UNITED STATES of America, Plaintiff-Appellee, v. Kenneth H. HEDRICK, Defendant-Appellant.
No. 89-3113.
United States Court of Appeals, Seventh Circuit.
Argued July 12, 1990. Decided Jan. 8, 1991.
922 F.2d 396
Here, Griffis lay in the hospital attached to a life support machine, suffering from six gunshot wounds. Trial testimony established Griffis’ injuries as bullet wounds to the chest and abdomen causing laceration of his lung, liver, spleen, and intestine. It is reasonable to infer that Griffis knew about the seriousness of his condition. See Mobley, 421 F.2d at 347 (court looked at the gravity of declarant‘s wounds in determining his awareness of death). Additionally, two days before the identification Magliano informed Griffis of the doctor‘s belief that his chances for survival were not especially good. Approximately six hours before the photo identification Griffis communicated to his relatives that he believed he would die. These facts establish a basis from which the court could infer that Griffis believed death was imminent when he identified Webb‘s photograph. Thus the court reasonably concluded that petitioner‘s right to confrontation was not violated.9 Accordingly, we affirm.
Sheldon Nagelberg, Chicago, Ill., for defendant-appellant.
Before CUDAHY and POSNER, Circuit Judges, and PELL, Senior Circuit Judge.
PELL, Senior Circuit Judge.
A federal grand jury indicted defendant-appellant Kenneth H. Hedrick on thirteen counts involving possession and distribution of cocaine and money laundering. In a bench trial, the judge found Hedrick guilty on all counts and entered judgment accordingly. During the trial, Hedrick moved to suppress from admission into evidence all items seized from the warrantless search of the garbage at Hedrick‘s residence. He did not object to the admission of evidence seized from the dumpster outside his office building.
The garbage searched at Hedrick‘s home was located in opaque bags inside garbage cans with closed lids. The cans were kept in the same location of Hedrick‘s property throughout the week, and were collected at that location by the garbage service. The police officers who testified at trial indicated that the garbage cans never moved from that spot, but that they had never seen the garbage being collected. The officers generally retrieved the garbage between nine and ten o‘clock the night before the garbage service was to pick up the garbage, although they were not aware of the garbage collection schedule until after they had searched Hedrick‘s garbage on at least one occasion. According to the officers’ testimony, they discovered the garbage collection schedule when they found a bill from the garbage service in Hedrick‘s garbage. To collect the garbage, the officers approached the cans from the south and hid behind trees and bushes as they approached. The cans were located on a driveway 50 feet south of the house, and 20 feet from the unattached garage. In addition, the cans were 25 to 30 feet west of the street, and 18 feet west of the public sidewalk.
The issue in this case is not whether the police may constitutionally search garbage which is placed in cans within the curtilage of a house, but whether they can do so without a warrant. The constitutionality of garbage searches has recently been the subject of opinions by both the Supreme Court and this court, which are relevant to this case.
In California v. Greenwood, 486 U.S. 35 (1988), the Supreme Court held that the
Greenwood is in accord with this court‘s earlier decision in United States v. Kramer, 711 F.2d 789 (7th Cir.1983), which held that “the special protection the
The Kramer analysis is based upon the theories of abandonment and exposure to the public. In Greenwood, the Supreme Court chose not to rely on principles of abandonment in its
In a recent case, United States v. Dunkel, 900 F.2d 105 (7th Cir.1990), this court discussed the constitutionality of the search of a dumpster within the curtilage of an office. We noted that the dumpster, although technically within the curtilage of the office, was nevertheless accessible to all persons using the parking lot and to the other seven tenants of the office building. 900 F.2d at 106-07. As a result, we held that the contents of the dumpster were knowingly exposed to the public.
The present case provides this court with a situation in which the garbage cans are located halfway up the driveway of a residential home, somewhat nearer the sidewalk than the garage. Therefore, the court must determine whether the garbage cans were within the curtilage and whether that affects the applicability of Greenwood.
