United States v. Dana Jackson

PART, . with a AFFIRMED IN VACATED IN Wegmans boycott replaced PART, REMANDED. AND tenant. unionized reason, reject the unions’ this we For legal their series argument

final access-barring as a not

challenges was not it did block

matter of-law because If shopping centers.

development of law-

anything, the ineffectiveness dispel, prove, tends to

suits in this case America, UNITED STATES of Because litigation. of sham charge Plaintiff-Appellee, would de- successfully halting project argument any litigation sham feat 237 F.3d at 399 place, Scrap, first see Balt. JACKSON, Defendant-Appellant. Dana definition, winning lawsuit is a rea- (“By petitioning for redress sonable effort No. 12-4559. (internal quota- not a sham.” and therefore of Appeals, United States Court omitted)), win, you this “heads I tails tions Fourth Circuit. nulli- theory access-barring would lose” altogether. fy litigation exception sham May 2013. Argued: genu- remains a conclude that there We Aug. Decided: fact as to whether the ine issue of material alleged WCS’s com-

pattern litigation starting policy from “a

plaint derived regard to the

legal proceedings without purpose waging of’

merits and for POSCO, F.3d at

secondary boycott. litigation record light poor

811. In signs petitioning, of bad-faith

and the reasonably conclude

factfinder could right peti- abused their

the unions have and, result, as a have for-

tion the courts Amend- protection of the First

feited Therefore, court erred

ment. the district dismissing against claims WCS’s

unions.

v.- reasons, affirm foregoing

For the we of WCS’s com-

district court’s dismissal. Fund, vacate the dismissal

plaint as to the complaint remaining as to the

of WCS’s

union-defendants, further remand for

proceedings.

tial that Dana Jackson was sell- informants Jackson, ing drugs apartment. from the .< boyfriend who was Cox’s and the father of children, regularly stayed at apart- her ment. recovering bags

After items from the drug trafficking, that were consistent with police officers obtained a warrant search apartment. subsequent Cox’s The ultimately search uncovered evidence that convictipn drug led to for traf- ficking. pull

Jackson contends that the trash vio rights lated his Fourth Amendment be cause, argues, as he police officers physically upon constitutionally intruded a protected they up area when walked trash can located near the rear apartment Cox’s to remove trash. See — ——, Florida v. Wagner, Robert James Of- ARGUED: (2013) 1409, 1414, S.Ct. 185 L.Ed.2d 495 Defender, Public Rich- fice Of The Federal (holding that officers conduct a Fourth mond, Erik Virginia, Appellant. for Sean when an Amendment search make Siebert, Of The United States Attor- Office physical into unlicensed intrusion a home’s Richmond, ney, Virginia, Appellee. for information). curtilage gather Jackson Nachmanoff, ON BRIEF: Michael S. Fed- argues that the officers his also violated Alexandria, Defender, Virginia, eral Public in the expectation privacy reasonable MacBride, H. Appellant. for Neil United can, relying primarily contents of the trash Alexandria, for Attorney, Virginia, States fact that the trash can on the Appellee. the curb- of a waiting for collection on street, as the case in California NIEMEYER, AGEE, Before Greenwood, 35, 41, v.. 486 U.S. THACKER, Judges. Circuit (1988) (holding L.Ed.2d “expectation of there' was no reasonable by published opinion. Judge Affirmed for collection in an privacy in trash left majority opinion, NIEMEYER wrote the public”). area accessible to the Judge joined. Judge in which AGEE n reject arguments. The district We both dissenting opinion. THACKER wrote a that at the timé of the court found as fact NIEMEYER, Judge: Circuit sitting trash can was on pull, 26, 2011, apartment com- May property Rich- common Before dawn on mond, apartment’s rather than next to the Virginia police pulled plex, officers two door, conclude that this find- from a trash can located rear and we bags of trash clearly erroneous. also ing that Sierra had was not behind the Cox We location, can was that in this the trash Redevelopment rented from the Richmond hold was accom- Authority. pull officers situated and the trash Housing were beyond apartment’s curtilage. tip plished looking to corroborate confiden- residents of the Whitcomb Court com- in .the circum- er further We conclude through the court- case, plex frequently passed Jackson also lacked of this stances yard guests as well as and other privacy their expectation reasonable af- visitors. Accordingly, we contents. trash can’s that the court’s conclusion

firm district After-inspecting bags the trash Jackson’s Fourth not violate did station, police police the Richmond found rights. Amendment drug trafficking, in- items consistent with bags with cluding plastic 32 clear sandwich

