No. 98-243
In the Supreme Court of the United States
OCTOBER TERM, 1998
JOSEPH R. REDMON, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
KATHLEEN S. BEECHER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals erred in finding that petitioner had no reasonable
expectation of privacy in the trash he placed in his driveway for collection.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-243
JOSEPH R. REDMON, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals sitting en banc (Pet. App. I, at 1-60)
is reported at 138 F.3d 1109. The panel opinion is reported at 117 F.3d
1036.
JURISDICTION
The judgment of the en banc court of appeals was entered on March 10, 1998.
The petition for a writ of certiorari was filed on June 8, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following denial of a pretrial motion to suppress evidence and entry of
a conditional plea of guilty in the United States District Court for the
Central District of Illinois, petitioner was convicted of possession of
cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1).
He was sentenced to 188 months' imprisonment, to be followed by six years'
supervised release. The court of appeals, sitting en banc, affirmed.
1. In 1993, a drug enforcement task force in Urbana, Illinois, traced a
shipment of approximately one pound of cocaine from California to Urbana.
After learning from an informant that a man named Shaw was expecting such
a package, an undercover agent delivered the package to Shaw, who accepted
it. When Shaw was questioned by law enforcement authorities, however, he
claimed that he had received the package on behalf of someone who used the
alias "Blackbelt." "Blackbelt" was later identified
as petitioner Joseph Redmon. Pet. App. I, at 2.
As a result, police began surveillance of petitioner's residence at 1319
Harding Drive in Urbana. Pet. App. I, at 3. Petitioner's Harding Drive residence
is the easternmost unit in a row of eight adjoining townhouses, and sits
at the intersection of Vawter Street and Harding Drive. Id. at 2; Gov't
C.A. Br. 5. The entrance to petitioner's townhouse faces east on Vawter
Street, and the attached one-car garage faces north on Harding Drive. Petitioner's
garage is connected to his neighbor's garage, and the two neighbors share
a common driveway that extends 24 feet north from the garages to a four-foot-wide
public sidewalk, and then approximately an additional ten feet to Harding
Drive. The common driveway is approximately 25 feet wide. Pet. App. I, at
2-3; see id. at 15-16 (diagram and picture). Petitioner's and his neighbor's
townhouses can be entered only by proceeding up the common driveway toward
the front of the connected garages. Id. at 3, 15.1
During surveillance of petitioner's townhouse, the police saw petitioner
put his garbage out for collection. Because a city ordinance prohibited
petitioner from leaving his garbage for pick-up at the curb, Pet. App. I,
at 3-4, petitioner did not leave his garbage cans at the end of the driveway.
Instead, he put them out for collection by placing them in the driveway
between his garage door and his neighbor's garage door. Id. at 3, 17. After
the garbage had been collected from the cans, petitioner returned the empty
cans to his garage. Id. at 3.
On three separate occasions in January and March of 1996, after petitioner
put his garbage cans on the shared driveway for collection, the police removed
and inspected the garbage contained in the cans. Pet. App. I, at 4. The
police found clear plastic bags commonly used for shipping cocaine, a glass
vial test tube, and rubber and tape packages. All of those items tested
positive for cocaine. Ibid.
The police used that evidence to obtain a search warrant for petitioner's
residence. Pet. App. I, at 4. While executing that warrant, the police found
more than 400 grams of cocaine outside of petitioner's master bedroom.
2. After his indictment on federal drug charges, petitioner moved to suppress
the evidence obtained from the search of his house. He contended that the
search of his garbage cans was unlawful and that the warrant was obtained
with evidence from the unlawful search. Pet. App. I, at 5. The district
court denied the motion. It held that petitioner's "garbage was knowingly
exposed to the public," and "there was no objectively reasonable
expectation of privacy in the garbage cans." Pet. App. II, at 3-4.
Petitioner then entered a conditional guilty plea, preserving his right
to appeal the denial of his motion to suppress. Pet. App. I, at 1-2.
3. A divided panel of the court of appeals affirmed the denial of the motion
to suppress. 117 F.3d 1036. The full court of appeals then reheard the case
en banc and affirmed.
Recognizing the "fact-based" nature of the Fourth Amendment issue
presented in this case, the court of appeals declined to "fashion some
convenient rule to fit all situations." Pet. App. I, at 5. Instead,
the court looked to "all the factual circumstances of this case"
in order to determine whether petitioner had an "objectively reasonable
expectation of privacy in the garbage cans placed" in the common driveway
near his garage. Id. at 6-7. Relying on this Court's decision in California
v. Greenwood, 486 U.S. 35 (1988), the court of appeals concluded that petitioner
did not have such an expectation of privacy in his trash. Pet. App. I, at
10.
