Petitioners Brief — California v. Krivda
Supreme Court brief1972
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IN THE
October Term, 1972 S72
No. 71-651 JUL 10
STATE OF CALIFORNIA,
vs.
JupiTH H. KRrivpa and RopGER T. MINoR,
Respondents.
On Writ of Certiorari to the Supreme Court
of the State of California
PETITIONER’S OPENING BRIEF
J EVELLE J. YOUNGER,
Attorney General of the State
of California,
EDWARD A. HINZ, JR.,
Chief Assistant Attorney General—
Criminal Division,
WILLIAM E. JAMES,
Assistant Attorney General—
Appeals Section,
S. CLARK MOORE,
RUSSELL IUNGERICH,
WILLIAM R. POUNDERS,
Deputy Attorneys General,
600 State Building,
Los Angeles, Calif. 90012,
(213) 620-2782,
Attorneys for Petitioner.
SUBJECT INDEX
Page
SESE © EEEET tae TO ae, SO |
EEF aR A 2
FE I EE DO 2
Constitutional Provisions Involved .......................... 2
EE 9 ean ee 3
eee Oe Oe 3
ne ON TU id ce seeeccetasoines 5
Summary of Argument ......................-2:ccccceeceoeeeeceee 8
NN sass inatcmhscobadaNsicchnbiinpeeconiesiishinsinencoceliods 10
After the Contents of Respondents’ Trash Barrels
Had Been Deposited in the Well of the Trash
Truck, the Discovery and Seizure of the Dis-
carded Contraband Did Not Violate the Fourth
Amendment Rights of Respondents ................ 10
A. No Issue of Search and Seizure Cognizable
Under the Fourth Amendment Arises
From Police Examination of Abandoned
SOOO EEE RHEE EEE EEE EE EEE EEE EERE EEE EE eee
B. Respondents Have No Reasonable Expec-
tation of Privacy With Respect to Their
PIT TN base toiloerieectatcneisinae
II
The Exclusionary Rule Should Not Be Applied
Under the Circumstances of the Present Case . 33
Page
A. The Exclusionary Rule Has Proved Inef-
fective as a Safeguard of Fourth Amend-
ment Rights While Diverting Critical Re-
sources From the Major Goals of the
NE IN Stncnctiencerirtecestennernnescces 34
Application of the Exclusionary Rule
Should Be Limited to Those Circum-
stances Which Gave Rise to the Need for
—_
iii.
TABLE OF AUTHORITIES CITED
Cases Page
Abel v. United States, 362 U.S. 217 (1960) ............
AER Ess MEOMPAP SE PASEO OR OS OT eee 8, 12, 16, 33
Alderman v. United States, 394 U.S. 179 .000000000...... 22
Berger v. New York, 388 U.S. 41 (1967) ....21, 40, 51
Bivens v. Six’ Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) ....36, 40
Brinegar v. United States, 338 U.S. 160 (1949) ...... 49
Burnett v. Coronado Oil & Gas Co., 285 U.S. 393
| REET ES OLE Oh NE TORE Oe TI 38
Burton v. United States, 272 F.2d 473 (9th Cir.
1959), cert. den., 362 U.S. 951 (1960) ............ 13
Caldwell v. United States, 338 F.2d 385 (9th Cir.
1964), cert. den., 380 U.S. 984 (1965) ............ 13
Camara v. Municipal Court, 387 U.S. 523 (1967)
Care v. United States, 231 F.2d 22 (10th Cir.), cert.
GU, Berk Wi Fe CITGO) oocrslcicerccvcreweceviveccs 19, 26
Clarke v. Neil, 427 F.2d 1322 (6th Cir. 1970) ..28, 29
Coolidge v. New Hampshire, 403 U.S. 443 ....40, 52
Corngold v. United States, 367 F.2d 1 (9th Cir.
IT eistsesischdsh dseialielicieeniisiotahaindaheieduantnctinnscanintins 13
Crandall v. Woods, 8 Cal. 136 (1857) .00000..0000...... 51
Croker v. State, 477 P.2d 122 (Wyo. 1970) ............ 17
Elkins v. United States, 364 U.S. 206 (1960) ..
Ellis v. Brown, 177 F.2d 677 (6th Cir. 1949) ....... 15
Foulke v. New York Consol. R. Co., 228 N.Y. 267,
gs Fe SAA Ee 15
iv.
Page
Francis v. Southern Pacific Co., 333 U.S. 445
Gg) en BRO RD MUU a Fe Eh nS SRO Ae 38, 39
Hannah v. Larche, 363 U.S. 420 (1960) .............. 45
Hester v. United States, 265 U.S. 57 (1924) ...... 11, 12
Hill v. California, 401 U.S. 797 (1971) .00..0000..... 51
Hoffa v. United States, 385 U.S. 293 (1966) ...... 8, 29
Irvine v. California, 347 U.S. 128 (1954) ........ 36, 48
Jackson v. State, 235 So.2d 382 (Ala. Crim. App.
1970) ....... sie 13
Katz v. United States, 389 U.S. 347 (1967) ..........
we 21, 22, 23, 24, 25, 26, 30
Liaise v. Walker, 381 U.S. 618 (1965) .......... 34
Linscomb v. Goodyear Tire & Rubber Co., 199 F.2d
431 (8th Cir. 1952) ... a ae
Lopez v. United States, 373 U.S. 427 (1963) .......... 21
Mancusi v. De Forte, 392 U.S. 364 (1968) ..14, 22, 43
Mapp v. Ohio, 367 U.S. 643 (1961) ....0.0....
PRS NERS LAA RRR AE 34, 39, 41, 43, 44, 45, 47
Marcus v. Search Warrant, 367 U.S. 717 (1961) .. 42
Marullo v. United States, 328 F.2d 361 (5th Cir.),
cert. den., 379 U.S. 850 (1964) ou... eeeeeee- 17
McNabb v. United States, 318 U.S. 332 (1943) .... 47
People v. Cahan, 44 Cal. 2d 434, 282 P.2d 905
Ng had Bee EE Se ESA a 43, 48
People v. Edwards, 71 Cal. 2d 1096, 80 Cal. Rptr.
633, 458 P.2d 713 (1969) ..............4.....18, 19, 20
People v. Ingle, 53 Cal. 2d 407, 2 Cal. Rptr. 14,
PE Pe OTE CAPO ccd iiticdvcb dite deciisihoandiactntics 5]
People v. Krivda, 5 Cal. 3d 357, 96 Cal. Rptr. 62,
486 P.2d 1262 (1971) .00000..... 1, 4, 10, 27, 28
Vv.
People v. Krivda, 91 Cal. Rptr. 219 (1970) ..........
People v. Lopez, 22 App. Div. 2d 813, 254 N.Y.S.
RRP iti adipasonrehihcnidinithntiaie nt iiehitiepesnnsiie nines
See v. City of Seattle, 387 U.S. 541 oy
Silverman v. United States, 365 U.S. 505 (1961) ..
Cepek real cits ipatintiel a Liiisincqnianieneean ss iecetenininlolnasceiceces As
Stanford v. Texas, 379 U.S. 476 (1965) ................
