HARLINGTON WOOD, JR., Circuit Judge.
The defendant, Joseph Redmon, deposited his trust and his cocaine accessories in his garbage cans. That was a mistake. The police got to his garbage cans before the garbage collectors. A subsequent search of Redmon’s house under a search warrant issued on the basis of that garbage can evidence produced 415 grams of cocaine.
Redmon was indicted for possession of over 400 grams of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). After failing in his effort to quash the search warrant and to suppress the evidence, he entered a conditional guilty plea reserving the right to appeal that deci[1037]*1037sion. He does that now and also raises a sentencing issue.1
Redmon’s defense is that he had an objectively reasonable expectation of privacy in the contents of his garbage cans. He argues that the warrantless search of those garbage cans led to the search warrant for his house and therefore violated his Fourth Amendment rights. The district court thought otherwise, and so do we.
I. The Garbage Cans
Although the facts and circumstances of the garbage can searches are not disputed, they nevertheless must be examined. Red-mon’s two-story townhouse was situated at the end of a row of eight adjoining townhouses on the corner of two intersecting public streets in Urbana, Illinois. Redmon’s front door, without a porch, faced east toward one street. It could be accessed only by a narrow walk extending from the front door around the corner of the townhouse to the connected garage and driveway. The garage faced north on a different public street. Redmon and his neighbor shared the common driveway which jointly served their double-garage structure. The driveway was twenty-five feet wide and extended about twenty-three feet to and across a public sidewalk, and then about another ten feet to the public street. The width of the driveway exceeded the distance from the garage to the public sidewalk. The garbage cans were located just outside the garage, on the common driveway, about half way between the garage doors. Redmon used one side of the garage and his neighbor the other. There were no yard fences or gates.
II. Analysis of the Search
In arguing that he had an objectively reasonable expectation of privacy in his garbage cans, Redmon claims the cans were within the curtilage of his house. He relies on our case, United States v. Hedrick, 922 F.2d 396, 399 (7th Cir.1991), which stated that “garbage cans located twenty feet from the garage and approximately fifty feet from the back door of the house were technically within the curtilage of the house, in which privacy expectations are most heightened.” In Hedrick, however, after analyzing California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), and various other eases, this court found no constitutional privacy under its particular facts. 922 F.2d at 399.
Moreover, Hedrick does not establish that Redmon’s garbage cans were within the cur-tilage. Relying on California v. Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986), the Hedrick court defined the curtilage as being an area intimately associated with the sanctity of the home and the privacy of life, both physically and psychologically, and an area where privacy expectations are most heightened. 922 F.2d at 398. The Hedrick court further noted that eases following Ciraolo recognized that the yard of a residential home is within the curtilage. Id. at 399. Thus, although the Hedrick garbage cans were located at the side of the driveway about half way between the sidewalk and the garage, the court considered them to be within the curtilage of the house. Id. However, as the government points out, in United States v. Shanks, 97 F.3d 977, 979 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1002, 136 L.Ed.2d 881 (1997), this court also found that garbage cans placed next to a detached garage and only twenty feet from the residence, but also close to the alley, were outside the curtilage with no reasonable expectation of privacy.
The district court in the present ease did not make a finding about whether or not Redmon’s garbage cans were within the cur-tilage. However, in the present case the garbage cans were just outside the garage, but close to and visible from the public streets and the sidewalks. Thus, Redmon’s garbage cans, based on the record evidence, do not appear to us to have been within the curtilage, remembering curtilage is defined as an area intimately associated with the sanctity of the house and the privacies of life. In any event, under our eases Hedrick and Shanks, a curtilage finding is not controlling. Shanks, 97 F.3d at 979; Hedrick, 922 F.2d at [1038]*1038400. Other factors can be of greater weight. In this case, therefore, had the district court made a finding that the garbage cans were within the curtilage it would not have altered the result.
The Hedrick court noted that in California v. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628, the Supreme Court held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection in an area found to be outside the curtilage of the home. 922 F.2d at 397. However, the court also noted that in Greenwood, the Supreme Court distinguished garbage cans from other containers within the curtilage of the home by noting that “plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.”2 Hedrick, 922 F.2d at 399 (quoting Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628). Some of those predators mentioned in Greenwood, animal and human, would likely also venture from a public street up a short driveway to check appealing garbage cans in plain view. Thus, the Hedrick court explained that the proper focus under Greenwood was whether the garbage was readily accessible to the public so as to render any expectation of privacy objectively unreasonable. Id. Accordingly, the Hedrick court said no bright line rule protecting all garbage within the curtilage was possible and explained that just because the garbage cans were within the curtilage did not necessarily mean that they were constitutionally protected. Id. at 400. In determining that the defendant had no protected privacy interest in the garbage cans, the Hedrick court considered other factors in addition to curtilage including the ready accessibility of the garbage cans to the public, the short distance between the garbage cans and the sidewalk, collection by a garbage service, and particularly that the cans were clearly visible from the sidewalk. Id.
At first glance, the factual circumstances in this case might seem under Hedrick to tip the balance toward protected privacy.
Free access — add to your briefcase to read the full text and ask questions with AI
HARLINGTON WOOD, JR., Circuit Judge.
