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«No. 12-4559 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANA JACKSON, Defendant - Appellant. Appeal from the United States District Court for ...»

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No. 12-4559


Plaintiff - Appellee,



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 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”).

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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

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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 Court, a public housing apartment complex owned by the Richmond Redevelopment and Housing Authority, and was one of six row

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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

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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

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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

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Police Officers Michael Verbena and Eric Fitzpatrick testified, however, that at about 4:00 a.m. on Thursday, May 26, 2011, they found the trash can for 2024 Anniston Street located behind the unit and beyond the patio, sitting partially on the two-to-three

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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,

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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

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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

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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

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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

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sidewalk” so that it was “readily accessible to neighbors and other visitors in the apartment complex,” thereby “relinquishing any objectively reasonable expectation of privacy.”

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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.

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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

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that is not explicitly or implicitly permitted by the resident.” (Internal quotation marks omitted). Finally, he contends that he had a reasonable expectation of privacy in the trash can and its contents because it “was directly behind the residence, was

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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

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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

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“unlicensed physical intrusion” of a “constitutionally protected area,” Jardines, 133 S. Ct. at 1415; and (3) if not, whether Jackson nonetheless had a reasonable expectation of privacy in the trash can’s contents.

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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

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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 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.

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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 ‘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

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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.

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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.

In this case, the parties agree that the curtilage of Cox’s

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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

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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

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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

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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 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

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