State v. Bisaccia, 58 N.J. 586, 279 A.2d 675 (1971)
Al ak aaa alltada ES i
Terry v. Ohio, 392 U.S. 1 (1968) cecccccccccoo----- 22,
Trupiano v. United States, 334 U.S. 699 (1948) ....
United States v. Cowen, 396 F.2d 83 (2nd Cir.
ue
United States v. Dzialak, 441 F.2d 212 (2nd Cir.
RRS Saat Ror one ae :
REGRESS st ERS AE RY See eR 13, 16,
ERR SII TE, ee OT ae AO OO
United States v. Minker, 312 F.2d 632 (3rd Cir.
1962), cert. den., 372 U.S. 953 (1963) ..15, 16,
United States v. Robinson, 430 F.2d 1141 (6th Cir.
UT 1st secicetivagihcahtinall Sdatdtetisieathdinininbteeiselairatanibianiiinns
CEES ICN Cea eS
United States v. White, 401 U.S. 745 (1971) ....23
Vale v. Louisiana, 399 U.S. 30 (1970) ..................
Warden v. Hayden, 387 U.S. 294 (1967) ..13, 14,
vi.
Page
Weeks v. United States, 232 U.S. 383 (1914) ........ 42
Wolf v. Colorado, 338 U.S. 25 (1949) ..39, 43, 45, 48
Wong Sun v. United States, 371 U.S. 471 (1963) .. 24
Work v. United States, 243 F.2d 660 (D.C. Cir.
eg ib ae AT RE EEN 17, 18, 19, 20, 31
| Constitutional Provisions
United States Constitution, Fourth Amendment ......
...-2, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 21, 22,
....23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 37,
Paes eS 39, 40, 41, 42, 44, 45, 48, 49, 51, 52, 53
United States Constitution, Fourteenth Amendment
icici cma ia a NERO 2! 34, 39, 41, 43, 44, 45, 47
United States Constitution, Fourteenth Amendment,
Sec. 1 3
Statutes
California Health and Safety Code, Sec. 11530 .. 3
California Penal Code, Sec. 995 —
California Penal Code, Sec. 1238 ..................... 4
California Penal Code, Sec. 1538.5 ............ 3
United States Code, Title 28, Sec. 1257(3) .............. 2
Rule
California Rules of Court, Rule 28 .......................... l
Articles
Barrett, Exclusion of Evidence Obtained by Illegal
Searches—A Comment on People v. Cahan, 43
California Law Review 565 (1955) .................... 50
Burger, Who Will Watch the Watchman?, 14 Amer-
ican University Law Review (1964) ................
vii.
Page
Burns, Mapp v. Ohio: An All-American Mistake, 19
DePaul Law Review 80 (1969) ...0....000.cccccccc. 50
Cox, The Decline of the Exclusionary Rule: An Al-
ternative to Injustice, 4 Southwestern University
Ber Review GE C1DTZ) oo. i ck ccccccccccdecccccecected 40-41
Douglas, Stare Decisis, 49 Columbia Law Review
NE WY necks bitte ie ES i IO 2s 39
Friendly, The Bill of Rights as a Code of Criminal
Procedure, 53 California Law Review 929 (1965)
Horowitz, Excluding the Exclusionary Rule—Can
There Be an Effective Alternative, 47 Los Angeles
DN INES PE CRP ODED oiseiso en pensscdseressncccvesescacecees 41
La Fave & Remington, Controlling the Police: The
Judge’s Role in Making and Reviewing Law En-
forcement Decisions, 63 Michigan Law Review
GRAS PRCA TES WEG RR 38
Mascolo, The Role of Abandonment in the Law of
Search and Seizure: An Application of Mis-
directed Emphasis, 20 Buffalo Law Review 399
ID Aa idke icicles daiciiabiianappientiia conmetapaieetooe 13, 14
Note, From Private Places to Personal Privacy: A
Post-Katz Study of Fourth Amendment Protection,
43 New York University Law Review 968 (1968)
IAAL debbie subi bith inslbbahniatiidinapiontione balelisinierapanioriieebeabes en 25, 30
Oakes, Studying the Exclusionary Rule in Search
and Seizure, 37 University of Chicago Law Review
BE ETE E | Licthaiesespiibinlnnnedisntvwehearnbneee 35, 37, 38, 41
Waite, Judges and the Crime Burden, 54 Michigan
MUU DOU C BUNID. cove cevcnevcoucascsconscentceecsee 43
Wright, Must the Criminal Go Free if the Constable
Blunders?, 50 Texas Law Review 736 (1972) .... 50
viii.
Miscellaneous Page
ALI, Model Code of Pre-Arrangement Procedure,
(Tent. Draft No. 4, 1971), Sec. SS 8.02(2), p.
23 . §2
Hufstedler, “The Directions and Mis-Directions of a
Constitutional Right of Privacy,” Twenty-Eighth
Annual Benjamin N. Cardozo Lecture, Associa-
tion of the Bar of the City of New York, May 11,
_, OS) ee 44
Report of the President's Commission on Law En-
forcement and Administration of Justice, The
Challenge of Crime in a Free Society (1967), p.
99
Report of the Task Force on Law and Law Enforce-
ment to the National Commission on the Causes
and Prevention of Violence, Law and Order Re-
Task Force Report: The Police (1967), p. 126
8 Wigmore on Evidence (McNaughton ed. 1961),
Sec. 2184, pp. 41-52
Supreme Court of the United States
October Term, 1972
No. 71-651
STATE OF CALIFORNIA, Petitioner
JupitH H. Krivoa and Ropcer T. Minor,
Respondents.
On Writ of Certiorari to the Supreme Court
of the State of California
PETITIONER’S OPENING BRIEF
Opinion Below
The opinion of the California Supreme Court is re-
ported as People v. Krivda, 5 Cal. 3d 357, 96 Cal.
Rptr. 62, 486 P.2d 1262 (1971). A copy of this
opinion is set forth as Appendix A to the Peti-
tion for Writ of Certiorari.
The prior opinion of the California Court of Ap-
peal, Second Appellate District, Division One is re-
ported as People v. Krivda, 91 Cal. Rptr. 219 (1970).
The Court of Appeal opinion was superseded when the
California Supreme Court granted a hearing pursuant
to Rule 28 of the California Rules of Court. Conse-
quently the Court of Appeal opinion appears only in
the unofficial reports. A copy of the Court of Appeal
Opinion is set forth as Appendix C to the Petition for
~2--
Jurisdiction
The judgment of the California Supreme Court was
filed on July 12, 1971, that court entering a further
order on August 16, 1971, denying petitioner’s petition
for rehearing and application for stay of the remittitur.
(Petn. for Cert., Apps. A & B.) The Petition for Writ
of Certiorari was filed November 12, 1971, and was
granted April 3, 1972. The jurisdiction of this Court
rests on 28 U.S.C. §1257(3).
Questions Presented
1. Whether a person who deposits contraband in a
trash receptacle which he places on public property
adjacent to a street, for the purpose of removal by a
municipal trash collector, exhibits a reasonable expecta-
tion of privacy that such contraband will not be viewed
inside the bin of a garbage truck at some distance from
the place of pickup and prior to the commingling of
the contraband with the trash of other persons?
