Litchfield v. State

Attorneys for Appellants Attorneys for Appellee

Tom A. Black Steve Carter

June E. Bules Attorney General

Plymouth, Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 50S03-0408-CR-382

Patrick Litchfield and

Susan May Litchfield,

Appellants (Defendants below),

v.

State of Indiana,

Appellee (Plaintiff below).

_________________________________

Appeal from the Marshall Superior Court, No. 50D02-0208-FD-172

The Honorable Robert Burner, Senior Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 50A03-0307-

CR-270

_________________________________

March 24, 2005

Boehm, Justice.

We hold that a search of trash recovered from the place where it is

left for collection is permissible under the Indiana Constitution, but only

if the investigating officials have an articulable basis justifying

reasonable suspicion that the subjects of the search have engaged in

violations of law that might reasonably lead to evidence in the trash.

Factual and Procedural Background

Beginning in approximately 1999, the federal Drug Enforcement

Administration had been providing the Indiana State Police with information

subpoenaed from companies that advertised in High Times, a publication for

marijuana growers. In the summer of 2002, the DEA supplied a list of

Indiana addresses that had received shipments from Worm’s Way, a gardening

supply store that was among the subpoenaed advertisers. Among the

addresses was the Litchfields’ home in rural Marshall County. On July 5,

2002, and July 22, 2002, Indiana State Police troopers Daniel Ringer and

Chad Larsh went to the address where they found trash barrels in the same

general area where the collection service normally picked up the trash and

where the containers were routinely kept. The barrels were located on the

Litchfields’ property approximately fifteen to twenty-five feet from the

edge of the pavement, and approximately 175 feet from the nearest corner of

the Litchfields’ house.

On both occasions, the troopers entered onto the property and removed

several garbage bags. A search of the Litchfields’ trash revealed plant

stems, seeds, and leaves that tested positive for marijuana. The bags

seized on July 22 also contained burnt rolling papers and hemp rolling

paper packaging. Based on this evidence, Ringer prepared and obtained a

warrant to search the Litchfields’ home. Police executed the warrant on

July 24, and discovered fifty-one marijuana plants growing on the back deck

of the Litchfields’ home.

The Litchfields were charged with possession of marijuana and

maintaining a common nuisance. The trial court denied their pretrial

motion to suppress the evidence obtained from the searches of their garbage

and the subsequent search of their home. The Court of Appeals affirmed.

Litchfield v. State, 808 N.E.2d 713, 714 (Ind. Ct. App. 2004). We granted

transfer. Litchfield v. State, 2004 Ind. LEXIS 737 (Ind. 2004).

The Search of Trash

The standard of appellate review of a trial court’s ruling on a

motion to suppress is similar to other sufficiency issues. Taylor v.

State, 689 N.E.2d 699, 702 (Ind. 1997). We determine whether substantial

evidence of probative value exists to support the trial court’s ruling.

Id. We do not reweigh the evidence and consider conflicting evidence most

favorably to the trial court’s ruling. Id.

