NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 3, 2010*
Decided April 12, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 09‐3729
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
No. 08 CR 00038
DARRELL F. JACKSON,
Defendant‐Appellant. Theresa L. Springmann,
Judge.
O R D E R
This appeal centers on a factual dispute over the location of a trash can. Darrell
Jackson pleaded guilty to possession of cocaine with intent to distribute, 21 U.S.C.
§ 841(a)(1), and was sentenced to 188 months’ imprisonment. Jackson appeals, challenging
the district court’s denial of his motion to suppress. In the motion Jackson argued that the
police violated the Fourth Amendment by searching through a trash can placed next to the
*
On February 16, 2010, we granted the parties’ joint motion to have the appeal
decided on the briefs. Thus, the appeal is submitted on the briefs and the record. See FED.
R. APP. P. 34(f).
No. 09‐3729 Page 2
side door of his house. Because the district court did not clearly err in crediting police
testimony that the can was on the curb awaiting pickup, we uphold the ruling and affirm
Jackson’s conviction.
After receiving a tip that Jackson was dealing crack and powder cocaine from his
home, Detectives Jack Cain and Earl McDonald of the Allen County Police Department
conducted a pre‐dawn trash pickup in front of Jackson’s house. In Jackson’s garbage they
found a rock of crack cocaine, plastic baggies and razor blades with cocaine residue, and a
receipt for the purchase of ammunition. Cain obtained a search warrant for Jackson’s home;
the search led to the recovery of approximately 23 grams of crack cocaine.
Following his arrest Jackson filed a motion to suppress the evidence found in the
search. The district court held a hearing at which Jackson, his neighbor to the east Leroy
McGraw, McDonald, and Cain testified. McGraw explained that trash was picked up in the
neighborhood on Thursday mornings and that his sons were supposed to take out the
garbage. He testified that on those Thursday mornings when he took out the trash, he
sometimes saw Jackson putting his trash out, but he never saw Jackson putting his trash out
on Wednesday night. McGraw admitted, however, that he did not really monitor Jackson’s
actions.
Jackson testified that he always kept his trash can on the side of his house and did
not move it to the curb until Thursday morning after he finished taking his children to
school. He admitted that he had several prior convictions and arrests, including convictions
for cocaine possession and false informing. And he testified inconsistently about when his
brother lived with him after being released from prison and the number of times that he had
seen the realtor for the home to his west put out a trash can.
McDonald and Cain both testified that at 2:45 a.m., when they picked up trash from
Jackson’s house, the trash can was on a grassy area between the sidewalk and the curb.
Both also testified that they had tried previously to go through Jackson’s trash but had been
thwarted by the presence of people or lights in the area. McDonald testified that several
times they noticed two trash cans put out, one presumably for Jackson and the other for the
house to the west; Cain said that on the night they seized the trash there was another can
out for the house next door.
In denying Jackson’s motion to suppress, the district judge found the detectives’
testimony credible and assigned it great weight because it was detailed, consistent, and
partially corroborated by the defendant’s testimony about the realtor next door leaving
trash cans out. The judge also found McGraw credible but gave his testimony less weight
because he admitted that his sons took the trash out most of the time and that he was not
No. 09‐3729 Page 3
monitoring the defendant’s actions. Further, the judge found Jackson not credible based on
his prior conviction for false informing and his inconsistent testimony. Accordingly, the
court concluded that Jackson’s trash can had been by the curb on the night of the police
pickup, so Jackson did not have a reasonable expectation of privacy in the trash, which the
police had therefore lawfully collected. See California v. Greenwood, 486 U.S. 35, 37 (1988).
On appeal Jackson reasserts his argument, based on his and McGraw’s testimony at
the suppression hearing, that the trash can was next to his house at the time the police took
his garbage, so the pickup violated the Fourth Amendment. Jackson’s argument could have
merit if the district court had found that the can was next to his home. See United States v.
Hendrick, 922 F.2d 396, 400 (7th Cir. 1991). But the district court specifically credited the
testimony of Cain and McDonald that the can was at the curb when they went through it,
and Jackson does not argue that the court’s credibility assessment was flawed.
Even if Jackson did contest the district court’s credibility determination, the court’s
conclusions were not clearly erroneous. The district judge was entitled to give the
detectives’ testimony more weight because it was detailed and consistent. See United States
v. Conner, 583 F.3d 1011, 1023 (7th Cir. 2009); United States v. Noble, 246 F.3d 946, 953 (7th
Cir. 2001). Likewise the judge did not commit clear error by focusing on McGraw’s
admitted lack of attention towards Jackson’s activities and limited opportunity to observe
Jackson’s trash habits. See United States v. Gallo‐Moreno, 584 F.3d 751, 757‐58 (7th Cir. 2009)
(noting witness’s “lengthy opportunity to observe” and “high degree of attention” in
upholding identification procedure). Nor did the judge clearly err in factoring Jackson’s
inconsistent testimony and false informing conviction into her credibility assessment. See
United States v. Watson, 87 F.3d 927, 931 (7th Cir. 1996); United States v. Thomas, 11 F.3d 1392,
1397 n.2 (7th Cir. 1993).
AFFIRMED.