Filed: Aug. 26, 2013
Latest Update: Feb. 12, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4559 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANA JACKSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:11-cr-00261-HEH-1) Argued: May 17, 2013 Decided: August 26, 2013 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judg
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4559 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANA JACKSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:11-cr-00261-HEH-1) Argued: May 17, 2013 Decided: August 26, 2013 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judge..
More
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4559
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANA JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cr-00261-HEH-1)
Argued: May 17, 2013 Decided: August 26, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Agee joined. Judge Thacker
wrote a dissenting opinion.
ARGUED: Robert James Wagner, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Erik Sean Siebert,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.
NIEMEYER, Circuit Judge:
Before dawn on May 26, 2011, Richmond, Virginia police
officers pulled two bags of trash from a trash can located
behind the apartment that Sierra Cox had rented from the
Richmond Redevelopment and Housing Authority. The officers were
looking to corroborate a tip from confidential informants that
Dana Jackson was selling drugs from the apartment. Jackson,
who was Cox’s boyfriend and the father of her children,
regularly stayed at the apartment.
After recovering items from the bags that were consistent
with drug trafficking, the police officers obtained a warrant to
search Cox’s apartment. The subsequent search uncovered
evidence that ultimately led to Jackson’s conviction for drug
trafficking.
Jackson contends that the trash pull violated his Fourth
Amendment rights because, as he argues, the police officers
physically intruded upon a constitutionally protected area when
they walked up to the trash can located near the rear patio of
Cox’s apartment to remove trash. See Florida v. Jardines, 133
S. Ct. 1409, 1414 (2013) (holding that officers conduct a Fourth
Amendment search when they make an unlicensed physical intrusion
into a home’s curtilage to gather information). Jackson also
argues that the officers violated his reasonable expectation of
privacy in the contents of the trash can, relying primarily on
2
the fact that the trash can was not waiting for collection on
the curb of a public street, as was the case in California v.
Greenwood, 486 U.S. 35, 41 (1988) (holding that there was no
reasonable “expectation of privacy in trash left for collection
in an area accessible to the public”).
We reject both arguments. The district court found as fact
that at the time of the trash pull, the trash can was sitting on
common property of the apartment complex, rather than next to
the apartment’s rear door, and we conclude that this finding was
not clearly erroneous. We also hold that in this location, the
trash can was situated and the trash pull was accomplished
beyond the apartment’s curtilage. We conclude further that in
the circumstances of this case, Jackson also lacked a reasonable
expectation of privacy in the trash can’s contents.
Accordingly, we affirm the district court’s conclusion that the
trash pull did not violate Jackson’s Fourth Amendment rights.
I
After Richmond police received information from
confidential informants that Dana Jackson was dealing narcotics
from the rear of 2024 Anniston Street, two officers conducted a
trash pull from the trash can located behind the apartment at
about 4:00 a.m. on the morning of May 26, 2011, recovering two
bags of trash. The two-story apartment was located in Whitcomb
3
Court, a public housing apartment complex owned by the Richmond
Redevelopment and Housing Authority, and was one of six row-
house type units in a building that faced Anniston Street. The
rear of the building faced a grass courtyard separating it from
another similar building. Each apartment in Whitcomb Court had
a 10-foot by 20-foot concrete patio outside the back door. The
patios were connected to a common sidewalk that ran the length
of the building. Between each patio and the common sidewalk was
a grass strip, about two to three feet wide. On each patio were
two poles for laundry lines -- one near the back door of the
apartment and one at the far side of the patio away from the
apartment. The common sidewalk running the length of the
building led to the sidewalk on Magnolia Street, a side street.
The courtyard between the buildings served as a common area
for the persons leasing the units and their visitors. Residents
in the buildings described the courtyard as a quiet and peaceful
area where children could play and neighbors could congregate.
Each building was marked with “No Trespassing” signs, although
other residents of the Whitcomb Court complex frequently passed
through the courtyard as well as their guests and other
visitors.
After inspecting the trash bags at the police station, the
Richmond police found items consistent with drug trafficking,
including 32 clear plastic sandwich bags with the corners
4
missing and several baggie corners containing a residue. Based
on the contents of the trash bags, the police obtained a warrant
to search 2024 Anniston Street, where they recovered firearms,
cocaine base, cocaine hydrochloride, a digital scale, several
razor blades, and $1,557 in cash.
That apartment was leased by the Richmond Redevelopment and
Housing Authority to Sierra Cox, who had lived there for several
years with her children. Dana Jackson, her boyfriend and the
father of her children, routinely stayed in the apartment. At
the time of the search, both Cox and Jackson were in the
apartment with their children, and Cox authorized the forced
entry into a safe where much of the evidence of drug activity
was found. The police then arrested both Jackson and Cox.
After Jackson was indicted, he filed a motion to suppress
the evidence seized during the search of the apartment,
contending that the trash pull, which led to the search, was an
unconstitutional search and seizure. At the suppression
hearing, the evidence showed that the trash at Whitcomb Court
was picked up on Thursday mornings and that, for trash
collection, the residents in the building that included 2024
Anniston Street generally rolled their trash cans down the
common sidewalk to the sidewalk on Magnolia Street. Richmond
Police Officers Michael Verbena and Eric Fitzpatrick testified,
however, that at about 4:00 a.m. on Thursday, May 26, 2011, they
5
found the trash can for 2024 Anniston Street located behind the
unit and beyond the patio, sitting partially on the two-to-three
foot grass strip and partially on the common sidewalk. The
officers stated that they stood in the grassy area between the
patio and the sidewalk and that one officer held the lid up
while the other reached in and grabbed two plastic trash bags,
each tied with a knot. They explained that they “never had to
step onto [the] patio to grab [the] trash.”