2. Whether, in any event, application of the ex-
clusionary rule is constitutionally compelled under the
circumstances of the present case?
Constitutional Provisions Involved
United States Constitution, Amendment IV:
“The right of the people to be secure in their
persons, houses, papers, and effects, against un-
reasonable searches and seizures, shall not be vio-
lated, and no warrants shall issue, but upon prob-
able cause, supported by oath or affirmation, and
particularly describing the place to be searched,
and the persons or things to be seized.”
— we
United States Constitution, Amendment XIV, section
1, in relevant part:
“No State shall make or enforce any law which
shall abridge the privileges or immunities of cit-
izens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any per-
son within, its jurisdiction the equal protection of
the laws.”
Statement of the Case
A. History of the Case
On September 18, 1968, the District Attorney of Los
Angeles County filed an information in the Superior
Court of the State of California for the County of Los
Angeles charging respondents Judith H. Krivda and
Rodger T. Minor with possession of marijuana in viola-
tion of section 11530 of the California Health and
Safety Code. (App. p. 2.) Respondents’ motion to
set aside the information pursuant to California Penal
Code section 995 was denied. (App. p. 3.) Respond-
ents thereafter entered pleas of not guilty. (App. p. 4.)
Respondents’ motion to suppress evidence pursuant
to California Penal Code section 1538.5 was submitted
on the transcript of the preliminary hearing’ and on
further testimony adduced at a hearing on that motion.”
(App. pp. 5-6.) The motion to suppress evidence was
denied at the conclusion of the hearing held on Oc-
tober 24, 1969. (App. p. 6.) On December 12, 1969,
'The Reporter's Transcript of the preliminary examination is
set forth verbatim at pages 10-76 of the Appendix.
"The transcript of the additional testimony presented at the
hearing on the motion to suppress evidence is set forth at pages
77-83 of the Appendix.
“ian
the trial court, with the same judge presiding, permitted
the respondents to reopen their motion to suppress evi-
dence. On the basis of the same evidence and arguments
previously presented, the trial court reversed its ruling
and granted the motion to suppress evidence. On peti-
tioners’ representation that no other additional evidence
existed, and on the court’s own motion, the action was
dismissed in the interests of justice. (App. p. 7.)
Petitioner appealed to the California Court of Ap-
peal, pursuant to California Penal Code section 1238,
subdivision 7,’ from the order of the superior court
suppressing evidence and dismissing this cause. (App.
p. 8.) On November 16, 1970, Division One of the
California Court of Appeal for the Second Appellate
District reversed the judgment and order of the superior
court in an opinion set forth in Appendix C to the
Petition for Writ of Certiorari.
The California Supreme Court granted respondents’
petition for hearing and, in a 4-3 decision rendered on
July 12, 1971, affirmed the superior court’s judgment
of dismissal and order suppressing the evidence. People
v. Krivda, 5 Cal. 3d 357, 96 Cal. Rptr. 62, 486 P.2d
1262 (1971). (See App. A, Petn. for Cert.) On Au-
gust 16, 1971, the California Supreme Court denied
petitioner’s petition for rehearing and application for
stay of the remittitur. (See App. B, Petn. for Cert.)
*Penal Code section 1238 provides:
“An appeal may be taken by the people from any of
ps hoses o8
“
“7, An order dismissing a case prior to trial made upon
motion of the court pursuant to Section 1385 whenever such
order is based upon an order granting defendant’s motion
to return or suppress ee ee me 8 ee
hearing as provided in this code. .
—_ a
B. Statement of Facts
On July 1, 1968, Officer Stephen C. Gates of the
Los Angeles Police Department received a telephone
call from an anonymous female informant who told
him that “Rodger” and “Judy” were engaging in nar-
cotic activities, i.e., smoking marijuana and injecting
methedrine. (App. pp. 12-13.) The informant indi-
cated that there were many sex parties at their 1901
Nolden residence in Los Angeles and that a Lesbian
named “Frankie” was living there. The informant also
indicated that both Rodger and Judy were injecting
the two children who resided at that location with
methedrine. The informant said that she had heard
this from Judy, who said she enjoyed the effects of
methedrine and that she also wanted her children to
experience the feeling of being under the influence
of methedrine. (App. pp. 12-13.)
After receiving this information, Officer Gates and
his partner, Officer William Marsden, located the ad-
dress and observed two young female children in front
of the premises. Officer Gates then ran a utility check
which indicated that Judy Krivda was paying for the
utilities at 1901 Nolden. (App. pp. 13, 48.) Officer
Gates also checked criminal records with the Los An-
geles Police Department and determined that three in-
dividuals with the last name of Krivda had been ar-
rested in Los Angeles. Upon further investigation Of-
ficer Gates discovered that one of these individuals,
Edward Joseph Krivda, had a wife named Judy. (App.
p. 13.) The records also indicated that Edward Joseph
Krivda had been arrested for possession of dangerous
drugs for sale and also for sale of dangerous drugs.
(App. p. 14.)
ae aan
At about 11 a.m. on July 9, 1968, Officer Gates
and his partner returned to the vicinity of 1901 Nolden.
The residence at that address was a single family
dwelling. (App. p. 14.) From their vantage point, the
officers observed several trash barrels directly in front
of the house at 1901 Nolden. (App. pp. 14-15, 17.)
The trash barrels were in the parkway adjacent to the
sidewalk, thirty to forty yards from the house. (App.
pp. 17, 28.) The home adjacent to 1901 Nolden was
approximately twenty feet down the hill. (App. p.
15.)
The officers observed refuse collectors approximately
a block away from the house at 1901 Nolden. (App.
p. 14.) Officer Gates stopped the collectors approxi-
mately half a block west of the premises. (App. pp.
14, 18.) After identifying himself as a police officer,
Officer Gates told the trash collectors that he was in-
terested in looking at the contents of the trash barrels
in front of 1901 Nolden. (App. pp. 14-18.) He asked
them to empty the well of their truck, to pick up the
trash in front of the house at 1901 Nolden, and then
to meet Officer Gates and his partner approximately
one block north of the location. (App. pp. 14, 18,
70.)
Officer Gates observed the refuse collectors drive
their truck to the front of the premises at 1901 Nolden.
He observed them go to the back of the truck, take the
trash barrels, place the contents of the trash barrels
in the well, and then drive north to where he and
Officer Marsden were waiting. Officer Gates had ex-
amined the well of the trash truck prior to the empty-
ing of these specific garbage cans into the well. There
had been no refuse at all in the well prior to the
emptying of the garbage cans at 1901 Nolden. Officer
- ee a
Gates did not observe the collectors empty any other
garbage cans into the well of the truck between the
time they placed the trash from those cans into the
well and the time the truck arrived at his location.
(App. pp. 18-19.)
