U.S. v. Hedrick

• Decision Date: 08 January 1991
• Docket Number: No. 89-3113,89-3113
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth H. HEDRICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 396

922 F.2d 396

59 USLW 2438

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth H. HEDRICK, Defendant-Appellant.

No. 89-3113.

United States Court of Appeals Seventh Circuit.

Argued July 12, 1990.

Decided Jan. 8, 1991.

Richard N. Cox, Asst. U.S. Atty., Office of U.S. Atty., Danville, Ill., for plaintiff-appellee.

Sheldon Nagelberg, Chicago, Ill., for defendant-appellant.

Before CUDAHY and POSNER, Circuit Judges, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

A federal grand jury indicted defendant-appellant Kenneth H. Hedrick on thirteen counts involving possession and distribution of cocaine and money laundering. In a bench trial, the judge found Hedrick guilty on all counts and entered judgment accordingly. During the trial, Hedrick moved to suppress from admission into evidence all items seized from the warrantless search of the garbage at Hedrick's residence. He did not object to the admission of evidence seized from the dumpster outside his office building.

The garbage searched at Hedrick's home was located in opaque bags inside garbage cans with closed lids. The cans were kept in the same location of Hedrick's property throughout the week, and were collected at that location by the garbage service. The police officers who testified at trial indicated that the garbage cans never moved from that spot, but that they had never seen the garbage being collected. The officers generally retrieved the garbage between nine and ten o'clock the night before the garbage service was to pick up the garbage, although they were not aware of the garbage collection schedule until after they had searched Hedrick's garbage on at least one occasion. According to the officers' testimony, they discovered the garbage collection schedule when they found a bill from the garbage service in Hedrick's garbage. To collect the garbage, the officers approached the cans from the south and hid behind trees and bushes as they approached. The cans were located on a driveway 50 feet south of the house, and 20 feet from the unattached garage. In addition, the cans were 25 to 30 feet west of the street, and 18 feet west of the public sidewalk.

The issue in this case is not whether the police may constitutionally search garbage which is placed in cans within the curtilage of a house, but whether they can do so without a warrant. The constitutionality of garbage searches has recently been the subject of opinions by both the Supreme Court and this court, which are relevant to this case.

In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the Supreme Court held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of the home. 486 U.S. at 37, 108 S.Ct. at 1627. In Greenwood, the police officers asked Greenwood's regular garbage collectors to give them Greenwood's garbage after they collected it. The garbage which they collected from Greenwood was in sealed, opaque bags at the curb in front of his house, where it had been placed for collection at a fixed time. The Court noted that the search and seizure of the garbage would violate the Fourth Amendment only if the defendant manifested a subjective expectation of privacy in the garbage that society would accept as objectively reasonable. 486 U.S. at 39, 108 S.Ct. at 1628. The Court held that any expectation of privacy in the garbage was not objectively reasonable in that case because of the extent to which the garbage was exposed to the public. ¹ Specifically, the court noted that "[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public." [footnotes omitted] 486 U.S. at 40, 108 S.Ct. at 1628-29. Moreover, the garbage was placed 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." Id. Therefore, the Court held that respondents retained no reasonable expectation of privacy in the garbage deposited " '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.' " [citation omitted] 486 U.S. at 40-41, 108 S.Ct. at 1629.

Greenwood is in accord with this court's earlier decision in United States v. Kramer, 711 F.2d 789 (7th Cir.1983), which held that "the special protection the Fourth Amendment accords people in their 'persons, houses, papers, and effects' does not extend to their discarded garbage." [citations omitted] 711 F.2d at 792. In that case, the police had seized garbage in cans that Kramer had placed by the roadside in front of his house for collection. 711 F.2d at 791-92. The cans were located just inside a knee-high chain fence that ran along the street curb. 711 F.2d at 794. This court declared that people could prevent others from viewing objects by destroying them, and that the Fourth Amendment would not extend to items discarded as garbage. 711 F.2d at 792.

The Kramer analysis is based upon the theories of abandonment and exposure to the public. In Greenwood, the Supreme Court chose not to rely on principles of abandonment in its Fourth Amendment analysis, despite the reliance on that principle by most of the circuit courts which had considered the constitutionality of garbage searches. See Greenwood, 486 U.S. at 41-42, 108 S.Ct. at 1629-30 and cases cited therein. As a result, the continued viability of an abandonment approach is questionable. See Greenwood, 486 U.S. at 51, 108 S.Ct. at 1634 (Brennan, J., dissenting) ("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."). Kramer also focuses, however, on the accessibility of discarded garbage to the public, because it cites examples of the need to keep things hidden from the public in order to receive Fourth Amendment protection. This analysis is consistent with Greenwood. Although the garbage in Kramer was technically on Kramer's property, it nevertheless was right at the curb of the street. Therefore, Kramer is virtually identical to Greenwood regarding the accessibility of the garbage to the public. Unlike Greenwood, however, Kramer involved garbage which was arguably within the curtilage of Kramer's house. This court did not specifically discuss the protection accorded curtilage, but did determine that the trespass by the police of a few feet upon the edge of the front yard did not violate any interest that the Fourth Amendment was designed to protect.

In a recent case, United States v. Dunkel, 900 F.2d 105 (7th Cir.1990), this court discussed the constitutionality of the search of a dumpster within the curtilage of an office. We noted that the dumpster, although technically within the curtilage of the office, was nevertheless accessible to all persons using the parking lot and to the other seven tenants of the office building. 900 F.2d at 106-07. As a result, we held that the contents of the dumpster were knowingly exposed to the public.

The present case provides this court with a situation in which the garbage cans are located halfway up the driveway of a residential home, somewhat nearer the sidewalk than the garage. Therefore, the court must determine whether the garbage cans were within the curtilage and whether that affects the applicability of Greenwood.

At common law, the curtilage is the area encompassing the intimate activity associated with the sanctity of the home and the privacies of life. California v. Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986). As a result, "[t]he protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." 476 U.S. at 212, 106 S.Ct. at 1812. The Supreme Court has declared in numerous cases that the boundary of the curtilage is clearly marked for most homes as the area around the home to which the activity of home life extends. Dow Chemical Co. v. United States, 476 U.S. 227, 236, 106 S.Ct. 1819, 1825, 90 L.Ed.2d 226 (1986); United States v. Dunn, 480 U.S. 294, 302, 107 S.Ct. 1134, 1140, 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170, 182 n. 12, 104 S.Ct. 1735, 1743 n. 12, 80 L.Ed.2d 214 (1984). Those cases have recognized that the yard of a residential home is within the curtilage of the house. 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 expectations are most heightened.

The mere intonation of curtilage, however, does not end the inquiry. See United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990). The Supreme Court declared in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) that "[w]hat a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection"; hence, views by police of enclosed backyards from airplanes do not violate the Fourth Amendment because the yard is readily visible to anyone glancing down from an airplane. Ciraolo, 476 U.S. at 213-14, 106 S.Ct. at 1812-13. The visibility of the yard to the public and the routine nature of air flights renders the expectation of privacy unreasonable. Similarly, containers or sheds within the curtilage would not be protected if their contents could be viewed by people routinely passing on the street or overhead.

The Court has never indicated, however, that a container such as a backpack which was placed at the side of a driveway within the curtilage of a house could be...