United States v. Joseph R. Redmon

BAUER, WOOD, Before HARLINGTON JR., ROVNER, Judges. Circuit WOOD, JR., HARLINGTON Circuit Judge. defendant, Redmon, Joseph deposited

his trust and his cocaine accessories in his garbage cans. That awas mistake. The police got to cans before the subsequent collectors. A search of house under a search warrant is- sued on the basis of that can evi- produced grams dence of cocaine. possession indicted grams over 400 of cocaine with intent distribute violation 21 U.S.C. 841(a)(1). failing in After his effort quash the suppress search warrant and to evidence, guilty he entered conditional plea reserving appeal right that deci- 1037 house, curtilage the which also a within the of now and raises He does that sion. expectations privacy heightened.” are most sentencing issue.1 Hedrick, however, analyzing In after Califor- objec- had is that he defense 35, nia v. 108 S.Ct. privacy expectation of tively reasonable (1988), 1625, 100 L.Ed.2d and various 30 garbage argues cans. He the of contents eases, this court found no constitutional garbage of those warrantless search that the privacy particular facts. 922 F.2d under search warrant his house cans led to the at 399. his Fourth Amend- violated and therefore Moreover, oth- Hedrick does not establish that thought court rights. The district ment garbage within the cur- erwise, cans were and we. so do Ciraolo, tilage. Relying on 476 Garbage The I. Cans 1809, 1812, (1986), the Hedrick court de L.Ed.2d of Although facts and circumstances the being curtilage the an area intimate fined disputed, can searches are garbage ly sanctity of the home associated with the must be examined. Red- nevertheless life, physically of and the both and two-story was situated at townhouse psychologically, and an area where adjoining eight of townhous- the end of row expectations heightened. are most 922 F.2d intersecting of two es on the corner court at 398. The Hedrick further noted Urbana, front Illinois. Redmon’s streets following recognized that eases Ciraolo porch, faced east one without toward of yard a residential home within the only by a nar- It be accessed street. could curtilage. although at 399. Id. from the door extending row walk were Hedrick cans located to the the corner of the townhouse around driveway way about half side of driveway. garage garage and The connected garage, and con sidewalk court street. north on different faced them be curtilage sidered to within the com- neighbor shared the Redmon and However, government as the house. jointly dou- driveway mon which served their Shanks, out, points in United States v. driveway was ble-garage structure. The (7th Cir.1996), denied, cert. F.3d and about twenty-five feet wide extended side- twenty-three feet and across (1997), this court also found that walk, ten and then about another feet garage placed next to a detached cans The public street. width of residence, twenty from the but also feet garage the distance exceeded curtilage alley, close to were were sidewalk. The lo- privacy. with no reasonable just garage, outside the on the common cated driveway, about half between the present in the ease did district court The Redmon used one side doors. about or not finding not make a whether neighbor and his other. There were no cur- cans were within the yard gates. fences or However, present case the tilage. garage, outside the Analysis

II. the Search but close to visible Thus, Redmon’s and the sidewalks. arguing In that he had an streets evidence, gar on the record in his based appear to to have been within the cans were do not us Redmon claims remembering curtilage defined curtilage, curtilage house. He relies within Hedrick, case, intimately with the 922 as an area associated our privacies sanctity and the of life. stated the house which event, twenty from In under our eases Hedrick “garbage cans feet located Shanks, curtilage finding controlling. approximately fifty feet Shanks, technically the back door of the house were release, years supervised September imprisonment, six