Cox testified that because her trash can had been stolen
from her patio previously, she normally locked it to the laundry
pole on the patio that was close to the rear door of her
apartment. Before collection, however, she unlocked the trash
can from the pole to take it out for collection. She stated
that at the time of the officers’ trash pull, she did not know
where the trash can was or whether it had been unlocked.
Cox also acknowledged that she did not use her trash can
for storage but rather for disposal of trash -- “stuff [she]
want[ed] to get rid of . . . stuff . . . [she] d[i]dn’t want
anymore.”
In denying Jackson’s motion to suppress the evidence seized
from the apartment, the district court found as a fact that the
“trashcan was located immediately adjacent to the sidewalk, with
a portion of the trashcan protruding onto the sidewalk” and with
the remaining portion sitting on the strip of grass between the
6
sidewalk and the patio. The court further held that this
location was outside of the apartment’s curtilage, noting that
“the area beyond the concrete patio [was] part of the common
area within the Whitcomb Court apartment complex, rather than
part of the defendant’s leased property.”
As to any expectation of privacy, the court concluded that
Jackson “did not have a subjective expectation of privacy in the
trash at the time it was searched by the officers,” reasoning
that Jackson had not adequately shown an intent to keep the
contents of the trash can private. The court also concluded
that even if Jackson had a subjective expectation of privacy, it
was not an objectively reasonable one, relying on the Supreme
Court’s holding in California v. Greenwood, 486 U.S. 35, 41
(1988), that there can be no reasonable “expectation of privacy
in trash left for collection in an area accessible to the
public.” Rejecting Jackson’s effort to distinguish Greenwood,
the court noted “that the fact that neither the defendant nor
Cox had pulled the trashcan around to the curb [on Magnolia
Street] for third-party disposal [was] not dispositive,”
explaining that what mattered was whether Cox and Jackson had
exposed their garbage to the public. The court concluded that
they had done so by “placing the trashcan adjacent to the
sidewalk” so that it was “readily accessible to neighbors and
7
other visitors in the apartment complex,” thereby “relinquishing
any objectively reasonable expectation of privacy.”
After the district court denied Jackson’s motion to
suppress, Jackson pleaded guilty to drug trafficking, in
violation of 21 U.S.C. § 841, reserving his right to appeal the
district court’s order denying his motion to suppress. The
court sentenced him to 137 months’ imprisonment.
Jackson filed this appeal, raising the issue of whether the
trash pull violated his rights under the Fourth Amendment.
II
Jackson mounts a multifaceted challenge to the district
court’s ruling, beginning with the argument that the court’s
factual finding regarding the location of the trash can was
clearly erroneous. He then argues that even if we were to
accept the district court’s factual finding about where the
trash can was located at the time of the trash pull, we should
nonetheless find the search unconstitutional under the Supreme
Court’s recent decision in Florida v. Jardines, 133 S. Ct. 1409
(2013). He explains, in this regard, that “the search of [his]
trash can involved police officers trawling for evidence on and
around [his] back porch, an area immediately surrounding his
residence and protected under Jardines from police intrusion
that is not explicitly or implicitly permitted by the resident.”
(Internal quotation marks omitted). Finally, he contends that
8
he had a reasonable expectation of privacy in the trash can and
its contents because it “was directly behind the residence, was
not left out for collection, and was in a ‘no trespassing’
area.” As such, he maintains, his case “is clearly
distinguishable from Greenwood,” which held that the Fourth
Amendment does not prohibit “the warrantless search and seizure
of garbage left for collection outside the curtilage of a home.”
Greenwood, 486 U.S. at 37.
The government contends that “the record fully supports the
district court’s finding as to the trash can’s location.” It
also maintains that the district court correctly held that the
trash can’s location was outside the apartment’s curtilage and
that, because the officers did not enter the curtilage, Jardines
is inapplicable. Moreover, the government asserts, “by placing
his trash adjacent to a publicly accessible sidewalk, off his
property, defendant most assuredly forfeited any expectation of
privacy that society would accept as objectively reasonable.”
These conflicting contentions thus present us with three
related issues: (1) whether the district court clearly erred in
its factual finding regarding the trash can’s location; (2)
whether that location was within the apartment’s curtilage, so
that the officers’ actions amounted to an impermissible
“unlicensed physical intrusion” of a “constitutionally protected
area,” Jardines, 133 S. Ct. at 1415; and (3) if not, whether
9
Jackson nonetheless had a reasonable expectation of privacy in
the trash can’s contents.
A
Jackson’s challenge to the district court’s factual finding
regarding the trash can’s location at the time of the trash pull
requires a showing of clear error. See Ornelas v. United
States, 517 U.S. 690, 699 (1996). Clear error is demonstrated,
even if there is evidence to support the finding of fact, when
the reviewing court, considering all of the evidence, “is left
with the definite and firm conviction that a mistake has been
committed.” United States v. Breza,
308 F.3d 430, 433 (4th Cir.
2002) (internal quotation marks omitted).
In this case, the Richmond police officers gave specific
testimony regarding where they found the trash can in the early
morning hours of May 26, 2011, and -- as the district court
emphasized -- none of Jackson’s witnesses could provide direct
evidence to contradict their testimony. They could only speak
to where Cox normally kept her trash can. In light of this
discrepancy in the specificity of the witnesses’ testimony,
combined with the district court’s unique ability to evaluate
the credibility of witnesses, we simply cannot conclude that the
district court clearly erred in finding that “the trashcan was
located immediately adjacent to the sidewalk, with a portion of
10
the trashcan protruding onto the sidewalk” while the rest of the
can sat on the “two or three foot wide strip of grass” between
the common sidewalk and the residence’s patio.
B
With this factual finding affirmed, we turn to a de novo
review of the district court’s conclusion that the officers’
actions did not involve an unlicensed physical intrusion of a
constitutionally protected area so as to constitute an illegal
search or seizure under the Fourth Amendment.
