                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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                                                              NOT PRECEDENTIAL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



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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.




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