At common law, the curtilage is the area encompassing the intimate activity associated with the sanctity of the home and the privacies of life. California v. Ciraolo, 476 U.S. 207, 212 (1986). As a result, “[t]he
The mere intonation of curtilage, however, does not end the inquiry. See United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990). The Supreme Court declared in Katz v. United States, 389 U.S. 347 (1967) that “[w]hat a person knowingly exposes to the public, even in his home or office, is not a subject of
The Court has never indicated, however, that a container such as a backpack which was placed at the side of a driveway within the curtilage of a house could be searched without a warrant; in fact, caselaw indicates that such a container could not be searched because its contents are not in plain view and have not been knowingly exposed to the public. We must now determine, however, whether that container may be searched if it is a garbage can. The result can differ only if there is something in the nature of a garbage can which results in the exposure of its contents to the public.
The obvious distinction between garbage cans and other containers is that it is “common knowledge” that members of the public often sort through other people‘s garbage, and that the garbage is eventually removed by garbage collectors on a regular basis. Greenwood, 486 U.S. at 40. Therefore, in order to extend Greenwood to this situation, we must determine that the garbage at this location was still readily accessible to the public, or that the intent eventually to convey the garbage to the garbage collector is itself sufficient to eliminate any expectation of privacy in garbage. The latter option is not consistent with Supreme Court protection of the curtilage and with its opinion in Greenwood. For instance, the Supreme Court continues to discuss the protection accorded the curtilage even though it has rejected the notion that property law defines the contours of
Therefore, the proper focus under Greenwood is whether the garbage was readily accessible to the public so as to render any expectation of privacy objectively unreasonable. This principle is not without any limit. The willingness of members of the public to trespass upon private property in order to search through garbage cans cannot automatically defeat the
This case presents a middle ground in which the answer to this question is not self-evident. If the garbage is placed at the curb, the public has ready access to it from the street, and in fact can be expected to utilize that ability. On the other hand, garbage cans placed next to the house or the garage are not so accessible to the public that any privacy expectations are objectively unreasonable. See United States v. Certain Real Property Located at 987 Fisher Road, 719 F.Supp. 1396 (E.D.Mich.1989) (court held that garbage bags against the back wall of a house were protected from warrantless search). The garbage cans in this case were permanently located at the side of the driveway, somewhat closer to the public sidewalk than the garage. In order to view the contents of the cans, “children, snoops, scavengers or other members of the public” would have to walk 18-20 feet from the sidewalk. Apparently, at least part of the driveway was visible from the house, because the officers that removed the garbage hid behind bushes and trees in approaching the cans. The cans themselves, however, could not be seen from the house because trees and bushes blocked the view from the back of the house.
The Kramer decision precludes a bright-line rule that garbage within the curtilage is protected, because the court in that case assumed that the police had to intrude a few feet into the curtilage in order to collect the garbage. In any case, while the boundaries of the curtilage roughly correspond to areas to which the public would not routinely have access, this correlation is not complete and does not end the
AFFIRMED.
CUDAHY, Circuit Judge, dissenting.
The contents of our garbage cans may be unvalued trash, but it is nonetheless our
Nor is Hedrick‘s voluntary relinquishment of his garbage of consequence. As Justice Brennan observed in dissent in Greenwood:
More importantly, even the voluntary relinquishment of possession or control over an effect does not necessarily amount to a relinquishment of a privacy expectation in it. Were it otherwise, a letter or package would lose all
Fourth Amendment protection when placed in a mailbox or other depository with the “express purpose” of entrusting it to the postal officer or a private carrier; those bailees are just as likely as trash collectors (and certainly have greater incentive) to “sor[t] through” the personal effects entrusted to them, “or permi[t] others, such as police to do so.”
California v. Greenwood, 486 U.S. 35, 55 (1988) (Brennan, J., dissenting) (quoting majority opinion). The trash collector‘s scheduled collections of the searched material does not therefore render the privacy expectation unreasonable.
I.