When Officer Gates examined the contents of the
well of the trash truck, he observed approximately five
brown paper sacks among the refuse. Upon examining
the sacks, he found that they contained what appeared
to be marijuana debris and marijuana seeds. (App.
p. 19.) In one of the bags, Officer Gates found ap-
proximately four to six partially burned marijuana cig-
arettes. (App. pp. 20, 57.) Also among the contents in
the well of the trash truck, Officer Gates found an
envelope with the name Edward Krivda and the ad-
dress 1901 Nolden, a handwritten letter with the name
Frankie mentioned in it, and a three-by-five card with
the names Rodger and Judy written on it. (App. pp.
20-21.)
After Officer Gates had examined the contents of the
well of the trash truck, he went back to his former
vantage point. There he observed respondent Rodger
Minor come from the premises at 1901 Nolden and
pick up the trash barrels which had contained the
marijuana debris. Respondent Minor, wearing only a
towel around his waist, took the trash barrels to the
front porch of the house. (App. pp. 21-22, 81.)
At this point Officer Gates and his partner re-
quested the assistance of a uniformed sergeant. The
uniformed officer and Officer Gates approached the
front of the premises while Officer Marsden positioned
himself at the rear. When respondent Minor met Of-
ficer Gates at the front door, Officer Gates placed him
under arrest for possession of marijuana. (App. pp.
a
22, 40, 43.) The officers then effected entry, discoy-
ered respondent Krivda in the residence, and recovered
additional marijuana and paraphernalia. (App. pp. 23-
25, 46.)
Summary of Argument
When the police examined the respondents’ trash
in the well of the trash truck parked a block away
from respondents’ home, the trash was abandoned
property. The respondents’ acts of (1) discarding the
trash into their trash barrels and (2) then placing the
trash barrels on the parkway for collection unambigu-
ously demonstrated the requisite intent to abandon. It
is well established that “There can be nothing unlaw-
ful in the Government’s appropriation of abandoned
property.” Abel v. United States, 362 U.S. 217, 241
(1960).
Furthermore, the respondents had no “reasonable
expectation of privacy” either as to the location of the
search or as to the items seized from the trash. The
well of a trash truck parked a block away from
respondents’ home is not within those areas immediate-
ly adjacent to the home which are protected by the
Fourth Amendment. After the barrels were placed on
the parkway, their contents were subject to numerous
risks of public exposure. Respondents had also given
the trash collector such complete and unrestricted con-
trol over their trash that they may be said to have
accepted the risk that he might permit the police to
examine the contents of their trash barrels. The Fourth
Amendment does not protect “. . . a wrongdoer’s mis-
placed belief that a person to whom he confides his
wrongdoing will not reveal it.” Hoffa v. United States,
385 U.S. 293, 302 (1966). There is no indication
that society generally expects garbage to remain pri-
ee be
vate after it has come to rest in the well of a trash
truck. To extend Fourth Amendment protection to the
trash abandoned by respondents would elevate the trash
barrel to the status of a constitutional sanctuary for the
concealment and disposal of evidence of crime.
Apart from the question of whether the Fourth
Amendment protects a right of privacy in one’s trash,
this case raises the issue of whether the exclusionary
rule should have any application to the type of police
conduct involved here. The law at the time of the
search clearly permitted the appropriation of abandoned
property. The exclusionary rule should not be used
to discipline police officers who have attempted to act
within the constitutional limits of the Fourth Amend-
ment. The entire deterrent rationale of the exclusionary
rule is open to serious question which may require its
abandonment. Short of a complete reconsideration of
the wisdom of retaining the exclusionary rule, petition-
er proposes that the rule be limited to flagrant violations
of the Fourth Amendment where the conduct of the
police is truly lawless.
ae
ARGUMENT
I
After the Contents of Respondents’ Trash Barrels Had
Been Deposited in the Well of the Trash Truck,
the Discovery and Seizure of the Discarded Contra-
band Did Not Violate the Fourth Amendment
Rights of Respondents
In sustaining the trial court’s suppression of evi-
dence in this case, the California Supreme Court held
that the conduct of the police officers in examining
respondents’ trash after it had been transferred from
the barrels on the curb to the well of the trash truck
contravened the Fourth Amendment’s prohibition against
unreasonable searches and seizures. The court rejected
petitioner’s argument that trash, as abandoned prop-
erty, was not within the scope of Fourth Amendment
protection. People v. Krivda, 5 Cal. 3d 357, 365-66,
96 Cal. Rptr. 62, 68, 486 P.2d 1262, 1268 (1971).
Instead, the court rested its decision on the premise
that respondents Krivda and Minor “. . . had a
reasonable expectation that their trash would not be
rummaged through and picked over by police officers
without a search warrant.” People v. Krivda, 5 Cal.
3d at 367, 96 Cal. Rptr. at 68, 468 P.2d at 1268.
This conclusion departs from established constitutional
principles governing the appropriation of abandoned
property and represents an unjustified extension of
the privacy interests protected by the Fourth Amend-
ment.
_—
A. No Issue of Search and Seizure Cognizable Under the
Fourth Amendment Arises From Police Examination of
Abandoned Trash
There have been only two prior occasions when this
Court has examined the concept of abandoned prop-
erty in relation to the law of search and seizure. In
both instances, this Court concluded that the exclu-
sionary proscriptions of the Fourth Amendment were
inapplicable to the seizure of the items found to have
been abandoned by a criminal defendant.
The first case in which this Court dealt with aban-
doned property in the context of search and seizure was
Hester v. United States, 265 U.S. 57 (1924). In that
case, this Court held that revenue officers had properly
retrieved several containers of illegally distilled whiskey
which they had seen petitioner and one Hender-
son discard in an open field as they were attempting
to flee from the federal officers. Writing for the Court,
Mr. Justice Holmes, in disposing of the claim of illegal
search and seizure, stated:
“The officers had no warrant for search or arrest,
and it is contended that this made their evidence
inadmissible, it being assumed, on the strength of
the pursuing officer’s saying that he supposed they
were on Hester’s land, that such was the fact. It is
obvious that even if there had been a trespass, the
above testimony was not obtained by an illegal
search or seizure. The defendant’s own acts, and
those of his associates, disclosed the jug, the
jar and the bottle—and there was no seizure in the
sense of the law when the officers examined the
contents of each after it had been abandoned.
.. .” Hester v. United States, supra, 265 U.S. at
58.
~ .
Mr. Justice Holmes then went on to hold that the
protection given to “ ‘persons, houses, papers, and ef.-
fects,’ did not extend to the open fields.” Id. at 59.
Although the “open fields” doctrine was tendered as
an alternative basis for the Court’s decision in Hester,
that decision was the origin of the principle that no
seizure in Fourth Amendment terms resulted from the
recovery of abandoned property by government
agents.
Subsequently, in Abel v. United States, 362 US.
217 (1960), this Court relied upon Hester as having
firmly established that principle in the law of search
and seizure. The issue of abandoned property in Abel
arose out of the search of the petitioner’s hotel room
immediately after he had paid his bill and had vacated
the room. An F.B.I. agent, who conducted the search
of the hotel room, found a hollowed-out pencil and a
wooden biock containing a “cipher pad” in a wastepaper
basket. These items were subsequently used as evi-
dence at petitioner’s trial for conspiracy to commit
espionage. With respect to the seizure of these items,
Mr. Justice Frankfurter wrote for the Court:
“Nor was it unlawful to seize the entire contents
of the wastepaper basket, even though some of its
contents had no connection with crime. So far as
the record shows, petitioner had abandoned these
articles. He had thrown them away. So far as he
was concerned, they were bona vacantia. There
can be nothing unlawful in the Government’s ap-
propriation of such abandoned property. See Hes-
ter v. United States, 265 U.S. 57, 58... .”