. I baggie missing the corners and several on containing corners residue. Based police received informa- Richmond After bags, police the contents of the trash confidential informants tion from a warrant to search 2024 Anni- obtained dealing narcotics from was Dana Jackson Street, they ston where recovered fire- Street, two offi- the rear of Anniston base, arms, hydrochloride, cocaine cocaine from the trash conducted a cers scale, blades, a several razor and digital at apartment behind the about can located $1,557in cash. 26, 2011, May morning on the 4:00 a.m. bags of trash. The two- recovering two apartment That was leased the Rich- in Whitcomb story apartment was located Au- Redevelopment Housing mond and Court, housing apartment complex Cox, a thority to Sierra who had lived there Redevelopment by the Richmond years owned for with her children. Dana several Housing Authority, Jackson, and was one of six boyfriend and her and the father of building in a that type children, units routinely stayed apart- her in the row-house search, The rear of the faced Anniston Street. ment. At the time of the both Cox grass courtyard separat- a building faced apartment and were in the with Jackson building. Each ing children, it from another similar and their Cox authorized the had a 10- apartment Whitcomb Court entry forced into a safe where much of the patio the foot 20-foot concrete outside activity was found. The drug evidence of connected to a patios back door. The were police then arrested both Jackson and Cox. length that the common sidewalk ran indicted, After Jackson was he filed building. patio Between each and the to suppress motion the evidence seized grass strip, about common sidewalk was during apartment, the search con- each patio two to three feet wide. On tending pull, that the trash which led to laundry lines—one near poles were two for search, an unconstitutional search door of the and one back suppression hearing, and At the seizure. away from the patio the far side that the- evidence showed the trash run- apartment. The common sidewalk picked up on Thurs- Whitcomb Court ning length building led to the collection, that, day mornings and for trash Street, Magnolia sidewalk on a side street. building in the that included residents courtyard buildings generally 2024 Anniston rolled their The between Street persons area for the- trash cans down the common sidewalk to served as common leasing Magnolia the units and their visitors. Resi- the sidewalk on Street. Rich- buildings dents in the described the court- mond Police Officers Michael Verbena and testified, however, Fitzpatrick Eric that at yard quiet peaceful as a and area where 26, 2011, Thursday, May play neighbors children could and could about 4:00 a.m. on they for 2024 Anniston congregate. building Each was marked found the trash can beyond the unit and Trespassing” signs, although with “No oth- Street located behind ’adequately an sitting partially keep on .the two-to- shown intent patio, . strip partially on the grass private. three foot contents of the trash can The officers stated sidewalk. common if court also concluded that even Jackson they grassy area between stood a subjective expectation privacy, had it and the sidewalk and that one patio- one, objectively was not an reasonable re up lid the other officer held the while lying Supreme holding on the Court’s grabbed plastic in and two reached Greenwood, 35, 41, 486 U.S. California They a knot. bags, explained each tied with (1988), 100 L.Ed.2d step “never had to onto [the] “expectation there can be no reasonable grab trash.” patio [the] privacy in trash for collection in an left public.” area accessible to Rejecting can testified that because her trash Cox Greenwood, distinguish Jackson’s effort to patio previously, had been stolen from her the court noted “that the fact that neither laundry pole normally she locked pulled the defendant -nor Cox had that was close to the rear door on the trashcan around to the Magnolia curb [on collection, how- apartment. of her Before trash, third-party disposal for Street] [was] ever, can from the she unlocked dispositive,” explaining that what mattered -to take it out for collection. She pole was whether exposed Cox Jackson had that at the time of the officers’ stated their garbage public. The court pull, she did not know where trash that by “plac- concluded had- done so it trash can was or whether had been ing adjacent the trashcan to the-sidewalk” unlocked. “readily neigh- so that it was accessible to acknowledged also that she did not Cox other bors and visitors storage can for rather use her trash but complex,” thereby “relinquishing any ob- of disposal want[ed] for trash —“stuff [she] jectively expectation priva- reasonable of rid of ... ... get [she] d[i]dn’t stuff cy.” anymore.” want After the district court denied Jackson’s denying suppress Jackson’s motion to suppress, pleaded guilty motion to Jackson apartment, the evidence from the seized 1drug trafficking, in violation of 21 the' district found as a fact that the court 841, § reserving right appeal U.S.C. his immediately adja- located “trashcan was sidewalk, denying order his mo- portion cent with a of the district court’s him protruding trashcan onto the sidewalk” tion to The court sentenced suppress. sitting imprisonment. on to 137 months’ remaining portion and with the strip grass of between the sidewalk appeal, raising filed this Jackson patio. The court held further issue of whether the trash violated his apart- of this location was outside the Fourth Amendment. rights under curtilage, noting ment’s “the area be- [was], yond part the concrete II area within common the Whitcomb Court apartment complex, part rather than challenge Jackson mounts a multifaceted property.” defendant’s leased : beginning ruling, to the district court’s ‘ argument that the court’s factual with any expectation privacy, As to ' finding regarding the location of the trash court concluded that Jackson “did not have clearly erroneous. He then ar subjective can was expectation privacy gues accept that even if we were to trash at the time.it was searched officers,” finding had not court’s factual about where reasoning Jackson district

372 an time of that the officers’ actions amounted to can was located at the the trash nonetheless find intru- pull, impermissible physical we should “unlicensed area,” under the unconstitutional Su “constitutionally protected the search of a sion” (3) in Florida v. not, recent decision preme Jardines, 1415; Court’s if 133 S.Ct. — 1409, -, 133 S.Ct. U.S. nonetheless had a rea- whether Jackson (2013). explains, He L.Ed.2d 495 expectation privacy sonable in the trash regard, [his] that “the search of this can’s contents. trawling police officers for

can involved porch, evidence on and around back [his] A surrounding his resi immediately area an under from protected dence and Jardines challenge to the dis police explicitly intrusion that is not finding regarding trict factual court’s (In implicitly permitted by,the resident.” trash can’s location at the time of the trash omitted). Finally, quotation ternal marks pull requires showing of clear error. See that he had a reasonable ex he contends States, Ornelas v. United U.S. pectation privacy in the trash can and 134 L.Ed.2d 911 directly its contents because “was behind (1996). demonstrated, Clear error is even residence, was not left out for collec finding if support there is evidence to tion, in a ‘no trespassing’ and was area.” fact, court, reviewing when the consider such, maintains, clearly As he his case “is evidence, ing all of the “is left with the Greenwood,” distinguishable which definite and firm conviction that a mistake that the Fourth Amendment does not held has been committed.” States v. United “the warrantless search and sei prohibit (4th Cir.2002) Breza, 308 F.3d garbage zure of left for collection outside (internal omitted). quotation marks Greenwood, curtilage of a home.” 37, 108 S.Ct. 1625. case, In police this the Richmond offi- gave specific testimony regarding cers that “the government contends rec- they where found the trash can in the fully supports ord the district find- court’s 26, 2011, early morning May hours of ing as to the trash can’s location.” It also emphasized— and—as the district court correctly maintains that the district court provide held that the trash can’s location was out- none of Jackson’s witnesses could that, apartment’s curtilage side and direct evidence to contradict their testimo- because the officers did not enter the cur- ny. They only speak could to where Cox Moreover, tilage, inapplicable. Jardines is normally kept light her trash can. of asserts, government “by placing his discrepancy specificity this of the adjacent publicly to a side- accessible testimony, witnesses’ combined with the walk, property, off his defendant most as- ability unique district court’s to evaluate suredly any expectation priva- forfeited of witnesses, credibility of simply we can- cy society accept would objectively as clearly not that the district conclude court reasonable.” finding erred that “the trashcan was adjacent immediately located to the side- conflicting