To me, prior holdings do not control this situation. The fact that the trash was clearly within Hedrick‘s property, not on the edge, distinguishes the case from Greenwood, where the trash was left at curbside, and from United States v. Kramer, 711 F.2d 789 (7th Cir.1983), where the trash was also at the curb but inside a knee-high fence. In these cases the place where the garbage was located, and not its status as “lowly” garbage, seemed to lessen the expectation of privacy. See Greenwood, 486 U.S. at 40 (trash was “at the curb for the express purpose of conveying it to a third party” (emphasis added)). The trash‘s location permitted public inspection. “[H]aving deposited their garbage ‘in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,’ respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.” Id. at 40-41 (emphasis added; citing United States v. Reicherter, 647 F.2d 397, 399 (3d Cir.1981)). In short, I do not agree that Greenwood or Kramer controls the situation where the trash is well within one‘s property. Here, the trash may even have been closer to the garage than the street, Tr. at 145 (testimony of Detective Nearing), and the zone of privacy surrounding the house included the trash. And in neither Greenwood nor Kramer was a surreptitious approach by searchers to the garbage required.
This case is difficult to distinguish from one in which garbage is immediately adjacent to the house. See United States v. Certain Real Property Located at 987 Fisher Road, 719 F.Supp. 1396 (E.D.Mich.1989); People v. Edwards, 71 Cal.2d 1096, 458 P.2d 713, 80 Cal.Rptr. 633 (1969). To me, there is no principled basis separating Hedrick‘s case from one in which garbage is kept on the back porch, although there is a distinction between garbage placed at curbside—discussed in Greenwood and Kramer—and garbage kept well within the outer edges of the defendant‘s property. While additional factors may lessen the expectation of privacy for objects as close to the house as Hedrick‘s garbage, they are certainly not apparent here.
In sum, the rationale that explains the absence of an expectation of privacy at the curbside is not that the garbage is soon to be picked up but simply that it is near the road. Proximity to the street, combined
II.
Each of the majority‘s contentions fails to provide an adequate basis for the warrantless search. First, the majority argues that the “common practice of scavengers, snoops and other members of the public in sorting through garbage” makes the expectation of privacy unreasonable. The same, it appears, could be said of garbage propped against the back wall of a house (or contained in a living-room waste basket), which a snoop may feel justified in examining. Garbage left at the curb may indeed be susceptible to inspection by scavengers, snoops and other members of the public, but this susceptibility does not in itself define the extent of a reasonable expectation of privacy.
Further, even if we accept this standard, Hedrick‘s garbage apparently was not susceptible to easy inspection by scavengers, snoops and other members of the public. As we have noted, the police officers seizing the evidence had to proceed, like soldiers advancing under fire, behind cover of hedge to secure the evidence; presumably, they feared that their being sighted by Hedrick would alert him to their search. In short, the “scavengers, snoops and other members of the public” rationale fails because its net casts too broadly in some cases and not broadly enough in others. Some snoops may wander into another‘s garage, clearly within the range of a reasonable expectation of privacy, while the curbside garbage of a country homeowner—distant from urban interlopers like snoops and scavengers—does not for this reason enjoy heightened protection.
Finally, the cases relied on by the majority refer to incomparable types of property and are inapposite. Thus, I am not persuaded by United States v. Dunkel, 900 F.2d 105 (7th Cir.1990), which the majority uses for the proposition that property inside the curtilage (there, a dumpster on a business premises) may not be within the zone where privacy can reasonably be expected. In Dunkel, the dumpster sat off a parking lot and was some 55 feet from the building. 900 F.2d at 106. Hedrick‘s driveway was not a parking lot; his residence, not a business; and his garbage, not so clearly exposed to the public.
The majority likewise misplaces its reliance on the “view” rationale of California v. Ciraolo, 476 U.S. 207 (1986). Ciraolo relies explicitly on the availability of the defendant‘s premises for inspection by anyone flying overhead—no zone of privacy protects the homeowner from overhead “view.” This, it seems to me, is clearly distinguishable from Hedrick‘s situation. Hedrick‘s garbage was a substantial distance from the curb. It was in opaque, covered containers. It was near the house and garage and it created enough anxiety in the detective that she had to proceed by hiding behind the bushes. In short, the only way that it was “exposed” to the public was that it took the lowly form of garbage awaiting collection, a rationale eschewed by the Court in Greenwood.
III.
Hedrick‘s garbage cans were well within the private portion of his property, and the garbage was not exposed to public view. The curtilage of Hedrick‘s house included the garbage, and the material was not, like an open back yard from the air, subject to ready public inspection. Requiring police to secure a warrant before seizing such evidence is a minimal burden that protects a homeowner‘s valued zone of privacy.
I respectfully dissent.