U.S. v. Trice, s. 87-2452

• Decision Date: 07 March 1989
• Docket Number: 87-2472 and 87-2540,Nos. 87-2452,s. 87-2452
• Citation: 864 F.2d 1421
• Parties: UNITED STATES of America, Appellee, v. William Joseph TRICE, Appellant. UNITED STATES of America, Appellee, v. Rudolph John KEPKA, Appellant. Hazen A. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1421

864 F.2d 1421

57 USLW 2424

UNITED STATES of America, Appellee, v. William Joseph TRICE, Appellant.

UNITED STATES of America, Appellee, v. Rudolph John KEPKA, Appellant.

Hazen A. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 87-2452, 87-2472 and 87-2540.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1988.

Decided Dec. 29, 1988.

Rehearing Denied March 7, 1989.

R. Scott Rhinehart, Sioux City, Iowa, for Trice.

Peter E. Van Etten, Sioux City, Iowa, for Kepka.

John Forrest M. Samore, Sioux City, Iowa, for Johnson.

Lester A. Paff and Willis A. Buell, Sioux City, Iowa, for appellee.

Before HEANEY and MAGILL, Circuit Judges, and LARSON, ^* Senior District Judge.

HEANEY, Circuit Judge.

Rudolph John Kepka, William Joseph Trice and Hazen Arvid Johnson appeal their convictions for conspiracy to and for possession of chemicals with intent to manufacture amphetamines.

In September of 1986, Roger Rasmussen visited Sioux City, Iowa, and met defendant Trice. In the next month or two, Trice visited Rasmussen and started inquiring about the chemical processes to make amphetamines. Rasmussen, being a high school chemistry teacher with a bachelor's degree in chemistry, was thought to have the expertise to manufacture amphetamines, and, because of previous criminal proceedings against him, was thought to be a likely candidate to be the chemist in a drug lab operation.

In March of 1987 Trice took Rasmussen to Mid West Cycle Harley-Davidson, Inc. in Sioux City, Iowa. Mid West was owned and operated by defendant Kepka. Rasmussen met with Kepka. Rasmussen gave Kepka the formula for making amphetamine and the various procedures to reach the final product. He informed Kepka as to the chemicals that were needed.

After Van Waters and Rogers Chemical Co. of Sioux City reported a purchase of acidic anhydride to the Sioux City Police Department, officers of that department witnessed the delivery of the chemical to defendants Kepka, Trice and Johnson on March 3, 1987. Because the police failed to successfully trail the defendants, the police did not know where the chemicals were taken. On April 16, 1987, ammonia hydroxide, another chemical used in the process, was picked up by one of the defendants. The vehicle used was later sighted at Kepka's garage, but nobody saw the chemicals taken into the garage.

Based on this information, the police kept the garage under surveillance. In a period of a couple days, the police observed the defendants leaving and entering the garage numerous times. During these visits, the defendants took bottles of distilled water and bags of ice into the garage. The doors to the garage were propped open, allowing the officers to smell a chemical odor coming from the garage.

On April 23, 1987, at approximately 2:35 a.m., officer Mark Skaff seized a garbage bag, without a search warrant, from a trash can placed on the street curb of Kepka's residence. The items seized became the basis for an opinion by a Drug Enforcement Administration (DEA) chemist that an amphetamine lab was being set up in the Kepka garage. A search warrant was obtained later that day with probable cause based on the chemical purchases, the items from the garbage bag and the chemist's opinion.

In the evening hours of April 23, 1987, the search warrant was executed on the Kepka garage and residence. Defendants Bekish, Kepka, Rasmussen, Trice and Johnson were arrested.

Initially, all five defendants were charged with the crimes of conspiracy and intent to manufacture a controlled Schedule II substance. Defendants Kepka, Trice and Rasmussen filed motions to suppress regarding the evidence seized from the garbage bags on Kepka's property. The court held hearings on these motions to suppress, first in court and then at Kepka's residence. It denied the motion to suppress.

