

burn boxes and private landfills that would be necessary,

though not necessarily sufficient, see United States v. Scott,

975 F.2d 927 (1st Cir. 1992), to eliminate all occasions for

extruding readable trash and revelatory garbage from home

or office. It doesn’t follow that one would be unreasonable

to be horrified to discover that the archaeologist had been

at work reconstructing your life from your garbage and was

about to publish a detailed profile of your private life,

including your sex life. The tort law of privacy would pro-

vide you with a remedy against such a publication. Doe v.

Mills, 536 N.W.2d 824, 831-32 (Mich. App. 1995). I assume

that copyright law would provide you with a remedy if one

of the things that the archaeologist found and wanted to

publish was the discarded first draft of your unpublished

novel, as the act of discarding would not be an abandon-

ment of the copyright. Seshadri v. Kasraian, 130 F.3d 798,

804-05 (7th Cir. 1997). I conclude from these examples that

there are legally protected interests in garbage even after

it leaves one’s property, and I do not see why they should

No. 96-3361 45

not be interests that the Fourth Amendment protects, once

its scope is acknowledged to reach beyond property to pri-

vacy.

But this position is not open under the cases. Once the

garbage is beyond your property line, the police can search

it at will. And though it is within your property line, once

it is beyond the curtilage they can search it at will. What

is left is the case in which the police have to invade the

curtilage in order to get at the garbage. And this is where

the line should be drawn. Otherwise, whenever the police

spot a garbage can on someone’s property they will have at

least a colorable case for being allowed to go on the proper-

ty and search it even though it might turn out not to

contain garbage, since garbage cans are not infrequently

used for other purposes. And once they reach it, they can of

course glance around and if they see contraband or illegal

activity through a window of the house and don’t have time

to get a warrant, they can enter the house and search and

arrest. E.g., Minnesota v. Olson, 495 U.S. 91, 100 (1990).

Most of the “garbage cases” have not involved a search

within the curtilage. Cf. California v. Greenwood, supra,

4&6 U.S. at 42. (The only two that purport to do so that I

have found are United States v. Hedrick, supra, 922 F.2d

at 399-400, and United States v. Comeaux, supra, 955 F.2d

at 589—and in neither case were the garbage cans in fact

within the curtilage, though in both cases the courts as-

sumed they were.) I would give great weight to imperatives

of law enforcement that required such a search, but there

are none. The police can always arrange with the garbage

collectors for the latter to turn over the garbage to the

police as soon as it is removed from the owner's property.

If I am right to draw the line at the boundaries of the

curtilage, the critical question in this case is whether the

place where the garbage cans were set out for collection, at

the head of Redmon’s driveway, was within his curtilage. I

take it, in light of Ornelas v. United States, 517 U.S. 690

(1996), that this is a question that we are to decide de novo,

46 No. 96-3361

without deferring to the district court. My answer to the

question (the majority opinion does not discuss the ques-

tion) is “yes.” The garage was attached to the house, and

the garbage cans were right outside the garage, at the

farthest point of the driveway from the street. If this spot

was not within Redmon’s curtilage—if it is te be classified

as an “open field”—then no place outside his house was

within the curtilage, and, indeed, attached houses, row

houses, and other cramped urban dwellings have no curti-

lage (beyond the house itself); curtilage is confined to farm-

ers and to wealthy suburbanites and exurbanites.

Of course it is simple realism that people who live in

rural areas or have wealth will have more physical privacy

than people who live in cities or working-class suburbs, and

that therefore they will derive more protection from the

Fourth Amendment. That does not trouble me; the wealthy

have advantages in every department of life. What does

bother me is the idea that the police have carte blanche to

invade the property rights of people who by virtue of living

on small lots place their garbage cans near their house. It

is true that no windows of Redmon’s house were visible

from the place where the garbage cans were sitting and

that the police knew that the cans had been set out for the

garbagemen to collect. My colleagues do not announce a

rule broader than is necessary to decide this case. But

rather than subject the police to the uncertainty of guessing

where we will ultimately draw the line, we should adhere

to the distinction between the curtilage and open fields, and

permit no garbage searches, without a warrant or probable

cause, within the curtilage. The alternative rule would be

to permit garbage searches anywhere, and, as my col-

leagues shy away from that extreme, the best rule, the one

that best reconciles the interests of privacy, crime control,

and ease of administration, is the one I have suggested—

drawing the line at the curtilage.

