Appeal from the United States District Court for the Eastern District of Wisconsin. No. 76-CR-200 - Robert W. Warren, Judge.
Castle, Senior Circuit Judge, Wood, Circuit Judge, and East, Senior District Judge.*fn*
On November 4, 1976 the defendant, Thomas Leonard Shelby, was charged in a six count indictment with bank larceny in 1975 and 1976 from three different banks insured by the Federal Deposit Insurance Corporation.*fn1 Three of the counts were dismissed by the government. The defendant waived trial by jury on the remaining three counts, and upon a stipulation of facts was found guilty by the court on each count. Defendant was sentenced to imprisonment for a period of three years, the first six months to be served in a jail-type institution, the balance of the sentence of imprisonment was suspended and defendant was placed on probation for the remaining two and one-half years. It is not stated specifically, but the sentence is construed to be on each count to run concurrently. In addition, it was ordered that the "defendant is to make restitution in such amounts and at such times as directed by the Probation Department."
On appeal the issues are the legality of a warrantless search at defendant's home of his trash; the voluntariness of the defendant's two confessions; the effect, if any, of an ex parte letter from a former employer of defendant to the sentencing judge; and the vagueness of the probation condition of restitution. We affirm, but remand to the trial court for correction of the sentence to evidence compliance with the limitations of 18 U.S.C. § 3651.*fn2
The facts of the offense are not disputed and may be briefly stated. Defendant had been employed in a supervisory capacity by a company rendering janitorial services to a number of banks. Upon leaving that employment the defendant retained the keys to those banks which he subsequently used to enter after hours to steal various amounts of coins from tellers' cages. The stolen coins in the three counts totaled about $3,000.
Later the defendant aroused suspicion at a different bank by exchanging large amounts of coins for bills. Upon being alerted, the Federal Bureau of Investigation and the local police requested the Sanitation Department of the City of Milwaukee to advise its sanitation workers serving defendant's residence to watch for bank coin wrappers and trays when collecting trash from defendant's premises. At the usual time two sanitation employees made the collection. Defendant had three covered garbage cans behind his garage at the back of his premises immediately inside a low fence adjoining the public alley. The sanitation workers, as was their custom, reached over the low fence, hoisted the cans to the truck and dumped them. Both at that time in the truck and several blocks away the two workers opened and examined the contents of the paper or plastic bags which had been contained in the cans. They found what they were looking for, various aluminum bank trays and coin wrappers, which were turned over to the authorities. That discovery was used by the Federal Bureau of Investigation as justification for a warrant to search the defendant's house. That search produced bank coin bags and resulted in the defendant's first confession to one of the thefts. He was not arrested at that time. Subsequently, upon hearing that the local police also wanted to talk to him, defendant went to the local police department. In the course of the interview with the police, the defendant gave a second confession.
The defendant's motion to suppress the evidence seized from his trash without a warrant, and the resulting fruits of that search, the search by warrant of his house and the confessions, was denied.
Warrantless Search of Trash
We do not view the issue in this case as one of the standing of the defendant to object to the warrantless search since the search was of his trash and was initiated on his premises. This situation may be distinguished from cases similar to Mabra v. Gray, 518 F.2d 512 (7th Cir. 1975), cert. denied, 423 U.S. 1023, 46 L. Ed. 2d 397, 96 S. Ct. 466, in which it was held that the defendant had no standing to object to the warrantless search of his wife's purse not in his possession. We assume in the circumstances of this case, as in United States v. Alewelt, 532 F.2d 1165, 1167 (7th Cir. 1976), cert. denied, 429 U.S. 840, 50 L. Ed. 2d 109, 97 S. Ct. 114 (1977), that defendant had standing to raise the Fourth Amendment claim. However, the mere existence of a possessory interest sufficient to afford standing is not by itself always indicative of success on the merits. Id. at 1168. As we see the issue, it is whether or not the search of the trash constituted a violation of the defendant's reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). It is defendant's position that he had a reasonable expectation of privacy in his trash since he contemplated that it would be collected and disposed of by intermingling with other trash and eventually destroyed. Perhaps the defendant did in fact believe that the incriminating evidence of his crime so disposed of would go undetected. If defendant did, we view it only as additional bad judgment on his part. In the real world to so view the status of one's discarded trash is totally unrealistic, unreasonable, and in complete disregard of the mechanics of its disposal. In our view the placing of trash in the garbage cans at the time and place for anticipated collection by public employees for hauling to a public dump signifies abandonment. Defendant may have decided to assume the risk, calculating no one would think to search in his garbage can, or he may have been careless, but whatever his reason he evidenced an intent in a convenient but risky way to permanently disassociate himself from the incriminating contents. The garbage cans cannot be equated to a safety deposit box. The contents of the cans could not reasonably be expected by defendant to be secure, nor entitled to respectful, confidential and careful handling on the way to the dump. Trash generally is not so highly regarded. Collectors do not bear some kind of fiduciary relationship with trash customers to make sure that their trash remains inviolate. The defendant could not reasonably have believed that the City Sanitation Department had any responsibility to help him dispose of the evidence of his crimes. It was a case of the defendant's misplaced and unjustified trust.
