In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1055, 10-1076
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONALD W. S IMMS, II,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
Nos. 07-CR-223, 08-CR-86—Charles N. Clevert, Jr., Chief Judge.
A RGUED S EPTEMBER 13, 2010—D ECIDED N OVEMBER 23, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
T INDER, Circuit Judges.
P OSNER, Circuit Judge. The defendant pleaded guilty
to gun and drug offenses and was sentenced to a total
of 270 months in prison—240 months for those offenses
(of which 180 months was the mandatory minimum
sentence for the gun offense because in combination
with his three previous “serious drug offense[s]” it made
him an armed career criminal, 18 U.S.C. § 924(e)(1))—plus
2 Nos. 10-1055, 10-1076
30 months for having violated supervised release. His
appeal raises both Fourth Amendment and sentencing
issues.
His guilty plea reserved to him the right to appeal
from the district judge’s denial of his motion to
suppress evidence seized pursuant to a warrant that
had been based in part on marijuana found in a search
of garbage cans at his home in Milwaukee. Without
that find the search warrant would not have been sup-
ported by probable cause.
The affidavit on the basis of which the search war-
rant was issued alleged the following facts: The defen-
dant’s garbage carts (wheeled garbage containers)
were located in the yard of his house, next to his drive-
way. “[O]n trash pick-up day,” the affidavit states, the
carts “are taken to the end of the curb” (we’re not
sure exactly what that means, but probably it means
abutting the street) by the homeowner. A police detec-
tive had, however, collected the defendant’s garbage
from a garbage cart that she found “inside the
fence”—a fence six feet high surrounding the yard—and
searched it. This was early in the morning of Friday,
December 7, and the detective was “aware that the
regular trash pick up day for this location is Friday,
and that as of December 1 the city garbage collector
retrieves the garbage from the [owner’s] property for
snow removal reasons.” The implication was that the
defendant could be assumed to have consented to have
his garbage cart wheeled from his property to the street
by the garbage collectors when the city’s “winter rules”
are in effect.
Nos. 10-1055, 10-1076 3
The affidavit did not mention that the height and
opacity of the fence prevented anyone driving or
walking by on the street from seeing inside the yard,
that the fence had a gate that when closed blocked entry
to the yard, that a “No Trespassing” sign was affixed to
the gate, and that although the gate was open when
the detective entered and searched the garbage cart,
the accumulation of snow that morning prevented it
from being closed.
The affidavit is silent on whether garbage collectors
ever actually went on the defendant’s property to
collect his garbage. He testified at the suppression
hearing that he always wheeled his garbage carts to the
curb or the end of the driveway—but not that he had
an understanding with the garbage collectors that
they were not to enforce “winter rules” against him.
Presumably they would have ignored such a request,
since the rules are intended to prevent interference
with the city’s snowplows.
It appears, moreover, that the “winter rules” had the
force of law, thus creating an easement to enter the de-
fendant’s property to collect garbage. Milwaukee Code
of Ordinances § 79-5(3) makes it “the responsibility of
the owners and tenants of every premises where solid
waste is collected to provide a clear and unhindered
path to all containers. The path shall be a width specified
by the commissioner and shall be free of hindrances
such as, but not limited to, large debris, vehicles, locked
fences, animals, ice or 3 or more inches of snow” (emphasis
added). And § 79-3(1) requires that trash containers “be
4 Nos. 10-1055, 10-1076
free and fully accessible at all times for handling for
collection.” Homeowners are informed at the onset
of winter, by flyers placed on their garbage carts, that
sanitation workers will be wheeling the carts from the
homeowners’ property to the garbage trucks in the streets.
Because none of these facts was disclosed to the judicial
officer who issued the search warrant, we hesitate to
uphold the search of the house, pursuant to the warrant,
on the ground that the officers who searched it were
relying in good faith on the warrant’s validity—though
one can argue, as Judge Friendly did many years ago,
for a good-faith defense that might cover a case such
as this. “The beneficent aim of the exclusionary rule
to deter police misconduct can be sufficiently accom-
plished by a practice . . . outlawing evidence obtained by
flagrant or deliberate violation of rights.” Henry J.
Friendly, “The Bill of Rights as a Code of Criminal Pro-
cedure,” 53 Cal. L. Rev. 929, 953 (1965) (footnote omitted).
In Judge Boudin’s paraphrase, “The deterrent value of
exclusion is minimal for inadvertent fumbles, and the
evidence remains reliable albeit wrongly seized.” Michael
Boudin, “Judge Henry Friendly and the Mirror of Con-
stitutional Law,” 82 N.Y.U. L. Rev. 975, 990 (2007). And
so the government argues in this case that the ex-
clusionary rule should not apply when a search is based
on a mistaken, but innocently mistaken, belief that it
is lawful.