No. 96-3361 47

MANION, Circuit Judge, dissenting. Garbage bagged and

contained for collection presumably has little or no value to

the discarder. But this case isn’t just about garbage; it’s

about privacy. The issue here is whether police need a war-

rant to trespass well within an owner’s property line in

order to rummage through his garbage.

Redmon’s garbage was placed right next to his attached

garage, not at the curb, as in California v. Greenwood, 486

U.S. 35, 40-42 (1988) (no expectation of privacy in trash left

for collection on or at the side of a public street in an area

accessible to the public). Surely this area next to the garage

is within the curtilage. Chief Judge Posner has persuasively

addressed the curtilage issue as well as an owner’s interest

in garbage he places there, and I join his dissenting

opinion. It is incorrect to say that Redmon’s garbage—like

Greenwood’s—could be searched by the police because

where it was placed was readily accessible to animals, scav-

engers, and snoops. Greenwood’s garbage was not on pri-

vate property; Redmon’s was. The distinction is crucial be-

cause unlike in Greenwood, here the police trespassed. And

it is incorrect to say that because strangers and snoops

could have invaded Redmon’s property and gone through

his garbage, it’s okay for the police to do so. They all would

be trespassers. They are not friends, or guests, or neigh-

bors, or postal people, or joint owners. They are not in-

vitees, or licensees, or any of the above. They are uninvited,

unwelcome, and unauthorized. If an owner sees a scavenger

or snooper by his garage rifling through his garbage, when

he tells the intruder to leave or he’ll call the police, the re-

sponse should not be “We ARE the police!”

In short, the property line should be respected both by

private citizens and peace keepers. The line creates a pre-

sumption that an intruder has invaded areas the owner

expects are private, unless some other circumstance demon-

strates the unreasonableness of that expectation. In most

urban settings, the property line is obvious: it is where the

sidewalk stops and the yard begins. A driveway, even one

shared (as in this case), typically becomes private past the

48 No. 96-3361

curb or sidewalk, whichever comes last. In cases of larger

properties, the presumption of privacy should be more dif-

ficult to overcome the closer the invader gets to the owner’s

dwelling. Redmon’s was not a large estate—it was a town-

house with limited (mostly paved) frontage. His curtilage

effectively paralleled his property line. Nevertheless, a

police officer entered Redmon’s property and stood next to

his garage door, just a few steps from his front door, and

picked through his garbage. The officer stood not in the

shoes of a friend, a solicitor, a deliverer or even an invited

garbage collector. Rather, he stood in the shoes of a tres-

passer.

When crossing the property line without a warrant (i.e.,

trespassing), police should be required to overcome the pre-

sumption that the property line defines the perimeter of the

curtilage where an owner’s expectation of privacy begins.

This rule would respect property rights, yet allow police to

do their job. But with the court’s decision today it is hard

now to imagine a circumstance wherein police will need a

warrant short of entering the house itself.

ROVNER, Circuit Judge, with whom POSNER, Chief Judge,

and RIPPLE, MANION, and DIANE P. WOoD, Circuit Judges,

join, dissenting. In my dissent to the panel opinion in this

case, I set forth my view that Joseph Redmon retained a

reasonable expectation of privacy in the contents of two

garbage cans situated immediately adjacent to the door of

his attached garage—clearly within the curtilage of his

home—and that as a result of that reasonable expectation

of privacy, the warrantless search of the cans by local police

violated Redmon’s Fourth Amendment rights. See United

States v. Redmon, 117 F.3d 1036, 1040-44 (7th Cir.)

(Rovner, J., dissenting), vacated, reh’g en banc granted, 122

F.3d 1081 (7th Cir. 1997). I explained there that the two

No. 96-3361 49

facts which had led the panel majority to reach a contrary

conclusion—that Redmon shared the driveway with his

neighbor, and that the walkway leading to Redmon’s front

door could be reached only by traversing the driveway—

were not sufficiently significant to overcome this court’s

view in United States v. Hedrick, 922 F.2d 396 (7th Cir.),

cert. denied, 502 U.S. 847 (1991), that “‘garbage cans

placed next to the house or garage are not so accessible to

the public that any privacy expectations are objectively

unreasonable.’” Redmon, 117 F.3d at 1044 (Rovner, J., dis-

senting) (quoting Hedrick, 922 F.2d at 400). The panel

majority’s decision, I observed, meant “that the citizens of

this circuit may only protect their garbage from warrantless

police searches by storing it inside their homes.” Jd. at 1040

(Rovner, J., dissenting).

