Tuesday, August 27, 2013

Apartment Curtilage Doesn't Include Common Areas Right Behind Building

US v. Jackson: Jackson lived in his girlfriend's apartment in Richmond.  Police received a tip from a CI that he was selling drugs.  They went to the apartment and, at four in the morning, pulled two bags of trash out of the can that was placed out behind the apartment.  Based on the evidence in those bags the officers got a warrant, searched the apartment, and recovered guns, drugs, money and other evidence of drug distribution.
Jackson moved to suppress the evidence found in the apartment, arguing that the trash pull was unconstitutional.  Although the morning the officers searched the trash was trash day, the can had not been rolled out to the side street (accessed from a common sidewalk behind the building) for collection.  Instead, it was "sitting partially" in the back yard and "partially on the common sidewalk."  The officers testified that they did not step onto the patio to grab the trash bags.  The district court denied the motion, concluding that Jackson had no expectation of privacy in the trash can, that it was not within the curtilage of the apartment (aka on the patio), and that it was located in a common area.  Jackson entered a conditional guilty plea and was sentenced to 137 months in prison.

Jackson appealed and the Fourth Circuit affirmed, 2-1.  First, the court rejected Jackson's contention that the district court clearly erred by concluding that the trash can was not on the patio, but rather in the common area, when the trash pull took place, noting that the testimony of the officers was not directly contradicted by other evidence.  Second, the court concluded that the location of the can was not within the curtilage of the apartment.  Applying the Supreme Court's recent decision in Jardines, the court concluded that the curtilage extended to the edge of the back patio, but no further.  Finally, the court concluded that the Supreme Court's decision that a person lacked a reasonable expectation of privacy in trash left on the curb for pickup applied here and Jackson lacked such an expectation, even though the trash can was not out at the curb as needed for pickup.

Judge Thacker dissented.  Taking the facts as found by the district court, she argued that "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."  She also attaches several photographic exhibits from the joint appendix to provide a better idea of the layout of the area.

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