A. Fourth Amendment Doctrine

Searches of garbage are generally permissible under the Fourth

Amendment to the Federal Constitution. Since Katz v. United States, 389

U.S. 347 (1967), the reasonableness of a search under the Fourth Amendment

has turned on whether the subject of the search has an expectation of

privacy and if so whether that subjective expectation is reasonable judged

by the objective criterion of the views of society as a whole. Id. at 361

(Harlan, J., concurring). In California v. Greenwood, 486 U.S. 35, 39

(1988), the United States Supreme Court upheld the warrantless search of

the defendant’s garbage left at the curb for pickup. The Court reasoned

that because the garbage was easily accessible to the public, the defendant

did not have a reasonable expectation of its privacy. Federal courts have

also upheld the warrantless search of garbage located on a resident’s

private property, focusing on the objective reasonableness of an

expectation of privacy in the garbage rather than its location. Thus, in

United States v. Kramer, 711 F.2d 789, 797 (7th Cir. 1983), a warrantless

search of the defendant’s garbage was upheld where the garbage was located

inside a low fence enclosing the defendant’s yard. The court reasoned that

the garbage had been abandoned and exposed to the public and the officers

who seized the garbage did not threaten the peace and quiet of the

defendant’s home or interfere with his trash disposal routine. In United

States v. Hedrick, 922 F.2d 396 (7th Cir. 1991), the court sustained the

search of trash located in the defendant’s driveway eighteen feet from the

sidewalk. The court took the view that it was common knowledge that

members of the public often sort though others’ garbage. As a result, “an

expectation of privacy may be objectively unreasonable because of the

common practice of scavengers, snoops, and other members of the public in

sorting through garbage. In other words, garbage placed where it is not

only accessible to the public but likely to be viewed by the public is

‘knowingly exposed’ to the public for Fourth Amendment purposes.” Id. at

400.

A majority of states follow federal doctrine and hold that their state

constitutions permit a warrantless search of trash that has been left out

for collection based on a lack of a reasonable expectation of privacy.[1]

As the Supreme Court of Maryland explained, “the law that has emerged since

Greenwood is essentially the same as it was before that case was decided,

although, as a general rule, it is based less on the property concept of

abandonment than on the conclusion that, by depositing the trash in a place

accessible to the public, for collection, the depositor has relinquished

any reasonable expectation of privacy.” State v. Sampson, 765 A.2d 629,

634 (Md. 2001). Some states have rejected this view and have found trash

searches violative of either the Fourth Amendment or their state

constitutions. Most states reaching this conclusion have based it,

contrary to Greenwood, on the view that a person has a reasonable

expectation of privacy in garbage placed out for collection.[2]

Recognizing that Greenwood forecloses any claim under the Fourth

Amendment, the Litchfields do not challenge the searches of their trash

under the Federal Constitution, but ask us to exclude the evidence as the

product of a search and seizure in violation of the Indiana Constitution.

B. “Reasonableness” of a Search under the Indiana Constitution

The Litchfields argue that the warrantless search of their trash was

unreasonable and therefore violated Article I, Section 11 of the Indiana

Constitution. Article I, Section 11 reads:

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable search or seizure, shall not be

violated; and no warrant shall issue, but upon probable cause,

supported by oath or affirmation, and particularly describing the

place to be searched, and the person or thing to be seized.

Although this language tracks the Fourth Amendment verbatim, Indiana has

explicitly rejected the expectation of privacy as a test of the

reasonableness of a search or seizure. The legality of a governmental

search under the Indiana Constitution turns on an evaluation of the

reasonableness of the police conduct under the totality of the

circumstances. Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994). We have

not elaborated on the methodology of evaluating reasonableness beyond the

directive in Moran to consider the “totality of the circumstances.”

Specifically, we have not explicitly addressed whether “reasonableness” is

to be evaluated from the perspective of the investigating officer (in this

case, Trooper Ringer), or the subject of the search (the Litchfields), or

both.

We believe that the totality of the circumstances requires

consideration of both the degree of intrusion into the subject’s ordinary

activities and the basis upon which the officer selected the subject of the

search or seizure. One factor that may render a search unreasonable is an

arbitrary selection of the subject. Thus, we have permitted roadblocks for

the purpose of testing for impaired drivers, but only under procedures that

assure that no individual is subject to arbitrary selection. State v.

Gerschoffer, 763 N.E.2d 960, 966 (Ind. 2002); compare Mich. Dep’t of State

Police v. Sitz, 496 U.S. 444, 455 (1990) (same under Fourth Amendment). We

have also upheld legislation requiring motorists to use seat belts, but we

have warned that stopping vehicles to inspect for violations is not

permissible without an individualized basis to suspect noncompliance.