1. On sen- special $50 assessment. as a career offender to 188 months tenced greater weight. particularly can be of clearly factors that the cans 400. Other were therefore, case, had the district court visible from sidewalk. Id. finding were made glance, At first the factual circumstances would not have within altered might in this tip case seem under the result. protected privacy. balance toward garbage close to the at- court noted that in The Hedrick However, garage. sig- tached there are also Greenwood, 486 U.S. 108 S.Ct. at nificant factual circumstances the tipping bal- Supreme the Court held that the against protected privacy. ance prohibit does the Fourth Amendment not cans, mentioned, garbage as we were located of garbage search and seizure warrantless driveway on a which he shared used in and in an area found to be left for collection common with his neighbors, next-door who- curtilage the of the home. 922 be, they might ever and with their visitors However, the court also noted that and Redmon’s visitors. Redmon had no con- Greenwood, Supreme distin the Court neighbor’s’ trol over his invitees or others garbage guished cans other containers might neighbors. who call on his curtilage by noting the of the home within bags on “plastic garbage left or at the Another fact the public readily street are side of accessible driveway only common not served as drive animals, children, scavengers, snoops, to and way, but partly also served as a walk and public.”2 other members of connecting pedestrians link for to Redmon’s Greenwood, (quoting 922 F.2d at 399 486 front walk. provid door The front door walk 1628). 40, 108 U.S. at Some those only ed the access to Redmon’s front door. predators mentioned animal callers, therefore, For to route Red human, likely also venture from a moris front door was side up driveway short street to side, check walk up on the north appealing garbage plain view. cans the garage garbage and the and then explained proper the Hedrick court that the left around corner of house focus under Greenwood was whether the going front door going east.3 Walks readily bage entrances, was accessible to the and from front though door on any expectation private as render ob- property, generally regarded as jectively Accordingly, open unreasonable. Id. for use connection with court said no bright the Hedrick line rule occupants. person house A who protecting garbage all within curtilage up walks the walk to knock at someone’s possible explained front trespasser. door considered garbage Rather, were within curtilage implied permission cans there is for the necessarily walk, did not mean that were con- to use the or in this case the stitutionally protected. at 400. deter- driveway-walk. combination In that sense protected mining that the defendant had no adjacent cans were on or interest by the walk used him calling those on or neighbors Hedrick court considered other factors in ad- readily and were accessible to curtilage including ready public. dition calling acces- Those or sibility of public, neighbor cans to necessarily passed gar close short distance between being any without basis for a sidewalk, service, by garbage legitimate objection by collection Redmon. raccoons, dogs, 2. Animals are not familiar with the rule but none on and other animals Amendment, ordinarily and the Fourth may can- who be as interested in the as the not be relied on to abide it. Urban raccoons police. Shelby, See United States particularly ignoring skillful the Fourth (7th Cir.1978). Amendment even when the is secreted in a can with likely a lid. attractive contents photo 3. Government Exhibits 3 and 5 show neatly spread by ingenious will soon out walk, Redmon's the common industrious raccoons for all to see. This court driveway-walk, and the cans. conduct, expect police can to have some effect on Sentencing Issues III. The sure, expect Redmon did To be to become known garbage can contents present of At the time of Redmon’s public. of the or members fense, twenty-nine he was March enough “give rise is not That alone felony Illinois had a 1989 years old. He however, un- protection, Amendment Fourth in possession cocaine with conviction accept expec- prepared aggravated society Illinois less and 1986 tent deliver battery Green- Sentencing as reasonable.” In the Com conviction. tation Act, 39-40, wood, Enabling Congress directed at 1628- mission specify a Sentencing Commission to sentence majority of the judgment is that a 29. Our imprisonment “at near the maximum or accept Redmon’s prepared to public is not con for an adult defendant term authorized” reasonable. felony of drug of a violent crime victed princi- “no Cudahy saw Judge In prior such convictions. who had two fense separating case pled [with Hedrick’s basis 994(h). implement § con To that 28 U.S.C. the drive- half down garbage cans Sentencing requirement, gressional kept in on way] from one which § promulgated 4B1.1 of Commission 401. porch_” Offender,” the back Guidelines, entitled “Career (Curbside admittedly a situa- part was different pertinent qualifi provides in which tion.) Cudahy strongly Consequently, Judge cation for that enhancement: (1) As majority opinion. dissented if a offender A defendant is career demonstrates, Cudahy’s years rea- Judge eighteen dissent old was at least defendant (2) offense, disagreement obviously ex- room for at the time of sonable instant situations, felony a conviction in Fourth Amendment instant offense. ists these a crime of or is either a violence situations the factual particularly because (3) offense, controlled substance Indeed, can vary widely. be seen can felony prior has least two facts, defendant on own reasonably turns its each case of violence convictions of either a crime obviating necessity trying to create offense. a controlled substance myriad applied rule bright line no fault circumstances. We see can Commentary to 506 to Amendment approach. The district practical with that statutory “offense provides § 4B1.1 objective expectation of found no court here only “the term means maximum maximum” reasonably have privacy that Redmon could for the offense of imprisonment authorized agree. in cans. We his including any had ... increase in not conviction sentencing en- term

