with the garbage case the trash will case excuse me yes trash good morning in may because the court rob wagner with the federal public defender's office here in richmond and i represent mr jackson in this case the judge jackson's rear door right next to his rear patio in whitcomb court should receive no less protection under the fourth amendment in a trash can adjoining the rear deck or rear patio in a gated community in this trash he'll we would disagree with the findings of the district court as the record reflects the trash can was directly next to the patio based on the district court's findings obviously the evidence we presented tried to show that that carries the dogs drawing for evidence of fraud or in on the front porch that's correct judge and the jones not part of the common area it was what are right across the road and we would suggest that the grassy area found that the concrete patios adjacent to each unit was part of that unit and therefore to find the currently at that point the grassy area on the sidewalks that were common to the to the grounds there was common ground owned by the city of richmond and and that i think was important to judge your client testified  suggestion was but she acknowledged that number one on trash days she unlocked it and we'll it around it right to the front of the bag and she acknowledged that when she put trash in that that was intended to be gone somebody then use the word while you abandon that objection sustained but but so if you take the factual findings you would conclude that because it has no full evidence it was moved out to the sidewalk and the question then is moved on the sidewalk probably for easy rolling down the sidewalk to the street unless the garbage collectors had the role in our neighborhood that's what they do they'll go into the driveways in the pull it out to the street trucks and it's not clear on this record what the two stages are but it clearly seems to me the record and the findings of fact support the notion that it was locked up next to the back door and rolled out to the sidewalk for trash collection the officer testified that swirled was when he pulled back well i don't believe there was any testimony from the defense witnesses that the trash can ever was taken to the sidewalk and left that the sidewalk on the defense no i you have to infer that if you accept your client's testimony it was locked up on a regular next to the back door to the pole right there and she's dead so we don't lose it and i have some some suggest you put bicycles out way to put it next to the pole and she then acknowledge that on trash days th was unlocked and on the officers testified this was a trash day they knew the trash day was thursday and when they saw the can and it was unlocked as she would have said and it was out on the side and so how it got from the actor on to the sidewalk is no testimony and that's correct but at four o'clock in the morning on thursday before the  trash comes around they saw it on the sidewalk and that was credit you know now if we accept that and that and her testimony that what would in the trash can and is intended to be trash and not retre mean it's between the patio and the side pot even and the walkway and it's not really up a sidewalk as we know going along a roadway it's a walkway that goes behind the residence there but home length or the comment is maybe thirty or forty feet past cox's residence there past and there's a reason mr joe is connected to that sidewalk on the sidewalk where yes nearly intent is for the sidewalk to serve on an area in another question here permitted to go back to that area to collect the trash now you know that and that's one of the principles points it was not left for collection back there and that where they allowed there's no evidence that they were allowed there i don't think there was any testimony to suggest that any trash collectors ever went back to dave has there is testimony that everybody went through there that it was basically walk through area and had no trespassing sign but you know coming from right across the street from the courthouse on that plaza it says no trespassing and of course the whole public goes through there all of the all of the witnesses were consistent that the trash cans needed to be wheeled through that that sidewalk fifty yards to the front where the trash collectors would want to go with that if asked i believe really so what difference does that really it's a difference in access to the public it's a difference in privacy it's a difference in protection and also when you couple that with  you say that that be the case because the supreme court has never said in terms of describing some quantum of people that have access to the point was whether or not well was there access in fact they've used that phrase about accessible that animals children snoop scavengers and members of the public will certainly where this garbage can was was accessible that animals children scavengers news other members of the public whether they were trespassers or not but any member any person who lived in that apartment complex or guests invited the employees of the city or richmond anybody that walked down th sidewalk and access to that garbage can and there may have been members of the public otherwise who should have been there but if they were they had access to that garbage can judge there isn't a single case i found in which the court confronted the garbage can not left for collection that's the distinction in this said it's unclear to me whether the garbage people come and come back there and rolled it out to the street or whether the tenant rolls it out to the street that's not said in the record it's always in the past but it's a two stage process the one stages they get from the back door out to the sidewalk and they were all lined on the sidewalk there trash can was consistently locked to the poll or that the officers were incorrect or were not credible in saying that it was closer to the side well we can take that now as an issue if you want to say the court didn't have substantial evidence to make i know i have to start with found facts from a lesson my challenging the facts so the found fact is that it was on the sidewalk there off the outside just for the testimony of the tenant says  well that's in the past that's where it says it is taken to the street by the officers found it on the sidewalk along with others on the side i believe the findings of this trick were that the the trash can was found adjacent to expectations of privacy it was defined by that addie and it seems to me if you just take it a little further you go out to the middle of the yard there's in the jungle gym and then you take your gun you can out there and say everybody can take whatever they want out of the good for the animals there's a sense of abandon but this is this place where the where the garbage can was when it was literally two three feet from the laundry pole on that rear patty and in your enemies be on the piano i mean house but all that property is owned by the owner of the house here is a public property where the tenant leases a portion from the city and which the district court said includes  important respect the focus