CA7: Milwaukee’s “winter rules” permitting city trash collectors to go on the curtilage to get trash so snowplows aren’t interfered with permits valid entries on curtilage

The City of Milwaukee’s “winter rules” that allow the city trash collectors to go on the curtilage to get trash so the trash containers will not be left out to interfere with snowplow where the homeowner leaves the containers visible to the collectors creates consent to enter to get the trash. United States v. Simms, 626 F.3d 966 (7th Cir. 2010):

It appears, moreover, that the “winter rules” had the force of law, thus creating an easement to enter the defendant’s property to collect garbage. Milwaukee Code of Ordinances § 79-5(3) makes it “the responsibility of the owners and tenants of every premises where solid waste is collected to provide a clear and unhindered path to all containers. The path shall be a width specified by the commissioner and shall be free of hindrances such as, but not limited to, large debris, vehicles, locked fences, animals, ice or 3 or more inches of snow” (emphasis added).

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We are not prepared to say that a place in which garbage carts or cans are kept can never be part of the curtilage. People who live in cities and have small yards prefer to leave their garbage carts in an alley, if there is one next to their house. If not, they will have to leave the carts in their yard, often in a shed at the edge of the yard; in our case the carts were left next to the segment of the driveway that is inside the fenced yard.

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.)

We conclude that the garbage search was lawful—that it was authorized by an appearance of consent to collect the garbage from the fenced yard under winter rules with the gate open. But there is another Fourth Amendment issue: whether the search of the defendant’s car that yielded the gun that provided the basis for his mandatory 15-year sentence as an armed career criminal was permissible.

Police conducting undercover surveillance in preparation for executing the warrant to search the defendant’s house saw him drive his car to his house, park it across the street, walk to another car, which had just backed into his driveway, take from the trunk of that car a package that a police officer testified was consistent with the way that he’d seen marijuana packaged before, and carry the package into his house. The police had every reason to think the package contained drugs (as indeed it did); the question is whether they had probable cause to think there was contraband or evidence of crime in the defendant’s car as well. The answer is yes. They had reason to believe that he was a drug dealer and used his car in his drug business. Hence the car probably contained money, a gun, or evidence (even if just trace quantities) of illegal drugs, especially since the defendant was driving to a rendezvous with another drug dealer. Cf. United States v. Stotler, 591 F.3d 935, 939-40 (7th Cir. 2010).

Moreover, he was about to be arrested, and jailed indefinitely. His car could not be left unattended indefinitely. Eventually it would have been impounded by the police and subjected to an inventory search. The discovery of the gun was thus inevitable. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Stotler, supra, 591 F.3d at 940.