Id. at 241.
Hester and Abel thus established the guiding prin-
ciple that one’s personal right to Fourth Amendment
protection of property against unreasonable search an
_— oe
seizure is lost when that property is abandoned. See
United States v. Edwards, 441 F.2d 749, 752 (Sth
Cir. 1971). The owner of personal property brings his
right of privacy to an end by abandoning the property.
Corngold v. United States, 367 F.2d 1, 7 (9th Cir.
1966). When property has been abandoned, there is no
issue of search and seizure within the meaning ascribed
to those terms in the context of the Fourth Amendment.
Burton v. United States, 272 F.2d 473, 476-77 (9th
Cir. 1959), cert. denied, 362 U.S. 951 (1960); Jack-
son v. State, 235 So.2d 382, 385 (Ala. Crim. App.
1970); People v. Lopez, 22 App. Div. 2d 813, 254
N.Y.S. 2d 806 (1964). See also Caldwell v. United
States, 338 F.2d 385, 388 (9th Cir. 1964), cert. de-
nied, 380 U.S. 984 (1965). Thus, the inspection or
examination of abandoned property by police offi-
cers is not a search, and the appropriation of such
property may be effected without probable cause.
See Mascolo, The Role of Abandonment in the Law
of Search and Seizure: An Application of Misdirected
Emphasis, 20 Buff. L. Rev. 399, 401 (1971).
In analyzing whether the trash discarded by re-
spondents was abandoned property not subject to
Fourth Amendment protection, it is instructive to
examine the concept of abandonment as it has been
developed in the law of property. At the outset, one is
cautioned that “Inherent Fourth Amendment rights are
not inevitably measurable in terms cof ancient niceties
of tort or real property law. . . .” Silverman v. United
States, 365 U.S. 505, 511 (1961). The principal ob-
ject of the Fourth Amendment is the protection of
privacy rather than property, and this Court has in-
creasingly discarded fictional and procedural barriers
resting on property concepts. Warden v. Hayden, 387
(1969). Although
the capacity to claim Fourth Amendment protection
does not depend upon 4a property right in a place
subjected to governmental intrusion, Mancusi v. De
Forte, 392 US. 364, 368 (1968), this Court has never
held that a defendant may object to the seizure absent
some connection between the defendant and the
items seized at some point in time. One commentator
ps
The New York Court of Appeals has formulated the
test of abandonment, as a property law concept, in the
followang terms:
. The abandonment of property is the re-
linquishing of all title, possession, or claim to or of
it—a virtual intentional throwing away of it. It
is not presumed. Proof supporting it must be direct
or affirmative or reasonably beget the exclusive
inference of throwing away... .” Foulke v. New
York Consol. R. Co., 228 N.Y. 267, 273, 127 N.E.
237, 238 (1920).
Abandonment has also been defined as “the relinquish-
ment of a right or of property with the intention of
not reclaiming it or reassuming its ownership or en-
joyment.” Ellis v. Brown, 177 F.2d 677, 679 (6th Cir.
1949).
Abandonment has been held to be largely a
question of intent which, in turn, is a question of fact.
United States v. Minker, 312 F.2d 632, 634 (3d Cir.
1962), cert. denied, 372 US. 953 (1963). An in-
tention to abandon may not be inferred “if the conduct
of the owner can be explained consistently with a con-
tinued claim.” Linscomb v. Goodyear Tire & Rubber
Co., 199 F.2d 431, 435 (8th Cir. 1952). Although
abandonment will not be presumed, the intent of one
in possession of property often cannot be directly
shown but must be inferred from his actions. See
United States v. Robinson, 430 F.2d 1141, 1143 (6th
Cir. 1970). Abandonment does not require perform-
ance of any particular ritual, and it may be inferred
from an unambiguous act of intentional discard. See
United States v. Cowen, 396 F.2d 83, 87 (2d Cir.
1968).*
~ Less proot be required to establish an abandonment in
the content of Fourth Amendment Amendment protections than would be re-
:
cod
—
Under these rules, the respondents’ act of discarding
contraband into their trash barrels was an act from
which one may reasonably infer an intent to abandon.
This conduct was inconsistent with any continued claim
over the items placed in the trash can. The only reason-
able conclusion inferable from the fact that items have
been placed in a wastepaper basket or a trash can is
that they have been thrown away and hence
abandoned.
This Court's opinion in Abel v. United States, supra,
implicitly recognizes the validity of drawing an infer-
ence of abandonment from a defendant's act of de-
paper basket or a garbage can. United States v.
Daialak, 441 F.2d 212, 215 (2d Cir. 1971) (seizure
of items from trash left between sidewalk and street
in front of appellant's home); United States v. Stroble,
431 F.2d 1273, 1276 (6th Cir. 1970) (items seized
ee...
(1968) (police examined items removed by maid
in usual course of cleaning a hotel room). Other
cases reach the same result by holding that a defendant
has no reasonable expectation of privacy in garbage
deposited in a public receptacle or turned over to the
trash collector. United States v. Jackson, 448 F.2d 963,
971 (9th Cir. 1971) (seizure of items of evidence
from a public trash can outside of defendants’ motel
room); Croker v. State, 477 P.2d 122, 125 (Wyo.
1970) (police examined contents of garbage collector's
barrel after defendant's garbage had been removed
from his garbage cans).° Cf. Marullo v. United States,
328 F.2d 361, 363 (Sth Cir.), cert. denied, 379 US.
850 (1964) (motel occupant had no right of privacy
as to stolen money orders removed from top of brick
pillar supporting the motel cabin).
Apart from the decision of the court below in this
case, there appear to be only two cases which have
rejected an inference of abandonment from the act of
depositing articles in a trash can. The first of these
cases was Work v. United States, 243 F.2d 660, 662-
63 (D.C. Cir. 1957), in which then Circuit Judge
Burger dissented. In Work police officers removed a
under the front porch of the defendant’s house. Upon
coming to the defendant’s house, the officers had ob-
anni Dis
as if putting something into it. The Court of Appeals
held that the articles seized were not abandoned so
as to lose the protection of the home provided by the
Fourth Amendment. The court stated:
“.. . The trash receptacle in which the phial
was found was in close proximity to the house.
It was an adjunct to the domestic use of the home
by appellant. It was within the curtilage or ‘gen-
eral enclosure surrounding the dwelling.’” Work
v. United States, supra, 243 F.2d at 662 (citations
omitted ).
The Court of Appeals found to be immaterial the
fact that the receptacle might have been partially
visible from the street. It further held that the placing
of the phial in the trash receptacle was not to be
construed “‘as an abandonment of the phial unless to
persons impliedly or expressly authorized to remove
the receptacle’s contents, such as the trashmen, for
purposes of destruction. ...’” Id. at 663.