panel—that Redmon’s conviction must be affirmed—al-

though a slightly different rationale is now employed to

support that decision. But the new facts emphasized by the

majority opinion today still do not persuade me that the

warrantless search of Redmon’s garbage was proper. And

despite my colleagues’ best efforts to limit the reach of their

decision to the specific facts of Redmon’s case, it is clear

awaiting collection, regardless of where on private property

the can may be stored, implicates no privacy interest receiv-

ing protection under the Fourth Amendment. That startling

conclusion simply is not supported by the Supreme Court’s

lone decision in this area, or by the earlier garbage-search

cases of this or any other circuit. My colleagues, in fact,

recognize that their decision today goes further toward lim-

iting the protectable privacy interests citizens enjoy in gar-

bage stored on their private property than any circuit

decision has gone before. (See ante, Maj. Op. at 6.) Because

50 No. 96-3361

I view this extension of the existing case law to be both

unwarranted under the law and unwise in practice, I re-

spectfully dissent.

.

The first question that must be asked is whether Red-

mon’s garbage cans were within the curtilage of his home,

for if they were not, then I would agree that Redmon lacked

a protectable privacy interest in the cans’ contents. See

California v. Greenwood, 486 U.S. 35, 37, 42 (1988); Hed-

rick, 922 F.2d at 398-99; see also Oliver v. United States,

466 U.S. 170, 177 (1984) (government intrusion upon “open

fields” not an illegal search proscribed by the Fourth

Amendment). But as I explained in my dissent to the panel

opinion, and as both Chief Judge Posner (ante, Posner, C..J.,

dissenting, at 39 & 45-46) and Judge Manion (ante,

Manion, J., dissenting, at 47) observe in their dissenting

opinions here, these cans clearly were within the curtilage

of Redmon’s home. See Redmon, 117 F.3d at 1040-41

(Rovner, J., dissenting). They were just outside the door of

a garage leading directly to Redmon’s living quarters, on a

driveway that Redmon shared with his neighbor. Because

the cans clearly were within the curtilage, Redmon enjoyed

a heightened expectation of privacy in the cans’ contents.

See California v. Ciraolo, 476 U.S. 207, 213 (1986).

As Chief Judge Posner persuasively argues, the curtilage

inquiry should be the determinative one in cases like this,

but the majority makes scant mention of the curtilage

doctrine and appears to stop short of definitively deciding

whether Redmon’s cans were located inside or outside his

curtilage. Even if the majority is correct that “[t]he mere

intonation of curtilage . . . does not end the inquiry” (ante,

Maj. Op. at 6 (internal quotation omitted); see also Ciraolo,

476 U.S. at 213), it cannot ignore that the Supreme Court

has considered the curtilage question to be of particular

importance where the police have conducted a warrantless

search on private property, for it is within the curtilage

No. 96-3361 51

that an individual’s privacy interests are “most heightened.”

E.g., United States v. Dunn, 480 U.S. 294, 300-01 (1987);

Dow Chem. Co. v. United States, 476 U.S. 227, 235 & 237

(1986); Ciraolo, 476 U.S. at 213. Under the Supreme

Court’s cases, then, the curtilage question must be ad-

dressed and resolved in the first instance.’

It is possible, of course, that the majority may actually be

holding, albeit obliquely, that Redmon’s cans were outside

his home’s curtilage, for its opinion references the four

factors the Supreme Court directed us to consider in re-

‘ [cannot agree with Judge Flaum’s contention that the curtilage

inquiry mandated by the Supreme Court’s cases essentially is

irrelevant in the context of a garbage-search case. (See ante,

Flaum, J., concurring, at 23-27 & 37.) The Supreme Court took

care to point out in Greenwood that the cans at issue there were

outside the curtilage of the defendant's home. See 486 U.S. at 37;

see also 1 Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 2.6(c), at 594 (3d ed. 1996). Moreover,

each case in the line of circuit authority cited by Judge Flaum is

easily distinguished, for in none of those cases were the defen-

dant’s garbage cans abutting his home, as Redmon’s were here.