The defendant, Joseph Redmon, deposited his trust and his cocaine accessories in his garbage cans. That was a mistake. The police got to his garbage cans before the garbage collectors. A subsequent search of Redmon’s house under a search warrant issued on the basis of that garbage can evidence produced 415 grams of cocaine.
Redmon was indicted for possession of over 400 grams of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). After failing in his effort to quash the search warrant and to suppress the evidence, he entered a conditional guilty plea reserving the right to appeal that deci[1037]*1037sion. He does that now and also raises a sentencing issue.1
Redmon’s defense is that he had an objectively reasonable expectation of privacy in the contents of his garbage cans. He argues that the warrantless search of those garbage cans led to the search warrant for his house and therefore violated his Fourth Amendment rights. The district court thought otherwise, and so do we.
I. The Garbage Cans
Although the facts and circumstances of the garbage can searches are not disputed, they nevertheless must be examined. Red-mon’s two-story townhouse was situated at the end of a row of eight adjoining townhouses on the corner of two intersecting public streets in Urbana, Illinois. Redmon’s front door, without a porch, faced east toward one street. It could be accessed only by a narrow walk extending from the front door around the corner of the townhouse to the connected garage and driveway. The garage faced north on a different public street. Redmon and his neighbor shared the common driveway which jointly served their double-garage structure. The driveway was twenty-five feet wide and extended about twenty-three feet to and across a public sidewalk, and then about another ten feet to the public street. The width of the driveway exceeded the distance from the garage to the public sidewalk. The garbage cans were located just outside the garage, on the common driveway, about half way between the garage doors. Redmon used one side of the garage and his neighbor the other. There were no yard fences or gates.
II. Analysis of the Search
In arguing that he had an objectively reasonable expectation of privacy in his garbage cans, Redmon claims the cans were within the curtilage of his house. He relies on our case, United States v. Hedrick, 922 F.2d 396, 399 (7th Cir.1991), which stated that “garbage cans located twenty feet from the garage and approximately fifty feet from the back door of the house were technically within the curtilage of the house, in which privacy expectations are most heightened.” In Hedrick, however, after analyzing California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), and various other eases, this court found no constitutional privacy under its particular facts. 922 F.2d at 399.
Moreover, Hedrick does not establish that Redmon’s garbage cans were within the cur-tilage. Relying on California v. Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986), the Hedrick court defined the curtilage as being an area intimately associated with the sanctity of the home and the privacy of life, both physically and psychologically, and an area where privacy expectations are most heightened. 922 F.2d at 398. The Hedrick court further noted that eases following Ciraolo recognized that the yard of a residential home is within the curtilage. Id. at 399. Thus, although the Hedrick garbage cans were located at the side of the driveway about half way between the sidewalk and the garage, the court considered them to be within the curtilage of the house. Id. However, as the government points out, in United States v. Shanks, 97 F.3d 977, 979 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1002, 136 L.Ed.2d 881 (1997), this court also found that garbage cans placed next to a detached garage and only twenty feet from the residence, but also close to the alley, were outside the curtilage with no reasonable expectation of privacy.
The district court in the present ease did not make a finding about whether or not Redmon’s garbage cans were within the cur-tilage. However, in the present case the garbage cans were just outside the garage, but close to and visible from the public streets and the sidewalks. Thus, Redmon’s garbage cans, based on the record evidence, do not appear to us to have been within the curtilage, remembering curtilage is defined as an area intimately associated with the sanctity of the house and the privacies of life. In any event, under our eases Hedrick and Shanks, a curtilage finding is not controlling. Shanks, 97 F.3d at 979; Hedrick, 922 F.2d at [1038]*1038400. Other factors can be of greater weight. In this case, therefore, had the district court made a finding that the garbage cans were within the curtilage it would not have altered the result.
The Hedrick court noted that in California v. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628, the Supreme Court held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection in an area found to be outside the curtilage of the home. 922 F.2d at 397. However, the court also noted that in Greenwood, the Supreme Court distinguished garbage cans from other containers within the curtilage of the home by noting that “plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.”2 Hedrick, 922 F.2d at 399 (quoting Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628). Some of those predators mentioned in Greenwood, animal and human, would likely also venture from a public street up a short driveway to check appealing garbage cans in plain view. Thus, the Hedrick court explained that the proper focus under Greenwood was whether the garbage was readily accessible to the public so as to render any expectation of privacy objectively unreasonable. Id. Accordingly, the Hedrick court said no bright line rule protecting all garbage within the curtilage was possible and explained that just because the garbage cans were within the curtilage did not necessarily mean that they were constitutionally protected. Id. at 400. In determining that the defendant had no protected privacy interest in the garbage cans, the Hedrick court considered other factors in addition to curtilage including the ready accessibility of the garbage cans to the public, the short distance between the garbage cans and the sidewalk, collection by a garbage service, and particularly that the cans were clearly visible from the sidewalk. Id.