The Fourth Amendment, of course, provides that “[t]he right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend. IV. The Supreme Court has
recently emphasized that this text “establishes a simple
baseline” -- namely, “[w]hen the Government obtains information
by physically intruding on persons, houses, papers, or effects,
a search within the original meaning of the Fourth Amendment has
undoubtedly occurred.” Jardines, 133 S. Ct. at 1414 (citing
United States v. Jones,
132 S. Ct. 945, 950-51, 950 n.3 (2012))
(internal quotation marks omitted). Applying this “traditional
property-based understanding of the Fourth Amendment,”
id. at
1417, the Jardines Court held that “using a drug-sniffing dog on
a homeowner’s porch to investigate the contents of the home is a
11
‘search’ within the meaning of the Fourth Amendment,” id. at
1413. The Court explained that by going onto the home’s front
porch, the officers had undoubtedly entered the home’s curtilage
-- that is, the “area immediately surrounding and associated
with the home” that is treated “as part of the home itself for
Fourth Amendment purposes.”
Id. at 1414 (internal quotation
marks omitted). And because “the officers’ investigation took
place in a constitutionally protected area,” it was a search
implicating the Fourth Amendment unless the officers had
license, either explicit or implicit, to gather information
there.
Id. at 1415. The Court concluded that the officers
lacked such permission because “the background social norms that
invite a visitor to the front door do not invite him there to
conduct a search.”
Id. at 1416.
Under Jardines, if Richmond Police Officers Verbena and
Fitzpatrick breached the curtilage of Cox’s apartment when they
conducted the trash pull, it would be fairly clear that their
actions in opening the trash can’s lid and taking the two trash
bags would implicate the protections of the Fourth Amendment.
For surely if bringing a drug-sniffing dog onto a home’s front
porch is beyond the scope of the implied license that invites a
visitor to the front door, so too is rummaging through a trash
can located within the home’s curtilage.
12
In this case, the parties agree that the curtilage of Cox’s
residence included the concrete patio behind her apartment.
They dispute, however, whether the area immediately beyond the
patio, including the two-to-three-foot strip of grass between
the patio and the common sidewalk, as well as the sidewalk
itself, was part of the curtilage.
The test used to determine the boundaries of a home’s
curtilage is not “a finely tuned formula that, when mechanically
applied, yields a ‘correct’ answer to all extent-of-curtilage
questions.” United States v. Dunn, 480 U.S. 294, 301 (1987).
In Dunn, the Supreme Court instructed “that curtilage questions
should be resolved with particular reference to four factors:
[1] the proximity of the area claimed to be curtilage to the
home, [2] whether the area is included within an enclosure
surrounding the home, [3] the nature of the uses to which the
area is put, and [4] the steps taken by the resident to protect
the area from observation by people passing by.”
Id. At the
same time, though, the Court cautioned that “these factors are
useful analytical tools only to the degree that, in any given
case, they bear upon the centrally relevant consideration --
whether the area in question is so intimately tied to the home
itself that it should be placed under the home’s ‘umbrella’ of
Fourth Amendment protection.” Id.; see also Oliver v. United
States,
466 U.S. 170, 182 n.12 (1984) (describing the
13
“conception defining the curtilage . . . as the area around the
home to which the activity of home life extends”).
Application of the four Dunn factors points predominantly
to the conclusion reached by the district court in this case --
“that the trashcan was situated outside of the curtilage of the
residence . . . at 4:00 a.m. on May 26, 2011.” First, with
respect to proximity, the strip of grass on which the trash can
partially sat (and on which the officers stood) was beyond the
end of the patio and therefore at least 20 feet from the
apartment’s back door. Although a 20-foot distance is not
great, in the context of an apartment complex with multiple
units sharing a common area, the 20-foot distance is not so
close as to require the conclusion that the curtilage extended
that far. See Breza, 308 F.3d at 435-46. As to the second and
fourth factors, the area was not “included within an enclosure
surrounding the home,” nor did Cox and Jackson take any steps to
shield the area from view of people passing by. What is most
telling, however, is the third Dunn factor -- the use to which
the area claimed to be curtilage was put. The evidence
indicates that the courtyard between the apartment buildings was
a common area used by all residents in the apartment complex.
The common courtyard area was a grassed area that had common
sidewalks running through it, by which residents could walk to
other apartments and to Magnolia Street. The two-to-three foot
14
strip of grass between the patio and the sidewalk was part of
this common area, and the line between the patio and the grass
marked the boundary between the particular property conveyed by
lease to each tenant and the apartment complex’s common
property. In these circumstances, then, we conclude that the
apartment’s curtilage extended to the end of its back patio but
not further, because the area beyond the patio, including the
two-to-three feet between the patio and the common sidewalk, was
not “so intimately tied to the home itself that it should be
placed under the home’s ‘umbrella’ of Fourth Amendment
protection.” Dunn, 480 U.S. at 301.
Accordingly, we affirm the district court’s conclusion that
the officers here pulled the trash bags from a trash can located
outside the apartment’s curtilage. Because they did not
physically intrude upon a constitutionally protected area, we
conclude that Jackson cannot prevail under the property-based
approach to the Fourth Amendment articulated in Jardines.
C
The Jardines analysis does not end the Fourth Amendment
inquiry, however, because, as Jardines itself makes clear,
“property rights are not the sole measure of Fourth Amendment
violations” and “[t]he Katz reasonable-expectations test has
been added to . . . the traditional property-based understanding
15
of the Fourth Amendment.” Jardines, 133 S. Ct. at 1414, 1417
(referring to Katz v. United States,
389 U.S. 347 (1967))
(internal quotation marks omitted). We therefore also address
whether Jackson had a reasonable expectation of privacy in the
trash can’s contents.