Rather, the cans in each case that involved a private home were

adjacent to a public street or alley, far from the home itself,

thereby making the cans readily accessible to those traveling the

public streets. See United States v. Shanks, 97 F.3d 977, 978 (7th

Cir. 1996), cert. denied, 117 S. Ct. 1002 (1997) (cans situated on

a narrow strip of land running between garage and a public

alley); Hedrick, 922 F.2d at 397 (cans located fifty feet south of

the defendant’s home and twenty feet south of an unattached

garage); United States v. Kramer, 711 F.2d 789, 792 (7th Cir.)

(garbage placed at side of a road inside a knee-high fence bor-

dering the defendant’s property), cert. denied, 464 U.S. 962

(1983); United States v. Shelby, 573 F.2d 971, 973 (7th Cir.)

(garbage adjacent to a public alley behind a small fence), cert.

denied, 439 U.S. 841 (1978). As Judge Flaum himself noted in

Shanks, that type of situation “is not significantly distinguishable

from the situation presented in Greenwood, where the Court

found that curb-side garbage was located outside the curtilage of

the defendant’s home.” 97 F.3d at 979. Those cases thus do not

support Judge Flaum’s abandonment of the curtilage inquiry

here.

|

:

|

52 No. 96-3361

solving that question (see Dunn, 480 U.S. at 301) before

abruptly declaring that “our decision in Redmon passes all

the tests.” (Ante, Maj. Op. at 12.) Judge Evans, meanwhile,

writes separately to express more explicitly his view that

the cans at issue, although immediately adjacent to Red-

mon’s home, were beyond its curtilage. (Ante, Evans, J.,

concurring, at 38.) I have some difficulty reconciling either

conclusion with the Supreme Court’s view that the area

immediately surrounding a private home is part of its curti-

lage. See Dunn, 480 U.S. at 300 (curtilage extends to the

“area immediately surrounding a dwelling house”); Ciraolo,

476 U.S. at 212 (back yard immediately adjacent to a pri-

vate home is within its curtilage); Dow Chem., 476 U.S. at

237 n.4 (“We find it important that this is not an area im-

mediately adjacent to a private home, where privacy ex-

pectations are most heightened.” (emphasis in original));

Oliver, 466 U.S. at 180 (“the common law distinguished

‘open fields’ from the ‘curtilage,’ the land immediately sur-

rounding and associated with the home”); see also, e.g.,

Work v. United States, 243 F.2d 660, 662 (D.C. Cir. 1957)

(trash can located under a porch in close proximity to the

home was within the curtilage). In fact, those very same

Supreme Court cases led this court to declare in Hedrick

that “the yard of a residential home is within the curtilage.”

922 F.2d at 399. And if the yard is within a home’s curti-

lage, then certainly the portion of the driveway abutting

the door of an attached garage is as well. (Cf. ante, Manion,

J., dissenting, at 48 (Redmon’s curtilage “effectively paral-

leled his property line.”).)

I find particular support for that conclusion in the Su-

preme Court’s Dunn decision, where the Court was called

upon to decide whether the curtilage of a home extended to

the area adjacent to a separate barn located some fifty

yards beyond a fence surrounding the home. 480 U:S. at

296. Although the Court concluded that the area at issue

was beyond the home’s curtilage, it did so only after reject-

ing the government’s assertion that “the curtilage should

extend no farther than the nearest fence surrounding a

No. 96-3361 53

fenced house.” Jd. at 301 n.4 (internal quotation omitted).

The Court explained:

[T]he primary focus is whether the area in question

harbors those intimate activities associated with do-

mestic life and the privacies of the home. Application of

the Government’s “first fence rule” might well lead to

diminished Fourth Amendment protection in those

cases where a structure lying outside a home’s enclos-

ing fence was used for such domestic activities.

Id. Thus, although the Supreme Court has suggested that

an area lying outside a home’s enclosing fence may still be

considered a part of its curtilage, a majority of this court

apparently has concluded that the area immediately sur-

rounding the home itself is not, and without even address-

ing the uses to which the homeowner actually has made of

that area.” With respect, I submit that most urban dwellers

would be shocked to learn that the portion of a driveway

immediately adjacent to the garage door is considered by

this court to be an “open field,” rather than a part of the

“area around the home to which the activity of home life

extends.” Oliver, 466 U.S. at 182 n.12. Neither the citizenry

of this country nor the Supreme Court of the United States

would, I believe, countenance such a conclusion.