Baldwin v. Reagan, 715 N.E.2d 332, 334 (Ind. 1999). In both cases we were

dealing with a seizure of the person, but the intrusion on the citizen was

relatively minor—a brief stop of an automobile. And in both cases the

scope of the permitted inquiry is limited, in one case to driving while

intoxicated and in the other to seat belt use. In each case we nonetheless

required either articulable individualized suspicion or a process designed

to prevent officers from indiscriminate selection of those to be searched.

Even when officers have some indication of potential criminal

activity, we have balanced it against a concern for excessive discretion in

selection of a subject. In State v. Bulington, 802 N.E.2d 435 (Ind. 2004),

officers who stopped the driver of a vehicle suspected of methamphetamine

manufacture based on purchases of packages of a known methamphetamine

precursor did not have enough facts for individualized suspicion of

criminal activity. The majority found the seizure unreasonable, concluding

that if such a stop were allowed, the police would be given too much

latitude to exercise arbitrary discretion. Id. at 440.

Our explanation of reasonableness in other contexts has focused on

both the degree of intrusion or indignity visited upon the citizen and the

constraints on the detaining officer. Random searches have been sustained

in at least one circumstance. In Linke v. Northwestern Sch. Corp., 763

N.E.2d 972, 985 (Ind. 2002), random drug testing of middle and high school

students was held to be reasonable under Article I, Section 11. Although

those tested were limited to students who drove to school or participated

in athletics or a number of other activities, the majority did not rely on

that restriction in sustaining the policy. Rather, the majority observed

that a court should “weigh the nature of the privacy interest upon which

the search intrudes, the character of the intrusion that is complained of,

and the nature and immediacy of the governmental concern to determine

whether the Policy is reasonable under the totality of these

circumstances.” Id. at 979 (citing Veronia Sch. Dist. 47j v. Acton, 515

U.S. 646, 660 (1995)). This explicitly added to the calculus the factor of

the severity of the law enforcement need in addition to the degree of the

intrusion. However, the degree of intrusion may render a search

unreasonable, even where law enforcement needs are obviously present. In

Edwards v. State, 759 N.E.2d 626, 630 (Ind. 2001), we focused entirely on

the degree of intrusion on the citizen and lack of individualized

suspicion: “to the extent a warrantless strip search of a misdemeanor

arrestee is conducted on the basis of jail security, the indignity and

personal invasion necessarily accompanying a strip search is simply not

reasonable without the reasonable suspicion that weapons or contraband may

be introduced into the jail.”

Finally, if a violation of law is established, not merely suspected, a

seizure has been upheld, even if the violation is quite minor. Thus, in

Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001), we found “nothing

unreasonable in permitting an officer, who may have knowledge or suspicion

of unrelated criminal activity by the motorist, to nevertheless respond to

an observed traffic violation.” The Court held that it was “not

unreasonable for a motorist who commits a traffic law violation to be

subject to accountability” even if the officer was motivated by “furthering

an unrelated criminal investigation.” Id.

In sum, although we recognize there may well be other relevant

considerations under the circumstances, we have explained reasonableness of

a search or seizure as turning on a balance of: 1) the degree of concern,

suspicion, or knowledge that a violation has occurred, 2) the degree of

intrusion the method of the search or seizure imposes on the citizen’s

ordinary activities, and 3) the extent of law enforcement needs.

C. Searches of Trash

This Court first addressed the legality of trash searches under

Article I, Section 11 in Moran v. State, where the totality of the

circumstances test was also first articulated. In that case, the Indiana

State Police initially identified Andrew Holland and Dominick Moran based

on their purchases at a hydroponic equipment store operated by ISP for the

purpose of identifying potential marijuana growers. Further investigation

revealed excessive energy consumption at Holland’s home, and unusual warm

areas were observed through thermal imaging surveillance. Id. at 537-38.

