United States v. McKenzie ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-23-2008
    USA v. McKenzie
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-4914
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    Recommended Citation
    "USA v. McKenzie" (2008). 2008 Decisions. Paper 990.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/990
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 06-4914
    ____________
    UNITED STATES OF AMERICA
    v.
    BRIAN K. McKENZIE,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. No. 05-CR-00352)
    District Judge: The Honorable Gary L. Lancaster
    ____________
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    June 2, 2008
    Before: FISHER and JORDAN, Circuit Judges, and YOHN,* District Judge.
    (Filed: June 23, 2008)
    ____________
    OPINION
    ____________
    *
    The Honorable William H. Yohn, United States District Judge for the Eastern
    District of Pennsylvania, sitting by designation.
    YOHN, District Judge.
    Brian McKenzie appeals the District Court’s judgment entered on November 21,
    2006, after McKenzie pleaded guilty to conspiracy to manufacture less than five grams of
    methamphetamine and possession of a firearm by a convicted felon. McKenzie pleaded
    guilty after the District Court denied McKenzie’s motion to suppress, and he preserved
    his right to appeal the District Court’s denial of this motion under Federal Rule of
    Criminal Procedure 11(a)(2). McKenzie argues that the District Court erred in denying
    his motion to suppress evidence obtained after law enforcement officers seized and
    searched sealed garbage bags McKenzie had placed on the curb outside his residence for
    collection by a private agency. For the reasons discussed herein, we will affirm.
    I.
    At the time of the events in question, McKenzie resided in a trailer park
    community in Cranberry Township, Butler County, Pennsylvania. In July 2005, Special
    Agent Andrew Petyak of the Drug Enforcement Administration (“DEA”) received
    information from the DEA’s chemical control unit that McKenzie had ordered red
    phosphorus from a foreign manufacturer and that the red phosphorus had been shipped to
    McKenzie’s home. This information raised Petyak’s suspicions because red phosphorus
    is a chemical used in the production of methamphetamine.
    With the assistance of the Cranberry Township Police Department, DEA agents
    surveilled McKenzie’s residence on July 14, 2005. They seized a closed, dark-colored
    2
    garbage bag that was sitting inches from the curb outside McKenzie’s residence. The
    agents then took the bag to the Cranberry Township Police Department, where they
    searched it. Among the contents of the bag were an envelope with McKenzie’s name on
    it; empty pseudoephedrine packets; three empty bottles of methanol, a gasoline antifreeze;
    and a receipt for the antifreeze and for Coleman fuel. Petyak identified these items as
    ingredients used to produce methamphetamine.
    On July 21, 2005, DEA agents and Cranberry Township police again surveilled
    McKenzie’s residence. They again seized a closed, dark-colored garbage bag that had
    been left in the same location on the curb outside McKenzie’s residence, transported the
    bag to the police department, and searched the bag. Agents found three empty bottles of
    antifreeze, two empty pseudoephedrine boxes, a receipt for the purchase of antifreeze, a
    receipt for a pseudoephedrine purchase, and a letter addressed to McKenzie in the bag.
    Based largely on the evidence obtained from the garbage bags, Petyak then secured a
    search warrant, which was issued on July 22, 2005, and searched McKenzie’s residence,
    where additional evidence was found.
    A grand jury indicted McKenzie on November 10, 2005 for conspiracy to
    manufacture less than five grams of methamphetamine, in violation of 21 U.S.C.
    §§ 841(a)(1), (b)(1)(C) & 846; possession of acetone and iodine, List II chemicals, with
    the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1); and
    possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
    3
    McKenzie then moved to suppress the evidence obtained during the search of his house,
    arguing that probable cause for the search was lacking because the affidavit used to
    obtain the search warrant was based on the evidence illegally obtained from the search of
    his trash, in violation of his Fourth Amendment rights.
    The District Court held a suppression hearing on July 16, 2006, during which
    McKenzie and Petyak testified. Petyak described the events set forth above. McKenzie
    admitted that he had placed the seized garbage bags on the curb on the nights in question,
    and he testified that he expected that the contents of the garbage bags were private. After
    hearing this testimony, the District Court found that “The credible evidence establishes
    that defendant, by placing his garbage on the curb, exposed his garbage to the public
    sufficiently to defeat his claim of Fourth Amendment protection.” The District Court also
    found that “having deposited his garbage in an area particularly suited for public
    inspection, in a matter of speaking, public consumption, for the express purpose of having
    strangers take it, defendant would have no reasonable expectation of privacy in the items
    he discarded.” Relying on California v. Greenwood, 
    486 U.S. 35
    (1988), and Third
    Circuit precedent, the District Court denied McKenzie’s motion to suppress.
    After the District Court denied McKenzie’s motion to suppress, McKenzie pleaded
    guilty to conspiracy to manufacture less than five grams of methamphetamine and
    possession of a firearm by a convicted felon. McKenzie preserved his right to appeal the
    District Court’s denial of his motion to suppress under Federal Rule of Criminal
    4
    Procedure 11(a)(2). The District Court then sentenced McKenzie to twelve months plus
    one day of imprisonment followed by three years of supervised release for each count, to
    run concurrently. McKenzie filed a timely appeal.
    II.
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
    under 28 U.S.C. § 1291. We review a District Court’s factual findings in a suppression
    hearing for clear error. United States v. Delfin-Colina, 
    464 F.3d 392
    , 396 (3d Cir. 2006)
    (citing United States v. Kiam, 
    432 F.3d 524
    , 527 (3d Cir. 2006)). We have plenary
    review over the District Court’s legal rulings and over mixed questions of law and fact.
    