* In concluding that the cans here were outside the curtilage,

Judge Evans similarly fails to address the uses to which Redmon

may have put the area of his driveway where the garbage cans

were located. Judge Evans instead muddies the issue by likening

Redmon’s townhouse complex to a multi-unit apartment building.

(Ante, Evans, J., concurring, at 38.) The comparison is not apt.

Redmon lived in a townhouse, with his own garage, his own front

door, his own walkway to that door, his own yard, and a driveway

that he shared with just one neighbor. As our Chief Judge ex-

plains, Judge Evans’ position essentially means that Redmon and

other members of our society who reside in attached houses, row

houses, and other urban dwellings have no curtilage at all. (Ante,

Posner, C.J., dissenting, at 46.)

54 No. 96-3361

Il.

Nor am I persuaded by the majority’s attempt to liken

the circumstances of this case to those in California v.

Greenwood, 486 U.S. 35 (1988), where the Supreme Court

held that there is no objectively reasonable expectation of

privacy in garbage left for collection at the curb of a public

street. I explained in my dissent to the panel opinion that

Greenwood does not control this case because the Court

dealt there only with garbage left at curbside, outside the

curtilage of the home, and did not purport to address a

situation like this, where Redmon placed his closed garbage

containers at a location on his driveway immediately adja-

cent to the door of his attached garage, far from the public

street. Redmon, 117 F.3d at 1040-41 (Rovner, J., dissent-

ing).

The majority rather grudgingly acknowledges that this

case “is not strictly a curbside collection” (ante, Maj. Op. at

8 (emphasis added)), but then intimates that the conclusion

it reaches follows naturally from Greenwood. The logic goes

something like this: although “not strictly a curbside col-

lection,” this case is for all practical purposes like a curb-

side collection in that a local ordinance prohibited Redmon

from placing his cans at curbside, where the police would

be entitled to search them, and required that the cans in-

stead be stored on the property itself; Redmon’s “curb,”

then, “was necessarily not at curbside, but on his joint

walk-driveway.” (Id. at 10; see aiso id. at 8-9 (“Redmon, in

effect, chose the front of the joint garage on the shared

driveway-sidewalk to be his curb for garbage pickup pur-

poses.”); ante, Flaum, J., concurring, at 27 (“[O]nce Redmon

left the trash for collection in his driveway, it occupied a

space that .. . was not much different than the curbside

collection point chosen in other cases.”).) This is puzzling

logic at best. I suppose the majority must mean that be-

cause Redmon was unable te store his garbage at a place

where the police could legally search it (i.e., the curb), the

police were entitled to search the garbage at the place he

actually stored it, despite the fact that the garbage was

No. 96-3361 55

clearly within his property line and in fact directly next to

his home. It is as if our garbage cans come equipped with

an attached curb so that they will be considered “curbside”

regardless of where a municipality may require that they

be stored. The majority's reasoning makes sense, of course,

only if we assume that the police are entitled to one free

shot at a citizen’s garbage before it reaches the hands of the

collector. Clearly they are not. Any entitlement the police

may have to search the garbage is dependent upon its

location on the defendant’s property, as the location is in

this circumstance the primary indicator of whether the

property owner intended to relinquish his legitimate ex-

pectation of privacy. By storing his cans so close to his

home—within its curtilage, I submit—Redmon indicated

that he in fact did not intend to relinquish his privacy

interest. And just because Redmon may have authorized a

garbage collector to encroach upon his property to reach the

eans does not entitle the police to do the same. See 1

Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 2.6(c), at 595 (3d ed. 1996) (“There is

no principle in Fourth Amendment jurisprudence to the

effect that the police are free to do what some individual

has been authorized to do.” (emphasis in original)); see also

ante, Posner, C.J., dissenting, at 41. In short, there simply

is no persuasive way that Redmon’s case can be likened to

Greenwood; in no sense can it be considered a “curbside

collection.”

Il.

