In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1055, 10-1076

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONALD W. SIMMS, 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.

ARGUED SEPTEMBER 13, 2010—DECIDED NOVEMBER 23, 2010

Before EASTERBROOK, Chief Judge, and POSNER and

TINDER, Circuit Judges.

POSNER, 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 supported by probable cause.

The affidavit on the basis of which the search warrant was issued alleged the following facts: The defendant’s garbage carts (wheeled garbage containers)

were located in the yard of his house, next to his driveway. “[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 detective 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 defendant’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 accomplished 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 Procedure,” 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 Constitutional Law,” 82 N.Y.U. L. Rev. 975, 990 (2007). And

so the government argues in this case that the exclusionary 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 inexcusable, 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 detective 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 wastepaper 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 property; 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 protection 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, Positivism, 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 defendant 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 defendant 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 preparation 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 probable 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 indefinitely. 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 confessed 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’ criminal record to the exclusion of other section 3553(a)

factors, a record already accounted for in the calculation of the armed career criminal portion of the sentence. Simms complains that the district court failed

to adequately explain its decision to impose consecutive sentences, or acknowledge that a guideline sentence 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 contain 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 supervised release, and made the 30-month sentence run consecutively 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 defendant 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 punished 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 sentencing 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 advisory sentencing guideline system” and “The sentence 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 history. 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 ongoing 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 concurrently with the other sentences; and the judge is

to inform us whether he wants to resentence the

defendant to a sentence within the applicable guidelines range. In all other respects the judgment is

AFFIRMED.

11-23-10