APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 80-00011-01)
Before Aldisert and Higginbotham, Circuit Judges, and Lacey, District Judge.*fn*
The defendant was convicted of the distribution and aiding and abetting in the distribution, of one ounce of methamphetamine (21 U.S.C. § 841; 18 U.S.C. § 2) and of the illegal manufacture of methamphetamine (21 U.S.C. § 841). On this appeal he contends the district court erred in denying his pretrial motions for suppression and severance. He also asserts that there was insufficient evidence to support his conviction on counts two and four of the indictment, for aiding and abetting methamphetamine sales on December 6, 1979.
On three separate occasions in late 1979, officers of the Philadelphia Police Department, working with the Drug Enforcement Agency (DEA), collected defendant's trash while posing as trash collectors. Although defendant's trash was normally stored within a fence surrounding his property, on trash collection days he placed it outside this enclosure in an area accessible to the public and used by the public for walking. The officers collected the garbage only in this publicly accessible area. The trash was found to contain methamphetamine. This formed the basis for a probable cause affidavit for a search warrant of defendant's home.
The evidence presented at trial consisted in large part of testimony by Lawrence Fanelli, a DEA informer. After several discussions with defendant regarding the purchase of methamphetamine, Fanelli went to defendant's house on December 6, 1979, to consummate the transaction. Although defendant was not home at this time, his co-defendant, Ronald McCaul, answered the door and asked Fanelli if he still wanted "the thing." Receiving an affirmative response, McCaul sold Fanelli a gram of what was believed to be methamphetamine for $50 with the understanding that, if Fanelli found the substance satisfactory, McCaul would sell him "the rest" of it.
After delivering the methamphetamine to a Philadelphia police officer, Fanelli met McCaul later that day and they proceeded to defendant's house where McCaul took $800 from Fanelli and went to the porch door at the back of the house. As McCaul returned to the car, the defendant, standing on the porch, called to Fanelli that some of the substance McCaul was carrying was for him. Again, after receiving the substance, along with $50 change, Fanelli delivered these items to the Philadelphia police officer.
Fanelli also testified that beginning in May or June of 1979, he obtained methamphetamine from the defendant for his personal consumption. During this period, he observed defendant manufacturing methamphetamine. This testimony was supported by Edward Minner who testified that he too had purchased methamphetamine from defendant and observed what appeared to be a laboratory for the manufacture of methamphetamine in defendant's house.
Stephen Lapenta, one of the Philadelphia policemen who had posed as a trash collector, also testified in support of the government's contention that the defendant manufactured methamphetamine. After finding methamphetamine in the collected trash, a search of defendant's house on December 18, 1979, resulted in the seizure of several different powders and substances and a scale and hot plate.
Finally, a government chemist testified that many of the powders and substances seized from defendant's home were methamphetamine and that several items seized were used in manufacturing methamphetamine.
Defendant claims that under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), he had a reasonable expectation of privacy in the trash he placed in a public area to be picked up by trash collectors such that, when the police officers looked through the garbage and seized the methamphetamine, they violated the fourth amendment. A mere recitation of the contention carries with it its own refutation.
Every circuit considering the issue has concluded that no reasonable expectation of privacy exists once trash has been placed in a public area for collection. See, e. g., United States v. Vahalik, 606 F.2d 99, 101 (5th Cir. 1979) (per curiam), cert. denied, 444 U.S. 1081, 100 S. Ct. 1034, 62 L. Ed. 2d 765 (1980); United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978), cert. denied, 440 U.S. 959, 99 S. Ct. 1500, 59 L. Ed. 2d 772 (1979); United States v. Shelby, 573 F.2d 971 (7th Cir.), cert. denied, 439 U.S. 841, 99 S. Ct. 132, 58 L. Ed. 2d 139 (1978); Magda v. Benson, 536 F.2d 111 (6th Cir. 1976) (per curiam); United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212 (2d Cir.), cert. denied, 404 U.S. 883, 92 S. Ct. 218, 30 L. Ed. 2d 165 (1971). See also United States v. Minker, 312 F.2d 632 (3d Cir. 1962), cert. denied, 372 U.S. 953, 83 S. Ct. 952, 9 L. Ed. 2d 978 (1963) (decided before Katz ). The reasoning underlying these decisions is clear and persuasive. As stated by the Seventh Circuit in Shelby :
(T)he placing of trash in garbage cans at a time and place for anticipated collection by public employees for hauling to a ...