138 F.3d 1109
The defendant lived in a house with an attached garage that was at the end of a driveway 28 feet from the public street. He kept his garbage cans in the garage, but when a garbage pickup was due he would take them out of the garage and place them on the driveway right next to the garage rather than, as would be more common but also unsightly and forbidden by a local ordinance, at the curb of the public street. Presumably--although the record is silent on this-- the garbage collectors would walk up his driveway, carry the cans to the street, empty them into their truck, and return the cans to their place in front of the garage. The question raised by Redmon's appeal is whether the police could, consistently with the Fourth Amendment, walk up the driveway and search the cans, without a warrant or probable cause, while the cans were up *1129 against the garage awaiting the garbage collectors. The odd thing about the answer given by the majority opinion--"yes"--is that it will complicate the administration of the law without conferring any practical benefit on law enforcers. The better answer would be that searches, including searches of garbage, that take place within the curtilage of the defendant's property must comply with the Fourth Amendment's restrictions on searches. The search here took place within the defendant's curtilage, and so his conviction should be reversed.
The Fourth Amendment confers a right to security of person, home, papers, and effects against unreasonable searches and seizures by the authorities. It is tempting to suppose that the search of a garbage can could never violate that right because the act of discarding something as trash or garbage is a relinquishment of any interest in it. But that answer must be wrong, United States v. Kramer, 711 F.2d 789, 793 (7th Cir.1983); see also United States v. Hedrick, 922 F.2d 396, 400 (7th Cir.1991); United States v. Biondich, 652 F.2d 743, 745 (8th Cir.1981), as it would entitle the police to enter the home itself and rifle the trash cans and wastepaper baskets found there, supposing they could do this without committing a breach of the peace (as they could by pretending to be servicemen of one sort or another). Yet it is equally well established in the case law that once the garbage is taken away by the garbage collectors, the (former) owner of the garbage has no right to complain if the police, without bothering to get a warrant or otherwise demonstrating the reasonableness of the search, go through the garbage and find contraband or evidence of crime to use against him. California v. Greenwood, 486 U.S. 35, 39-41, 108 S.Ct. 1625, 1628-29, 100 L.Ed.2d 30 (1988); United States v. Biondich, supra, 652 F.2d at 745; United States v. Shelby, 573 F.2d 971, 973, 974 n. 7 (7th Cir.1978).
To locate this case between these poles requires consideration of the
interests that the Fourth Amendment may be taken to protect, as that will
reveal what scope to give the right that the amendment confers but does
not define. For the right is personal to the person asserting it.
E.g., Rakas v. Illinois, 439 U.S. 128, 138-40, 99 S.Ct. 421, 427-29, 58
L.Ed.2d 387
(1978). A search that does not invade an interest of the kind
that the amendment protects is lawful no matter how unreasonable in the
sense that solid grounds for suspicion of criminal activity are lacking.
Historically the amendment protected property rights and was violated only by a trespass or other infringement of such rights. Goldman v. United States, 316 U.S. 129, 134-36, 62 S.Ct. 993, 995-97, 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438, 464-66, 48 S.Ct. 564, 567-69, 72 L.Ed. 944 (1928). The historic construal might seem to help the defendant here, since the police were trespassers to both his real and his personal property, the driveway and the garbage cans. But because the sanction for violating the Fourth Amendment is usually (and would be here) the exclusion of evidence that might be vital to the conviction of a person who had committed a serious crime, the courts have long overlooked minor trespasses, Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924) (Holmes, J.), including the search of a garbage pail when it is at or right next to the curb awaiting pickup. United States v. Kramer, supra, 711 F.2d at 792-94; United States v. Comeaux, 955 F.2d 586, 588-89 (8th Cir.1992);United States v. Wilkinson, 926 F.2d 22, 27 (1st Cir.1991); Magda v. Benson, 536 F.2d 111 (6th Cir.1976) (per curiam). To punish a minor trespass by the acquittal of a criminal would be a disproportionately severe sanction for a harmless violation of property rights.
It is tempting to view the present case in that light. Although the garbage cans were not adjacent to the curb, they were awaiting pickup, and it might not seem to make much difference whether the police sneak up the driveway and search the garbage there or wait until it has been taken to the garbage truck at curbside. (I am assuming the garbage truck does not drive into the driveway for the pickup, though as I have already noted there is nothing in the record about the details of the garbage collection.) Both are trespasses. But reaching a few inches over someone's property line is a petty trespass, Hannabalson v. Sessions, 116 Iowa 1130 457, 90 N.W. 93 (1902), while marching up his driveway to rummage through the garbage cans placed at the head of the driveway is not. It is true that the garbagemen had permission to march up to the garage to get the cans, just as there is an implicit permission for friends, service people, and many others to march up to one's front door. Oregon v. Portrey, 134 Or.App. 460, 896 P.2d 7, 9 (1995). But one's right to complain about a trespass does not depend on one's refusing to invite anyone onto any part of his property, for then only hermits (and not all of them) would have property rights.
