10-1055 & 10-1076 U.S. v. Simms

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Search and Seizure
Garbage; cartilage

Under Milwaukee’s “winter rules” for collecting garbage from fenced yards with the gate open, a resident implicitly consents to police searching his garbage cans.

“[T]he 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.)”

Affirmed.

10-1055 & 10-1076 U.S. v. Simms

Appeals from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Posner, J.

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