U.S. v. Redmon

• Citation: 138 F.3d 1109
• Decision Date: 10 March 1998
• Docket Number: No. 96-3361,96-3361
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph R. REDMON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1109

138 F.3d 1109

UNITED STATES of America, Plaintiff-Appellee, v. Joseph R. REDMON, Defendant-Appellant.

No. 96-3361.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 27, 1997.

Reargued En Banc Nov. 25, 1997.

Decided March 10, 1998.

Richard N. Cox, Office of the United States Attorney, Urbana, IL, Rodger A. Heaton (argued), Office of the United States

Attorney, Springfield, IL, for Plaintiff-Appellee.

Kevin M. Schad (argued), Cincinnati, OH, for Defendant-Appellant.

Before POSNER, Chief Judge, and CUMMINGS, BAUER, 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(a)(1). After the district court denied his pretrial motion to suppress evidence, Redmon entered a conditional 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. ¹ Redmon raises two issues: first, whether the warrantless searches of his garbage cans violated his Fourth Amendment 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 actually face east on Vawter Street, although his one-car connected 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 additional ten feet to Harding Drive. The common driveway is about twenty-five feet wide. ² , ³

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 sidewalk 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.

The constitutional garbage issue arises as a result of police surveillance of Redmon's townhouse based on their narcotic suspicions. During the surveillance, Redmon was observed carrying his garbage cans out of his garage and placing them on the driveway between the garage doors for collection on collection days. Then after the garbage had been collected Redmon would carry his empty garbage cans 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 between Redmon's garage door and his neighbor's. ⁴ A city 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 suspicions by revealing evidence of drug dealing. The garbage contained clear plastic bags shown to be commonly used in packing and shipping cocaine. The bags field-tested positive for cocaine. A glass vial test tube wrapped in a Spanish language newspaper was also found. It likewise 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, produced the packages of cocaine charged in the indictment.

Search Issue

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 within the curtilage of Redmon's residence. ⁵ Secondly, Redmon 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 residential 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 endeavor 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 henceforth 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 affirmance 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 warrant would be required, absent urgent circumstances, must 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, regardless of the surrounding circumstances, requires a warrant. 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 circumstances 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 principles found in the cases.

Many of the cases mention "curtilage" as a factor, that is an imaginary boundary line between privacy and accessibility 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 determination can be difficult. The district court did not use the term, but that is of no consequence if the right criteria are otherwise 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 necessarily 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. 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 heightened." Id. 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...