The second case rejecting an inference of abandon-
ment as to the contents of trash can is a prior decision
by the same court that decided the instant case below.
People v. Edwards, 71 Cal. 2d 1096, 80 Cal. Rptr.
633, 458 P.2d 713 (1969). In Edwards, the California
Supreme Court adopted the reasoning of Work yv.
United States, supra, and held that the placement of
marijuana in a trash can located within a few feet
within the back door of defendants’ home was not
an abandonment unless as to persons, such as trash-
men, authorized to remove the receptacje’s contents.
Both Work and Edwards are distinguishable from
the instant case. Both cases involved trash receptacles
located adjacent to a defendant’s home. In Work, the
Court of Appeals apparently inferred from the circum-
pa eae
stances of that case that the defendant had merely in-
tended to hide the narcotics in the trash can, an
intent consistent with a continued claim of possession
and inconsistent with an intent to abandon. See Work
v. United States, 243 F.2d at 663. The circumstances
of the Edwards case are similarly susceptible of the
same inference.
In contrast, the facts of the present case will not
support any inference of continuing possessory rights.
The respondents’ conduct manifested an unequivocal
intent to relinquish all further rights over the contents
of their trash cans. Even if the act of depositing the
contraband in the trash barrels were insufficient by
itself to prove an abandonment, the further act of
placing the barrels on the parkway for collection es-
tablished the intent to abandon beyond question.
Work and Edwards are also distinguishable on the
ground that the trash cans were situated in very close
proximity to defendants’ houses. Even if the contents
of the trash can in these two cases had been found to
have been abandoned, the location of the trash
receptacles may have brought them within the con-
stitutional protection accorded to open areas immedi-
ately adjacent to a house. At common law, these areas
were denominated by the term “curtilage.” In Care vy.
United States, 231 F.2d 22, 25 (10th Cir.), cert.
denied, 351 U.S. 932 (1956), the concept of the “cur-
tilage” was defined as follows:
“. . . Whether the place searched is within the
curtilage is to be determined from the facts, in-
cluding its proximity or annexation to the dwell-
ing, its inclusion within the general enclosure
surrounding the dwelling, and its use and enjoy-
ment as an adjunct to the domestic economy of the
family.”
= =
While both Work and Edwards are explainable in
terms of the protection accorded to areas immediately
adjacent to a house, the instant case involved activity
that was obviously beyond the furthest extension of the
curtilage surrounding the respondents’ home. The ex-
amination of trash located in the well of the trash truck
parked on a public street at least a block away from
the respondents’ home could hardly be considered an
intrusion into an area immediately adjacent to the
house whosc use and enjoyment was an adjunct to
the domestic economy of respondents Krivda and
Minor. Indeed, if the respondents had been arrested at
the location where the police officers inspected the
trash, the defendants’ house would have been beyond
the immediate vicinity of the arrest for purposes of an
incidental search of that house. See Vale v. Louisiana,
399 U.S. 30, 34-35 (1970).
Based upon the foregoing analysis, petitioner submits
that the inspection and appropriation of the contra-
band found in respondents’ trash was wholly outside
the protective ambit of the Fourth Amendment. Under
the facts of this case, the only reasonable inference to
be drawn from the respondents having deposited the
contraband in the trash barrels and then having placed
the trash barrels on the curb is that they intended to
relinquish all further claim over the items therein.
Such an inference is the essence of abandonment.
The only point remaining for discussion is whether this
Court’s shift of emphasis from constitutionally pro-
tected areas to reasonable expectations “of privacy re-
quires a different result than that reached under the
earlier constitutional approach. The next section of
this argument will demonstrate that the change in ap-
proach should not require a change in result.
=
B. Respondents Have No Reasonable Expectation of Privacy
With Respect to Their Abandoned Trash
Prior to Katz v. United States, 389 US. 347
(1967), the search and seizure decisions of this Court
tended to focus on whether the location searched was
a “constitutionally protected area.” See e.g., Berger v.
New York, 388 U.S. 41, 57, 59 (1967); Lopez v.
United States, 373 U.S. 427, 438-39 (1963); Silver-
man v. United States, 365 U.S. 505, 510, 512 (1961).
In Katz, the Court eschewed this phrase as a mode
of analysis, stating that “. . . the correct solution of
Fourth Amendment problems is not necessarily pro-
moted by incantation of the phrase ‘constitutionally
protected area.” 389 U.S. at 350. The Court ex-
plained that the term was only descriptive of a con-
clusion and was not meant to serve as a “talismanic
solution to every Fourth Amendment problem.” /d.
at 351 n. 9. Mr. Justice Stewart’s opinion for the Court
further states:
“[O]nce it is recognized that the Fourth Amend-
ment protects people—and not simply ‘areas’—
against unreasonable searches and seizures, it be-
comes clear that the reach of that Amendment
cannot turn upon the presence or absence of a
physical intrusion into any given enclosure.” Id.
at 353.
Rejecting the traditional formulation of the Fourth
Amendment, the Court found that the government's
electronic eavesdropping activities had violated the
privacy upon which the petitioner had justifiably relied
while using a telephone booth. Id. The Katz opinion
did tot elaborate on the concept of “justifiable re-
liance,” except to state that “. . . what [a per-
on} seeks to preserve as private, even in an area
a
accessible to the public, may be constitutionally pro-
tected.” Id. at 351-52.
The concurring opinion of Mr. Justice Harlan has
served as a gloss to explain what the Court intended
by its reformulation in Katz of the approach to search
and seizure questions arising under the Fourth
Amendment. In Justice Harlan’s view, these questions
were to be resolved in terms of the individual’s “reason-
able expectation of privacy.” Jd. at 360. His concur-
ring opinion explains this phrase in these terms:
“. . . . My understanding of the rule that has
emerged from prior decisions is that there is a
twofold requirement, first that a person have
exhibited an actual (subjective) expectation of
privacy and, second, that the expectation be one
that society is prepared to recognize as ‘reason-
able.’ Thus a man’s home is, for most purposes,
a place where he expects privacy, but objects,
activities, or statements that he exposes to the
‘plain view’ of outsiders are not ‘protected’ be-
cause no intention to keep them to himself has
been exhibited. On the other hand, conversations
in the open would not be protected against being
overheard, for the expectation of privacy under
the circumstances would be unreasonable. (Ci-
tation omitted. )” Jd. at 361.
Justice Harlan’s test directed towards “reasonable
expectations of privacy” has since been adopted by the
majority of the Court in several subsequent decisions.
Terry v. Ohio, 392 U.S. 1, 9 (1968); Alderman v.
United States, supra, 394 U.S. at 179 n.11. Other
decisions after Katz have contained variations on the
same theme. Mancusi v. De Forte, supra, 392 US. at
= =
368 (“reasonable expectation of freedom from govern-
mental intrusion”); United States vy. White, 401 US.
745, 752 (1971) (“what expectations of privacy are
constitutionally ‘justifiable’-—what expectations the
Fourth Amendment will protect in the absence of a
warrant”).
