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USA v. Donald W. Simms, II, 7th Cir No. 10-1055, 11/23/10

seventh circuit decision

Milwaukee’s ordinance-created “winter rules” with respect to snow removal effectively establish an “easement” such that police could enter a yard and rifle through a homeowner’s garbage cart. Although the  cart is within what is normally considered “curtilage,” and thus protected by privacy concerns, the intrusion of the curtilage here is “lawful,” given this local law allowing garbage collectors to intrude on such areas.

But the fact that the defendant’s garbage carts were (we may assume) within the curtilage of his home does not conclude the constitutional analysis. For there is the ordinance, and there is a related issue of apparent consent to the search. Suppose that every Friday the defendant opened his gate, placed his garbage carts in the middle of the driveway just inside the open gate, and by these moves signaled that he wanted the garbage collectors to enter the yard, wheel the garbage carts to the street, empty them, and return them to their place in the driveway. This would show that nothing very private was going on in the yard on garbage-collection day. 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, consistent with the winter rules of which all homeowners were notified. That would be the natural inference from the circumstances although it is possible that the gate was open only because the snow prevented it from being shut. (But then the defendant must have opened it earlier.)

The court suggests that “consent” is the basis for its conclusion –  “it was authorized by an appearance of consent” – though this isn’t entirely clear. (Ordinarily, consent must be clear and unequivocal; does “an appearance of consent” satisfy the test?) But the court also intimates that the ordinance may eliminate an expectation of privacy: “We cannot see how an expectation of privacy that can be realized only by breaking the law [i.e., the ordinance at issue] can be considered reasonable and therefore protected by the Constitution, unless the law in question is invalid.” The court nonetheless doesn’t go that far (and similarly raises and rejects the possibility of a good-faith analysis), which leaves “appearance of consent,” unsatisfying as that might be, as the rationale. Wisconsin cases dealing with the fourth amendment implications of garbage collection include State v. Sigarroa, 2004 WI App 16 (no expectation of privacy in garbage placed in dumpster at apartment complex; court stresses that curtilage is part of privacy analysis, not separate inquiry); State v. Stevens, 123 Wis.2d 303, 367 N.W.2d 788 (1985) (combination of consent and reduced expectation of privacy relied on to uphold search of garbage removed from a garage by municipal workers with the owner’s explicit consent and then searched after removal by police); and Ball v. State, 57 Wis.2d 653, 656, 205 N.W.2d 353 (1973) (police intrusion of curtilage, behind defendant’s home, to search trash barrel violated 4th amendment, because barrel was not “in ‘public view’ outside his expectation of privacy”). Simms authorizes a greater level of intrusion than any of these cases, at least where an ordinance provides cover to entry onto curtilage to collect garbage.

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