Legal Lode: Fence Defense Dispensed

Courts say police search of trash can in fenced back yard passes legal muster.

After pleading guilty to drug and gun charges in federal district court, Donald W. Simms II, who had three previous convictions for serious drug crimes, was sentenced under the Armed Career Criminal Act (ACCA) to 270 months in prison, which included 30 months for having violated supervised release. The ACCA dictates a minimum sentence of 15 years.

Simms entered a guilty plea after U.S. District Judge Charles N. Clevert Jr. denied a defense motion to exclude evidence seized by police in Simms’ Milwaukee home. The guilty plea, however, was conditional: Simms would appeal the judge’s decision to allow the evidence. If the ruling were overturned, the plea could be withdrawn, and, without the items seized, the charges against Simms would likely be dropped.

Detectives entered the house with a warrant based, in part, on marijuana they found while picking through Simms’ garbage cans. To obtain a search warrant, law enforcement officials must first convince a magistrate or judge that “probable cause” exists. They can do so by providing a sworn statement that contraband or evidence of a crime likely will be found where the search will take place. The discovery of marijuana was a key element in establishing probable cause.

On collection days, a Milwaukee homeowner moves his carts to the curb. Starting on Dec. 1, however, the city’s “winter rules” go into effect. To ease snow removal operations, carts stay put until the collection crews retrieve them and wheel them to the street. According to the affidavit supporting the search warrant, the defendant’s garbage carts were situated inside his fenced yard. One of the officers removed Simms’ garbage from a cart she found after entering his yard through an open gate on Dec. 7, which happened to be the regular trash pick-up day.

Upholding the lower court ruling, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit said the garbage search was “authorized by an appearance of consent to collect garbage from the fenced yard under winter rules with the gate open.” When garbage cans are left for collection at the curbside, police do not need a warrant to search the cans and seize their contents. The rationale is that property owners have no reasonable expectation of privacy when they leave garbage in “readily accessible” areas in order to “convey it to … the trash collector” [California v. Greenwood, 486 U.S. 35 (1988)].

Having the force of law, the “winter rules” created an “easement to enter the defendant’s property to collect garbage,” the appeals court said. Milwaukee’s city code requires owners and tenants to ensure that trash cans are “fully accessible at all times for … collection” [Code § 79-3(1)].

“By leaving the gate open when winter rules were in force, without notice that the garbage collectors were not to enter — a notice they would not be bound to obey because it would violate the ordinance — the defendant allowed a reasonable person to think that nothing private was going on in his yard because he could expect the garbage collectors to enter it and wheel away the carts,” the appeals court concluded.

[United States v. Simms, No. 10-1055, 7th Cir., Nov. 23, 2010]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail:

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