The Supreme Court confronted a very similar set of facts in
Greenwood, where it held that the Fourth Amendment does not
prohibit “the warrantless search and seizure of garbage left for
collection outside the curtilage of a home.” 486 U.S. at 37.
There, an enterprising police officer had “asked the
neighborhood’s regular trash collector to pick up the plastic
garbage bags that Greenwood had left on the curb in front of his
house and to turn the bags over to her without mixing their
contents with garbage from other houses.”
Id. In holding that
practice lawful, the Supreme Court accepted the fact that the
defendants likely “did not expect that the contents of their
garbage bags would become known to the police or other members
of the public” but nonetheless concluded that the defendants had
“exposed their garbage to the public sufficiently to defeat
their claim to Fourth Amendment protection.”
Id. at 39-40.
We conclude that Greenwood’s rule controls here. To be
sure, there are some factual differences, key among them being
that Greenwood’s trash had been left on the curb of a public
street for collection, whereas Jackson and Cox had not yet taken
16
their trash can to Magnolia Street, where the garbage collector
regularly collected it. But the critical inquiry driving the
Court’s decision in Greenwood was the extent to which the
defendants had “exposed their garbage to the public,” thus
eliminating any “reasonable expectation of privacy in the
inculpatory items that they discarded.” Id. at 40-41. By that
measure, Jackson’s claim to Fourth Amendment protection for the
trash can fails. For rather than being locked to the laundry
pole closest to the residence’s back door, where it was normally
located, the trash can was sitting in the common area of the
apartment complex courtyard, which included the grass areas and
common sidewalks, readily accessible to all who passed by.
Moreover, as Cox testified, the trash can contained “stuff [she]
want[ed] to get rid of,” stuff she “d[i]dn’t want anymore.” Put
simply, having left the trash can outside the curtilage of their
home, in a common area shared by the other residents of the
apartment complex and their guests, Jackson cannot now claim to
have had a reasonable expectation of privacy in its contents.
As in Greenwood, the trash can containing Jackson’s discarded
refuse was “readily accessible to animals, children, scavengers,
snoops, and other members of the public.”
Id. at 40.
For these reasons, we conclude that the trash pull that the
Richmond Police conducted on May 26, 2011, was a lawful
investigatory procedure and accordingly affirm the district
17
court’s order denying Jackson’s motion to suppress. Jackson’s
judgment of conviction is accordingly
AFFIRMED.
18
THACKER, Circuit Judge, dissenting:
The Fourth Amendment is clear: “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend. IV. In several recent
decisions, the Supreme Court has reaffirmed that at its “very
core,” the Fourth Amendment stands for “the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.” Florida v. Jardines, ___ U.S. ___, 133
S. Ct. 1409, 1414 (2013) (internal quotation marks omitted).
“This right would be of little practical value if the
State’s agents could stand in a home’s porch or side garden and
trawl for evidence with impunity.” Id. at 1414. Although my
good colleagues in the majority cast this decision narrowly
based on the facts found by the district court, see ante at 3
(“The district court found as fact that at the time of the trash
pull, the trash can was sitting on common property of the
apartment complex.”), even accepting the facts found by the
district court, I cannot subscribe to a version of the Fourth
Amendment that permits agents of the state to conduct a
warrantless search of a citizen’s trashcan where the receptacle
is located directly behind their home and not otherwise
abandoned or left for collection along a public thoroughfare,
19
see California v. Greenwood, 486 U.S. 35, 39-41 (1988). For
these reasons, I respectfully dissent.
I.
A.
The Area of the Search
The property of concern in this case is part of a
larger development called Whitcomb Court, which is owned and
managed by the Richmond Redevelopment Housing Authority
(“Housing Authority”). Whitcomb Court is made up of a number of
buildings each containing six row houses. Jackson’s home was
located in one of these buildings and was adjacent to Anniston
Street in Richmond, Virginia. The building located next to
Jackson’s building is also next to Anniston Street, but is
angled such that the two buildings appear similar in form to two
sides of a triangle, leaving a funnel-like opening through which
residents may access Anniston Street. See J.A. II Ex. 1. 1
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal. Additionally, for ease of
reference, the photographs contained in Exhibits 1, 2, 4, 11, 12
and 13 are appended hereto.
Exhibit 1 portrays an aerial view of the two buildings at
issue, and is appended to this opinion to assist the reader.
The funnel-like opening at the access point to the internal
courtyard is indicated by the convergence of the two buildings
in the top right quadrant of the photograph, although the fence
and part of the internal walkway is obscured by trees. That
area is more accurately depicted by the photographs appended in
Exhibits 11 and 12.
20
A wrought iron fence separates Anniston Street from
the apex point at which the two buildings meet, leaving only the
funneled opening in the fence for an internal walkway that
intersects the public sidewalk along Anniston Street. 2 See J.A.
II Ex. 11, Ex. 12. Notably, it is undisputed that the internal
walkway is not a “through” walkway. No alleys, no through
sidewalks, no driveways, and no streets transect or abut the
area directly behind Jackson’s home where the trash pull was
conducted. And, according to Whitcomb Court property manager
Clementine Robinson, the areas behind the residences -- the
patio areas -- are private areas of each tenant. J.A. at 112;
see also J.A. at 122 (Jackson’s neighbor, Asia Morris, stated
that the patio area is her “private area.”); J.A. II Ex. 2, Ex.
3, Ex. 12.
Moreover, the area where the trash pull occurred is
surrounded by “no trespassing” signs positioned by the Housing
Authority. Six “no trespassing” signs were affixed to each
building in Whitcomb Court, one on each side of the buildings,
and two on the front and the back of each building. The signs
read, “NO TRESPASSING By the Order of RRHA,” the Richmond
2
In order to maintain clear distinctions among the various
paved areas, I denote the public strip of pavement parallel to
Anniston Road as the “sidewalk,” and that directly behind each
of the two buildings at Whitcomb Court as the internal
“walkway.”