These contentions thus pres- walk, (1) portion pro- with a of the trashcan ent us with three related issues: while the truding onto the sidewalk” rest clearly whether the district court erred in of the can sat on the “two or three foot finding regarding its factual the trash (2) location; strip grass” wide of between the common can’s whether that location patio. apartment’s curtilage, was within the so sidewalk and the residence’s B Court concluded that the officers lacked permission background such “the because affirmed, finding factual With this social a norms that invite visitor to the to a novo review of the district turn de we front door do not invite him there to con- conclusion that the officers’ actions court’s duct a search.” Id. at 1416. an in physical did not involve unlicensed constitutionally protected area trusion of a Under if Richmond Police Of- illegal an search or so as to constitute- ficers Fitzpatrick Verbena and breached under the Fourth Amendment. seizure curtilage of Cox’s when pull, conducted the trash it would be Amendment, course, The Fourth fairly clear that their in opening actions provides right people “[t]he can’s lid taking and the two trash houses, persons, papers, in their be secure bags implicate protections would effects, against unreasonable searches Fourth surely bring- Amendment. For if seizures, shall be violated.” U.S. Const, ing drug-sniffing dog a onto a home’s front Supreme amend. IV. The Court porch beyond the scope implied is recently emphasized that text “es has this license that invites a visitor to the front simple namely, tablishes baseline”— door, rummaging through so too is a trash informa the Government obtains “[w]hen can located within the curtilage. home’s intruding persons, tion on physically effects, houses, within papers, or search case, parties agree In this that the original meaning the Fourth curtilage of Cox’s residence included the undoubtedly Amendment has occurred.” apartment. concrete behind her jardines, (citing at 1414 133 S.Ct. United however, They dispute, whether the area — Jones, -, States immediately beyond patio, including 945, 950-51, 950 n. 181 L.Ed.2d 911 strip grass two-to-three-foot be- (2012)) (internal omitted). quotation marks sidewalk, the patio tween and the common Applying property-based this “traditional itself, part as well as the sidewalk Amendment,” understanding of the Fourth curtilage. held that id. at the Jardines Court “using drug-sniffing dog on a home- The test used .to determine the “a porch investigate curtilage owner’s the contents boundaries of is not a.home’s that, finely of the home is a ‘search’ within the mean- formula when mechani tuned Amendment,” ing cally applied, yields of the Fourth id. at a ‘correct’ answer by all explained going extent-of-purtilage questions.” 1413. The Court United States, Dunn, 294, 301, porch, onto the home’s front the officers v. 480 U.S. 107 (1987). 1134, 94 326 undoubtedly had entered the home’s curti- S.Ct. L.Ed.2d Dunn, is, immediately Supreme the “that lage the “area sur- Court instructed —that rounding curtilage questions and associated with the home” should be resolved with that is treated “as part of the home itself particular reference to four factors: ^[1] the claimed to curti purposes.” proximity for Fourth Amendment Id. at of the area be (internal quotation marks omitted). lage ;to the home, ^[2] whether the area is surrounding within an investigation And because “the officers’ included enclosure took place in a * constitutionally protected (cid:127)the home, ^[3] the nature of the uses to area,” it was a search implicating the which the area is put, ^[4] the steps the by protect had taken the resident to area Fourth Amendment unless the officers license, passing by.” explicit implicit, gather people either from observation time, though, At the Court information there. Id. at 1415. The Id. the same area, common part sidewalk was of this factors are useful that “these cautioned that, in only degree to the and the analytical patio tools and the line between the case, they upon the central- any bear given boundary the between the grass marked the consideration —whether ly relevant conveyed by lease to particular property intimately tied to the question is so area apartment complex’s and the each tenant placed be under home itself that should circum property. common In these Fourth Amend- ‘umbrella’ of the home’s stances, then, that the apart we conclude Id.; also protection.” see Oliver ment curtilage to the of its ment’s extended end States, 182 n. 466 U.S. United further, because the patio back but not (1984) (describ- 80 L.Ed.2d S.Ct. two- beyond patio, including area defining curtilage “conception ing patio and the to-three feet between around the home to which ... as the area sidewalk, intimately common was not “so extends”). activity of home life that it should be tied to the home itself the four Dunn factors Application of ‘umbrella’ of placed under home’s predominantly to the conclusion points Dunn, protection.” Fourth Amendment court in this case— reached the district 301, 107 480 U.S. S.Ct. was situated outside of “that the trashcan Accordingly, we affirm the district ... curtilage of the residence at 4:00 First, May respect 2011.” with court’s conclusion that the officers here a.m. on strip grass on which proximity, pulled bags the trash from a trash can (and partially can sat on which the trash apartment’s curtilage. located outside stood) beyond the end of the officers not intrude physically Because did and therefore at least 20 feet area, constitutionally upon protected we Although back door. apartment’s from the un- prevail conclude that Jackson cannot great, is not 20-foot distance property-based approach der the complex with mul context of an Fourth articulated in Jar- Amendment area, sharing a common the 20- tiple units dines. require is not so close as to foot distance curtilage the conclusion that the extended C Breza,