At about 5:00 a.m. on a day scheduled for trash pickup, two ISP officers

drove to Holland’s house where they found several trashcans about one foot

from the street in front of the house, near the mailbox. Id. at 538. The

officers emptied the cans into the back of their truck and a subsequent

search revealed marijuana clippings. Id. Based in part on this evidence,

officers obtained a warrant to search the house and found both marijuana

cuttings and several growing plants. Id. Holland and Moran were then

charged with possession of marijuana. Id. They moved to suppress all

evidence and testimony related to the warrantless search of the trash and

the house based on their contention that the search of the garbage violated

Article I, Section 11.

The majority in Moran explained: “Because we read this section of our

constitution as having in its first clause a primary and overarching

mandate for protections from unreasonable searches and seizures, the

reasonableness of the official behavior must always be the focus of our

state constitutional analysis.” Id. at 539. The Court held that this

reasonableness is to be determined based on a totality of the

circumstances. Id. at 541. The Court concluded that the search was

reasonable, explaining that “one who places trash bags for collection

intends for them to be taken up, and is pleased when that occurs,” and that

the officers conducted themselves in a similar manner to trash collectors

and did not cause a disturbance. Id. The majority also noted, however,

that “Hoosiers are not entirely comfortable with the idea of police

officers casually rummaging through trash left at curbside.” Id. The

Moran dissent argued that the search of Moran’s trash was not reasonable

and concluded that because a person’s trash may reveal intimate details of

the person’s life and because it is unreasonable to dispose of one’s trash

anonymously, trash ought to be protected under Article I, Section 11.

Since Moran, the Court of Appeals has grappled with several cases

arising from searches of trash. In Lovell v. State, 813 N.E.2d 393 (Ind.

Ct. App. 2004), trans. denied, police officers went to Lovell’s home where

they smelled a strong odor of ether. Id. at 395. There was no response

when they knocked on the door, so they parked in a nearby parking lot and

observed the residence. Id. After four people left the home, the officers

retrieved three garbage bags that had been placed by the mailbox. Id. A

search of the bags revealed evidence of the manufacture and use of

methamphetamine. Id. The officers then obtained a warrant, searched

Lovell’s automobile and home, and found additional evidence. Id. at 396.

Lovell was charged with dealing in methamphetamine and possession of

chemical reagents or precursors with intent to manufacture. Id. at 397.

She moved to suppress the evidence found in the trash bags and the evidence

found pursuant to the resulting search warrant. Id. The trial court

denied her motion and the Court of Appeals affirmed, reasoning that the

search was reasonable under the totality of the circumstances. Id. at 398.

The court pointed out many other houses had garbage bags next to their

mailboxes and apparently Lovell’s and the others’ bags had been placed out

for trash pickup. Id. The court also noted that the officers seized the

garbage in the same way that garbage collectors would and did not trespass

onto the Lovell’s property. Id.

In State v. Stamper, 788 N.E.2d 862, 863 (Ind. Ct. App. 2003) trans.

denied, Stamper placed a garbage bag at the bottom of a garbage pile on his

property an undetermined distance from the end of his driveway. A “No

Trespassing” sign was posted on the property near the garbage pile. Police

went onto the property and retrieved the bag. A search of the bag revealed

evidence of marijuana use. The Stamper court held the search unreasonable

based on the police entry onto Stamper’s property. Id. at 866 n.2. The

court explained, “If we were to hold otherwise, police could search

everyone’s opaque garbage bags on their property without reason and thereby

learn of their activities, associations, and beliefs.” Id. at 867 (citing

State v. Tanaka, 701 P.2d 1274, 1276 (Haw. 1985)).

The Court of Appeals in this case acknowledged Stamper, but disagreed

with a test of reasonableness based on whether the trash is on public or

private property. Litchfield v. State, 808 N.E.2d 713, 716 (Ind. Ct. App.

