On the morning of Jan. 4, 1996, Joseph R. Redmon put his garbage cans outside his garage for collection. An hour or so later, the cops came and took the contents away. Now Redmon faces 15 years in the slammer, and a tough question of constitutional law remains unresolved.
The story began early in 1993. Federal and local narcotics agents traced a shipment of cocaine from California to Urbana, Ill. The trail led them eventually to a townhouse on Harding Drive at Vawter Street.Agents put the townhouse under surveillance. Without obtaining a warrant, they made three seizures of Redmon's garbage and searched the contents for evidence of trafficking in cocaine. They found plenty of it - enough evidence to obtain a warrant to search Redmon's house. There they found the 400 grams of cocaine that led to Redmon's arrest and conviction.
Redmon naturally moved at trial for suppression of the evidence. His counsel contended that the garbage, as long as it remained next to Redmon's garage, was not abandoned property, and that Redmon "had a reasonable expectation of privacy in the contents of his garbage cans." The trial court ruled to the contrary, and refused to exclude the evidence. Two months ago the U.S. Court of Appeals for the 7th Circuit affirmed.
The case split the circuit judges 8-5 and produced 60 pages of often passionate opinion. Judge Harlington Wood Jr., writing for the majority, emphasized that by affirming Redmon's conviction the court was not authorizing the police to make a warrantless search of anyone's garbage at any time. The term "curtilage" goes back many centuries in English law. It defines an area "intimately linked to the home, both physically and psychologically." As such it is off-limits to the cops. Here we have a valid expectation of privacy. Posner said:
"A garbage can is not a secure repository of secrets, though this is not because . . . raccoons can get at the garbage; raccoons are not interested in human beings' secrets. Garbage cans are insecure because once the garbage leaves your property you can't physically prevent anyone from going into it and piecing together the letters that you tore up and threw away and reconstructing your balance sheet from your discarded check stubs, and your diet and drinking habits from food refuse and empty bottles, and, if the snoop is a skilled archaeologist, perhaps obtaining over a period of months a detailed picture of your intimate and maybe disreputable private life."
To the dissenters, the question of curtilage is of critical importance. "Once the garbage is beyond one's property line, the police can search it at will." It is a constitutionally different matter when the police have to invade the curtilage in order to get at the garbage. "And this is where the line should be drawn."
If the principle of curtilage is not protected, said Posner, police officers could make a plausible case for going on to private property and opening any garbage can that seemed suspicious. "And once they reach it, they can of course glance around, and if they see contraband or illegal activity through a window of the house and don't have time to get a warrant, they can enter the house and search and arrest."
In a separate dissenting opinion, Judge Daniel A. Manion said bluntly that the Redmon case isn't just about garbage. At bottom it's a case about privacy. By sneaking up a private driveway to get at Redmon's garbage, the police became trespassers.
The dissenters had the better of the argument. I'm no friend of a dealer in cocaine, but in this case the tainted evidence should have been thrown out.