that maximum under court, applies reviewing provision Ornelas under hancement As — States, -, -, criminal prior 116 the defendant’s record.” 4B1.1, Howev- (1996), § Amendment we U.S.S.G. 134 L.Ed.2d Hernandez, er, in Amend- court’s Fourth the district review that Amendment we held de probable determinations novo. ment cause 994(h)’sunambigu- §with is inconsistent fact findings of historical We review statutory is not and therefore direction ous weight to inferences giving error due clear to deference. entitled judges. facts resident drawn from these in that and find that We have done Hernandez, court Following the district no there was consti- Redmon’s circumstances refer- § to Redmon without applied 4B1.1 tutionally in the contents protected interest applied in- As ence to Amendment own enhancements, cans. Redmon’s of Redmon’s § 4B1.1 raised cluding the in in use of his carelessness his 34 from 32. level to Redmon’s base offense dispose crimi- trying Despite evidence Redmon contends precedent, our problem. He cannot refusing conduct caused court erred nal the district § 4B1.1 police. applying vigilant Thus Amendment 506 now blame follow argument, he support house were to him. for Redmon’s search warrants LaBonte, 70 F.3d States v. relies on United find no error. valid. We (1st Cir.1995), rev’d, panel, from the third member of the Hedrick —1673, L.Ed.2d - (1997), disapproval as well as the leading Fourth upheld validity which the First Circuit Amendment commentator. See id. at J., (“The of Amendment 506. At the time Redmon (Cudahy, dissenting) fact that the appeal, Supreme filed his Court had clearly trash was property, within Hedrick’s granted certiorari LaBonte. Red- edge, distinguishes case th[is] requested mon this court to hold deci where the trash left at sentencing abeyance, sion on issue ...(emphasis original)); curbside reasoning Supreme if the af Court LaFave, Wayne R. Search and A Seizure: LaBonte, implicitly firmed it would be re 2.6(c), Treatise on the Fourth Amendment Hernandez, such, versing and as he would (3d ed.1996) (Hedrick major- at 594-95 n. 108 sentencing. be entitled to new ity applying not careful in to a Greenwood curbside, case where the Supreme recently Court issued its home). plainly within the of the LaBonte, opinion reversing the First Cir- Today’s majority opinion does Hedrick one adopting holding cuit and consistent with Joseph better —it holds that Redmon lacked opinion Therefore, our in Hernandez. Red- fail, appeal must and his sentence immediately cans left door affirmed. garage. attached Greenwood does The district court in affirmed all re- support conclusion; startling such a spects. only Court dealt there with at left curbside, curtilage the defen- ROVNER, Judge, dissenting. Circuit 37, dant’s home. See 486 at U.S. Greenwood 35, v. 486 U.S. 1627; LaFave, 2.6(c), 108 S.Ct. at see also 1625, (1988), 108 S.Ct. 100 30 L.Ed.2d Greenwood). (discussing My at 594 col- Supreme Court that an held individual lacks leagues’ directly conclusion also is contradict- pri an itself, majority ed Hedrick as both the vacy garbage left for collection at curb and dissent in that recognized “gar- case public Garbage of a street. left that loca bage cans next the house or the tion, explained, the Court is outside the are not so accessible curtilage “readily home’s and thus is accessi any privacy expectations animals, children, scavengers, snoops, ble to (emphasis unreasonable.” 922 F.2d at 400 37, public.” members of the Id. at added); J., (Cudahy, see also id. 401 at dis- 40, 1627, 108 Relying S.Ct. on senting). Today’s majority concludes other- panel a divided of this court Greenwood wise, however, and I submit that its decision subsequently found defendant lacked a means that the may citizens of this circuit only protect their from warrantless positioned midway driveway— down his searches storing it inside their home, fifty approximately feet south of his homes. I agree Because cannot that our twenty feet south of his garage, unattached limited, interests must re- thirty twenty-five to feet west spectfully dissent. Hedrick, v. street. United States 922 F.2d (7th 396, 397, Cir.), denied, 400 cert. 502 U.S. I. 847, 147, (1991). 112 116 S.Ct. L.Ed.2d 113 Although majority begin curtilage found with the question, which curtilage” the cans were “within the my represents of the majority’s view initial home, defendant’s gar misstep. concluded that the Although the district court did not issue, therein had “knowingly exposed been resolve government even the does public” only eigh because the cans were not assert that Redmon’s cans were teen feet from a sidewalk. Id. at 400. curtilage Despite outside the of his home.1 that, Yet that sharp my colleagues conclusion drew a suggest dissent the cans Indeed, (See consistent law curtilage. with case in this cans were within the Govt. Br. at area, government seems assume that 11-12.)

