(CN) – The 7th Circuit ruled that Milwaukee police properly searched trash cans in a suspected drug dealer’s fenced-in backyard because of winter garbage collection practices.
Donald Simms II pleaded guilty to gun and drug offenses and was sentenced to 22 years, but argued in an appeal that the district judge should have granted his motion to suppress evidence. Police obtained a warrant after finding marijuana in Simms’ garbage cans, and they found additional drugs and weapons during their search.
The cans were located in the yard of the house, behind a 6-foot tall fence with a “No trespassing” sign affixed to an open gate.
Since the city’s garbage collection “winter rules” were in effect at the time of the search, sanitation workers could enter Simms’ property to empty the cans instead of only emptying cans left on the curb. The winter rules keep cans off the street so that snowplows can clear the roads.
The Chicago-based circuit judges wrote that police did not inform the judge who issued the warrant about the trashcan’s location or the fence surrounding it, but they upheld the search because “it was authorized by an appearance of consent to collect the garbage from the fenced yard under winter rules with the gate open.”
Simms also challenged officers’ search of his car, which turned up a gun. While preparing to execute the search warrant for the house, an undercover officer saw Simms drive up to his house, park across the street, walk to another car that had just pulled into his driveway, and remove a package that appeared to, and did, contain drugs.
The 7th Circuit upheld the search because the police had probable cause and because the car would have eventually been impounded and subjected to an inventory search since it was parked on a public sidewalk. “The discovery of the gun was thus inevitable,” Circuit Judge Richard Posner wrote for the court.
Simms also challenged the lower court’s sentencing: 240 months for the drug and gun charges, and 30 months for violating his supervised release, which the judge ordered to be served consecutively to ensure that Simms would face a sufficient punishment if an appellate court overturned one or more of the charges.
Posner wrote that the sentence “is illogical because it means that if the other sentences are affirmed on appeal, as we are about to do, … the defendant ends up with a heavier overall sentence than the judge intended to impose.”
The court ordered the violation of supervised release sentence to run concurrently with the other sentences, and remanded for the district judge to determine if resentencing within the guidelines range was appropriate.