that far. 308 F.3d at 435-36. See factors, and fourth As to the second analysis, Jardines does within an enclosure area was not “included inquiry, how end the Fourth Amendment home,” nor did Cox and surrounding because, ever, as Jardines itself makes any steps Jackson take to shield the area clear, “property rights are not the sole by. people passing from view of What is measure of Fourth Amendment violations” however, third Dunn telling, most is the reasonable-expectations Katz “[t]he the area claimed factor—the use to which ... test has been added to the traditional curtilage put. The evidence be understanding property-based courtyard indicates that the between Fourth Amendment.” apartment buildings was a common area 1414, (referring 1417 to Katz v. United apartment used all residents 507, States, 389 U.S. 19 courtyard was complex. The common area (1967)) (internal quotation L.Ed.2d 576 grassed area that had common sidewalks omitted). therefore also ad marks We it, by running through which residents whether Jackson had reasonable dress apartments could walk to other and to in the trash can’s expectation privacy of Magnolia Street. The two-to-three foot and the contents. strip grass between the

375 sidewalks, Supreme very areas and common readily Court confronted ac- Greemuood, in where it Moreover, set of facts to all passed by. similar cessible who the Fourth Amendment does not testified, held that as Cox trash the can contained “the search and sei- prohibit warrantless get of,” “stuff to [she] rid wantfed] stuff garbage left for collection outside zure anymore.” she want Put simply, “d[i]dn’t curtilage of a 486 U.S. at home.” having left the can trash outside the curti- There, an enterprising 108 1625. S.Ct. home, lage of their in a common area the neighbor- officer had “asked police shared the other residents of the apart- regular pick up to hood’s trash collector ment complex guests, and their Jackson garbage plastic bags Greenwood cannot now claim to have had a reasonable of his had left on the curb in front house expectation in privacy its contents. As turn her bags and to over to without . Greenwood, containing in the trash can mixing garbage their contents .with “readily refuse Jackson’s discarded was holding practice houses.” In other Id. children, animals, accessible to scavengers, lawful, Supreme accepted Court snoops, and other public.” members likely fact that “did not defendants 40,108 Id. at S.Ct. 1625. of their expect garbage the contents reasons, For these we conclude that the police become to the or bags would known that the Richmond Police con- members of the but nonethe- public” other May ducted on was a lawful concluded that less the defendants had investigatory procedure and accordingly their, “exposed garbage public to suffi- affirm the district order denying court’s ciently to defeat their claim to Fourth motion suppress. Jackson’s protection.” 39-40, Id. at Amendment judgment of is accordingly conviction S.Ct. AFFIRMED. conclude that rule con- We Greenwood’s sure, here. To there are trols be some THACKER, differences, Judge, key among being dissenting:

factual them Circuit that Greenwood’s trash had been left on The Fourth “The Amendment is clear: collection, for the curb of a street right of to be in people secure their yet whereas Jackson and had not Cox effects, houses, persons, papers, Street, Magnolia their trash can taken against searches sei- unreasonable and. regularly the garbage where collector col- Const, zures, shall not be violated.” U.S. it. But inquiry driving lected the critical decisions, recent amend. IV. several decision in Court’s Greenwood Supreme Court reaffirmed that at its has extent which the defendants had “ex- “very core,” Fourth Amendment their posed garbage public,” to the thus right for “the of a man to retreat stands eliminating any expectation “reasonable into his own home and there be free from privacy inculpatory items that governmental unreasonable intrusion.” 40-41, discarded.” Id. S.Ct. 1625. — -, Florida v. measure, By that Jackson’s claim to (2013) 1409, 1414, L.Ed.2d 495 S.Ct. Amendment for protection Fourth omitted). (internal quotation marks can being fails. For rather than right practical “This be of little would laundry closest to the pole locked in a door, agents if the could stand back value State’s residence’s where was nor- located, porch garden and trawl for side mally sitting the trash can home’s Id. at 1414. Al impunity.” evidence with the common area of the com- colleagues majority courtyard, grass though my good which included the plex 376 which resi- opening through the funnel-like narrowly based on

cast this decision court, may access Street. See Anniston see ante dents by the district found facts II Ex. I.1 J.A. (“The as fact that court found district at 3 the trash can pull, the trash at time of the wrought separates iron Anni- A fence property of the on common sitting at which apex point from the ston Street accepting the complex.”), even meet, leaving only buildings the the two court, I the cannot by found district facts in fence for an inter- opening funneled the of the Fourth to a version subscribe walkway public the nal intersects permits agents Amendment along See J.A. Anniston Street.2 sidewalk of a a search to conduct warrantless state 11, undisput- 12. Notably, Ex. it is II Ex. receptacle the is trashcan where citizen’s is not walkway the internal ed home and not directly behind their located walkway. no “through” alleys, through No for collection or left otherwise abandoned sidewalks, and no driveways, no streets see along public thoroughfare, directly or abut the area behind California transect Greenwood, 35, 39-41, 108 S.Ct. 486 pull home where the Jackson’s (1988). For L.Ed.2d these And, according to Whitcomb conducted. reasons, respectfully I dissent. property manager Clementine Rob- Court