1041 962, denied, 464 U.S. 104 S.Ct. ostensibly lage), cert. be- curtilage, were outside (1983); 397, from to and visible 78 339 United States ex they were “close L.Ed.2d cause (Ante 1292, 1297 the sidewalks.” Bensinger, streets and 546 F.2d v. rel. Saiken 1037.) was true Cir.1976) Yet the same (7th seventy- out (curtilage extends majority recognized that and even home), denied, 431 cert. five feet curtilage of were within 2633, 930, 245 97 53 U.S. S.Ct. L.Ed.2d 922 F.2d at 399. It home. the defendant’s (1977); also, Depew, v. e.g., United States see fact, understand, how for me difficult Cir.1993) (9th 1424, 1426-28 (driveway fifty curtilage extend at least Hedrick’s could garage located extending from unattached twenty from an feet his home and feet from fifty sixty from the defendant’s home feet curtilage while Redmon’s unattached Maga curtilage); v. United States within at his door. to have ended seems (9th Cir.) na, (driveway problem stems Perhaps the evident home), curtilage of within the defendant’s curti- employed define the test denied, cert. colleagues correctly observe My lage here. (1975). L.Ed.2d 43 encompasses that a home’s sanctity intimately plainly with the indicate Although “area associated these authorities (ante at privacy of life” home and the of the that Redmon’s .within Dunn, see also States intimates curtilage, home’s 1134, 1139, 107 S.Ct. Shanks, (1987)), they then focus L.Ed.2d 326 denied, cert. were area the cans situated whether (1997), sup from” the streets visible “close (Ante 1037.) contrary conclusion. ports its (Ante 1037.) analy That and sidewalks. only similarity this ease Yet the other factors relevant ignores sis gar purely one. The is a cosmetic Shanks important here curtilage inquiry, the most adjacent were bage, cans each case of the area claimed being proximity “the ga garage, the unattached defendant’s Dunn, 480 curtilage to the home.” be twenty located some feet rage Shanks was Indeed, 301, Su at 107 S.Ct. at condominium, whereas from the defendant’s the area itself has assumed that preme Court to his home. garage was attached is immediately adjacent private to a home cans in Shanks were importantly, the More curtilage. Dow its See included within strip land ran that situated on narrow 227, States, 476 U.S. Co. v. United Chem. alley. public and a garage 235, 90 L.Ed.2d 106 S.Ct. the cans were there at 978. Because Ciraolo, (1986); alley adjacent as well as fore 106 S.Ct. we found the circumstances garage, view, (1986). majority’s even Yet under the significantly distinguishable “not. Shanks heightened give rise that area would not Greenwood,” where situation in from the long privacy as it was “close interests so was found to outside curbside public and side from” the streets and visible home. Id. at curtilage of the defendant’s (Ante 1037.) appear thus at It would walks. contrast, suggested no has that one By majority’s from the discussion likened in this case can be the circumstances his curtilage at all because had no home Redmon not did to those Greenwood. by public yard was visible from the entire garbage cans at the curb place his Indeed, typically ways. yards driveways the cans public alley; placed he or a street sidewalks, but are visible from streets and door, twenty-three his courts stopped this that has not and even further sidewalk feet from within a areas to be finding those were Those cans street. Hedrick, at curtilage. home’s See of Redmon’s plainly within (“the yard home is within of a residential home, that he I have no doubt and therefore Kramer, curtilage”); privacy in expectation of (7th Cir.) heightened had (assuming 793-94 the cans’ contents. yard of home was within curti- that front II. garage they closer to Redmon’s- attached touching were almost wall. Under Hed- question of whether Red- On the ultimate- rick, then, clearly had an expectation privacy in the mon’s contents expectation in the con- cans was reason- tents of those cans. able, acknowledge that under my colleagues (Ante 1038.) seemingly at was. My colleagues nonetheless avoid this obvi- earlier, agree more. As I noted that, could by emphasizing ous conclusion two facts opinions in dissenting view, both- in their are sufficient obliterate Red- has a recognized first, Hedrick homeowner mon’s interest: that Redmon’s neigh- was connected to that his directly adjacent home readily so that .bor his garage. F.2d at see also See 922 id. neighbor guests; accessible to the his J., (Cudahy, dissenting). second, Hedrick leading sidewalk to Red- fact, majority, described the circumstances only front door could be reached presenting ground “a as middle traversing driveway, thereby making the pri- which the [the answer cans accessible to visitor his home. vacy] question (Ante 1038-39.) not self-evident.” 922 [was] my view, neither 400. That F.2d at is because the expecta- these facts make would were located between privacy objectively tion of unreasonable. and a unattached sidewalk Let first us consider that Redmon’s drive- apart. forty were' situated some feet Hed- neighbor. was connected to that of cases, falling easier those rick described the fact, agree that can result of this Red- spectrum, end of relevant at either mon’s cans at least were accessible to the way: following neighbor neighbor’s guests, and the but that curb, placed at If if, society, as a we think ready public has access to it from the expected Redmon should have his neigh- street, expected in fact can be uti- neighbor’s guests stray bor or his over hand, ability. On the other lize that pry driveway, side off the lids placed next to bage cans the house or the containers, his closed and rifle accessible through garbage. See any privacy expectations objec- 39-40, (test 1628-29 tively unreasonable. society accept whether would as reasonable subjective in expectation Id.2 The circumstances Hedrick thus fell