    Id. III. McKenzie
    argues that the District Court erred in ruling that society does not
    recognize a reasonable expectation of privacy in the contents of garbage bags placed at
    the curb for collection. He recognizes, however, that in Greenwood, the Supreme Court
    held that the Fourth Amendment does not prohibit the warrantless seizure and search of
    garbage left for collection on a curb outside of the curtilage of the home. In Greenwood,
    the Court employed the two-part analysis set forth by Katz v. United States, 
    389 U.S. 347
    (1967) (Harlan, J. concurring). The Court concluded that even though the Greenwood
    defendants had a subjective expectation of privacy in their garbage, society was not
    prepared to accept that expectation as objectively reasonable. The Court found that the
    5
    defendants had “exposed their garbage to the public sufficiently to defeat their claim to
    Fourth Amendment protection.” 
    Greenwood, 486 U.S. at 40
    . McKenzie concedes that
    Greenwood is still the controlling authority for Fourth Amendment protections of garbage
    bags left on the curb outside the curtilage of the home for pick up by a third party.
    Furthermore, he has not attempted to factually distinguish his case from Greenwood.
    Greenwood compels the conclusion that when McKenzie placed his garbage on the curb
    outside of the curtilage of his home, he sufficiently exposed it to the public to defeat his
    claim that the garbage was protected by the Fourth Amendment. Third Circuit precedent,
    cited approvingly by the Supreme Court in Greenwood, also compels this conclusion. See
    United States v. Reicherter, 
    647 F.2d 397
    , 399 (3d Cir. 1981) (“Having placed the trash in
    an area particularly suited for public inspection and, in a manner of speaking, public
    consumption, for the express purpose of having strangers take it, it is inconceivable that
    the defendant intended to retain a privacy interest in the discarded objects. If he had such
    an expectation, it was not reasonable.”).
    We are bound to follow the Supreme Court’s precedent and this circuit’s
    precedent. The District Court, similarly bound, did not err in finding that McKenzie had
    sufficiently exposed his garbage to the public to defeat any claims of Fourth Amendment
    protections or in denying McKenzie’s motion to suppress.
    We will therefore affirm the judgment of the District Court.
    6
    

Document Info

Docket Number: 06-4914

Judges: Fisher, Jordan, Yohn

Filed Date: 6/23/2008

Precedential Status: Non-Precedential

Modified Date: 11/5/2024