# Petition for Writ of Certiorari — Redmon v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1066

## Text

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

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No. 96-3361

Pat | '

322582 —- — —

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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 accessib

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1397%3A1. Public record. Not legal advice.