The court explained that, like the defendant in Greenwood, petitioner had
left his garbage in an area that was "very publicly exposed and accessible,"
and had manifested his intent to abandon it by putting it out for collection
by strangers. Pet. App. I, at 11-12. While the defendant in Greenwood had
left his garbage cans at the curbside, the court held that the area outside
of petitioner's garage was the functional equivalent of the curbside area
in Greenwood. Id. at 10; see also id. at 8-9. The court also rejected petitioner's
contention that the police needed a warrant to inspect his garbage because
the trash cans, as they sat awaiting pick-up by trash collectors, were within
the curtilage of petitioner's home. The pertinent factors for determining
whether an area is curtilage, the court of appeals noted, are "the
proximity of the area to the home itself, the nature of the uses to which
the [area] is put, whether the area is within an enclosure surrounding the
home, and the steps the resident has taken to protect the area from observation
by passersby." Id. at 12 (internal quotation marks and citation omitted).
"We believe our decision," the court concluded, "passes all
the tests." Ibid.
Judge Coffey joined the majority opinion, but also wrote a separate concurrence
to emphasize that, because petitioner had abandoned the property in a publicly
visible location, the police were correct to conclude that it was "theirs
for the taking." Pet. App. I, at 20. Judge Flaum, joined by Judge Easterbrook,
also concurred. Addressing petitioner's contention that the garbage cans
were on the curtilage, Judge Flaum explained that the curtilage inquiry
often is a short-hand way of asking what is the ultimate question-whether
the individual has a reasonable expectation of privacy in the location at
issue. Id. at 30. In this case, he emphasized, the garbage cans were "readily
accessible" to the public-having been placed on a shared driveway for
collection by total strangers-and petitioner had taken no steps to protect
them from public view or inspection. Id. at 27-28. As a result, they were
not within the curtilage, and petitioner did not have a legitimate expectation
of privacy in their contents. Id. at 30. Judge Evans also concurred, agreeing
that the trash cans were outside the curtilage. Id. at 38.
Five judges dissented, in opinions written by Chief Judge Posner and Judge
Rovner. Pet. App. I, at 39-60. In their view, the police crossed into the
curtilage of the home when they walked up the driveway, and that entry required
a warrant. Id. at 45-46, 50-51.
ARGUMENT
Petitioner asserts that the warrantless inspection of the contents of his
garbage cans, which had been placed outside his home in his driveway for
collection by trash collectors, violated his Fourth Amendment rights. Because
the court of appeals' decision is correct and consistent with the decisions
of other courts of appeals, further review is not warranted.
1. In California v. Greenwood, 486 U.S. 35 (1988), this Court held that
the Fourth Amendment permits the warrantless search and seizure of garbage
left outside the curtilage of the home, at the curb, for collection. "The
warrantless search and seizure of the garbage bags left at the curb,"
the Court explained, "would violate the Fourth Amendment only if [defendants]
manifested a subjective expectation of privacy in their garbage that society
accepts as objectively reasonable." Id. at 39. Finding that garbage
bags left on or at the side of the street are "readily accessible"
to the public and could be invaded by scavenging animals or curious passersby,
and noting that the defendants had placed their garbage at the curb to convey
it to a third party, the Court concluded that the defendants "could
have had no reasonable expectation of privacy" in the garbage. Id.
at 40-41.
Applying the same factors here, the Seventh Circuit properly concluded that
petitioner had no legitimate expectation of privacy in the garbage he put
out for collection. Petitioner did not place his garbage in a private location,
outside of public view. Rather, petitioner left his garbage out for collection
in an open and shared driveway close to the street-an area that was "readily
accessible" and "knowingly exposed" to the public. Pet. App.
II, at 2-3 (district court order); Pet. App. I, at 11-12 (court of appeals
opinion). Petitioner, moreover, manifested no desire to retain control over
the contents of his garbage cans. Instead, he manifested his intention to
abandon the garbage by leaving it outside his garage for regular collection.
Id. at 11.