of the district court was on the placement of the trash can charge dean's makes it clear it's where the police officers were searching that's most important and there were no specific findings by the district court as to where the police officers were when the search was conducted in other words the district court should have determined under property law analysis which we found from jones  game there's no specific findings there was testimony by the officers that they were on the grassy area that the district court adjoined appendix one seventy two found that the they were on the side or that i'm so i didn't find stated that the officers testified that they were on the sidewalk but nate made no specific findings as to where the officers were with a super kid you have to stand essentially in front of the kid to open the canopy it is particularly suited not for public ce based on what based on the testimony of all of the defense witnesses in the case who stated that that trash can was locked to the rear was laundry or you're just directly contradicting what the court found but i'm responding to the question of  make that conclusion unless we change the facts i do that we have to find the court clearly erroneous right that's exactly right is that the standard you want us to you want to say that no or have no basis of finding what it i don't know i'm suggesting that based on the findings  the district court we prevail in this case we prevail because this was on the curtilage this was a kin to a side garden or a garden that the jar dean's court found was protected property under the fourth amendment therefore this decision should be reversed by this court ok and you will hear from your that a defendant subjective expectation of privacy does not give rise to fourth amendment protection unless society is prepared to accept that as object only reasonable although this is a test many circuits throughout the country have different interpretations and there's different circumstances that go to those tests they could go from being off the curtilage to being publicly accessible to being left for collection or abandoned or physical trust pass or a communal been in an apartment  only that has to be left for collection for anyone if it's left in the back and accessible to the public would be left for collection but if you listen to syrup cox the owner of the residents and the owner of that trash can she said she discarded in  thing those items in that trash can even it despite being in the rear of her home so i think left for collection is being misconstrued by the defense and that it's being left for collection by a garbage collector because not everyone has a garbage collector and you could still put it out in a you know it so you have a garbage collector here and where is the garbage usually collected in front of the house on the side how far away it would be around the front yard fifty five yards away and where was the garbage can in this case when it was searched it was on the adjacent to a public sidewalk partially on the public sidewalk part of the grassy area that's what it jason to this means to you on partially on the  well the district court stated the trash can was local located immediately adjacent the side walk with a portion of the trash camper trooping on the side and that's the joint appendix one seventy seven so the district court's finding was that the trash can was partially on the sidewalk adjacent depending on what portion of the trash can you were looking at and where did the officer say trash and was when they searched well the officers are very specific they said it was seven to ten yards from the back door of the sidewalk partly on the sidewalk or right off the sidewalk and they also took pictures recreated the scene and showed exactly where it was so would that be directly behind mr jackson's residence yes your honor it is because it's ten yards back but it's directly behind the residence and i think that's what the officer was testified about that when he said directly behind he didn't mean directly behind that the door he met directly behind the residence you know ten yards back but as i said earlier well let's just the factual findings first are ours there's no other witness out at four am on may twenty sixth other than officers for being an officer fitzpatrick there is not know that defense witnesses i can them tell us specifically in the record on cross examination every single one said that they were not there they were asleep or don't know what happened out there and to correct one thing or i don't think the district court ever made a finding that the officers were on the concrete patio or went on the colonel it's for their for their collection efforts i think they specifically testify that they were on the sidewalk and then moving along your honor in reference to curtilage if you look at the dunn factors if you break all four of them down which i'd like to point out the defendant defenses brief never analyzed is a footnote dropped in there in their brief but never went through the analysis but the proximity of the area claimed to be current of the home cans were seven to ten yards from the back past the patio area which we typically consider the curtilage then the second is where the area was included with an enclosure surrounding the home there is no fences or other enclosures that separated that particular patio the nature of the uses to which the areas put we are in specific testimony from both the officers and the defense witnesses that the area behind the patio is a common area that is not the defendant's property that kids play that birthday parties are held where adults come and talk and hang out there is a residence is people that live in that community that utilize that for birthday parties and come and talk right so its residents or invited guests to read the residents that use that common area is there any evidence in the record otherwise well there's they talk about a footpath and a walkway or cut that was used that was parallel or perpendicular to the sidewalk that went by that the common area courtyard used by the residen some cases they said they didn't know who these individuals were i doubt in a place like what comport that these miss cox or any of the defense witnesses knew every single person that walked by as a as a as a resident of just because they don't know them doesn't mean they're not residents there's there's nothing in the record that indicates anybody other than residents or invited guests residents use the common area or that but that is they're well i think the op of the officers talk about  you know that they were trespassing arrests in that area there you know there were trying to present their are no trespassing signs surrounding the area right but even if there is not one stranger that ever went past that area the fact that there's sixteen units in that small of area with that many people around it seems very difficult to say that it was a public a cesspool now a public cesspool is that being the general public nonresidents of what import i don't think so your honor i would argue that it means tenants invited guests anyone that's in that back area could access that trash can and if you look at just