U.S. v. Biondich

• Decision Date: 01 September 1981
• Docket Number: No. 80-2140,80-2140
• Parties: 8 Fed. R. Evid. Serv. 713 UNITED STATES of America, Appellee, v. Marcus Jonathon BIONDICH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 743

652 F.2d 743

8 Fed. R. Evid. Serv. 713

UNITED STATES of America, Appellee, v. Marcus Jonathon BIONDICH, Appellant.

No. 80-2140.

United States Court of Appeals Eighth Circuit.

Submitted May 22, 1981.

Decided June 30, 1981.

Rehearing Denied Sept. 1, 1981.

Phillip S. Resnick (argued), Minneapolis, Minn., for appellant.

Thomas K. Berg, U. S. Atty., Ann D. Montgomery, Asst. U. S. Atty., Dist. of Minnesota (argued), Minneapolis, Minn., Ellen W. McVeigh, Legal Intern, for appellee.

Before HEANEY and BRIGHT, Circuit Judges, and HARRIS, ^* Senior District Judge.

HEANEY, Circuit Judge.

On July 26 and August 2 of 1979, police officers in Robbinsdale, Minnesota, met with an employee of a private trash hauling company and examined garbage collected from the home of the appellant Marcus Biondich. The inspections revealed a plastic baggie containing a small amount of marijuana, a piece of folded paper containing traces of opiate powder and papers with notations of $57,100, $45,000, $5,000, $1,500 and $400. In addition, the trash included cancelled checks payable to the wife of a man who had pled guilty to a charge of possession of approximately 250 pounds of marijuana and who had been observed at a residence where evidence of large narcotics transactions had been obtained. This information, together with details of Biondich's two prior convictions for drug violations, was submitted in an affidavit to the United States Magistrate on August 2, 1979. The magistrate issued a search warrant for the Biondich home. A search conducted later that day yielded .26 grams of powder containing forty percent cocaine, fifteen barbiturate capsules, pills which Biondich told police were "phony Quaaludes," a small amount of marijuana, a scale with gram weights, a magazine article on how to cut cocaine, several substances frequently used to cut cocaine, and various other items commonly used to consume, cut, package or store cocaine.

On July 11, 1980, the grand jury returned an indictment charging Biondich with one count of possession of cocaine and barbiturates with intent to distribute in violation of 21 U.S.C. § 841(a)(1). A superceding indictment was returned on August 7, 1980, charging Biondich with one count of possession of cocaine with intent to distribute and one count of possession of barbiturates with intent to distribute. Biondich was tried before a jury. At the conclusion of all the evidence, the district court granted the defendant's motion for judgment of acquittal on both counts as to intent to distribute and the case was submitted to the jury on two counts of simple possession. The jury returned a guilty verdict on both counts and Biondich was sentenced to a term of two years imprisonment on each, the sentences to be served consecutively.

On appeal, Biondich asserts that (1) the warrantless search of his trash was unreasonable and in violation of the Fourth Amendment; (2) the search warrant for his home was invalid because it was based on the illegal search of his garbage and because the supporting affidavit contained material misrepresentations and did not establish probable cause; (3) the government was improperly allowed to introduce and argue evidence of other crimes committed by the defendant; and (4) the evidence was insufficient to support the guilty verdict.

1. Search of the Garbage. The two inspections of Biondich's garbage occurred in the same manner: A police officer from the Minneapolis police department approached an employee of the private garbage-hauling service that regularly collected trash from Biondich's house and made arrangements to meet the collector in a parking lot about one block from Biondich's residence. On the regular collection day, the collector picked up the trash from the cans near the alley at Biondich's house in the usual manner, except that he dumped the cans to one side of the collection bin to keep it separate from the garbage from other houses. He did not compact the trash into the truck and he proceeded to the meeting place where the officer looked through the bin and collected the items in question.

The United States Magistrate who held hearings on Biondich's suppression motion concluded that the inspection of Biondich's garbage did not violate his Fourth Amendment rights because he had abandoned his trash at the time it was removed from his premises and thus had no standing to raise the Fourth Amendment claim. Alternatively, the magistrate held that Biondich's Fourth Amendment rights were not violated because he had no reasonable expectation of privacy in the items turned over to the trash collector for disposal.

In our view, it makes no difference whether we view this case in terms of standing or substantive Fourth Amendment protections. The Supreme Court had suggested, however, that "the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). Accordingly, we set aside any question about Biondich's standing to raise the Fourth Amendment issue, and turn directly to the merits of that claim.

The Supreme Court has stated that the essential inquiry in judging a Fourth Amendment claim is "whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Id. at 143, 99 S.Ct. at 430 (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)). The government takes the position that Biondich lost any legitimate expectation of privacy he may have had in his garbage at the time he placed it in the trash can for collection. See United States v. Vahalik, 606 F.2d 99, 101 (5th Cir. 1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980); United States v. Crowell, 586 F.2d 1020,...