21
Redevelopment Housing Authority. The signs are white with black
lettering and are readily observable, night or day. In fact,
Officer Michael Verbena testified that the area behind the two
buildings was “private property,” that there were two “no
trespassing” signs on the interior back sides of both of the
buildings facing where the trash pull was conducted, and that
the signs are “clearly marked.” J.A. at 58, 68; J.A. II Ex. 2,
Ex. 11, Ex. 12.
B.
The Weekly Trash Collection
Significantly, in order for the trash collectors to
pick up the trash from Whitcomb Court, the trashcans behind each
residence must be brought by the tenants from their rear patios,
along the Whitcomb Court internal walkway, around the apartment
building, through the opening in the wrought iron fence, past
several “no trespassing” signs, and to the public curb on
Anniston Street. Indeed, the trash collectors do not traverse
behind the row houses and onto the patios of the residences or
the internal walkway to pick up trash. The trash is not left
for collection behind the residences; only when the trash is
brought to the public street is it exposed to public passersby
and subject to collection by the trash removal company.
22
C.
The Location of the Trashcan
Even accepting the location of the trashcan as found
by the district court in a light most favorable to the
Government, the receptacle was assuredly on the home’s curtilage
and plainly safe from a warrantless search by agents of the
state.
Nonetheless, the precise location of the trashcan at
the time of the search is in dispute, and for good reason.
Jackson’s investigator, Linda McGrew, testified that property
manager Robinson told her that she had never seen a trashcan on
the internal walkway at Whitcomb Court, and that the trashcans
are instead kept on the patio areas of each residence. Each
witness who lived in the development likewise testified that
trashcans are not kept on the walkways in Whitcomb Court.
Jackson’s neighbor Sharice Smith testified that there is a rule
in the apartment complex against having trashcans on the
walkway. Smith also stated that she had never seen a trashcan
in Whitcomb Court on the walkway in her five years of living
there. Asia Morris, who lived next door to Jackson, likewise
testified that in all the years she lived at Whitcomb Court, she
had never seen a trashcan on the internal walkway.
In contrast, Officers Verbena and Eric Fitzpatrick
presented inconsistent versions of events.
23
Officer Fitzpatrick testified that the trashcan was
located “on the sidewalk,” meaning the internal rear walkway at
Whitcomb Court. 3 J.A. 98. He then stated that in the photograph
that is depicted in Exhibit 2 he was standing “approximately
where the trashcan was located on that sidewalk.” J.A. 59-61,
98-99; J.A. Ex. 2. In that photograph, Officer Fitzpatrick
appears to be standing completely on the walkway. However,
Officer Fitzpatrick indicated that the trashcan could have been
“inches” in one direction or another. J.A. 102.
Notably, the officers’ pictorial recreation of where
the trashcan was located on the night in question actually took
place six and a half months after the fact, in preparation for
the then-forthcoming suppression hearing. 4 Officer Fitzpatrick
also confirmed that it was dark the night of the trash pull and
that he had done at least ten trash pulls with Officer Verbena
on that particular night. Significantly, however, in Officer
Verbena’s affidavit for the search warrant of Jackson’s
residence -- generated on the same day as the trash pull -- he
3
See supra note 2 and accompanying text. While the
officers use the term “sidewalk” to describe the internal paved
path between the buildings of Whitcomb Court, I adopt the more
accurate term “walkway.”
4
The trash pull occurred at approximately 4:00 a.m. on May
26, 2011. The photographs purporting to recreate the location
of the trash pull were taken on December 13, 2011. The
suppression hearing was held on February 14, 2012.
24
described the trashcan as being situated “directly behind” the
residence, with no mention of it being on or near the internal
walkway. J.A. II 9.
Officer Verbena’s testimony contained further
troubling inconsistencies. Initially, Officer Verbena testified
that the trashcan was “seven to ten yards from the back door off
the sidewalk,” J.A. 54, “right off the sidewalk.” J.A. 53
(emphasis supplied). 5 Then, when the district court asked
specifically how far the trashcan was from the sidewalk, Officer
Verbena altered his testimony and said the trashcan was
“basically almost touching the sidewalk, if not on -- partly on
the sidewalk.” J.A. 55. Finally, in response to the district
court’s question regarding how far the trashcan was from the
patio, the trashcan “moved” further to a point at which it was
“almost completely on the sidewalk. So I’d say maybe a foot off
the patio actually is where the trashcan was, give or take.”
J.A. 56 (emphasis supplied). So, in the span of time from the
point at which Officer Verbena drafted his search warrant
affidavit on the day of the trash pull to the time he testified
at the suppression hearing eight and a half months later, the
location of the trashcan shifted from 1) “directly behind” the
residence; to 2) “off” the sidewalk; to 3) “if not on -- partly
5
See supra note 3.
25
on the sidewalk;” and, finally, to its ultimate resting place 4)
“almost completely on the sidewalk.” J.A. 53-56; J.A. 9.
Crediting a less constitutionally offensive version of
the officers’ shifting and conflicting testimony, the district
court found that the trashcan was at the time of the search
located “immediately adjacent” to the walkway running behind
Jackson’s home, as well as “positioned partially on” the
walkway, “with the lid opening toward the house.” United States
v. Jackson, 3:11CR261-HEH, 2012 WL 529814, at *4 (E.D. Va. Feb.
17, 2012).
The district court did not explain whether the
trashcan was also touching the patio or if it was located on the
small patch of grass or cement step between the internal walkway
and Jackson’s patio. The district court was simply not clear
about the precise location of the trashcan. This is perhaps
understandable given the state of the officers’ shifting
testimony in this case. But, the location of the trashcan is of
monumental importance for determining curtilage, property
interests, and legitimate privacy interests. Even accepting the
district court’s finding that the trashcan was at least
“positioned partially on” the internal walkway, id., logic
dictates that the remainder of the receptacle would have also
been resting on the patio or the small patch of grass or cement
26
step directly behind Jackson’s residence -- an area the district
court should have determined was curtilage as a matter of law.