I must add a word as well about the “abandonment”

theory that has now crept into the majority’s analysis. (See

ante, Maj. Op. at 9 & 10-11; see also ante, Flaum, J., con-

curring, at 31-37.) In United States v. Kramer, 711 F.2d

789, 792 (7th Cir.), cert. denied, 464 U.S. 962 (1983), a

panel of this court relied on an abandonment theory to hold

that “the special protection the Fourth Amendment accords

people in their ‘persons, houses, papers, and effects’ does

not extend to their discarded garbage.” Yet the Kramer

56 No. 96-3361

panel made that observation in the context of a case like

Greenwood, where garbage had been placed at the side of

a road for removal by a private collector. Id. The majority

intimates that the Kramer analysis was approved by the

Supreme Court in Greenwood (ante, Maj. Op. at 9 & 10),

but the Court only cited Kramer amongst a laundry list of

decisions that had similarly rejected Fourth Amendment

praised the majority for “properly reject[ing] the State’s

attempt to distinguish trash searches from other searches

on the theory that trash is abandoned and therefore not

entitled to an expectation of privacy.” Jd. at 51 (Brennan,

J., dissenting).* Justice Brennan pointed out, as Chief

Judge Posner does here, that “a defendant’s property

interest in trash does not settle the matter for Fourth

Amendment purposes, for the reach of the Fourth Amend-

ment is not determined by state property law.” Id. (Bren-

nan, J., dissenting) (internal quotation omitted); see ante,

Posner, C.J., dissenting, at 39 & 42-454

Greenwood’s treatment of the abandonment rationale

that previously had been embraced by this court in Kramer

and by a number of other federal and state courts led a

* The Greenwood majority did not disavow that it had done SO.

Indeed, I would have expected the majority’s rationale in Gree n-

wood to have been much different had the Court simply found the

No. 96-3361 57

post-Greenwood panel of this court to conclude that “the

continued viability of an abandonment approach is ques-

tionable.” Hedrick, 922 F.2d at 398. Today’s majority re-

treats from that statement, but in a very equivocal way,

observing that “whether the abandonment approach still

remains questionable is likewise questionable.” (Ante, Maj.

Op. at 10-11.) Yet the majority fails to offer any explanation

for this apparent change in course. It does not, for example,

cite to any post-Greenwood decision casting any doubt on

Hedrick’s statement, nor does it suggest that the Supreme

Court has had anything further to say on the matter. In-

deed, today’s majority offers not the slightest explanation

as to why the Hedrick panel may have been wrong. The

majority instead intimates only that Redmon himself in-

jected the abandonment issue into these proceedings by

contending below that his garbage had not been abandoned,

and that even if it had, that was not the proper focus of the

inquiry required by Greenwood. (Id. at 11.) But I am ata

loss to understand how either of those arguments could

have somehow injected what we previously considered to be

an all but irrelevant factor back into the mix, particularly

when Redmon himself asserted that the entire abandon-

ment issue was not a proper consideration under Green-

wood. After noting that Redmon had raised the issue,

however, my colleagues go on to conclude that Redmon’s

garbage in fact had been abandoned and that “Redmon’s

abandonment intent should . . . be considered along with

other factors in making the Fourth Amendment determina-

tion.” (Id.; see also Flaum, J., concurring, at 36-37.) Hedrick

itself explained why that is wrong:

(That approach] is not consistent with Supreme Court

protection of the curtilage and with its opinion in

Greenwood. For instance, the Supreme Court continues

to discuss the protection accorded the curtilage even

though it has rejected the notion that property law

defines the contours of Fourth Amendment protection.

A determination, however, that garbage placed in cans

for ultimate collection is unprotected by the Fourth

58 No. 96-3361

Amendment would allow police officers to inspect cans

placed next to the garage or the house itself without

any showing of probable cause or any warrant, and

without regard to the accessibility of the cans to the

public as a whole. This result would be inconsistent

with the purpose of the Fourth Amendment to protect

the home and the area surrounding it from arbitrary

searches. Moreover, such a holding would be incon-

sistent with the language in Greenwood [itself]. The

Greenwood Court did not base its decision solely upon

the conveyance of the garbage to the collector. This was

true even though the garbage collectors in that case

actually collected the respondents’ garbage at the usual

time, and then conveyed it to the police. Finally, the

Court has never held that the intent to convey an object

or conversation to a third party renders any expecta-

tions of privacy unreasonable simply because the third

party could then convey the object or information to the

police.