The courts have distinguished between petty and menacing trespasses with the help of the old common law doctrine of "curtilage." The curtilage is the "area intimately linked to the home, both physically and psychologically," California v. Ciraolo, 476 U.S. 207, 212-13, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986), and is distinguished from "open fields," which "do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance." Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984); see also Hester v. United States, supra, 265 U.S. at 59, 44 S.Ct. at 446. In the common law of England the curtilage was the part of a person's property that a criminal had to break into in order to be guilty of burglary. United States v. Dunn, 480 U.S. 294, 300 and n. 3, 107 S.Ct. 1134, 1139 and n. 3, 94 L.Ed.2d 326 (1987). Since burglary was a capital offense, there was a felt need to confine it to the most alarming forms of breaking and entering. The line between curtilage and open fields is not precise, but depends primarily on proximity to the owner's house, id. at 301, 107 S.Ct. at 1139-40, and on the use to which the part of the property in question is put--whether it is a private use not open to the public gaze, see, e.g., United States v. Depew, 8 F.3d 1424 (9th Cir.1993), as evidenced by whether the owner has enclosed it or taken other steps to shield it from public view. United States v. Dunn, supra, 480 U.S. at 301, 107 S.Ct. at 1139-40.
The curtilage would rarely extend beyond the house itself if complete, opaque enclosure were required. Few people, other than the very wealthy, barricade their front yard so completely that a person seeking to enter must request the unlocking of a solid gate that is higher than eye level. Most homeowners extend an implicit invitation to social and business invitees to walk up to the front door, but in doing so the homeowner does not, as it were, "waive curtilage." The social and business invitee, including a police officer whether invited or uninvited, must confine himself to the prescribed route, rather than treating the invitation as one to roam the property at will, peering into the windows of the home. Oregon v. Portrey, supra, 896 P.2d at 9; cf. Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990); Walter v. United States, 447 U.S. 649, 656-57, 100 S.Ct. 2395, 2401-02, 65 L.Ed.2d 410 (1980); United States v. Garcia, 997 F.2d 1273, 1279 (9th Cir.1993); United States v. Thomas, 120 F.3d 564, 568, 571 (5th Cir.1997).
These may seem fussy distinctions. But ever since the invention of wiretapping, which is a nontrespassory invasion of home or office, emphasis in the interpretation and application of the Fourth Amendment has shifted from the protection of property to the protection of privacy. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 1496-97, 94 L.Ed.2d 714 (1987); Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967); United States v. Concepcion, 942 F.2d 1170 (7th Cir.1991). The emphasis that the courts have given to the distinction between "curtilage" and "open fields," and to the association of the former concept with intimacy, e.g., Oliver v. United States, supra, 466 U.S. at 179, 104 S.Ct. at 1741- 42; California v. Ciraolo, supra, 476 U.S. at 212-13, 106 S.Ct. at 1812-13, are instances of this refocusing of concern from the protection of property to the protection of privacy. There is no reason in principle why this development should have involved substitution rather than addition; addition would have been entirely consistent with the fact that the eighteenth-century usage of "property" was broader than the modern, Vail v. Board of Educ., 706 F.2d 1435, 1450 (7th Cir.1983) (dissenting opinion), aff'd. by equally divided Court, 466 U.S. 377, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984), so that modern property-plus-privacy might be the equivalent of eighteenth-century property. But rightly or wrongly, privacy has come not merely to supplement but to eclipse property as the interest protected by the Fourth Amendment, e.g., United States v. Hall, 47 F.3d 1091, 1096 n. 4 (11th Cir.1995); United States v. Torres, 949 F.2d 606, 608 (2d Cir.1991); United States v. Kramer, supra, 711 F.2d at 794, property's role being relegated to that of furnishing evidence of the reasonableness of a defendant's expectation of privacy. Rakas v. Illinois, supra, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12; United States v. Amuny, 767 F.2d 1113, 1126 (5th Cir.1985). "Because expectations of privacy derive in part from the right to exclude others from the property in question, lawful possession is an important consideration in determining whether a defendant had a legitimate expectation of privacy in the area searched." United States v. Lyons, 992 F.2d 1029, 1031 (10th Cir.1993).