Just before trial, co-defendant Rasmussen "turned over," becoming a witness for the government and testifying against the remaining defendants.

On August 31, 1987, the jury was selected, but not sworn. Voir dire was conducted in front of and by a federal magistrate. According to the appellants, the defendants were severely prejudiced by the magistrate's conduct. Objection to the magistrate conducting voir dire was raised the next day at the first opportunity in front of the trial judge and before the jury was sworn in. The motion was denied.

The trial of the case began on September 1, 1987, and continued until the matter was submitted to the jury on September 8, 1987. On the next day, the jury returned its verdict. Defendants Trice, Kepka and Johnson were found guilty. Defendant Bekish was acquitted.

The three defendants found guilty appeal. They raise several issues. Only two of the issues raised on appeal merit discussion: ¹ seizure of the garbage and magistrate conducting voir dire. As to the first issue, we affirm, and as to the second issue, we reverse and remand.

I. SEARCH OF KEPKA'S GARBAGE

Both Kepka and Johnson assert that the trial court erred by failing to suppress the evidence seized from the trash cans on Kepka's curb without a search warrant. Defendants Kepka, Bekish and Rasmussen filed motions to suppress evidence derived from the warrantless seizure. After two suppression hearings, the lower court denied all motions to suppress. The court found that none of the defendants retained a legitimate privacy expectation in the can's contents because, although the can was technically on Kepka's property, the garbage was in public view and pedestrians had easy access. U.S. v. Kepka, et al., slip op. at 5 (N.D.Iowa Order of July 21, 1987).

The Supreme Court recently faced the issue of a warrantless search and seizure of garbage bags left on a curb outside of a defendant's house in California v. Greenwood, --- U.S. ----, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). A search in such instances violates the Fourth Amendment only if the defendants "manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable." Id. --- U.S. at ----, 108 S.Ct. at 1628, 100 L.Ed.2d at 36 (citations omitted). Speaking particularly of garbage bags, the Court stated the following:

It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.

Id.

The Court then concluded in Greenwood that there is no reasonable expectation of privacy in garbage bags left, in an area accessible to the public, at the curb for collection. Id. --- U.S. at ----, 108 S.Ct. at 1629, 100 L.Ed.2d at 37.

Greenwood governs the instant case. While the garbage in Greenwood was merely placed in a bag and the trash at Kepka's property was kept in a garbage can, this difference does not give Kepka an objectively reasonable expectation of privacy. While a trash can is less accessible to animals than a garbage bag, a trash can placed at the curb is still readily accessible to children, scavengers, snoops and other members of the public. See Greenwood, --- U.S. at ----, 108 S.Ct. at 1628-29, 100 L.Ed.2d at 36-37. Moreover, Kepka places his trash in the can "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. --- U.S. at ----, 108 S.Ct. at 1629, 100 L.Ed.2d at 37. A person must do more than place trash for collection in a trash can, that the public has access to, to create an objectively reasonable expectation of privacy. Kepka did not take that extra step.

II. MAGISTRATE CONDUCTING VOIR DIRE

Voir dire was conducted by the magistrate in this case on August 31, 1987, in conformity with a local rule permitting such practice:

Rule 1.6.3 Voir Dire: Unless otherwise ordered, voir dire examinations shall be conducted by a judge or a magistrate. Counsel may submit written questions to the court prior to voir dire examination, or at its conclusion, with the approval of the court, may submit oral questions to the prospective jurors. See FRCP 47; FRCrP 24.

The Magistrates Act of 1968, ² and particularly section 636(b) of the Act, defining the scope of magistrates' power, has gone through a series of changes and constitutional challenges in the years since adoption. See, e.g., U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976); Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). In the Act's present language, section 636(b) provides:

(1) Notwithstanding any provision of law to the contrary--

(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.

(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

(C) the magistrate shall file his proposed findings and recommendations under...