Although this Court’s emphasis has shifted from
places to person's, that change of outlook should not
compel a difference of result in cases involving the
government's seizure of abandoned property for use as
evidence in criminal cases. A reanalysis of these de-
cisions in terms of the individual’s “reasonable expec-
tation of privacy” should demonstrate the owner’s
right of privacy ends at the point he abandons his
property to the waste basket or the trash barrel.
At the outset, a person claiming Fourth Amendment
protection must be found to have an actual, subjective
expectation of privacy in the area searched or the thing
seized. An evaluation of subjective expectations will
serve to exclude from further analysis those cases where
the defendant has voluntarily relinquished control over
items of evidence which prove to be incriminatory upon
discovery by the police. The rationale for withdrawing
Fourth Amendment protection from this class of cases
is that the courts should not assign any greater im-
portance to discarded articles than their previous owner
attached to their possession. If he really wanted his
privacy interests to be protected, all he had to do was
safeguard their possession within an area demonstrably
intended to be private. In default of such precautions,
he should be held to the dictum in Katz that “What a
person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amend-
ment protection.” 389 U.S. at 351.
—
—"—
From the preceding discussion, it is readily apparent
that the instant case is subject to exclusion from the
scope of Fourth Amendment protection because the
circumstances of this case raise no supportable infer-
ence of the respondents’ having a subjective expec-
tation of privacy either in the place searched or in
the items seized. Yet even if this case were not
screened out at this initial stage, the respond-
ents’ pretensions to a subjective expectation of privacy
would not be recognized as reasonable by society. See
Katz v. United States, supra, 389 U.S. at 361 (Mr.
Justice Harlan concurring). Only when the purported
victim of an illegal search or seizure has a “reasonable
expectation of privacy” in the place searched or the
items seized can he be said to have “justifiably relied”
on privacy interests protected by the Fourth Amend-
ment. See id. at 353. The loosely defined reliance
standard in the Katz decision provides little in the way
of guidelines for determining when an individual’s ex-
pectations of privacy are reasonable in the constitution-
al sense. As with other areas in the law of search and
seizure, each case must be judged on its own particular
facts in determining the reasonableness of one’s expec-
tation of privacy. See Wong Sun v. United States, 371
U.S. 471, 479 (1963).
The student authors of an article written shortly
after the Katz decision have suggested that three
factors should be considered in determining whether
persons claiming Fourth Amendment protection have
a reasonable expectation of privacy warranting such
protection. The three factors are (1) the nature of the
intended area of private control, (2) the defendant's
right to exclusive use of that area or facility, and ( 3)
e to which society honors the intimac
=.
privacy of the activity normally carried on in such a
place. See Note, From Private Places to Personal
Privacy: A Post-Katz Study of Fourth Amendment
Protection, 43 N.Y.U. L. Rev. 968, 983-84 (1968).
By use of these three tests, the authors of the note
argue that the privacy due an individual in a given
place can be evaluated without relying on property
concepts. Jd. at 984.
The first factor, the nature of the intended area
of private control, is a logical point of departure. Al-
though we are now admonished that the Fourth
Amendment protects people, not places, Mr. Justice
Harlan noted in his concurring opinion that:
“. . +. The question, however, is what protection it
affords to those people. Generally, as here, the
answer to that question requires reference to a
‘place.’” Katz v. United States, supra, 389 USS.
at 361.
Apparently elaborating upon Justice Harlan’s obser-
vation, the authors of the New York University note
added this perspective:
“.... The degree of privacy offered by structural
characteristics, such as partitions or walls, is an
important determinant of an area’s character.
While it might be argued that walls and windows
should be weighed only as factors affecting the
reasonableness of the expectation of privacy and
not given additional emphasis, it is submitted that
an enclosed area exhibits to the world a clear
demarcation between inside and outside, private
and public, and, in so doing, visibly asserts the
right to have this boundary respected. . . .” Note,
supra, 43 N.Y.U. L. Rev. at 983-84.
—
=
In applying this analysis to the present case, it is
clear that the respondents erected no visible boundary
demarcating the privacy interests which they would
have this Court protect. In this case, the intended area
of private control is the well of the trash truck parked
a block away from the respondents’ home. The re-
spondents cannot seriously maintain that they had a
reasonable expectation of privacy with respect to the
locus of the search. The respondents’ trash left the
area of private control over which they had a reason-
able expectation of privacy as soon as it left the areas
immediately adjacent to their house within which con-
stitutional protection was accorded. See Care v. United
States, supra, 231 F.2d at 25. Once the abandoned
trash was placed on the public parkway, it was no
longer within a protected area of private control. After
it had been emptied into the well of the trash truck, all
possible claims of private control over the locus of the
search clearly had been dissipated. Since the search
of the contents of the trash cans took place in the well
of a trash truck parked on a public street, the respond-
ents lacked any connection, by property interest or
otherwise, which gave them a justifiable basis for
an expectation of privacy in the area searched.
A second consideration of importance in the privacy
interest approach to Fourth Amendment protection is
whether the claimant had a right to exclusive use of
the area searched or the things seized. The more an
individual exposes his personal affairs to others, the
less likelihood there is of constitutional protection. To
reiterate familiar language, “What a person knowingly
exposes to the public, even in his own home or office,
is not a subject of Fourth Amendment protection.”
Katz v. United States, supra, 389 U.S. at 351.
|, ae
an index of the Amendment’s protection of individual
privacy is the degree of risk of intrusion by other per-
sons including governmental agents.
In the instant case, the trash discarded by the re-
spondents was subject to the risk of exposure from the
moment the trash barrels were placed on the parkway
for collection. Nosy neighbors or curious passersby
might easily examine the contents of the garbage cans.
There was an ever-present danger that domestic ani-
mals, such as dogs and cats, might upset the trash con-
tainers and expose their contents to public view. The
trash collector himself was also free to examine the
trash before emptying it into the well of his truck. If
he were the least bit clumsy, there was the possibility
that he might spill a portion of the contents on the
roadway in front of the respondents’ house. When and
if the contents of the trash barrels reached the dump,
they would hardly have been private there. Trash de-
posited at a dump miay be picked over by scavengers
and is exposed to other members of the public who
bring their trash directly to the dump. In these days
of heightened interest in ecology, one cannot fully
anticipate how many persons may actually pour over
the contents of a householder’s trash barrels in quest
for recyclable materials. The opinion of the court below
concedes:
“Of course, one must reasonably anticipate
that under certain circumstances third persons
may invade his privacy to some extent. It is cer-
tainly not unforeseen that trash collectors or even
vagrants or children may rummage through one’s
trash barrels and remove some of its contents.
. . .” People v. Krivda, supra, 5 Cal. 3d at 367,
96 Cal. Rptr. at 69, 486 P.2d at 1269.
- =
Thus, an expectation of privacy as to one’s discarded
trash is hardly reasonable. In this context, privacy is
at best a faint hope. For this reason, the respondents
should not be permitted to cry “Foul” when police
officers conduct an examination the risk of which re-
spondents accepted from other members of the public.