inson, the areas the residences— behind I. areas of each patio private the areas —are 112; at also J.A. at 122 tenant. J.A. see A. (Jackson’s Morris, neighbor, stated Asia area.”); The Area the Search “private of that the area her is Ex. Ex. 12. J.A. II Ex. in this case of concern is property The Moreover, the trash called area where larger development Whit- part of Court, by trespass- “no managed and occurred is surrounded which is owned comb by Housing Au- Redevelopment Housing ing” signs.positioned by the Richmond signs “no Authority”). thority. trespassing” Six were Authority (“Housing Whit- in building a number of affixed to each Whitcomb up is of comb Court made Court, buildings, houses. one on each side of the buildings containing each six row two on the the back of home was in one these and front and each Jackson’s located read, The adjacent building. signs to Anniston “NO TRES- buildings and was Richmond, RRHA,” By the Virginia. in The build- PASSING Order Street Housing Au- building Redevelopment next to is Richmond ing located Street, angled thority. signs white with to Anniston but is are also next black observable, lettering readily night similar and are buildings appear that the two such fact, triangle, leaving day. sides a or Officer Verbena in form to two of a Michael part photograph, although the fence 1. Citations to "J.A.” refer Joint appeal. by Appendix parties walkway filed in this of the internal is obscured trees. reference, Additionally, photo- depicted by for ease of accurately more That area is 2, 4, 11, graphs in contained Exhibits appended photographs Exhibits 11 and 12. appended 13 are hereto. In order maintain clear distinctions portrays view of the an aerial .two Exhibit areas, among paved denote I issue, various buildings appended and is this strip pavement parallel to Anniston opinion to assist reader. The funnel-like "sidewalk,” directly . and that Road as opening point at the to the internal access buildings convergence each two Whitcomb courtyard behind is indicated "walkway.” buildings quadrant top right Court as internal the two McGrew, the two Linda investigator, the area behind that testified that testified “private manager that buildings property,” property Robinson told her on trespassing” signs two “no there were she had never seen a trashcan the on build- walkway Court, back sides of both of the the interior internal and Whitcomb where the trash was con- ings facing are the kept the'trashcans instead on ducted, “clearly signs the are and patio areas of each residence. Each wit- 58, 68; J.A. at II Ex. Ex. marked.” J.A. in development ness who lived the likewise 11, Ex. 12. kept testified that trashcans are not the on

walkways in Whitcomb Court. Jackson’-s B. neighbor Smith Sharice testified that there is a rule in complex against the Weekly Trash Collection The having on the walkway. trashcans Smith in col- order for the trash Significantly, also stated that she had never seen pick up the trash from Whit- lectors to trashcan in Court on walk- Whitcomb the Court, each the trashcans comb behind way in years living her five Asia there. brought by must be tenants residence the Morris, Jackson, who lived next door to patios, rear along from their the Whitcomb that in all years likewise testified the she walkway,' apart- Court internal around Court, lived at Whitcomb she had never building, through opening ment on walkway. se'en a trashcan the internal fence, wrought past iron several “no tres- contrast, Officers Verbena Eric and signs, public and to the curb on passing” Fitzpatrick presented inconsistent versions Indeed, the collec- Anniston Street. of events. traverse behind the houses tors do not row patios or and onto residences Fitzpatrick Officer testified that walkway trash. pick up internal sidewalk,” trashcan was located “on the is not The trash left for collection behind walkway internal rear meaning the residences; only when the trash is J.A. 98. He stat- Whitcomb Court.3 then brought public exposed to the street is it photograph ed that in the that is depicted subject and to collec- passersby in he standing “approxi- Exhibit 2 by company.'

tion removal mately the trashcan on where was located 59-61, 98-99; J.A. J.A. that sidewalk.”

C. Fitz- photograph, Ex. 2. In that Officer patrick standing to be appears completely Location Trashcan However, Fitz- walkway. on the Officer accepting Even the location of the trash- patrick that the could indicated trashcan light can as found district court in have “inches” in been one direction Government, most the re- favorable another. J.A. assuredly cur- ceptacle was on the home’s tilage plainly safe from a warrantless Notably, pictorial officers’ recreation agents of search the state. trashcan was located where the on