It is common knowledge, at times due to the unfortunate circumstances of some persons or even just for curiosity or mischief, that others may disturb one's trash. The defendant admitted that this had happened on occasion but argues that it is irrelevant. We believe it should at least have served to remind the defendant of the unreliability of any thought of privacy he may have had about his trash. It therefore seems to be more prudent to put only genuine trash, not secrets, in garbage cans, except perhaps in California.*fn3 See People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262, 96 Cal. Rptr. 62 (1971), vacated, 409 U.S. 33, 34 L. Ed. 2d 45, 93 S. Ct. 32, reaffirmed, 8 Cal. 3d 623, 504 P.2d 457, 105 Cal. Rptr. 521 (1973), cert. denied, 412 U.S. 919, 37 L. Ed. 2d 145, 93 S. Ct. 2734 . In this four-three decision the California Supreme Court takes a different view. Krivda followed People v. Edwards, 71 Cal. 2d 1096, 458 P.2d 713, 80 Cal. Rptr. 633 (1969), which seems to adopt a theory of selective or limited abandonment. There the court permitted abandonment for disposal purposes, but not for all purposes and voided the search. We believe that to apply fine constitutional lines to discarded trash placed within easy public access for removal is too unrealistic to be pursued.*fn4 Each case, however, must turn upon its own facts. We perceive the circumstances of this case to suggest that the defendant knowingly risked exposure to the public. Katz v. United States, 389 U.S. at 351. We see a distinction between the present case and United States v. Kahan, 350 F. Supp. 784 (S.D.N.Y. 1972), rev'd on other grounds, 2 Cir., 479 F.2d 290, rev'd with directions to reinstate the district court judgment, 415 U.S. 239, 94 S. Ct. 1179, 39 L. Ed. 2d 297 (1974). In spite of the long history of that case, only the district court considered the similar issue. It held that a warrantless search of a wastebasket along side the defendant's desk in a government office could not be justified by the theory of abandonment. Even though we believe it to be the common concept that wastebaskets are intended and expected to be routinely emptied by somebody somewhere and not left to overflow, we believe the present case on its facts is distinguishable.*fn5
In denying defendant's motion for suppression the district court relied in part upon United States v. Mustone, 469 F.2d 970 (1st Cir. 1972), and Magda v. Benson, 536 F.2d 111 (6th Cir. 1976), approving under somewhat similar circumstances the warrantless search of abandoned trash. See also Abel v. United States, 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683 (1960); Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924); United States v. Cox, 428 F.2d 683 (7th Cir. 1970), cert. denied, 400 U.S. 881, 91 S. Ct. 127, 27 L. Ed. 2d 120; and United States v. Minker, 312 F.2d 632 (3rd Cir. 1962), cert. denied, 372 U.S. 953, 9 L. Ed. 2d 978, 83 S. Ct. 952, which although are factually distinguishable, discuss some variations of abandonment.*fn6
We recognize the police involvement in this case as distinguished from a case in which there was no police motivation or participation in a search by a third party so as to render the Fourth Amendment not applicable. ...