Indeed, the district court rested its decision on its
finding that the trashcan was “adjacent” to the internal
walkway, which was in its view “publicly accessible” and a
“common easement,” although this latter term is not defined in
the record. J.A. 177-78. There is some dispute regarding how
accessible the internal walkway was to members of the public,
but it is clear from the fence along Anniston Road and the fact
that the walkway was not a “through-way,” that the internal
walkway was for residents and their guests accessing the back
patios -- not for members of the public to use as a path to
another destination. This conclusion becomes more clear in
light of the numerous “no trespassing” signs posted all along
the complex walls.
II.
The Fourth Amendment “establishes a simple baseline
. . . : When ‘the Government obtains information by physically
intruding’ on persons, houses, papers, or effects, ‘a search
within the original meaning of the Fourth Amendment’ has
‘undoubtedly occurred.’” Florida v. Jardines, ___ U.S. ___, 133
S. Ct. 1409, 1414 (2013) (quoting United States v. Jones, ___
U.S. ___,
132 S. Ct. 945, 950-951 & n.3 (2012)). The Supreme
Court has denoted this original understanding of the Fourth
27
Amendment as embodying a “common-law trespassory test.” Jones,
132 S. Ct. at 952.
A Fourth Amendment violation also occurs when
government officers violate a person’s “reasonable expectation
of privacy.” Katz v. United States, 389 U.S. 347, 360 (1968)
(Harlan, J., concurring). Notably, “though Katz may add to the
baseline, it does not subtract anything from the Amendment’s
protections ‘when the Government does engage in [a] physical
intrusion of a constitutionally protected area.’”
Jardines, 133
S. Ct. at 1414 (quoting United States v. Knotts,
460 U.S. 276,
286 (1983) (Brennan, J., concurring)); see also Jones, 132 S.
Ct. at 952 (“[T]he Katz reasonable-expectation-of-privacy test
has been added to, not substituted for, the common-law
trespassory test.” (emphases removed)).
Thus, in conducting a search, the Government may
violate an individual’s Fourth Amendment rights in two different
ways: 1) by physically intruding on the individual’s property in
an unreasonable manner, and 2) by violating an individual’s
reasonable expectation of privacy. In my view, the warrantless
search of Jackson’s trashcan, located directly behind his home
in a private area, was an unreasonable search under both
approaches.
28
A.
The Protection of Property Interests
The Fourth Amendment “‘indicates with some precision
the places and things encompassed by its protections’: persons,
houses, papers, and effects.” Jardines, 133 S. Ct. at 1414
(quoting Oliver v. United States,
466 U.S. 170 (1984)).
Although not all investigations conducted on private property
are subject to the Amendment’s protection, see Hester v. United
States,
265 U.S. 57 (1924) (recognizing the “open fields”
doctrine), “when it comes to the Fourth Amendment, the home is
first among equals.”
Jardines, 133 S. Ct. at 1414. The Supreme
Court explained:
At the Amendment’s “very core” stands “the right of a
man to retreat into his own home and there be free
from unreasonable governmental intrusion.” Silverman
v. United States, 365 U.S. 505, 511,
81 S. Ct. 679,
5
L. Ed. 2d 734 (1961). This right would be of little
practical value if the State’s agents could stand in
a home’s porch or side garden and trawl for evidence
with impunity; the right to retreat would be
significantly diminished if the police could enter a
man’s property to observe his repose from just
outside the front window.
We therefore regard the area “immediately surrounding
and associated with the home” -- what our cases call
the curtilage -- as “part of the home itself for
Fourth Amendment purposes.” Oliver, [466 U.S.] at
180, 104 S. Ct. 1735. . . . This area around the
home is “intimately linked to the home, both
physically and psychologically,” and is where
“privacy expectations are most heightened.”
California v. Ciraolo, 476 U.S. 207, 213,
106 S. Ct.
1809,
90 L. Ed. 2d 210 (1986).
29
Id. at 1414-15 (emphasis supplied). Thus, we first look to
whether the trashcan at the time of the warrantless search was
located on the curtilage of Jackson’s residence.
The Supreme Court has prescribed a multi-factor test
to guide curtilage determinations:
[C]urtilage questions should be resolved with
particular reference to four factors: [1] the
proximity of the area claimed to be curtilage to the
home, [2] whether the area is included within an
enclosure surrounding the home, [3] the nature of the
uses to which the area is put, and [4] the steps taken
by the resident to protect the area from observation
by people passing by.
United States v. Dunn, 480 U.S. 294, 301 (1987). The
Court cautioned, however, that “these factors are useful
analytical tools only to the degree that, in any given case,
they bear upon the centrally relevant consideration -- whether
the area in question is so intimately tied to the home itself
that it should be placed under the home’s ‘umbrella’ of Fourth
Amendment protection.”
Id. 6
Crediting the testimony of Officers Verbena and
Fitzpatrick, the district court concluded that the trashcan was
beyond the curtilage of the home at the time of the trash pull
6
“While the boundaries of the curtilage are generally
‘clearly marked,’ the ‘conception defining the curtilage’ is at
any rate familiar enough that it is “easily understood from our
daily experience.” Jardines, 133 S. Ct. at 1415 (quoting
Oliver, 466 U.S. at 182 n.12).
30
because, at that time, it was “positioned directly next to the
sidewalk, with a portion of the can actually protruding onto the
sidewalk,” and “not chained or otherwise secured.” 7 United
States v. Jackson, 3:11CR261-HEH, 2012 WL 529814, at *4 (E.D.
Va. Feb. 17, 2012). I disagree.
1.