In light of the layout of petitioner's home and the way petitioner used
the area in front of his garage, the area in which the garbage cans awaited
collection was the functional equivalent of the "curbside" area
where the garbage cans sat in Greenwood. See Pet. App. I, at 10 ("[Petitioner]'s
'curb' * * * was necessarily not at curbside, but on his joint walk-driveway.");
id. at 8-9 ("[Petitioner], in effect, chose the front of the joint
garage on the shared driveway-sidewalk to be his curb for garbage pickup
purposes."); id. at 27 ("[O]nce [petitioner] left the trash for
collection in his driveway, it occupied a space that-for purposes of his
expectation of privacy in the garbage * * * -was not much different than
the curbside collection point chosen in other cases.") (Flaum, J.,
concurring). And like the curbside area at issue in Greenwood, the area
where petitioner placed the garbage was "without any obstruction"
and was "open to use by friends and guests of himself and his neighbors,
as well as solicitors, strangers, postal people, and a myriad of others
including animals, and even snoops mentioned by the Supreme Court in Greenwood."
Id. at 10; see also id. at 27 (shared use of driveway with others "severely
limited [petitioner]'s reasonable expectation of privacy in his trash").
Under those particular circumstances, the court reasonably determined that
petitioner had no legitimate expectation of privacy in his garbage.
2. Seeking to distinguish Greenwood, petitioner argues that his garbage
cans were not "readily accessible to the public," Pet. 13, and
in fact were within the "curtilage" of the home, see Pet. 10-11.
See also Pet. ii (asserting that the garbage cans were "within the
curtilage"). Neither contention warrants review.
a. The district court and the court of appeals concluded that petitioner's
garbage cans were both "readily accessible" and "knowingly
exposed" to the public. See Pet. App. II, at 3 (district court order)
("[I]t is objectively clear that [petitioner]'s garbage was knowingly
exposed to the public."); Pet. App. I, at 11-12 (court of appeals opinion)
("It takes little more than a look at the plat * * * showing [petitioner's
home's location] at the intersection of two city streets and the short common
driveway-sidewalk arrangement with his neighbor to see how very publicly
exposed and accessible [petitioner] left his garbage."). Those essentially
factual, and, in any event, fact-bound determinations do not warrant further
review. See id. at 5 (inquiry must be fact-specific); id. at 21 (Flaum,
J., concurring) ("The determination of ready accessibility is highly
fact-bound.").
b. Petitioner's claim that his trash cans were within the curtilage of his
home also lacks merit. Petitioner concedes that the court of appeals properly
identified the four factors relevant to the curtilage determination -the
area's "proximity" to the home itself, the "nature of the
uses" to which the area is put, whether the area is protected by a
fence or similar enclosure, and the steps that were taken to protect the
area from observation. See United States v. Dunn, 480 U.S. 294, 301 (1987);
Pet. App. I, at 12 (same factors); Pet. 10-11 (same factors). Petitioner
argues, however, that the court of appeals erred in its application of those
settled criteria to the particular facts of this case. While such a case-specific
contention would not in any event warrant this Court's review, the court
of appeals' conclusion that the search "passe[d] all the [curtilage]
tests," Pet. App. I, at 12, is correct.
Although the garbage cans were close to petitioner's garage, that garage
faces a different street than does petitioner's home, and the area in front
of the garage does not offer visitors the ability to see into the home itself.
Proximity alone therefore gives no support for the suggestion that the garbage
cans were located in an area designed for intimate family life. Moreover,
the three other factors-the existence of enclosures, efforts to obstruct
the view, and the "centrally relevant" or "primary"
factor, "the nature of the uses" to which the area is put, see
Dunn, 480 U.S. at 301 & n.4- demonstrate that the wide, shared driveway
was not "curtilage." Petitioner concedes that the area was not
protected by a fence. See Pet. 11. It is undisputed that petitioner had
done nothing to obstruct the public's view. And the area was not used for
private affairs. To the contrary, any member of the public seeking to approach
the home of petitioner's neighbor had to walk through the area, and petitioner
himself used the area for a distinctly non-private purpose-as a drop-off
point at which total strangers would collect his garbage. As Judge Evans
summarized, "[w]hen [petitioner] moved his garbage cans outside of
his garage on collection days to his shared driveway, which was less than
a first down's distance from the public sidewalk, he moved them beyond his
curtilage. As the cans sat there waiting to be picked up by the garbage
collectors, [petitioner] had no reasonable expectation that their contents
would remain undisclosed." Pet. App. I, at 38 (Evans, J., concurring).