The Supreme Court has not gone this far as yet, though
it came close in Herring v. United States, 129 S. Ct. 695
(2009); see also Arizona v. Evans, 514 U.S. 1, 10-16 (1995).
Nos. 10-1055, 10-1076 5
Nor have we; nor need we in this case. Although the
district judge did not rule on whether the omission
from the affidavit of facts concerning the garbage
search was accidental or deliberate, excusable or inex-
cusable, on balance the omitted facts confirm the legality
of the search. The Milwaukee ordinance alone could
well be thought decisive support for it. Privacy in the
sense of concealment (of sensitive information, of the
body, etc.) is conventional: it depends on expectations
that vary across societies and across time. We cannot
see how an expectation of privacy that can be realized
only by breaking the law can be considered reasonable
and therefore protected by the Constitution, unless the
law in question is invalid.
And when the gate was open, as it was when the de-
tective conducted the search, the garbage collectors
would assume that the defendant wanted his garbage
cart emptied; and what they reasonably believed they
could do, the detective could do. Not that police can go
searching any private place that some other stranger is
entitled to enter. Stoner v. California, 376 U.S. 483, 489
(1964). The fact that one’s cleaning service is authorized
to enter one’s home and empty the wastepaper baskets
does not authorize the police to enter one’s home and
search those baskets. Nor does the fact that one throws
papers (or for that matter marijuana butts) into a waste-
paper basket authorize the police to enter your house
to search the basket on the theory that you abandoned
whatever property you placed in it.
The reason for these limitations on police searches is
that people have a strong interest—call it privacy or
6 Nos. 10-1055, 10-1076
rights of property—in keeping unwanted strangers,
including law enforcement officers, out of their home, and
the interest is deemed a reasonable one in our society.
People have a similar interest in excluding strangers
from the property that immediately surrounds their
house. If they are sunbathing in the nude in their fenced
yard they do not want the police entering the yard to
search garbage carts. Not that that was a likely activity
on a snowy day in December. But a homeowner’s
garbage carts can be unavoidably proximate to portions of
his property used for private activities. Hence the concept
of the “curtilage,” a variant of the Old French word for a
little court[yard]. It is not the entirety of a person’s prop-
erty; it is just the part used for private activities. United
States v. Dunn, 480 U.S. 294, 301 (1987); California v. Ciraolo,
476 U.S. 207, 212-13 (1986); Oliver v. United States, 466 U.S.
170, 180 (1984). As the emphasis in interpretation of the
Fourth Amendment shifted (ahistorically) from the protec-
tion of property to the protection of privacy, Kyllo v. United
States, 533 U.S. 27, 31-32 (2001); Warden v. Hayden, 387 U.S.
294, 301-07 (1967); Morgan Cloud, “Pragmatism, Positiv-
ism, and Principles in Fourth Amendment Theory,” 41
UCLA L. Rev. 199, 221-22, 248-49 (1993), parts of one’s
property that don’t play host to private activities lost much
of their Fourth Amendment protection. Oliver v. United
States, supra, 466 U.S. at 177-84. But curtilage—the part of
one’s property, besides the house itself, in which private
activities normally take place—remains protected.
We are not prepared to say that a place in which
garbage carts or cans are kept can never be part of the
curtilage. People who live in cities and have small
Nos. 10-1055, 10-1076 7
yards prefer to leave their garbage carts in an alley, if
there is one next to their house. If not, they will have
to leave the carts in their yard, often in a shed at the
edge of the yard; in our case the carts were left next to
the segment of the driveway that is inside the fenced yard.
But the 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 de-
fendant 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 de-
fendant must have opened it earlier.)
8 Nos. 10-1055, 10-1076
We conclude that the garbage search was lawful—that
it was authorized by an appearance of consent to
collect the garbage from the fenced yard under winter
rules with the gate open. But there is another Fourth
Amendment issue: whether the search of the defendant’s
car that yielded the gun that provided the basis
for his mandatory 15-year sentence as an armed career
criminal was permissible.
Police conducting undercover surveillance in prepara-
tion for executing the warrant to search the defendant’s
house saw him drive his car to his house, park it across
the street, walk to another car, which had just backed
into his driveway, take from the trunk of that car a
package that a police officer testified was consistent
with the way that he’d seen marijuana packaged before,
and carry the package into his house. The police had
every reason to think the package contained drugs (as
indeed it did); the question is whether they had prob-
able cause to think there was contraband or evidence
of crime in the defendant’s car as well. The answer is
yes. They had reason to believe that he was a drug
dealer and used his car in his drug business. Hence
the car probably contained money, a gun, or evidence
(even if just trace quantities) of illegal drugs, especially
since the defendant was driving to a rendezvous with
another drug dealer. Cf. United States v. Stotler, 591 F.3d
935, 939-40 (7th Cir. 2010).