Proximity of the Area to the Home
“There is not . . . any fixed distance at which
curtilage ends.” United States v. Breza, 308 F.3d 430, 435 (4th
Cir. 2002) (internal quotation marks omitted). “Rather, in
determining whether the area searched was intimately tied to the
home, . . . the proximity of the area to the home must be
considered in light of the other Dunn factors.”
Id. (internal
quotation marks and citation omitted). Based on Officer
Verbena’s testimony as credited by the district court, the
trashcan “was located seven to ten yards from the back door of
the house, past a concrete patio which extends approximately
twenty feet out from the rear entrance.” Jackson,
2012 WL
529814, at *5.
In United States v. Breza, we reasoned that while the
defendant’s garden, the location of the disputed search, “was
only 50 feet from his house [and] would permit a conclusion that
7
See supra note 3.
31
the garden was within the curtilage, it does not compel such a
conclusion.” 308 F.3d at 436. Cf. United States v. Depew,
8
F.3d 1424, 1427 (noting that distance of 60 feet is close enough
to permit a finding of curtilage if other factors support such a
finding). Similarly, in this case the district court’s factual
determination that the trashcan was at most 30 feet from
Jackson’s backdoor is not alone dispositive as to a finding of
curtilage. However, when viewed in light of the enclosed
environment of the housing complex and the nature of the
location’s purpose -- i.e., to store noxious waste far enough
away from the home but not left for collection -- the relatively
close proximity of the trashcan to the rear of Jackson’s home
counsels strongly in favor of concluding the trashcan was within
the curtilage.
2.
Enclosure of the Area
We must also consider “whether the area is included
within an enclosure surrounding the home.” Dunn, 480 U.S. at
301. “The proper focus of this factor is on whether interior
fencing clearly demarcates the curtilage.”
Breza, 308 F.3d at
436 (quoting United States v. Traynor,
990 F.2d 1153, 1158 (9th
Cir. 1993) (internal quotation marks omitted)). In this case,
there was no enclosure of Jackson’s individual unit within the
building. But nearly as important, the building containing
32
Jackson’s home was largely enclosed. As noted, the main point
of access to Jackson’s home is through a funneled opening of the
wrought iron fence just off the public sidewalk along Anniston
Street. See J.A. II Ex. 11, Ex. 12. Opposite Jackson’s patio,
the courtyard is bounded by the rear of the neighboring row
houses. See J.A. II Ex. 1, Ex. 4. And at the opposite end of
the funneled entry to Anniston Street, the courtyard is hemmed
in by a retaining wall bordering a neighboring baseball field.
See J.A. II Ex. 1, Ex. 4. Thus, the building of which Jackson’s
home is a part is at least partially enclosed, as it is bounded
on all sides in one form or another. See United States v.
Redmon, 138 F.3d 1109, 1130 (7th Cir. 1998) (en banc) (Posner,
J., dissenting) (“The curtilage would rarely extend beyond the
house itself if complete, opaque enclosure were required. Few
people, other than the very wealthy, barricade their front yard
so completely that a person seeking to enter must request the
unlocking of a solid gate that is higher than eye level.”).
3.
The Uses of the Area
In this case, the area claimed to be the curtilage
includes the patio immediately behind Jackson’s home, as well as
the grass surrounding it between the patio and the internal
walkway. The patio includes a clothesline, held by two posts.
Each residential unit is required by the development’s rules to
33
keep residents’ trashcans, among other items of personal
property, on the patio area. Thus, the patio area is
essentially the individual resident’s back yard.
Although the Government claims that this area was
“accessible” by the public, it fails to point to any facts
suggesting the patios were actually put to public use. And,
critically, the officers themselves conceded that the rear
walkway was not subject to “through” traffic, and that the area
behind the two buildings was “private property.” See J.A. 58,
67-68, 91. Merely because members of public can or have on
occasion accessed the rear walkway and courtyard does not mean
the Government may conduct warrantless searches of the entire
area with abandon. Such logic reduces the residents’ curtilage
to a nullity. 8
8
The district court reasoned, “by placing the trashcan
adjacent to the sidewalk –- readily accessible to neighbors and
other visitors in the apartment complex –- the defendant exposed
the trashcan to the public-at-large. . . .” Jackson, 2012 WL
529814 at *6. In response to the residents’ undisputed
testimony that the internal walkway was “not generally accessed
by strangers,” the district court responded: “However, this was
not a gated community. Residents, visitors, and other non-
residents could access the common area and the sidewalk at
will.”
Id. at *6 n.5.
But, citizens with smaller lot sizes should not be accorded
any less Fourth Amendment protection than those who have the
luxury of much larger grounds, including larger driveways and
back yards such that they may store their trash at a further
distance from the public collection point.
34
4.
Steps Taken to Protect the Area from Observation
Here, the area claimed to be the curtilage by Jackson
is completely open to his Whitcomb Court neighbors: no fences or
other barriers inhibit open observation from the rear courtyard
area of the complex. Nevertheless, the courtyard area between
the buildings is secluded from public view (from the public
street-sidewalk area) by a metal fence. More importantly, there
are multiple “no trespassing” signs located on the rear wall of
the two apartment row buildings. Indeed, according to the
property manager and residents, the areas behind the individual
units -- the patio areas -- are private areas of each tenant.
See J.A. at 112, 122. Clearly, this was not an area designed to
allow unhindered public travel and public observation; rather,
it was limited to residents and their guests. 9
Upon consideration of the Dunn factors as applied to
the facts of this case -- even crediting the officers’ shifting
testimony (which was inconsistent at best) -- the district
court’s legal conclusion that the trashcan was not located on
9
The Government claims that because its officers and
Jackson’s investigator were able to come and go on the apartment
complex property without difficulty on a few occasions, we
should consider the area completely “public” despite the “no
trespassing” signs. However, whether the rule against
trespassing was enforced on these particular occasions does not
make the presence of the signs any less important for the
multifactor curtilage determination.
