U.S. v. Hall

• Decision Date: 16 March 1995
• Docket Number: No. 93-4456,93-4456
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrence HALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1091

47 F.3d 1091

UNITED STATES of America, Plaintiff-Appellee, v. Terrence HALL, Defendant-Appellant.

No. 93-4456.

United States Court of Appeals, Eleventh Circuit.

March 16, 1995.

Joel Hirschhorn, Coral Gables, FL, for appellant.

Kendall B. Coffey, U.S. Atty., Phillip DiRosa, Linda Collins Hertz, Lisa T. Rubio, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and CLARK, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In February, 1993, a jury convicted Terrence Hall, chairman of Bet-Air, Inc., a closely held Miami-based seller of spare aviation parts and supplies of fourteen counts of violating various federal laws in connection with Bet-Air's sale of restricted military equipment parts to Iran. After conviction, the district court sentenced Hall to a prison term of fifty-one months. We affirm.

FACTS

In June, 1988, Special Agent William T. Parks of the United States Customs Service began investigating allegations that Bet-Air was supplying restricted military parts to Iran. Bet-Air subsequently supplied records in response to two enforcement subpoenas relating to the investigation. On June 27, 1989, Parks and an Assistant United States Attorney met with two attorneys then representing Bet-Air. At the meeting, Bet-Air agreed to voluntarily supply the government with requested corporate minutes within ten days.

On July 3, 1989, Agent Parks entered Bet-Air's property and removed a bag of paper shreddings from a garbage dumpster located near the Bet-Air offices in a parking area reserved for Bet-Air employees. In order to get to the dumpster, Parks had to travel forty yards on a private paved road. No signs indicated that the road was private, and Parks testified that at the time he traveled on the road, he did not know he was on private property. Thus, notwithstanding its location on Bet-Air's private property, the dumpster was readily accessible to the public. One of the reconstructed shredded documents was titled "British Airways--Bet-Air, Inc., Minutes of Meeting." On July 5, 1989, Parks met with Bet-Air's new attorney who provided Parks with the Bet-Air corporate minutes previously requested. Those documents did not include the minutes from the British Airways-Bet-Air meeting. Parks used the shredded documents as the basis for obtaining a search warrant of the Bet-Air premises. Pursuant to the search warrant, Parks and other law enforcement officers seized numerous documents and other records from Bet-Air's premises.

PROCEDURAL HISTORY

In August, 1990, a federal grand jury in the Southern District of Florida returned a fourteen count indictment against Hall and several codefendants. In April, 1991, Hall moved to suppress all evidence derived from the warrantless search of the garbage dumpster and all evidence seized during the search pursuant to a warrant of the Bet-Air premises. ¹ The magistrate judge found that Bet-Air had a "substantially reduced expectation of privacy in the roadway and surrounding area, including the garbage dumpster" and, therefore, recommended that the motion to suppress be denied. The district court adopted the magistrate judge's report and recommendation. Following a jury trial, Hall was convicted as charged on all counts of the indictment and sentenced to a term of fifty-one months imprisonment as to each of the fourteen counts, the sentences to run concurrently with each other. Hall appeals.

ISSUES

In this appeal, Hall raises the following claims: (1) the district court erred in denying his motion to suppress documents and records seized pursuant to the execution of a search warrant where the probable cause for the warrant was obtained through a warrantless search of a dumpster located in Bet-Air's "curtilage"; (2) the prosecutor's closing remarks were improper and prejudicial; and, (3) the district court improperly exercised its sentencing discretion in applying the Sentencing Guidelines to a pre-Guidelines case.

CONTENTIONS

Hall contends that Bet-Air had a reasonable expectation of privacy in the shredded documents. He argues that Bet-Air took at least four affirmative measures to safeguard its privacy interest in the documents: the documents were shredded; the documents were sealed inside a green garbage bag; the green garbage bag was placed inside an enclosed garbage dumpster; and the garbage dumpster was within the "commercial curtilage" adjacent to Bet-Air offices forty yards from public property. Hall also argues that Parks's entry onto Bet-Air's premises constituted unauthorized entry onto private property.