Nonetheless, night actually took six precise question place location fact, prepa- trashcan at the time of the is in and a months search after half good and for dispute, then-forthcoming suppres- reason. ration for the Court, supra accompanying buildings adopt note 2 text. Whitcomb 3. See I While the officers use the term ''sidewalk” to "walkway.” term more accurate paved path internal describe the between 4) the completely “almost on side place also Fitzpatrick Officer hearing.4 sion 53-56; J.A. J.A. 9. of walk.” night the the that was dark confirmed at least and that he had done pull trash constitutionally Crediting a offen- less on with Verbena pulls trash Officer ten shifting sive version the officers’ how- night. Significantly, particular testimony, the district court conflicting for ever, affidavit .the in Officer Verbena’s at the that the trashcan was time found residence— of Jackson’s warrant search “immediately adjacent” the search located day as the trash on the same generated walkway running the behind Jackson’s to being trashcan as pull described the home, as “positioned partially —he as well on” residence, “directly the behind” situated walkway, opening the lid toward “with United, or near being of it on mention with no Jackson, house.” States walkway. J.A. 9. internal II 529814, 3:11CR261-HEH, *4 2012 WL at 2012). (E.D.Va. 17, Feb. (cid:127) testimony contained Officer Verbena’s explain The district court did not wheth- Initially, troubling inconsistencies. further touching the patio er the was also trashcan that the trashcan testified Officer Verbena patch or if it was the small located on yards to ten from back “seven was grass step or cement between internal sidewalk,” “right door J.A. off off walkway patio. The district supp (emphasis J.A. 53 the sidewalk.” simply pre- court was not clear about Then, lied).5 when the district court location of This per- cise the trashcan. is how far the trashcan was specifically asked given the state of the haps understandable sidewalk, Officer altered from the Verbena shifting testimony in this officers’ case. testimony and said the trashcan was his But, the location of the trashcan is of sidewalk, if “basically touching almost importance for determining monumental 55. partly on the sidewalk.” J.A. not on— interests, curtilage, property and legiti- Finally, response to the district court’s privacy accepting interests. Even mate regarding far the trashcan question how finding the district court’s trash- “moved” patio, from the the trashcan was partially at least on” can was “positioned point to a it was “almost further which id., walkway, logic internal dictates say I’d completely on the sidewalk. So receptacle that the remainder of the would actually is maybe patio a foot off the where resting have also been on or the was, J.A. give the trashcan or take.” patch grass step cement small direct- So, span supplied). (emphasis ly Jackson’s residence —an area the behind point from the at which Officer time district court should have determined was affida his warrant Verbena drafted search curtilage as matter of law. day pull to the time vit on the Indeed, the suppression hearing he testified its district court rested deci- later, and a half months the location eight finding sion on its that the trashcan was 1) trashcan, “directly walkway, “adjacent” shifted internal which 2) residence; behind” the “off’ in its view accessible” and a “publicly side7 3) walk; easement,” this although “if not on the side latter partly “common on— walk;” and, record. finally, ultimate term is not defined in the J.A. resting to its hearing approximately suppression was held on Febru- 4. The trash occurred at ary 2012. May photographs 4:00 on 2011. The a.m. purporting to recreate the location of the supra note pull were taken on December 5. See 3. for, dispute regarding 177-78. There is some ed trespassory common-law test.” removed)). walkway (emphases how accessible the internal was to but it public, members of the is clear from Thus, search, in conducting a the Gov- along the fence Anniston Road and the fact may ernment violate an individual’s Fourth walkway “through-way,” that the Amendment rights in two different ways: walkway the internal was for resi- 1) by physically on the individu- intruding guests accessing dents and their back property al’s manner, an unreasonable patios-not for members to use 2) by violating and an individuals reason- a path as to another destination. This expectation view, able privacy. my light conclusion becomes clear in more warrantless search Jackson’s trash- trespassing” signs post- numerous “no can, directly located his behind home in a ed all along complex walls. area, private was an unreasonable search under both approaches. II. The Fourth Amendment “establishes A.

simple baseline ...: When ‘the Govern- by physically ment obtains in- information The Property Protection of Interests houses, truding’ persons, papers, on “ The Fourth Amendment ‘indicates' effects, ‘a the original search within mean- precision places with some things and ing of the Fourth Amendment’ has ‘un- ” encompassed by its protections’: persons, Jardines, doubtedly occurred.’ Florida v. — houses, papers, Jardines, and effects.” -, 1409, 1414, U.S. 133 S.Ct. 185 133 at (quoting S.Ct. 1414 (2013) Oliver v. United L.Ed.2d 495 (quoting United States — States, 170, 1735, 466 Jones, U.S. 104 S.Ct. 80 U.S.-, 945, v. 132 S.Ct. 950- (1984)). 214 Although L.Ed.2d (2012)). all in 3,& n. 911 951 181 L.Ed.2d vestigations private property conducted on Supreme Court original has denoted this subject protec are to the-Amendment’s understanding of Fourth Amendment tion, States, see Hester 265 United U.S. embodying as a “common-law v. trespassory 57, (1924) 445, 44 S.Ct. L.Ed. 68 898 Jones, at test.” 132 S.Ct. (recognizing doctrine), “open fields” A Fourth Amendment violation also oc it Amendment, “when comes to the Fourth government curs when officers violate a among equals.” the home is first Jar- person’s expectation “reasonable of priva dines, Supreme 133 S.Ct. at 1414. The States, cy.” 347, Katz v. United 389 U.S. - explained: Court . 360, (1967) 507, 88 S.Ct. 19 L.Ed.2d 576 core”, (Harlan, J., concurring). Notably, “very At “though the Amendment’s stands baseline, may Katz add to right does not “the of a man to retreat into his anything subtract from Amendment’s own home and free from unrea- there be protections governmental “when the Government does sonable intrusion.” Sil- States, engage physical 505, intrusion of a verman v. [a] consti- United 365 U.S. 511, (1961). tutionally protected area.’” 133 L.Ed.2d 734 5 n at 1414 (quoting right practical S.Ct. United States v. This little would be of Knotts, 276, 286, if S.Ct. value the State’s could stand in agents (1983) (Brennan, J., garden 75 L.Ed.2d 55 porch concur- home’s or side and trawl Jones, ring)); see right also S.Ct. at 952 for evidence impunity; with (“[T]he reasonable-expectation-of-pri- Katz retreat significantly would be diminished to, vacy if test has been added not substitut- a man’s police proper- could enter protection.” out- brella’ of Fourth Amendment just repose his ty to observe Id.6 the front window. side the area “immedi regard therefore We testimony of Officers Crediting and associated with ately surrounding court Fitzpatrick, the district Verbena and call cur our cases the home” — what beyond the trashcan was concluded the home itself for tilage “part of — as of the home at the time curtilage Oliver, purposes.” Amendment Fourth because, time, it was 180, 104 S.Ct. 1735.... U.S.] [466 sidewalk, “positioned directly next to the home is “intimate- This area around the actually protrud- the can with portion home, physically linked both ly sidewalk,” “not chained or ing onto the “pri- and is where psychologically,” v. otherwise secured.”7 United States expectations heightened.” most vacy are Jackson, 3:11CR261-HEH, 2012 WL Ciraolo, 476 U.S. California 2012). (E.D.Va. 17, I 529814, *4 at Feb. (1986). 1809, L.Ed.2d 106 S.Ct. 90 210 disagree. Thus, supplied). 1414-15 (emphasis at

Id. the at we first look to whether trashcan 1. the time of the warrantless search was the Home Proximity of Area to the of curtilage located on the Jackson’s resi- dence. any not ... distance “There is fixed curtilage ends.” States v. prescribed has a which United Supreme