pri- of defendant’s presented cans, vacy). all, these two extremes and a These after be- Redmon; majority longed they more ease. The difficult to were not cans by ultimately quandary by resolved conclud- shared Redmon his neighbor. Cf. ing Dunkel, that the defendant lacked a reasonable States v. 900 F.2d 106- (7th (no Cir.1990) expectation privacy of in cans far expectation located so reasonable privacy from close to a in dumpster so of in parking located lot so, sidewalk, doing building by court observed of office shared seven other ten- ants), expectation that reasonableness of grounds, “the vacated on other (1991). privacy] garbage gets will increase [of S.Ct. L.Ed.2d 768 closer or possible my colleagues to house.” Id. The It is simply that get any trusting neighbors, cans in this case could not less of but I would not Similarly, rejecting argument inspect placed that ga- Hed- officers to next expectation privacy rick a of rage lacked reasonable any showing or house itself without of convey warrant, he because intended to to a probable any or cause and without n collector, again yet observed a court regard accessibility of the cans to the heightened privacy interest would exist if the aas whole. This result would be incon- adjacent garage: to the purpose with sistent the Fourth of Amend- determination, however, protect A garbage placed ment to area home sur- unprotected rounding arbitrary in cans for ultimate collection is searches. Shanks, police the Fourth Amendment would allow see also however, point, my That is technical to disturb any neighbor guest expect deeper. disagreement majority with the runs close placed in a closed container supporting authority, my of that a citation I am confident Without home. And the location of the colleagues me. reason agree would with majority of citizens any expectation day may walk defeats age in this Although some merely the walk because should have erected that Redmon believe driveway people pass by” those cans. in invites “close of his the middle fence down 1038.) (Ante then, Apparently, expectation preserve legitimate order to (“ expectation ‘Good also would lack privacy in cans ” were),31 contents of the cans if neighbors,’ as it good make fences kept his front where country’s this citi- were that a believe them, eye again keep a constant expect be he could zens walkway proximity of their neighborly intrusion. therefore safe Nor, used Redmon’s visitors. under the find it all that that Red- do majority’s analysis, would Redmon have driveway was connected privacy in the con- neighbor. positioned to his front tents of a mailbox next persuaded am not also door, again to the front door because callers search to conduct a warrantless were entitled (who trespassers, we are considered garbage simply because his of Redmon’s (id.)) required would be to walk reminded public sidewalk driveway linked the proximity close that mailbox. Initially, leading walkway to his door. accept line I am unable of reason- necessary to the erroneous I find it correct Granted, lack a any ing. visi- Redmon would reason- impression my colleagues leave that any belonging able required to Redmon’s residence was tor plainly from the walk- directly by order to reach that could be viewed pass the cans (“the (for (See only way example, contraband that was clear- at 1038 the front door. ante through ly visible from the walk his front front door was from the route to Redmon’s James, window, side, up as in United States on the north public sidewalk vacated in 861-62 driveway grounds, part on other and then left around corner (1995)),4but the going his. front door Redmon’s house to mailbox, east.”).) contents of his actually reflects The record any would not be walkway or of other closed container leading to Redmon’s door up strolling to a plain view caller the north side of the connected to ultimately driveway to the to Red- walk and point approximately twelve feet 922 F.2d at mon’s front door. See the cans did not stand garbage cans. (case home; law indicates that a closed contain- path caller Redmon’s be rather, “could not disturbing Red- er the side a caller intent on its con- warrant] to required [without first searched would be then, plain have not been upon are not view and approach home and tents Redmon’s public”). The ma- knowingly exposed seeing walk twelve feet to acknowledge a visitor to jority fails to reach them. opposite direction order to wall, Frost, Wall,” it Poetry That wants "Mending there is that doesn't love The 3. Robert course, down.” (1969). Frost, of Robert Frost 33-34 original). (emphasis in separating neighbors, as evi- no fan of fences by poet-narrator’s retort to the state- denced LaFave, 2.3(f), ("when § 4. 506-08 See also quoted ment in the text: private property to an conduct come on to legitimate pur- investigation or some other “Why good neighbors? it do Isn’t make places pose visi- restrict their movements But are no Where there are cows? here there go (e.g., walkways, expected be tors could driveways, porches), wall ask to know cows. Before I built a I'd observations made out, walling walling And to points What I was in or vantage not covered such are Amendment.”). give Something Fourth I was like to offense. whom decision, light today’s front door not would be re- In situated. I can out quired walk twelve feet of his offer but one word of advice to the citizens of he order reach the prepared to this circuit —be the authori- have required open be then also would rummaging through garbage ties at random well as as closed closed cans anywhere virtually your stored property, bags before he would have access to therein that, barring prepared your be to hold my view, simply In garbage. noses. expect that a not reasonable visitor respectfully dissent. engage door would in that Redmon’s front LaFave, 2.6(e), type of conduct. See (police “must conduct as