At first glance, the factual circumstances in this case might seem under Hedrick to tip the balance toward protected privacy. The garbage cans were placed close to the attached garage. However, there are also significant factual circumstances tipping the balance against protected privacy. Redmon’s garbage cans, as we mentioned, were located on a driveway which he shared and used in common with his next-door neighbors, whoever they might be, and with their visitors and Redmon’s visitors. Redmon had no control over his neighbor’s’ invitees or others who might call on his neighbors.
Another significant fact is that the common driveway not only served as a driveway, but also served partly as a walk and connecting link for pedestrians to Redmon’s front door walk. The front door walk provided the only access to Redmon’s front door. For callers, therefore, the only route to Redmoris front door was from the public sidewalk on the north side, up the driveway to the garage and the garbage cans, and then left around the corner of Redmon’s house to his front door going east.3 Walks going to and from front door entrances, though on private property, are generally regarded as open to the public for use in connection with the house and its occupants. A person who walks up the walk to knock at someone’s front door is not considered a trespasser. Rather, there is implied permission for the public to use the walk, or in this case the combination driveway-walk. In that sense Redmon’s garbage cans were on or adjacent to the walk used by those calling on him or his neighbors and were readily accessible to the public. Those calling on Redmon or his neighbor necessarily passed close by the garbage cans without there being any basis for a legitimate objection by Redmon.
[1039]*1039To be sure, Redmon did not expect the contents of his garbage can to become known to the police or other members of the public. That alone is not enough to “give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.” Greenwood, 486 U.S. at 39-40, 108 S.Ct. at 1628-29. Our judgment is that a majority of the public is not prepared to accept Redmon’s expectation as objectively reasonable.
In Hedrick, Judge Cudahy saw “no principled basis separating Hedrick’s case [with the garbage cans half way down the driveway] from one in which garbage is kept on the back porch_” 922 F.2d at 401. (Curbside was admittedly a different situation.) Consequently, Judge Cudahy strongly dissented from the majority opinion. As Judge Cudahy’s dissent demonstrates, reasonable room for disagreement obviously exists in these Fourth Amendment situations, particularly because the factual situations can vary widely. Indeed, it can be seen that each case reasonably turns on its own facts, obviating the necessity of trying to create a bright line rule to be applied to a myriad of garbage can circumstances. We see no fault with that practical approach. The district court here found no objective expectation of privacy that Redmon could reasonably have had in his garbage cans. We agree.
As a reviewing court, under Ornelas v. United States, — U.S. -, -, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), we review the district court’s Fourth Amendment probable cause determinations de novo. We review findings of historical fact only for clear error giving due weight to inferences drawn from these facts by resident judges. Id. We have done that and find that in Redmon’s circumstances there was no constitutionally protected interest in the contents of Redmon’s garbage cans. Redmon’s own carelessness in his use of his garbage cans in trying to dispose of the evidence of his criminal conduct caused his problem. He cannot now blame the vigilant police. Thus the search warrants for Redmon’s house were valid. We find no error.
III. The Sentencing Issues
At the time of Redmon’s present offense, March 19, 1996, he was twenty-nine years old. He had a 1989 Illinois felony conviction for possession of cocaine with intent to deliver and a 1986 Illinois aggravated battery conviction. In the Sentencing Commission Enabling Act, Congress directed the Sentencing Commission to specify a sentence of imprisonment “at or near the maximum term authorized” for an adult defendant convicted of a violent crime or felony drug offense who had two such prior convictions. 28 U.S.C. § 994(h). To implement that congressional requirement, the Sentencing Commission promulgated § 4B1.1 of the Guidelines, entitled “Career Offender,” which provides in pertinent part this qualification for that enhancement:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense. of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Amendment 506 to the Commentary to § 4B1.1 provides that “offense statutory maximum” means only “the maximum term of imprisonment authorized for the offense of conviction ... not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant’s prior criminal record.” U.S.S.G. § 4B1.1, Amendment 506. However, in United States v. Hernandez, 79 F.3d 584 (7th Cir.1996), we held that Amendment 506 is inconsistent with § 994(h)’s unambiguous statutory direction and therefore is not entitled to deference.
Following Hernandez, the district court applied § 4B1.1 to Redmon without reference to Amendment 506. As applied including the enhancements, § 4B1.1 raised Redmon’s base offense level to 34 from 32. Despite our precedent, Redmon contends that the district court erred in refusing to follow Amendment 506 in applying § 4B1.1 to him. In support of his argument, he relies on United States v. LaBonte, 70 F.3d [1040]*10401396 (1st Cir.1995), rev’d, — U.S. -, 117 S.Ct. 1673, — L.Ed.2d - (1997), in which the First Circuit upheld the validity of Amendment 506. At the time Redmon filed his appeal, the Supreme Court had granted certiorari in LaBonte. Thus, Red-mon requested this court to hold its decision on his sentencing issue in abeyance, reasoning that if the Supreme Court affirmed LaBonte, it would be implicitly reversing Hernandez, and as such, he would be entitled to a new sentencing.
The Supreme Court recently issued its opinion in LaBonte, reversing the First Circuit and adopting a holding consistent with our opinion in Hernandez. Therefore, Red-mon’s appeal must fail, and his sentence is affirmed.
The district court is affirmed in all respects.