35
Jackson’s curtilage was error. The proximity of the trashcan to
Jackson’s home, and the fact that the area was largely enclosed,
militate in favor of determining that the trashcan was indeed
within the curtilage.
B.
The Protection of Privacy Interests
In addition to the search of the trashcan being
unreasonable under the trespassory test, Jackson had a
reasonable expectation of privacy in his trashcan when it had
not been left for collection, but was rather kept behind the
home for temporary storage of personal waste. As noted by the
Court in Jardines, this analysis overlaps with the property
interest-based Fourth Amendment analysis. See Jardines, 133 S.
Ct. at 1418-19 (Kagan, J., concurring). 10 As explained, the
10
Justice Kagan’s concurring opinion in Jardines makes this
clear:
It is not surprising that in a case involving a search
of a home, property concepts and privacy concepts
should so align. The law of property naturally enough
influences our shared social expectations of what
places should be free from governmental incursions.
And so the sentiment “my home is my own,” while
originating in property law, now also denotes a common
understanding -- extending even beyond that law’s
formal protections -- about an especially private
sphere. Jardines’ home was his property; it was also
his most intimate and familiar space. The analysis
proceeding from each of those facts, as today’s
decision reveals, runs mostly along the same path.
(Continued)
36
protections of the Fourth Amendment are also activated when the
state conducts a search or seizure in an area in which there is
a “constitutionally protected reasonable expectation of
privacy.” New York v. Class, 475 U.S. 106, 112 (1986) (citation
omitted).
The seminal case governing analysis in this regard is
California v. Greenwood, 486 U.S. 35 (1988). In Greenwood, the
Supreme Court held that a defendant has no reasonable
expectation of privacy in refuse left for collection on or “at
the side of a public street that is readily accessible to
animals, children, scavengers, snoops, and other members of the
public.”
Id. at 40. The Court explained that the defendants:
placed their refuse at the curb for the express
purpose of conveying it to a third party, the trash
collector, who might himself have sorted through
respondents’ trash or permitted others, such as the
police, to do so. Accordingly, having 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 (internal quotation marks and citations omitted)
(emphasis supplied).
Jardines, 133 S. Ct. at 1418-19 (Kagan, J., concurring)
(internal quotation marks and citations omitted).
37
In contrast, here Jackson’s trashcan was not placed at
the public curb for collection, but, rather, was located on the
internal walkway of the Whitcomb Court building complex
“directly behind” Jackson’s residence. See J.A. II 9. Indeed,
the officers acknowledge that the trashcan was located at or
near the internal walkway next to Jackson’s patio and the
district court found that it was located adjacent to the
internal walkway. Therefore, it is incorrect to say that
Jackson’s garbage -- like Greenwood’s -- could be searched by
the police because where it was placed was accessible to
“animals, scavengers, and snoops.” Greenwood, 486 U.S. at 40.
Greenwood’s garbage was not on private property or on his
curtilage; Jackson’s was. The Government does not explain how
Jackson’s trashcan was any less accessible to “animals,
scavengers, and snoops” had it been located entirely on his
patio.
Id.
The Government appears to contend that the conclusion
it reaches, namely, that Jackson had no reasonable expectation
of privacy, follows naturally from Greenwood. See Government’s
Br. at 22 (“The key factor . . . is whether the ‘respondents
exposed their garbage to the public sufficiently to defeat their
claim to Fourth Amendment protection.’” (quoting
Greenwood, 486
U.S. at 40)). But any entitlement the police may have to search
the trashcan is dependent upon its location on the defendant’s
38
property, as the location is in this case the primary indicator
of whether Jackson intended to relinquish his legitimate
expectation of privacy. Storage of the trashcan so close to the
rear of his home -- within its curtilage, I submit –- indicates
that it was not intended to be relinquished.
Further, as explained, members of the public intent on
scavenging or snooping in Jackson’s trash would need to access
it by 1) stepping onto the internal walkway through the opening
in the fence alongside Anniston Street; 2) travelling along the
internal walkway from the street, between the two fences and the
two buildings, which leads only to the private courtyard and
patio areas; and 3) at the fork in the walkway that leads either
to the walkway behind Jackson’s building or to the walkway
behind the opposite building, taking the walkway to the left to
Jackson’s patio area, passing multiple “no trespassing” signs in
the process. Appellant estimates, and the Government does not
dispute, this entire trek from the public sidewalk where trash
is left for collection to the rear of Jackson’s residence where
the trash pull occurred is approximately 50 yards from start to
finish. Thus, Jackson’s reasonable privacy interest remains
intact under Greenwood.
In sum, the officers’ unjustified probe of Jackson’s
trashcan when not left for collection or otherwise abandoned
constituted a search falling under the purview of the Fourth
39
Amendment under the principles recently espoused in Jardines as
well as those set forth in Katz. Absent a warrant or the
presence of any exception thereto, the officer’s trawling,
exploratory search was patently unreasonable. Accordingly, the
district court erred by refusing to suppress the evidence
tainted by the fruits of the illegal search of Jackson’s
trashcan.
III.
For the foregoing reasons, I would reverse the
judgment of the district court.
40
ANNISTON ROAD, RlCHMOND,VA, GOOGLE MAPS - Google Maps Page 1 of2
Go gle
Photos
GOVERNMENT
EXHIBIT
.1
Show All - animals architecture art autumn beach bridge budding buildings castle ch
landscape mountain mountains nature night panorama park
clouds flowers hdr lake people river
sea sky snow summer sunset travel trees water winter
Ex. p. 001
http://maps.google.com/maps?q=2024+ANNISTON +ROAD, +RICHMOND, VA,+GOOG... 1/17/2012
Ex. p. 002
Ex. p. 004
Ex. p. 011
Ex. p. 012
8£~000
Ex. p. 013