The Court Cir.2002) Brezo, (4th 430, F.3d 435 308 guide curtilage multi-factor test to deter- (internal omitted). quotation marks minations: “Rather, determining in the area whether [Cjurtilage should questions be resolved home, intimately searched was tied to the particular with reference to four factors: ^[1] thé proximity of the area claimed to ... the proximity of the area to the home be curtilage home, ^[2] whether the must be considered in light other (internal quotation Dunn Id. factors.” area is within an sur- included enclosure rounding the home, ^[3] the nature of the marks and citation omitted). Based on uses to which the area is put, ^[4] Officer Verbena’s testimony as credited court, the locat- the district trashcan “was steps protect taken the resident yards door ed seven to ten from the back by people the area from observation house, which past concrete by. passing twenty out approximately extends feet Dunn, 294, 480 United States v. Jackson, 2012 from the rear entrance.” (1987). 1134, 107 94 L.Ed.2d S.Ct. 326 WL at *5. cautioned, however, The Court that “these Brezo, analytical only are v. we reasoned factors useful tools United States case, the lo- degree that, any given garden, in that while the defendant’s search, only 50 upon centrally disputed bear relevant consider cation of the “was question permit in feet house ation —whether the area is so from his would [and] intimately garden home that it that the within- tied to the itself conclusion a conclu- placed curtilage, compel ‘um it does not such should be under home’s Oliver, curtilage (quoting U.S. at 182 n. 6. "While boundaries of the are marked,’ generally 1735). 'clearly 'conception de- fining any curtilage’ is rate familiar enough "easily understood our it is from supra 7. See note 3. daily experience.” 133 S.Ct. at Thus, 436. building sion.” 308 F.3d at United States of which Jackson’s Cf. 1424, 1427 Depew, (noting 8 F.3d part home is partially is a at least en- per- is enough distance of 60 feet close closed, as it is bounded on all sides one curtilage mit if finding other factors form or another. See United States v. finding). support Similarly, such a in this Redmon, (7th 138 F.3d Cir. case the district court’s factual determina- 1998) (en banc) (Posner, J., dissenting) tion that the trashcan was at 30 feet most (“The curtilage rarely would extend be- is not dis- Jackson’s backdoor alone yond house itself complete, opaque if positive finding to a How- curtilage. as required. enclosure were people, New ever, light when viewed the enclosed very wealthy, other than the barricade housing complex environment of the yard their front so that a completely per- purpose i.e., the nature of the location’s — seeking request son to enter must enough away to store waste far noxious of a unlocking gate higher solid is from the not left for home but collection— level.”). eye than relatively proximity trash- close can to the rear of home counsels strongly in trash- concluding favor curtilage.

can within of the Area Uses

2. case, In the this area claimed to be the of Enclosure the Area curtilage includes the patio immediately home, behind Jackson’s as well as the the We must also consider “whether grass surrounding patio it the between and area is within an sur- included enclosure walkway. the patio internal The includes Dunn, rounding the home.” clothesline, a by posts. held two Each 301, 107 proper S.Ct. 1134. “The focus of required residential unit is the by develop- this factor is whether fencing on interior Brezo, trashcans, rules to clearly curtilage.” keep demarcates the ment’s residents’ (quoting 308 F.3d at 436 among United States other items of personal property, (9th 1153, Traynor, 990 F.2d Cir. Thus, on the area. patio the area is 1993) (internal omitted)). quotation marks essentially the individual back resident’s case, In this was there no enclosure of yard. Jackson’s individual unit within the build- the Although Government claims that ing. nearly important, building But as the by-the public, this area was “accessible” containing en- largely Jackson’s home was any fails to to point suggesting facts the noted, closed. As the main point of access public patios actually put to use. were to is through Jackson’s home a funneled And, critically, the officers them'selves con- opening wrought iron off just fence the rear was not walkway ceded that sub- public the along sidewalk Anniston Street. ject traffic, “through” to that the area and Opposite

See J.A. II Ex. Ex. 12. Jack- buildings “private behind the two was courtyard patio, by son’s the is bounded 58, 67-68, See J.A. 91. property.” Merely neighboring the rear of the row houses. or public because members of can have on See J.A. II Ex. 4. Ex. And at walkway occasion accessed rear and opposite entry end of the funneled to Anni- Street, courtyard does not mean the Government courtyard ston in by is hemmed may a warrantless searches of the retaining bordering neighboring wall conduct logic baseball field. J.A. II Ex. Ex. 4. with re- See entire area abandon. Such Dunn factors of Upon to consideration curtilage nullity.8 the residents’ duces the facts this case —even applied as to of testimony shifting the officers’ crediting 4. best) (which dis- inconsistent at —the Protect Area Steps Taken to the trash- legal trict conclusion that court’s from Observation curtilage located on can was -not Jackson’s be curti- Here, to the area claimed the trashcan proximity The of was error. open his completely home, is lage Jackson fact that and the no fences neighbors: Court enclosed, in favor largely Whitcomb area militate open observation other barriers inhibit was in- determining the trashcan com- courtyard area the rear curtilage. deed within courtyard Nevertheless, area plex. is secluded from buildings

