United States v. Jackson

• Decision Date: 26 August 2013
• Docket Number: No. 12–4559.,12–4559.
• Citation: 728 F.3d 367
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dana JACKSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

728 F.3d 367

UNITED STATES of America, Plaintiff–Appellee,

v.Dana JACKSON, Defendant–Appellant.

No. 12–4559.

United States Court of Appeals,Fourth Circuit.

Argued: May 17, 2013.

Decided: Aug. 26, 2013.

ARGUED:Robert James Wagner, Office Of The Federal Public Defender, Richmond, Virginia, for Appellant. Erik Sean Siebert, Office Of The United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge AGEE joined. Judge THACKER wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

Before dawn on May 26, 2011, Richmond, Virginia police officers pulled two bags of trash from a trash can located behind the apartment that Sierra Cox had rented from the Richmond Redevelopment and Housing Authority. The officers were looking to corroborate a tip from confidential informants that Dana Jackson was selling drugs from the apartment. Jackson, who was Cox's boyfriend and the father of her children, regularly stayed at the apartment.

After recovering items from the bags that were consistent with drug trafficking, the police officers obtained a warrant to search Cox's apartment. The subsequent search uncovered evidence that ultimately led to Jackson's conviction for drug trafficking.

Jackson contends that the trash pull violated his Fourth Amendment rights because, as he argues, the police officers physically intruded upon a constitutionally protected area when they walked up to the trash can located near the rear patio of Cox's apartment to remove trash. See Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (holding that officers conduct a Fourth Amendment search when they make an unlicensed physical intrusion into a home's curtilage to gather information). Jackson also argues that the officers violated his reasonable expectation of privacy in the contents of the trash can, relying primarily on the fact that the trash can was not waiting for collection on the curb of a public street, as was the case in California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (holding that there was no reasonable “expectation of privacy in trash left for collection in an area accessible to the public”).

We reject both arguments. The district court found as fact that at the time of the trash pull, the trash can was sitting on common property of the apartment complex, rather than next to the apartment's rear door, and we conclude that this finding was not clearly erroneous. We also hold that in this location, the trash can was situated and the trash pull was accomplished beyond the apartment's curtilage. We conclude further that in the circumstances of this case, Jackson also lacked a reasonable expectation of privacy in the trash can's contents. Accordingly, we affirm the district court's conclusion that the trash pull did not violate Jackson's Fourth Amendment rights.

I

After Richmond police received information from confidential informants that Dana Jackson was dealing narcotics from the rear of 2024 Anniston Street, two officers conducted a trash pull from the trash can located behind the apartment at about 4:00 a.m. on the morning of May 26, 2011, recovering two bags of trash. The two-story apartment was located in Whitcomb Court, a public housing apartment complex owned by the Richmond Redevelopment and Housing Authority, and was one of six row-house type units in a building that faced Anniston Street. The rear of the building faced a grass courtyard separating it from another similar building. Each apartment in Whitcomb Court had a 10–foot by 20–foot concrete patio outside the back door. The patios were connected to a common sidewalk that ran the length of the building. Between each patio and the common sidewalk was a grass strip, about two to three feet wide. On each patio were two poles for laundry lines—one near the back door of the apartment and one at the far side of the patio away from the apartment. The common sidewalk running the length of the building led to the sidewalk on Magnolia Street, a side street.

The courtyard between the buildings served as a common area for the persons leasing the units and their visitors. Residents in the buildings described the courtyard as a quiet and peaceful area where children could play and neighbors could congregate. Each building was marked with “No Trespassing” signs, although other residents of the Whitcomb Court complex frequently passed through the courtyard as well as their guests and other visitors.

After inspecting the trash bags at the police station, the Richmond police found items consistent with drug trafficking, including 32 clear plastic sandwich bags with the corners missing and several baggie corners containing a residue. Based on the contents of the trash bags, the police obtained a warrant to search 2024 Anniston Street, where they recovered firearms, cocaine base, cocaine hydrochloride, a digital scale, several razor blades, and $1,557 in cash.