Moreover, he was about to be arrested, and jailed
indefinitely. His car could not be left unattended indefi-
nitely. Eventually it would have been impounded by
Nos. 10-1055, 10-1076 9
the police and subjected to an inventory search. The
discovery of the gun was thus inevitable. Nix v. Williams,
467 U.S. 431 (1984); United States v. Stotler, supra, 591
F.3d at 940.
We turn to the sentence. The government has con-
fessed error, stating:
Simms challenges his sentence on several grounds.
He claims the district court did not adequately
explain its choice of sentence, relying on Simms’ crim-
inal record to the exclusion of other section 3553(a)
factors, a record already accounted for in the calcula-
tion of the armed career criminal portion of the sen-
tence. Simms complains that the district court failed
to adequately explain its decision to impose consecu-
tive sentences, or acknowledge that a guideline sen-
tence would have involved concurrent sentences.
Simms contends that the district court seemed
unaware that the sentence it imposed exceeded the
Guidelines range. Finally, Simms argues that the
district court improperly relied on the prospect of a
successful sentencing appeal in deciding to impose
the revocation sentence consecutively to the other
sentences.
The government concedes that the record does not con-
tain sufficient indication the court was aware that the
sentence it imposed exceeded the guidelines range, nor
does it contain a sufficiently clear explanation for the
court’s choice of sentence. As a result, the United States
respectfully concedes that a remand for resentencing
would be appropriate.
10 Nos. 10-1055, 10-1076
The judge erred, but only in two minor respects. There
may be no need for another sentencing hearing.
He revoked the order of supervised release that had
been issued in conjunction with a previous conviction of
the defendant, ordered him imprisoned for 30 months
as punishment for his violation of the terms of the super-
vised release, and made the 30-month sentence run con-
secutively to the sentences for the crimes of which
the defendant was convicted in the present case. But
the judge’s reason for making that sentence consecutive
(or so the defendant argues and the government, in the
passage we just quoted, agrees) was that if the de-
fendant succeeded on appeal in knocking out one or
more of his other sentences, what remained might be
insufficient to provide adequate punishment for his crimes
considered as a whole. That is illogical because it means
that if the other sentences are affirmed on appeal, as we are
about to do (with a minor qualification), the defendant
ends up with a heavier overall sentence than the judge
intended to impose.
We don’t think the judge was confused over whether
he was giving the defendant the shortest sentence he
could. He said he was giving the defendant the
mandatory minimum for the gun offense—that is, the
180 months. He added 60 months (before the further
addition of 30 months for violation of supervised release)
because otherwise the defendant would have been pun-
ished only for the gun offense, the source of the 180-month
term. After saying he’d imposed the mandatory minimum
of fifteen years for that offense the judge explained that
Nos. 10-1055, 10-1076 11
“additional time was necessary in this case in light of the
defendant’s long career as a criminal starting from the time
he was very youthful. So that is why I made the other
counts consecutive to count two.” The result was a total
sentence of 240 months before the judge’s mistaken
addition of the sentence for violation of supervised release,
an addition not based on the judge’s belief about what the
proper overall sentence should be.
That was five months above the guidelines range of
188 to 235 months, however, and while the sentence
cannot be said to be “unusually high,” as in United States
v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009), there is
a question whether the judge knew that he was sen-
tencing the defendant above the guidelines range. In the
“Statement of Reasons” for the sentence, required by 18
U.S.C. § 3553(c)(2), the judge checked both the box that
said “The court imposes a sentence outside the ad-
visory sentencing guideline system” and “The sen-
tence imposed is . . . below the advisory guideline
range.” Probably the second check was an error, but out
of an abundance of caution we are ordering a limited
remand to enable the judge to advise us whether he
wants to resentence the defendant. United States v.
Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).
And finally there’s no reason to think the judge
gave excessive weight to the defendant’s criminal his-
tory. That history, which was extensive, figured in
the calculation of the guidelines range, but a judge is
permitted to give more weight to criminal history than
the guidelines do. Nor is it apparent what additional
12 Nos. 10-1055, 10-1076
sentencing factors identified in 18 U.S.C. § 3553(a) the
judge ignored. As he explained,
The court, in imposing its sentence in this matter, has
certainly taken into account your age, Mr. Simms,
and your background and the need to deter the on-
going sale of drugs contrary to law. When I look
at your record and the fact that you’ve had offenses
in the past, where you’ve had guns, when I look at
the opportunities you’ve been given in the past to
comply with the conditions of supervision and
release and the violations that have occurred during
the pendency of the various cases, it seems to me
that this sentence is reasonable and no greater
than necessary under the circumstances to achieve
the purposes set out in the statutes, and that has
motivated the court to sentence you as I have.
To conclude, the sentences must be corrected to make
the sentence for violation of supervised release run con-
currently with the other sentences; and the judge is
to inform us whether he wants to resentence the
defendant to a sentence within the applicable guide-
lines range. In all other respects the judgment is
A FFIRMED.
11-23-10