By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 24, 2010 – A Milwaukee ordinance that allows garbage collectors to enter a homeowner’s private property during winter allowed police to do the same, a panel for the U.S. Court of Appeals for the Seventh Circuit recently held.

In U.S. v. Simms, Nos. 10-1055 & 10-1076 (Nov. 23, 2010), Donald Simms II pled guilty to gun and drug offenses and the U.S. District Court for the Eastern District of Wisconsin sentenced him to 270 months in prison as an armed career criminal under federal law.

Simms appealed the sentencing on the basis that police violated his Fourth Amendment privacy rights when they entered his property and found marijuana in his garbage can. But the Seventh Circuit Appeals panel – in an opinion written by Judge Richard Posner – concluded that a Milwaukee garbage collection ordinance served as a legal basis for the search.

During the non-winter months, property owners in Milwaukee are required to wheel their garbage cans to the curb abutting the street for pick-up on trash pick-up day.

Starting on Dec. 1 of each year, however, Milwaukee Code of Ordinances section 79-5(3) gives trash collectors authority to enter a homeowner’s yard to retrieve garbage cans because placing the cans near the street would interfere with winter snow removal.

The appeals panel explained that the ordinance creates an easement to enter private property for the purpose of collecting garbage and requires property owners to clear a path along the easement. This requires property owners to remove three or more inches of snow that accumulates on the path so collectors can freely access trash cans.

A week after the “winter rules” took effect and on trash pick-up day, a police detective entered the defendant’s fenced yard through an open gate, collected defendant’s trash, and discovered marijuana. Accumulation of snow that morning prevented the gate from closing, creating an open walkway through the six-foot high fence that enclosed the private yard.

The marijuana seized served as the basis, in part, for a warrant to search the home. The defendant moved to suppress the evidence as a violation of his Fourth Amendment right to be free of unlawful searches and seizures. The district court denied the motion.

Appeal 

Because the fence gate was open and it was trash pick-up day during “winter rules” season, the appeals panel explained that “garbage collectors would assume that the defendant wanted his garbage cart emptied; and what they reasonably believed they could do, the detective could do.”

The panel noted that the “curtilage” of one’s property used for private activities, such as a fenced-in yard, remains protected by the Fourth Amendment, depending on the facts. That is, one’s privacy expectation would be different if they were, for instance, “sunbathing in the nude in their fenced yard. … We are not prepared to say that a place in which garbage carts or cans are kept can never be part of the curtilage,” Judge Posner wrote.

But “[b]y 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.”

The panel also affirmed the district court’s conclusion that a search of Simms’s car was lawful because the police had probable cause to believe the car contained contraband.