That apartment was leased by the Richmond Redevelopment and Housing Authority to Sierra Cox, who had lived there for several years with her children. Dana Jackson, her boyfriend and the father of her children, routinely stayed in the apartment. At the time of the search, both Cox and Jackson were in the apartment with their children, and Cox authorized the forced entry into a safe where much of the evidence of drug activity was found. The police then arrested both Jackson and Cox.

After Jackson was indicted, he filed a motion to suppress the evidence seized during the search of the apartment, contending that the trash pull, which led to the search, was an unconstitutional search and seizure. At the suppression hearing, the evidence showed that the trash at Whitcomb Court was picked up on Thursday mornings and that, for trash collection, the residents in the building that included 2024 Anniston Street generally rolled their trash cans down the common sidewalk to the sidewalk on Magnolia Street. Richmond Police Officers Michael Verbena and Eric Fitzpatrick testified, however, that at about 4:00 a.m. on Thursday, May 26, 2011, they found the trash can for 2024 Anniston Street located behind the unit and beyond the patio, sitting partially on the two-to-three foot grass strip and partially on the common sidewalk. The officers stated that they stood in the grassy area between the patio and the sidewalk and that one officer held the lid up while the other reached in and grabbed two plastic trash bags, each tied with a knot. They explained that they “never had to step onto [the] patio to grab [the] trash.”

Cox testified that because her trash can had been stolen from her patio previously, she normally locked it to the laundry pole on the patio that was close to the rear door of her apartment. Before collection, however, she unlocked the trash can from the pole to take it out for collection. She stated that at the time of the officers' trash pull, she did not know where the trash can was or whether it had been unlocked.

Cox also acknowledged that she did not use her trash can for storage but rather for disposal of trash—“stuff [she] want[ed] to get rid of ... stuff ... [she] d[i]dn't want anymore.”

In denying Jackson's motion to suppress the evidence seized from the apartment, the district court found as a fact that the “trashcan was located immediately adjacent to the sidewalk, with a portion of the trashcan protruding onto the sidewalk” and with the remaining portion sitting on the strip of grass between the sidewalk and the patio. The court further held that this location was outside of the apartment's curtilage, noting that “the area beyond the concrete patio [was] part of the common area within the Whitcomb Court apartment complex, rather than part of the defendant's leased property.”

As to any expectation of privacy, the court concluded that Jackson “did not have a subjective expectation of privacy in the trash at the time it was searched by the officers,” reasoning that Jackson had not adequately shown an intent to keep the contents of the trash can private. The court also concluded that even if Jackson had a subjective expectation of privacy, it was not an objectively reasonable one, relying on the Supreme Court's holding in California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), that there can be no reasonable “expectation of privacy in trash left for collection in an area accessible to the public.” Rejecting Jackson's effort to distinguish Greenwood, the court noted “that the fact that neither the defendant nor Cox had pulled the trashcan around to the curb [on Magnolia Street] for third-party disposal [was] not dispositive,” explaining that what mattered was whether Cox and Jackson had exposed their garbage to the public. The court concluded that they had done so by “placing the trashcan adjacent to the sidewalk” so that it was “readily accessible to neighbors and other visitors in the apartment complex,” thereby “relinquishing any objectively reasonable expectation of privacy.”

After the district court denied Jackson's motion to suppress, Jackson pleaded guilty to drug trafficking, in violation of 21 U.S.C. § 841, reserving his right to appeal the district court's order denying his motion to suppress. The court sentenced him to 137 months' imprisonment.

Jackson filed this appeal, raising the issue of whether the trash pull violated his rights under the Fourth Amendment.

II

Jackson mounts a multifaceted challenge to the district court's ruling, beginning with the argument that the court's factual finding regarding the location of the trash can was clearly erroneous. He then argues that even if we were to accept the district court's...