Filed: Jun. 23, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-23-2008 USA v. McKenzie Precedential or Non-Precedential: Non-Precedential Docket No. 06-4914 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. McKenzie" (2008). 2008 Decisions. Paper 990. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/990 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-23-2008 USA v. McKenzie Precedential or Non-Precedential: Non-Precedential Docket No. 06-4914 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. McKenzie" (2008). 2008 Decisions. Paper 990. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/990 This decision is brought to you for free and open access by the Opinions of the United Sta..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-23-2008
USA v. McKenzie
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4914
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. McKenzie" (2008). 2008 Decisions. Paper 990.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/990
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4914
____________
UNITED STATES OF AMERICA
v.
BRIAN K. McKENZIE,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 05-CR-00352)
District Judge: The Honorable Gary L. Lancaster
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 2, 2008
Before: FISHER and JORDAN, Circuit Judges, and YOHN,* District Judge.
(Filed: June 23, 2008)
____________
OPINION
____________
*
The Honorable William H. Yohn, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
YOHN, District Judge.
Brian McKenzie appeals the District Court’s judgment entered on November 21,
2006, after McKenzie pleaded guilty to conspiracy to manufacture less than five grams of
methamphetamine and possession of a firearm by a convicted felon. McKenzie pleaded
guilty after the District Court denied McKenzie’s motion to suppress, and he preserved
his right to appeal the District Court’s denial of this motion under Federal Rule of
Criminal Procedure 11(a)(2). McKenzie argues that the District Court erred in denying
his motion to suppress evidence obtained after law enforcement officers seized and
searched sealed garbage bags McKenzie had placed on the curb outside his residence for
collection by a private agency. For the reasons discussed herein, we will affirm.
I.
At the time of the events in question, McKenzie resided in a trailer park
community in Cranberry Township, Butler County, Pennsylvania. In July 2005, Special
Agent Andrew Petyak of the Drug Enforcement Administration (“DEA”) received
information from the DEA’s chemical control unit that McKenzie had ordered red
phosphorus from a foreign manufacturer and that the red phosphorus had been shipped to
McKenzie’s home. This information raised Petyak’s suspicions because red phosphorus
is a chemical used in the production of methamphetamine.
With the assistance of the Cranberry Township Police Department, DEA agents
surveilled McKenzie’s residence on July 14, 2005. They seized a closed, dark-colored
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garbage bag that was sitting inches from the curb outside McKenzie’s residence. The
agents then took the bag to the Cranberry Township Police Department, where they
searched it. Among the contents of the bag were an envelope with McKenzie’s name on
it; empty pseudoephedrine packets; three empty bottles of methanol, a gasoline antifreeze;
and a receipt for the antifreeze and for Coleman fuel. Petyak identified these items as
ingredients used to produce methamphetamine.
On July 21, 2005, DEA agents and Cranberry Township police again surveilled
McKenzie’s residence. They again seized a closed, dark-colored garbage bag that had
been left in the same location on the curb outside McKenzie’s residence, transported the
bag to the police department, and searched the bag. Agents found three empty bottles of
antifreeze, two empty pseudoephedrine boxes, a receipt for the purchase of antifreeze, a
receipt for a pseudoephedrine purchase, and a letter addressed to McKenzie in the bag.
Based largely on the evidence obtained from the garbage bags, Petyak then secured a
search warrant, which was issued on July 22, 2005, and searched McKenzie’s residence,
where additional evidence was found.
A grand jury indicted McKenzie on November 10, 2005 for conspiracy to
manufacture less than five grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C) & 846; possession of acetone and iodine, List II chemicals, with
the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1); and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
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McKenzie then moved to suppress the evidence obtained during the search of his house,
arguing that probable cause for the search was lacking because the affidavit used to
obtain the search warrant was based on the evidence illegally obtained from the search of
his trash, in violation of his Fourth Amendment rights.
The District Court held a suppression hearing on July 16, 2006, during which
McKenzie and Petyak testified. Petyak described the events set forth above. McKenzie
admitted that he had placed the seized garbage bags on the curb on the nights in question,
and he testified that he expected that the contents of the garbage bags were private. After
hearing this testimony, the District Court found that “The credible evidence establishes
that defendant, by placing his garbage on the curb, exposed his garbage to the public
sufficiently to defeat his claim of Fourth Amendment protection.” The District Court also
found that “having deposited his garbage in an area particularly suited for public
inspection, in a matter of speaking, public consumption, for the express purpose of having
strangers take it, defendant would have no reasonable expectation of privacy in the items
he discarded.” Relying on California v. Greenwood, 486 U.S. 35 (1988), and Third
Circuit precedent, the District Court denied McKenzie’s motion to suppress.
After the District Court denied McKenzie’s motion to suppress, McKenzie pleaded
guilty to conspiracy to manufacture less than five grams of methamphetamine and
possession of a firearm by a convicted felon. McKenzie preserved his right to appeal the
District Court’s denial of his motion to suppress under Federal Rule of Criminal
4
Procedure 11(a)(2). The District Court then sentenced McKenzie to twelve months plus
one day of imprisonment followed by three years of supervised release for each count, to
run concurrently. McKenzie filed a timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We review a District Court’s factual findings in a suppression
hearing for clear error. United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006)
(citing United States v. Kiam,
432 F.3d 524, 527 (3d Cir. 2006)). We have plenary
review over the District Court’s legal rulings and over mixed questions of law and fact.
Id.
III.
McKenzie argues that the District Court erred in ruling that society does not
recognize a reasonable expectation of privacy in the contents of garbage bags placed at
the curb for collection. He recognizes, however, that in Greenwood, the Supreme Court
held that the Fourth Amendment does not prohibit the warrantless seizure and search of
garbage left for collection on a curb outside of the curtilage of the home. In Greenwood,
the Court employed the two-part analysis set forth by Katz v. United States,
389 U.S. 347
(1967) (Harlan, J. concurring). The Court concluded that even though the Greenwood
defendants had a subjective expectation of privacy in their garbage, society was not
prepared to accept that expectation as objectively reasonable. The Court found that the
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defendants had “exposed their garbage to the public sufficiently to defeat their claim to
Fourth Amendment protection.” Greenwood, 486 U.S. at 40. McKenzie concedes that
Greenwood is still the controlling authority for Fourth Amendment protections of garbage
bags left on the curb outside the curtilage of the home for pick up by a third party.
Furthermore, he has not attempted to factually distinguish his case from Greenwood.
Greenwood compels the conclusion that when McKenzie placed his garbage on the curb
outside of the curtilage of his home, he sufficiently exposed it to the public to defeat his
claim that the garbage was protected by the Fourth Amendment. Third Circuit precedent,
cited approvingly by the Supreme Court in Greenwood, also compels this conclusion. See
United States v. Reicherter,
647 F.2d 397, 399 (3d Cir. 1981) (“Having placed the trash 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, it is inconceivable that
the defendant intended to retain a privacy interest in the discarded objects. If he had such
an expectation, it was not reasonable.”).
We are bound to follow the Supreme Court’s precedent and this circuit’s
precedent. The District Court, similarly bound, did not err in finding that McKenzie had
sufficiently exposed his garbage to the public to defeat any claims of Fourth Amendment
protections or in denying McKenzie’s motion to suppress.
We will therefore affirm the judgment of the District Court.
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