The government contends that Bet-Air's subjective expectation of privacy in its garbage was not objectively reasonable because the company did not take steps to limit the public's access to the dumpster. Additionally,

the government contends that at the time of the entry, Agent Parks believed the road leading to Bet-Air's premises to be a public road.

DISCUSSION

A. Suppression Motion

We review the district court's denial of a motion to suppress evidence as a mixed question of law and fact. United States v. Wilson, 894 F.2d 1245, 1254 (11th Cir.1990). The findings of fact are viewed under the clearly erroneous standard, and the district court's application of the law to those facts is subject to de novo review. Wilson, 894 F.2d at 1254. The facts are to be construed in the light most favorable to the party who prevailed below. Wilson, 894 F.2d at 1254.

In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the Supreme Court held that a warrantless search and seizure of garbage left in a plastic bag on the curb in front of, but outside the curtilage of, a private house did not violate the Fourth Amendment. The Court, relying on Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), held that such a search would only violate the Fourth Amendment if the persons discarding the garbage manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. Greenwood, 486 U.S. at 39, 108 S.Ct. at 1628.

In Greenwood, law enforcement officials had on two separate occasions asked the neighborhood's regular trash collector to pick up and turn over to them the plastic garbage bags which had been left on the curb in front of the house in which Greenwood lived. The officers' search of the garbage turned up items consistent with narcotics use. These items formed the basis for affidavits in support of warrants to search Greenwood's home. The police discovered narcotics in both searches, and Greenwood subsequently moved to suppress the evidence as fruits of warrantless searches. The Court found that by disposing of the garbage in opaque plastic bags, Greenwood demonstrated a subjective expectation of privacy in the discarded garbage. Greenwood, 486 U.S. at 39, 108 S.Ct. at 1628. The Court concluded, however, that Greenwood had exposed his garbage to the public sufficiently to render his subjective expectation of privacy objectively unreasonable. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628.

As support for his assertion that Bet-Air's expectation of privacy in its discarded garbage was objectively reasonable, Hall points to the fact that Parks obtained documents that were shredded, then placed inside a green garbage bag, which was in turn placed inside a garbage dumpster. We believe that the manner in which Bet-Air disposed of its garbage serves only to demonstrate that Bet-Air manifested a subjective expectation of privacy in its discarded garbage. See Greenwood, 486 U.S. at 39, 108 S.Ct. at 1628. Whether Park's actions were proscribed by the Fourth Amendment, however, turns on whether society is prepared to accept Bet-Air's subjective expectation of privacy as objectively reasonable. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628.

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...." U.S. Const. amend. IV. It is well established that the Fourth Amendment protections apply to commercial premises. "The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property." See v. Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967). The Fourth Amendment, moreover, "protects people, not places." Katz, 389 U.S. at 351, 88 S.Ct. at 511. Thus, whether the Fourth Amendment's protections are invoked to protect the sanctity of the home or of commercial property, the touchstone of the inquiry into the objective reasonableness of an expectation of privacy is whether the governmental intrusion infringes upon the personal and societal values the Fourth Amendment protects. Oliver v. United States, 466 U.S.

170, 182-83, 104 S.Ct. 1735, 1743-44, 80 L.Ed.2d 214 (1984). ²

The fact that the test of the legitimacy of an expectation of privacy is the same in both the residential and commercial sphere does not mean, however, that the factors which tend to be of probative value in resolving the inquiry when the governmental intrusion involves a residence, are to be accorded the same weight when the inquiry is directed at the legitimacy of a privacy expectation in commercial property. The Supreme Court's treatment of the expectation of privacy that the owner of commercial property enjoys in such property has differed significantly from the protection accorded an individual's home. Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 2537-38, 69 L.Ed.2d 262 (1981). ³ Such distinctions are inevitable given the fundamental difference in the nature and uses of a residence as opposed to commercial property. These distinctions are drawn into sharp focus when, as in this case, the government intrudes into the...