For that reason, petitioner's assertion that the Seventh Circuit's decision
eliminates any "right to privacy outside of the four walls of"
the home, Pet. 14, is incorrect. As the majority and the concurring opinions
make clear, the result in this case turned on the specific facts before
the court-that the garbage clearly had been abandoned and set out for pick-up
by strangers, that the garbage cans were placed in a shared driveway area
that was exposed and readily accessible to the public, and that neither
the contents of petitioner's home nor any other private area could be viewed
from the location where the garbage cans sat. See Pet. App. I, at 5 (court
does not "imply that * * * anybody's garbage cans placed on the driveway
adjacent to his or her garage, regardless of the other facts and circumstances,
can henceforth be searched without a warrant"); id. at 10 (layout of
neighborhood made area near garage akin to the "curb" in Greenwood);
id. at 10-12 (considering abandonment, accessibility to public, and degree
of public exposure); see also id. at 28 n.3 (Flaum, J., concurring) (examination
of garbage permissible only where garbage is "readily" accessible;
whether garbage is "readily" accessible depends on proximity to
home, distance from public thoroughfares, ease with which public can reach
area without disturbing the intimate activities of home life, and any unique
societal message of abandonment sent by the defendant).
c. To the extent petitioner argues that the court of appeals concluded that
the garbage was within the curtilage, but permitted it to be searched nonetheless,
petitioner errs. The court of appeals specifically passed on the four factors
relevant to the curtilage question, and found that its decision offended
none of them. See Pet. App. I, at 12. Moreover, the conclusion that petitioner
had no legitimate expectation of privacy in his garbage cans itself comprehends
a finding that they were not within the curtilage. See id. at 29-31 (Flaum,
J., concurring) (curtilage inquiry is another way of determining whether
expectation of privacy is reasonable). Curtilage is the area surrounding
the home "to which extends the intimate activity associated with the
'sanctity of a man's home and the privacies of life,'" and is "considered
part of the home itself for Fourth Amendment purposes." Oliver v. United
States, 466 U.S. 170, 176, 180 & n.12 (1984) (quoting Boyd v. United
States, 116 U.S. 616, 630 (1886)). Petitioner offers no reason to believe
that intimate activity associated with the home was conducted in the area
where his garbage cans stood; nor does he offer any other reason why the
shared and publicly exposed driveway on which the garbage cans sat should
be "considered part of [his] home * * * for Fourth Amendment purposes."
3. The court of appeals' decision is consistent with the decisions of other
courts of appeals. The courts of appeals have held that the police may inspect
garbage left out for collection so long as the garbage is in a sufficiently
public location, even where the garbage is not left at the curb. See, e.g.,
United States v. Hall, 47 F.3d 1091, 1095-1097 (11th Cir.) (search of dumpster
on private property, forty yards from public property, did not violate Fourth
Amendment where dumpster was in public view and there was no effort to exclude
others from it), cert. denied, 516 U.S. 816 (1995); United States v. Comeaux,
955 F.2d 586, 588-589 (8th Cir.) (where trash bag was accessible from alley,
even though placed "on top of a garbage can located next to the garage,"
Fourth Amendment did not bar police from examining it), cert. denied, 506
U.S. 845 (1992); United States v. Wilkinson, 926 F.2d 22, 27 (1st Cir.)
(warrantless search of garbage left for collection on lawn next to curb
permissible because of ready accessibility of garbage to public), cert.
denied, 501 U.S. 1211 (1991). Petitioner cites no case with similar facts
that reaches the opposite result. See Pet. App. I, at 6 (noting the absence
of "duplicate" cases from other courts of appeals or this Court).
Nor do we believe that the result in this case will be affected by this
Court's decision in Minnesota v. Carter, No. 97-1147. One of the issues
in Carter is whether a police officer's observation of the interior of an
apartment through partially closed venetian blinds, while the officer was
standing in a grassy, publicly used common area immediately outside the
apartment, constitutes a "search" within the meaning of the Fourth
Amendment. In its amicus curiae brief in Carter, the United States has argued,
inter alia, that the defendants had no reasonable expectation of privacy,
because the officer's vantage point was "one that a neighbor or another
member of the public might well have assumed." 97-1147 U.S. Amicus
Br. at 22-28. Because this case concerns the reasonableness of a defendant's
expectation of privacy in garbage left for collection by strangers in a
publicly accessible place, and Carter concerns a defendant's expectation
of privacy in the home of another when viewed through the window blinds
by an officer standing in an open and public location, there is little chance
that this Court's decision in Carter will affect the proper resolution of
this case.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
KATHLEEN S. BEECHER
Attorney
NOVEMBER 1998
1 Those seeking to enter petitioner's townhouse must walk up the common
driveway and then follow a sidewalk on the left side of the garages around
to his front door on Vawter Street. Pet. App. I, at 3; see also id. at 15-16.
Those seeking to enter petitioner's neighbor's townhouse also must proceed
up the common driveway toward the garages, but must follow a sidewalk around
the right-hand side of the garages. Id. at 3.