Even so, if some judges did not misunderstand privacy, erroneously equating it to secrecy, the shift in emphasis would not have been fatal to the claims of people whose garbage is searched. A garbage can is not a secure repository of secrets, though this is not because, as remarked in the majority opinion, 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.
So there are no secrets in garbage. But it doesn't follow that garbage isn't private. Most people don't think about the possibility of serious snooping in their garbage, or can't afford the paper shredders and trash compactors and computer "burn" programs and sink grinders and attics and burn boxes and private landfills that would be necessary, though not necessarily sufficient, see United States v. Scott, 975 F.2d 927 (1st Cir.1992), to eliminate all occasions for extruding readable trash and revelatory garbage from home or office. It doesn't follow that one would be unreasonable to be horrified to discover that the archaeologist had been at work reconstructing your life from your garbage and was about to publish a detailed profile of your private life, including your sex life. The tort law of privacy would provide you with a remedy against such a publication. Doe v. Mills, 212 Mich.App. 73, 536 N.W.2d 824, 831-32 (1995). I assume that copyright law would provide you with a remedy if one of the things that the archaeologist found and wanted to publish was the discarded first draft of your unpublished novel, as the act of discarding would not be an abandonment of the copyright. Seshadri v. Kasraian, 130 F.3d 798, 804-05 (7th Cir.1997). I conclude from these examples that there are legally protected interests in garbage even after it leaves one's property, and I do not see why they should not be interests that the Fourth Amendment protects, once its scope is acknowledged to reach beyond property to privacy.
But this position is not open under the cases. Once the garbage is beyond your property line, the police can search it at will. And though it is within your property line, once it is beyond the curtilage they can search it at will. What is left is the case in which the police have to invade the curtilage in order to get at the garbage. And this is where the line should be drawn. Otherwise, whenever the police spot a garbage can on someone's property they will have at least a colorable case for being allowed to go on the property and search it even though it might turn out not to contain garbage, since garbage cans are not infrequently used for other purposes. 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. E.g., Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85 (1990). Most of the "garbage cases" have not involved a search within the curtilage. Cf. California v. Greenwood, supra, 486 U.S. at 42, 108 S.Ct. at 1629-30. (The only two that purport to do so that I have found are United States v. Hedrick, supra, 922 F.2d at 399-400, and United States v. Comeaux, supra, 955 F.2d at 589 - and in neither case were the garbage cans in fact within the curtilage, though in both cases the courts assumed they were.) I would give great weight to imperatives of law enforcement that required such a search, but there are none. The police can always arrange with the garbage collectors for the latter to turn over the garbage to the police as soon as it is removed from the owner's property.
If I am right to draw the line at the boundaries of the curtilage, the critical question in this case is whether the place where the garbage cans were set out for collection, at the head of Redmon's driveway, was within his curtilage. I take it, in light of Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), that this is a question that we are to decide de novo, without deferring to the district court. My answer to the question (the majority opinion does not discuss the question) is "yes." The garage was attached to the house, and the garbage cans were right outside the garage, at the farthest point of the driveway from the street. If this spot was not within Redmon's curtilage--if it is to be classified as an "open field" - then no place outside his house was within the curtilage, and, indeed, attached houses, row houses, and other cramped urban dwellings have no curtilage (beyond the house itself); curtilage is confined to farmers and to wealthy suburbanites and exurbanites.
Of course it is simple realism that people who live in rural areas or have wealth will have more physical privacy than people who live in cities or working-class suburbs, and that therefore they will derive more protection from the Fourth Amendment. That does not trouble me; the wealthy have advantages in every department of life. What does bother me is the idea that the police have carte blanche to invade the property rights of people who by virtue of living on small lots place their garbage cans near their house. It is true that no windows of Redmon's house were visible from the place where the garbage cans were sitting and that the police knew that the cans had been set out for the garbagemen to collect. My colleagues do not announce a rule broader than is necessary to decide this case. But rather than subject the police to the uncertainty of guessing where we will ultimately draw the line, we should adhere to the distinction between the curtilage and open fields, and permit no garbage searches, without a warrant or probable cause, within the curtilage. The alternative rule would be to permit garbage searches anywhere, and, as my colleagues shy away from that extreme, the best rule, the one that best reconciles the interests of privacy, crime control, and ease of administration, is the one I have suggested - drawing the line at the curtilage.