U.S. v. Kramer

Decision Date07 November 1983
Docket NumberNo. 82-2024,82-2024
Citation711 F.2d 789
Parties13 Fed. R. Evid. Serv. 904 UNITED STATES of America, Plaintiff-Appellee, v. John A. KRAMER, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

James A. Walrath, Shellow, Shellow & Glynn, Milwaukee, Wis., for defendant-appellant.

Lawrence O. Anderson, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

CUMMINGS, Chief Judge.

This appeal from a criminal conviction involves a number of issues, the most interesting of which is whether the warrantless search of people's garbage, put outside their homes for collection, violates any interest protected by the Fourth Amendment.

Defendant was indicted for two counts of drug trafficking (21 U.S.C. §§ 841(a)(1) and 846) and two counts of tax evasion (26 U.S.C. § 7201). The indictment charged that defendant had conspired with unidentified persons to distribute large quantities of marijuana and amphetamines during the years 1977 and 1978, that on one occasion in 1977 defendant had distributed some 1,000 pounds of marijuana, and that defendant had wilfully attempted to avoid paying income taxes owed for the years 1977 and 1978. All four counts were tried together before a jury. Pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure, the trial judge acquitted defendant of the tax counts at the close of the government's case, and the jury convicted defendant on both drug counts. The judge denied defendant's post-trial motions, sentenced him to 5 years in prison with a two-year special parole term, and he has appealed. For the reasons that follow, we affirm.

I. Legality of Seizure of Drug Sales Records

Among the evidence received at trial were records of marijuana sales by defendant. The records were found among garbage defendant had put by the roadside in front of his house to be collected by a private garbage removal service. The garbage was in plastic trash bags inside plastic garbage containers with plastic tops (Tr. 247-249). Without a warrant to do so, local police investigators picked up the trash bags, transported them to a police station, and searched through their contents on the station floor. Prior to trial, defendant moved to suppress these records, claiming that the garbage pick-ups--the police made three of them--were unlawful under the Fourth Amendment. The judge denied the motion without an evidentiary hearing to determine whether the trash bags were on defendant's property when the police removed them, reasoning that since defendant had not shown (1) that what was in the trash bags "was not really garbage" and (2) "that he had not abandoned the garbage in question" (App. 32-33), defendant's Fourth Amendment rights had not been violated.

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. United States v. Terry, 702 F.2d 299 (2d Cir.1983), certiorari denied, --- U.S. ----, 103 S.Ct. 2095, 77 L.Ed.2d 304; United States v. Shelby, 573 F.2d 971, 973 (7th Cir.1978), certiorari denied, 439 U.S. 841, 99 S.Ct. 132, 58 L.Ed.2d 139. Of course people sometimes do not want others to see things--e.g., magazines, financial records, correspondence, doctor bills--that they sometimes throw away. But people can easily prevent this by destroying what they want to keep secret before they discard it, or by not discarding it. Defendant could have burned or shredded his drug records before he discarded them or kept them hidden somewhere inside his house. The law requires that people travelling in public take care to keep hidden things in their possession they do not want others to see, United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), and not to say things they do not want others to overhear, Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and that people who want to keep secret numbers they dial on the telephone not make their phone calls at home, Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). There is nothing unfair about requiring that people not discard things they want to keep secret, or destroy them before they do.

Because of an added feature of this case we do not agree with the trial judge that the inquiry ends there. Defendant alleges that the police trespassed on his land to reach the trash bags. It appears that Judge Warren made no finding where the trash bags were when the police seized them. Defendant's pre-trial motion to suppress the drug sales records was denied without an evidentiary hearing even though defendant alleged in an affidavit in support of that motion that the trash bags were removed from his property. One of the policemen who picked up the garbage bags testified at trial that the bags were located just beyond the perimeter of defendant's property and judging from his ruling on defendant's motion for a new trial, Judge Warren may have credited that testimony as undisputed:

Any doubts as to the correctness of that [suppression] ruling were dispelled during the offer of proof made by defendant at trial concerning the physical layout of the area from which this garbage was seized. Therefore, the Court rejects defendant's seizure argument.

(Government App. 5.) However, the Government as much as concedes in its brief that this testimony was not undisputed by admitting that in defendant's pretrial affidavit he claimed "that the garbage was taken from an area inside his [perimeter] fence" (Br. 13). Therefore, we must assume that the garbage was on defendant's property when the police removed it.

Though one might suppose from the language of the Fourth Amendment that it does not protect people against searches of their lands, the Supreme Court has interpreted it to protect all reasonable, legitimate expectations of privacy, United States v. Knotts, --- U.S. ----, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and there is no reason, in theory at least, why homeowners cannot have reasonable, legitimate expectations of privacy in their adjacent lands. United States v. Swart, 679 F.2d 698 (7th Cir.1982); United States ex rel. Saiken v. Bensinger, 546 F.2d 1292 (7th Cir.1976), certiorari denied, 431 U.S. 930, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977). Defendant may have had a privacy expectation in the land on which he claims the police trespassed and if he did, then, assuming the trespass invaded that privacy, any evidence recovered from the trash bags should have been suppressed--the police acted on behalf of the state when they conducted the search, and evidence a state obtains in violation of a person's Fourth Amendment rights may not be admitted against that person in a federal criminal trial. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), overruling the often criticized "silver platter" doctrine established in Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652 (1914). It does not follow, moreover, that because any expectation of privacy defendant may have had in his garbage was unreasonable, it was constitutionally permissible for the police to trespass on his land to seize his garbage. Defendant's expectation regarding his garbage and his expectation regarding his land are distinct. We do not doubt, for example, that had the police broken into defendant's house and removed the records from a waste paper basket in defendant's bedroom, the records would not be admissible as evidence against him, even if all that was in the waste-paper basket was garbage.

For present purposes, an expectation of privacy is simply an interest protected by the Fourth Amendment. The alleged trespass invaded defendant's privacy if it infringed some interest the Fourth Amendment was intended to protect. The Fourth Amendment protects at least three possible interests that would have been at stake had the police broken into defendant's house to search for his drug records. * First is defendant's interest in peace and quiet. The Fourth Amendment protects that interest by prohibiting searches that physically disrupt people's households. United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972) ("[P]hysical entry of the home is the chief evil against which the wording of the 4th Amendment is directed * * * "). Police cannot, for example, ransack someone's house, see, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), or fly a helicopter 20 feet above the roof of his house, see, e.g., People v. Sneed, 32 Cal.App.3d 535, 108 Cal.Rptr. 146 (Cal.Ct.App.1973), to look for evidence of criminal conduct. Second is defendant's interest in relaxation, in retiring someplace, his home, where because what he says and does is not subject to public scrutiny, he can act as he pleases. Many people enjoy stepping offstage now and then; it gives them a chance to do and say things they might well be too reserved to do and say in public. The Fourth Amendment protects that interest; it keeps people's homes off the public stage by limiting the power of the government to eavesdrop and spy on home lives even when the spying and eavesdropping do not physically disrupt households. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Dietemann v. Time, Inc., 284 F.Supp. 925 (C.D.Cal.1968), affirmed on state grounds, 449 F.2d 245 (9th Cir.1971). Third is defendant's interest in public esteem. Most people know facts about themselves, i.e., habits they have, customs they...

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