2004). The Litchfields urge us to adopt the reasoning in Stamper that

whether police commit a trespass when searching a person’s garbage is the

decisive factor in determining the reasonableness of the search. They

argue that we should hold that because Ringer entered their property to

retrieve their garbage, the search of that garbage was unreasonable. The

State argues that the Stamper court improperly applied Moran by affording

too much weight to the fact that the police trespassed on Stamper’s

property. The State urges that whether or not police trespassed on a

person’s property is only one factor in the “totality of circumstances”

Moran directs that whether the police enter unto the subject’s property be

considered in evaluating the reasonableness of a search. We think that the

reasonableness of officer conduct in searching a citizen’s trash does not

turn on whether or not the police entered onto the citizen’s property.

Property lines are wholly irrelevant to the degree of suspicion of a

violation or the need for enforcement and largely irrelevant to the degree

of intrusion inflicted by the search or seizure. Moreover, the precise

boundaries of a piece of real estate are not always apparent to one viewing

the property, and various easements may well complicate the effort to

identify whether trash barrels are fair game.

We also disagree with the view that searches of trash are per se

unreasonable. Some states have invalidated all official searches of

garbage. Most of them acknowledged, as stated in Greenwood, that a person

may expect that his or her garbage “is readily accessible to animals,

children, scavengers, snoops, and other members of the public.” They

reasoned explicitly or implicitly that people may nevertheless hold a

different expectation as to access by police. State v. Hempele, 576 A.2d

793, 805 (N.J. 1990); see also People v. Krivda 486 P.2d 1262, 1268 (Cal.

1972) (“defendants had a reasonable expectation that their trash would not

be rummaged through and picked over by police officers acting without a

search warrant”); Tanaka, 701 P.2d at 1276-77; (“people reasonably believe

that police will not indiscriminately rummage through their trash bags to

discover their personal effects”); State v. Boland, 800 P.2d 1112, 1117

(Wash. 1990) (“while a person must reasonably expect a licensed trash

collector will remove the contents of this trash can, this expectation does

not also infer an expectation of governmental intrusion”).

We do not find the arguments for a per se rule persuasive. Seizure of

trash that is in its usual location for pickup is no intrusion at all on

the owner’s liberty or property interests. The owner wants and expects the

trash to go away, and who removes it is normally a matter of indifference.

If the trash is located in the place where it is normally picked up, the

trash collection agency, whether public or private, is invited onto the

property to the extent necessary to gather and empty the trash. Police

officers can perform the same acts with no greater intrusion. It is not

the intrusion, but rather the concern for unwarranted official snooping

that makes the identity and purpose of the collector significant. But even

that consideration is more formal than substantive. At the point the trash

is removed by the authorized collector it is presumably fair game. See

Mast v. State, 809 N.E.2d 415, 417 (Ind. Ct. App. 2004). Prohibiting

officers from examining trash before it is collected thus imposes burdens

on law enforcement by forcing officers to accompany or follow trash

collectors or work at the city dump to do what might be much more easily

accomplished but provides no real protection to the citizen. In sum,

because there is no intrusion, if properly justified by other factors, a

search of trash is reasonable.

We think, however, that it is not reasonable for law enforcement to

search indiscriminately through people’s trash. As the majority explained

in Moran, although a search of a person’s garbage may be reasonable under

specific circumstances, “Hoosiers are not entirely comfortable with the

idea of police officers casually rummaging through trash left at curbside.”

644 N.E.2d at 541. We also agree with the conclusion of the Stamper court

that police should not be permitted to enter a person’s property and search

his or her garbage “without reason.” 788 N.E.2d at 867. We think the

concern for reasonable searches of trash is best addressed by the

requirement that, in order for a search or seizure to be reasonable, trash

must be retrieved in substantially the same manner as the trash collector

would take it. If garbage has been placed out for collection at the usual

place for collection and is easily accessible to any member of the public,

in the absence of a mistake, any claim to possessory ownership has been

abandoned. The citizen expects that trash to be collected and has

effectively ceded all rights in it. See Moran 644 N.E.2d at 541. There is

therefore no material intrusion into the citizen’s ordinary activities.