922 F.2d at 399-400; see also id. at 401 (Cudahy, J., dis-

senting) (“the rationale that explains the absence of an ex-

pectation of privacy at the curbside is not that the garbage

is soon to be picked up but simply that it is near the road.”

(emphasis in original)); LaFave, § 2.6(c), at 593 (“the mere

fact that a citizen elects to dispose of his garbage in the

customary way by making it available for pickup by a

municipal or privately-retained hauler is no basis for con-

cluding that his expectation of privacy as to that garbage is

unjustified”). As Hedrick recognized, the relevant question

under Greenwood is not whether Redmon intended to con-

vey his garbage to a third party, but rather whether “the

garbage was readily accessible to the public so as to render

any expectation of privacy objectively unreasonable.” Hed-

rick, 922 F.2d at 400. As I explained in my dissent to the

panel opinion, Redmon’s garbage cans, located immediately

adjacent to the door of a garage leading directly into his

home and almost thirty feet from a public street, were not

so accessible. See Redmon, 117 F.3d at 1042-44 (Rovner, J.,

dissenting).

No. 96-3361 59

IV.

Although the Fourth Amendment issue raised in this

appeal was deemed significant enough to warrant the full

court's consideration, the majority does not attempt to

fashion any guiding legal principle to focus the inquiry in

future cases. In contrast to Chief Judge Posner, who per-

suasively advocates a bright-line curtilage rule, the major-

ity adopts a more nebulous balancing approach, mentioning

various factors without providing any legal framework

under which to consider them. Indeed, the principle that

emerges most strongly from the majority opinion is one that

it specifically disclaims—that garbage placed outside the

home for collection by a third party receives no Fourth

Amendment protection at all. Despite all of its signals to

that effect, the majority tells us that today’s decision does

not mean “that anybody’s garbage cans placed on the drive-

way adjacent to his or her garage, regardless of the other

facts and circumstances, can henceforth be searched with-

out a warrant.” (Ante, Maj. Op. at 5.) My colleagues no

doubt intended this statement to provide some comfort to

the citizens of this circuit who will be affected by their

decision, but I fear that the statement will only ads to the

reigning confusion, for the majority fails to articulate what

considerations may cause it to reach a different conclusion

in a subsequent case. Although the police and ordinary

citizens are therefore left to guess, I suppose they must be

content with the assurance that the members of this court

will know unconstitutional police work when they see it.

(Cf. ante, Maj. Op. at 9 (“Not all good police work is uncon-

stitutional.”).) Yet as the Supreme Court explained in New

York v. Belton, 453 U.S. 454, 459-60 (1981), “[wJhen a per-

son cannot know how a court will apply a settled principle

to a recurring factual situation, that person cannot know

the scope of his constitutional protection, nor can a police-

man know the scope of his authority.” See also Oliver, 466

U.S. at 181-82 (“This Court repeatedly has acknowledged

the difficulties created for courts, police, and citizens by an

ad hoc, case-by-case definition of Fourth Amendment stand-

60 No. 96-3361

ards to be applied in differing factual circumstances. The ad

hoc approach not only makes it difficult for the policeman

to discern the scope of his authority, it also creates a

danger that constitutional rights will be arbitrarily and

inequitably enforced.” (citations omitted)).

Despite their various disclaimers, it is clear that my col-

leagues’ decision today will have broad-ranging implica-

tions. From this day forward, the subjective expectation of

privacy we all have enjoyed in the yards and driveways

surrounding our homes will no longer be considered objec-

tively reasonable. Essentially, then, any privacy interest we

had in those areas has been forever lost. That is the cost we

must all bear today from the majority’s insistence on sus-

taining a single drug conviction.

I respectfully dissent.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—Midwest Law Printing Co., Inc., Chicago—3- 10-98

APPENDIX 2

DISTRICT COURT ORDER

6/4/96

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA,

Plaintiff,

VS. No. 96-20013

JOSEPH REDMON,

Defendant.

ORDER _ON MOTION TO SUPPRESS

This matter is before the court for

consideration of the defendant's motion to

suppress seizures by the police from

receptacles placed outside the defendant's

garage door at 1319 Harding Drive, Urbana,

Illinois. There is virtually no dispute as

to the facts of the case. The Government

Exhibit #1 show the duplex nature of the

residence at 1319 and 1317. Exhibit #2 is

a photograph of the adjoining garage doors

at 1319 and 1317. Exhibit #3 show the

entrance door of the residence portion of

1319. The garage doors are 23 feet 9

inches from the public sidewalk. 1319 isa

corner lot. It adjoins Vawter Street which

runs north and south. Harding runs east

and west.