594-95 themselves ordinary visitor prem- social hardly

ises. rummaging That includes host.”).

through cans of one’s possibility may actually visitor pri- so is insufficient to defeat

do interest, vacy just burglaries as a series America, UNITED STATES Redmon’s home would insufficient to elim- Plaintiff-Appellee, expectation inate he retains there. See 400. sum, then, majority’s reliance on the HARVEY, Roderick T. Defendant- proximity of the Redmon’s front Appellant. walk, a fact not even mentioned the lower upon by party court or relied either before No. 96-2622. court, deprive insufficient United States Court of Appeals, Seventh Circuit. in the contents cans. reasons, For these do not view the two Argued Jan. by my colleagues facts cited Decided June enough to overcome this court’s view in Hed- “garbage rick that next to the

house or the so accessible to any privacy expectations

objectively unreasonable.” 922 F.2d at 400. earlier, by

As I emasculating indicated

concept curtilage, majority essentially

leaves Redmon no choice but to store his

garbage within his home. That would seem only private him, remaining

to be the area today

for the tells us that Redmon

lacked an in a closed container left reasoning and its

indicates the result would be the same

had the yard, cans been left in the on the walk, porch. or even on the And justifying extraordinary reason re-

striction of Redmon’s Fourth in- Amendment apparent

terests is the court’s unwillingness require law enforcement authorities to simple step

take the of securing a search

warrant encroaching upon before the valued

zone of privacy in which these cans were

Case Details

Case Name: United States v. Joseph R. Redmon

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 27, 1997

Citation: 117 F.3d 1036

Docket Number: 96-3361

Court Abbreviation: 7th Cir.