As already noted, however, an important factor in evaluating a

reasonable search is appropriate restriction on arbitrary selection of

persons to be searched. We believe a requirement of articulable

individualized suspicion, essentially the same as is required for a “Terry

stop” of an automobile, imposes the appropriate balance between the privacy

interests of citizens and the needs of law enforcement. Allowing random

searches, or searches of those individuals whom the officers hope to find

in possession of incriminating evidence gives excessive discretion to

engage in fishing expeditions. See Delaware v. Prouse, 440 U.S. 648, 663

(1979); Bulington, 802 N.E.2d at 440; Baldwin, 715 N.E.2d at 337. In

Article I, Section 11 terms, that is unreasonable. The police need not go

to the lengths elaborated in Mast v. State, 809 N.E.2d 415 (Ind. Ct. App.

2004), where police rode in the trash pickup and searched it only after it

was taken by its usual collectors. But police do need to ensure that they

do not cause a disturbance or create the appearance of a police raid of the

residence.

In this case, it is undisputed that the seized trash was left in

barrels on the property in its regular place for collection. The

Litchfields therefore abandoned it and exposed it to the public. It seems

clear that the police acted reasonably by quickly and quietly retrieving

the trash from the place it was ordinarily collected without creating undue

embarrassment or indignity. However, we cannot determine from this record

whether the information supplied by the DEA enabled the state police to be

reasonably certain that the Litchfields had responded to an advertisement

in High Times, or merely informed the police that the Litchfields had

purchased from a vendor that coincidentally had advertised in that

publication. There may be other facts bearing on whether the officers

possessed articulable individualized grounds for suspicion that the

Litchfields were involved in illegal activity. At the time of the

suppression hearing, we had not yet expressly adopted the requirement that

a search of a person’s garbage be based on reasonable suspicion. There was

no evidence presented on this issue and the trial court made no finding.

We therefore remand this case to the trial court for a finding as to

whether or not the officers possessed reasonable suspicion sufficient to

obtain and search the Litchfield’s garbage.

Conclusion

This case is remanded to the trial court for further proceedings

consistent with this opinion.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

-----------------------

[1] See, e.g., Smith v. State 510 P.2d 793, 797 (Alaska 1973); Rickard v.

State, 123 S.W.3d 114, 119 (Ark. 2003); People v. Hillman, 834 P.2d 1271,

1277 (Colo. 1992); State v. DeFusco, 620 A.2d 746, 751 (Conn. 1993);

Lirousa v. State, 408 S.E.2d 436, 437 (Ga. Ct. App. 1991); State v. McCall,

26 P.3d 1222, 1223 (Idaho 2001); State v. Hendersen, 435 N.W.2d 394, 396

(Iowa Ct. App. 1988); State v. Alexander, 981 P.2d 761, 766 (Kan. 1999);

State v. Lambertus, 482 So. 2d 812, 814 (La. Ct. App. 1986); State v.

Texel, 433 N.W.2d 541, 543 (Neb. 1989); State v. Carriere, 545 N.W.2d 773,

776 (N.D. 1996); State v. Brown, 484 N.E.2d 215, 217 (Ohio Ct. App., 1984);

Cooks v. State, 699 P.2d 653, 656 (Okla. Crim. App. 1985); Levario v.

State, 964 S.W.2d 290, 296 (Tex. App. 1997); State v. Jackson, 937 P.2d

545, 549 (Utah Ct. App. 1997); State v. Stevens, 367 N.W.2d 788, 796 (Wis.

1985); Croker v. State, 477 P.2d 122, 125 (Wyo. 1970).

[2] See State v. Tanaka, 701 P.2d 1274, 1276-77 (Haw. 1985); State v. Goss,

834 A.2d 316, 319 (N.H. 2003); State v. Rhodes, 565 S.E.2d 266, 271 (N.C.

Ct. App. 2002); State v. Morris, 680 A.2d 90, 94-95 (Vt. 1996).