between B. (from public street-side- public view Privacy Protection of Interests area) by impor- fence. a metal More walk to the search of the trashcan multiple trespassing” “no addition tantly, there are being trespassory two unreasonable under on the rear wall of the signs located test, Indeed, expectation accord- Jackson had reasonable buildings. row residents, it had not privacy in his trashcan when property manager ing to the collection, was rather been left for but behind the individual units —the the areas home stor- kept temporary ten- behind for private areas each patio areas —are noted age personal this waste. As ant. See Clearly, J.A. at Jardines, analysis overlaps unhin- Court this designed an allow was not area observation; Fourth public property with the interest-based dered travel See analysis. rather, to residents and their Amendment it was limited J., (Kagan, concurring).10 1418-19 S.Ct. at guests.9 reasoned, "public” "by completely placing should consider the area The district court 8. However, despite trespassing” signs. adjacent readily ac- the "no trashcan sidewalk— against trespassing was the rule en- neighbors cessible to and other visitors in whether particular does not apartment complex exposed forced on these occasions defendant —the presence signs any less public-at-large____” make im- the trashcan Jack- to son, portant curtilage response WL at *6. In to for the multifactor determi- 2012 529814 undisputed testimony that the nation. the residents’ walkway generally "not internal accessed strangers,”- responded: the district court 10,Justice Kagan's concurring opinion in Jar- "However, gated community. a was not this this clear: dines makes Residents, visitors, and other non-residents involving surprising It that a case in is access the common area and the side- could home, concepts property of a search n. walk at will." Id. at *6 privacy concepts align. The law should so But, lot smaller sizes should citizens with naturally enough property of influences our any not be accorded less Fourth Amendment expectations places of what shared social luxury of protection than those who have the governmental should be free incur- larger grounds, including larger much drive- "my home sions. And so sentiment is ways yards may and back such that store own,” my originating property while in their, trash at a further distance from the law, now also denotes a common under- public point. collection beyond that standing extending even law's — especially pri- protections an of- 9. The Government claims because its formal —about prop- investigator sphere. Jardines' was his able to vate home ficers Jackson's were go apartment complex prop- erty; it was also his most' intimate and come and on occasions, proceeding space. analysis The erty difficulty without a few we familiar on

383 protections acknowledge of the Fourth explained, As that the trashcan was located Amendment are also activated when the or walkway near the internal next to or conducts a search seizure in an state Jackson’s and the district court found “constitutionally in which there is a area it adjacent that was located to the internal protected expectation priva- reasonable of Therefore, walkway. it say is incorrect to Class, 106, 112, cy.” New York v. 475 U.S. Jackson’s garbage Green- —like (1986) (cita- 960, 81 106 S.Ct. 89 L.Ed.2d wood’s—could be searched the police omitted). tion placed it because where was was accessible “animals, scavengers, to and snoops.” analysis seminal governing The case in Greenwood, 40, 486 U.S. 108 S.Ct. 1625. Greenwood, regard this is California garbage private Greenwood’s was not on 100 L.Ed.2d 30 S.Ct. (1988). or Greenwood, property curtilage; on his Supreme Court was. Government does not explain no held that defendant has reasonable how any of in Jackson’s trashcan was expectation privacy refuse left for less acces- “animals, scavengers, on of to public collection or “at the side sible and snoops” animals, readily street is to had it entirely accessible been located on patio. his children, scavengers, snoops, and other Id. Id. at public.” members o appears The Government t contend explained 1625. The Court that the S.Ct. reaches, that the conclusion it namely, that defendants: expectation Jackson had no reasonable their placed refuse at curb for privacy, naturally follows from Greenwood. purpose conveying express it to a (“The key See Government’s Br. at collector, party, third who ... factor is the ‘respondents whether ex- might through himself have sorted re- posed their garbage public suffi- others, spondents’ permitted ciently to claim defeat their to Fourth police, such as the to do so. According- ” protection.’ Amendment (quoting Green- ly, having deposited garbage their an wood, 1625)). 486 U.S. at particularly area for in- suited any But police entitlement the may have and, in spection speaking, a manner dependent search the trashcan is its upon public consumption, express pur- for location on as property, the defendant’s pose having strangers take ... the location is in case the primary this had no respondents could have reason- indicator of Jackson whether intended expectation privacy able the incul- relinquish legitimate expectation pri- his patory items that discarded. vacy. Storage to of the trashcan so close (internal 40-41, quo-

Id. at S.Ct. the rear of curtilage, his home—within its omitted) (em- marks tation and citations I that it submit—indicates was not intend- phasis supplied). relinquished. ed to be contrast, In here Jackson’s trashcan was Further, collection, explained, as members placed public not curb for but, rather, in scavenging intent on or public snooping was located on the internal walkway by need to building Whitcomb Court Jackson’s trash would access 1) complex “directly stepping walkway internal behind” Jackson’s resi- onto the Indeed, See through dence. J.A. II 9. in the opening alongside officers fence facts, J., today’s each of (Kagan, from reveals, those as decision 1418-19 (internal concurring) quotation ci- along marks and mostly path. runs the same omitted). tations 2) Street; sum, unjustified along probe the officers’ travelling Anniston street, walkway between internal from not collec- Jackson’s trashcan when left for buildings, the two fences and two tion or otherwise abandoned constituted courtyard only private to which leads falling purview under the search 3) areas; at the fork patio principles Fourth Amendment under the walkway to the walkway that leads either recently as well as espoused Jardines or walk- building behind Jackson’s those set forth in Katz. Absent a warrant taking building, way opposite behind the thereto, presence any exception to left Jackson’s walkway trawling, exploratory search officer’s area, trespassing” “no passing multiple Accordingly, patently unreasonable. estimates, Appellant signs process. sup- refusing the district court erred dispute, this and the does Government press the evidence tainted the fruits where entire trek from the sidewalk illegal search of trashcan. Jackson’s is for the rear of left collection residence where the approximately yards is occurred III. Thus, start to finish. Jackson’s reasonable reasons, foregoing For I re- would privacy interest remains intact under judgment verse the of the district court. Greenwood.

Case Details

Case Name: United States v. Dana Jackson

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 26, 2013

Citation: 728 F.3d 367

Docket Number: 12-4559

Court Abbreviation: 4th Cir.