The evidence is, again, undisputed

that garbage is collected from 1319 at a

regular time by a trash hauler and that the

garbage was put out fin front of the garage

on the driveway for collection as shown in

Government Exhibit #5. There is a dispute

as to whether the receptacles are garbage

cans. Objectively viewed they are garbage

cans. The receptacles were used for

garbage. They were placed out at regular

times for regular collection. There is

nothing to show there was laundry in them,

or anything else. It is clear they were

garbage cans.

the police officers went on the

driveway after the garbage was put out and

took the garbage and examined it. they

found evidence within the garbage

sufficient to raise suspicion to support

probable cause on which a warrant was

issued for search of the defendant's

premises.

The question that is presented here is

the same question presented in United

States v. Hedrick, 922 F.2d 396, (7th Cir. -

1991), where at page 400, the court says:

"Therefore, the proper focus under

Greenwood is whether the garbage was

readily accessible to the public so as to

render any expectation of privacy

objectively unreasonable." In California

v. Greenwood, 486 U.S. 38, 108 S.Ct. 1625

(1988) the Court ruled that garbage bags

placed on the curb outside the Greenwood

home exposed the garbage to the public

sufficiently to defeat the Greenwood's

claim of Fourth Amendment protection. The

Court says, and this quote is repeated in

the Hedrick case:

It is common knowledge that the

plastic garbage bags left on or at the side

of a public street are readily

accessible to animals, children,

scavengers, snoops, |

and other members of the public.

(Citing cases.) Moreover, respondents

placed

their refuse at the curb for the

express purpose of conveying it to a third

party,

the trash collector, who might himself

have sorted through respondents' trash

or permitted others, such as the

police, to do so. Accordingly, having

deposited

their garbage in an are particularly

suited for public inspection and in a

manner of

speaking public consumption for the

express purpose of having strangers take it

(citing cases), respondents could have

had no reasonable expectation of privacy in

the

id.

In Hedrick, the garbage was in cans, and

the garbage was located 18 to 20 feet from

the sidewalk. Here, the garbage was 23

feet 9 inches from the sidewalk. The

garbage in Hedrick was collected at regular

times and was put out in the position 18 to

20 feet from the sidewalk for the purpose

of collection and was available to

stranger.

As Hedrick says, at page 400, "in

other words, garbage placed where it is not

only accessible to the public but likely to

be viewed by the public, is knowingly

exposed to the public for Fourth Amendment

reasons." Well, if you look at Government

Exhibit #1, which is a plot of that corner

of the neighborhood, and you look at

Government Exhibits #5 and #2, it is

objectively clear that the defendants

garbage was knowingly exposed to the

public. the hypothetical that the defense

counsel argues are not present here. ie

those garbage cans were inside the garage,

you would have a completely different case.

I don't see that the Urbana Ordinance in

any way negates the defendant's knowing

exposure of the garbage to the public for

Fourth Amendment purposes. I don't know

what the purpose of the ordinance is--to

discourage scavengers or unlicensed

collectors, perhaps.

inculpatory items that they discarded.

The facts of the case, the court

concludes, are sufficiently parallel to

Hedrick to lead to the conclusion that

there was no objectively reasonable

expectation of privacy in the garbage cans.

Looking at the photographic exhibits, those

cans are nothing but garbage cans. that is

what the occupants put in them, that's what

the occupants expected the trash collector

EE oe

to cart away. I agree that this is a

continued erosion of the Fourth Amendment.

But is the rationale of Greenwood and

Hedrick. My obligation is to follow

Greenwood and Hedrick.

The motion to suppress is denied.

ENTER this 4th day of June, 1996.

HAROLD A. BAKER

SENIOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

I do hereby certify that a true copy

of the foregoing was sent this 8th day of

June, 1998, by regular U.S. mail with

sufficient postage affixed to the office

of:

Assistant United States Attorney

201 S. Vine St.

Suite 226

Urbana, IL 61801

Submitted,

Kevin M. Schad

Attorney for Petitioner

Schad, Buda, Cook, L.L.C

6310 E. Kemper Rd.

Suite 125

Cincinnati OH 45241