imply i'd license or custom if a kid had a gum wrapper he most certainly would have felt he could throw  that wrapper in that trash can located where the district court found it can be very difficult to say that he couldn't go in there and grab something out of that trash just under implied custom trash is different if there was a foot locker or a suitcase that was back at that common area i think it definitely a warrant would be required but this is a trash can in social custom dictates that trash is different that people are banding just like  these items didn't use it for clothing storage didn't put valuable items there if the owner of the the trash can and the owner of the resident states that she was getting rid of this stuff how does an overnight guest like mr jackson it a expectation of privacy either subjective or that society would accept as objective reasonable and that's the standard regardless of the law for collection or all these other issues that have come out through other courts the main issue in the main test is the greenwood test and that talks about the defendant subject to expectation of privacy and what society with a set of reasonable and just another point on the left for collection left for collection seems to be to be attacks a very subjective understanding a defendant could claim that oh i didn't leave the item for collection even though it's outside the curtilage the only way we can assess whether trash is left for collection is whether it's accessible the location is being put up the man or it's being put out so just to say you know if that was the standard then any defendant could say well it wasn't left for collection i didn't mean it to be left for collection plus how would an officer ever know it was being left for collection different cities different jurisdictions different locations pick up their trash in different type different manners so the only thing we can look at are the objective facts as to where the location of the trash can was which was directly behind his residence so if i leave my trash and directly or someone leaves their sidewalk and there are many portion that came was sitting on a two or three foot wide strip of grass between the patio and the residence so with that your i would say it's on the sidewalk you know is that with officers that in their report says the trash can for this residence was located directly behind the residence i'm sorry your honor well agent williams is not on the scene he had nothing to do with this case of an adopted as a federal  the or the affidavit is more likely your honor which says directly behind the residence but as i said earlier directly behind the residence has two meanings right and since it does in that's pretty important to this case exactly where the trash can was whether it was on the sidewalk or on the patio or chained to the laundry all that would be an important factor the officer to put in his affidavit wouldn't well i think it would be your honor but that's not challenge here the defense had a chance to challenge the affidavit they withdrew that i think that was what the original part of the original motion to suppress involved was a franks type setting in the tate circumstance you know the take a circumstance is the defense did not move misleading or omission of facts in the affidavit is not before this court to handle government talks about child and they walk by the residence walk in the rear of the residence go by that trash can and maybe throw a gum wrapper in well the problem with that analogy is if that person were to toss a gun wrapper into that trash bin they would have to walk onto the patio of the residence to open up that trash can and put the wrapper in and there were no findings by the district court as to where the officers were when this search was conducted where the officers that there is a statement in the in the district court's memorandum opinion that says the officers testified they were on the sidewalk join appendix eighty four the officers testified they were on the grassy area so that that statement in the memorandum opinion was in error so there needs to be a finding by the court where the officers conducted the search now in talking about the affidavit the reason we would reference the affidavit the reasons we reason we referenced the affidavit at the hearing was because there was no reference or in the are four lines of trash and w yes but not where the officers were i mean we're talking about a very small area is there you know maybe two or three three feet grassy area a sidewalk and then the patio is right there i understand but if you  line and huge and you accept that works fine and then we have to start with a proposition trashers heard where they were found and i we challenge that say the court didn't have substantial evidence to make that finding and we have to go led to court was they officers went back to photographs and wanted to give their testimony or as to what they saw that night and were going off clearly that testimony was favorable to the government and it was presented in a way yes it was but the court made that factual fin g the task we have one of two things to do but we can't birth two we either challenge the findings and say that and then look at the evidence and see with the court could have found but if we accept the findings then we have the  question of the argument you were trying to make as to whether you can have a trash pile outside of the curve or i disagree to this extent judge that the findings of where the curtilage lie is a question of law and you don't need to interrupt the findings that the factual findings of the district court in order to change what it did or said where whether an area falls in the home kirklees hands on for factor assessment and he made findings in perspective each this is the areas that are used and how t and you didn't agree with all well and one of the reasons to challenge it you've got to put it in your very well i think under the reasonable expectation of privacy test the findings of whether it's courage in the district court found that even if this were on the that was located outside the curtilage of the residence at the time of the crash the court next turns to the subject of expectation and the deans case makes the finding of curtilage so much more important because it is but not i'm so i'm suggesting you can make your argument at any point you wish but i just don't think it's fair to jump on the other in other words if we're going to challenge what the court properly defined the curtilage and made ac what in fact are findings as to why it defined that currently yes we can do that we can address that but i didn't take your position to be a challenge about well and i had three hundred fifty words in my twenty eight j letter in order to to address that issue and i tried to put as much in there as i could in light of the charging scase so my point is this judge whether this was whitcomb court or wyndham when you have a officers you're arguing that i just don't have any records or one way or the other right and that's why i think there need to be further fact finding which made in this case in this case potentially could be sent back to the district court for that fact