The California Supreme Court concluded that an
abandonment of one’s trash to the trash collector was
not “. . . necessarily an abandonment of one’s trash to
the police or general public.” People v. Krivda, supra,
5 Cal. 3d at 366, 96 Cal. Rptr. at 68, 486 P.2d at
1268. Unfortunately, the California Supreme Court cites
no authority for the novel doctrine of partial abandon-
fibers matching those in the murder victim's clothing.
try to restrict the number of persons who handled it.
427 F.2d at 1325.
The same reasoning should apply with even more
force in the instant case. For here the respondents
retained no property interests in the trash examined by
the police whereas the defendant in Clarke vy. Neil still
retained the rights of a bailor under implied bailment.
The rule adopted by the court below could only serve
to deprive the police of information and evidence pro-
vided by citizens, such as the dry cleaner in Clarke
aid of law enforcement. It is well recognized that
effective enforcement of our criminal law depends
large part on the voluntary cooperation of public
spirited citizens. See, ¢.g., Report of the President's
Commission on Law Enforcement and Administration
that the Fourth Amendment does not protect “.. . a
wrongdoer’s misplaced belief that a person to whom
voluntarily confides his wrongdoi will not reveal
— =
it.” Subsequently in United States v. White, 401 US.
745, 752 (1971), this Court further observed:
“Inescapably, one contemplating illegal activi-
ties must realize and risk that his companions
may be reporting to the police. If he sufficiently
doubts their trustworthiness, the association will
very probably end or never materialize. But if he
has no doubts, or allays them, or risks what doubt
he has, the risk is his... .”
It is hardly a meaningful distinction that the re-
spondents in this case confided the evidence of their
wrongdoing to a garbage collector instead of a police
informant or turncoat accomplice. Under the circum-
stances of this case, the respondents assumed the
risk that the garbage collectors might permit the police
to examine their trash upon request.
The third criterion of protectible privacy interests
under the Fourth Amendment is “the degree to which
society honors the intimacy or privacy of the activity
normally carried on in such a place.” (Footnote
omitted.) Note, supra, 43 N.Y.U. L. Rev. at 984. Since
virtually every governmental action interferes with per-
sonal privacy to some degree, the question in each case
is whether that interference violates a command of the
United States Constitution. Katz v. United States
supra, 389 U.S. 350 n. 5. For this reason, it is neces
sary that “. . . an individual's otherwise reasonable
expectation of privacy be buttressed by social norms;
the intended walls of privacy must have sgme objective
validity.” Note, supra, 43 N.Y.U. L. Rev. at 984.
There are several indications that society attaches no
special character of intimacy to trash deposited on the
curb for collection. It is common knowledge that the
—_— =
major credit card companies advise their cardholders
to mutilate their expired credit cards before discarding
them as trash. The obvious reason for such warnings
is that one’s trash can is not secure from the depre-
dations of criminals who might later alter and use such
cards. Similarly the average citizen is at the mercy of
potential forgers when he deposits cancelled checks
bearing specimen signatures into his garbage cans.
Furthermore, it is doubtful that few, if any, persons
harbor subjective expectations of privacy with respect
to their garbage. As Chief Justice Burger observed
while on the United States Court of Appeals for the
District of Columbia Circuit:
“Honest citizens neither need nor, I think, want
protection for their privacy extended to these arti-
ficial limits, and a presently confessed, previously
convicted narcotics violator is not entitled to it.
Of course the guilty should have the same pro-
tective safeguards as the innocent and I would
afford them as much. But I refuse to join in what
I consider an unfortunate trend of judicial de-
cisions in this field which strain and stretch to
give the guilty, not the same, but vastly more pro-
tection than the law-abiding citizen. . . .” Work
v. United States, supra, 243 F.2d at 665 (dis-
enting opinion). (Footnote omitted. )
The extension of Fourth Amendment protection to
the trash abandoned by the respondents in this case
would be tantamount to making the garbage receptacle
an inviolate sanctuary for the concealment and dis-
posal of evidence of crime. The court below relied on
People v. Edwards, supra, 71 Cal. 2d at 1104, 80
Cal. Rptr. at 738, 458 P.2d at 718, in holding that
the privacy interests protected by the Fourth Amend-
iin,
ment did not terminate “. . . at least not until the trash
had lost its identity and meaning by becoming part of
a large conglomeration of trash elsewhere. . . .” People
v. Krivda, supra, 5 Cal. 3d at 366, 96 Cal. Rptr. at
68, 486 P.2d at 1268. Thus, the California Supreme
Court creates a new right to have one’s trash com-
mingled with the trash of others under the guise of
interpreting the Fourth Amendment. If that right is
upheld by this Court, a new means will have been
fashioned by which criminals may avoid detection
simply by depositing the instrumentalities and evidence
of crime in a wastepaper basket or garbage can. The
net effect of the decision will be to remove the crucial
link in the chain of evidence connecting the defend-
ant with the corpus of the crime. While the Fourth
Amendment is intended to protect a person’s papers
and effects from unreasonable searches and seizures
by government agents, it has never been construed as
protecting those papers and effects after they have
ceased to be the property of the defendant.
In summary, the respondents’ own acts of abandon-
ment negate any subjective expectation of privacy un-
der the circumstances of this case. The intended area
of private control was the well of a trash truck on a
public street, far beyond the open areas immediately
adjacent to respondents’ house which were entitled to
constitutional protection. The respondents’ rights with
respect to their abandoned trash were nonexclusive.
And lastly, it cannot be said that society honors the
intimacy or privacy of one’s garbage after it has
come to rest in the well of a trash truck. These reasons
all support the ultimate conclusion that one has no.
constitutionally justifiable expectation of privacy in the
items he abandons to the trash barrel placed on the
curb.
i ae
II
The Exclusionary Rule Should Not Be Applied Under
the Circumstances of the Present Case
Apart from the narrow question of whether the
Fourth Amendment protects a right of privacy in one’s
trash, the circumstances under which this case arose
present a more significant issue for decision by this
Court. That issue is whether the exclusionary rule
should have any application at all to the type of police
conduct involved in this case. Here the police had
apparent justification for their belief that an exami-
nation of respondents’ trash in the well of the trash
truck was not an unreasonable search. No less authori-
ty than this Court had held that there was nothing
unlawful in the government’s appropriation of aban-
doned property. Abel v. United States, supra, 362 U.S.
at 241. Thus, an application of the exclusionary rule
here would only serve to penalize the police officers
for their good-faith reliance on what appeared to be
settled law. Such a penalty is hardly consistent with
the often expressed dictum that the exclusionary
tule “. . . is calculated to prevent, not to repair.” Elkins
v. United States, 364 U.S. 206, 217 (1960).
The manner in which this case arose provides a
vivid illustration of the uncertainty which confronts
the average police officer seeking an answer to the
everyday question of whether he has probable cause
to arrest or search. The trial court first ruled that the
evidence challenged in this case was admissible. ( App.
p. 6.) After permitting respondents to reopen their
motion to suppress, the trial court reversed its previous
ruling based upon the same evidence and arguments
previously presented. (App. p. 7.) Thereafter all three
judges of the California Court of Appeal held the chal-
- =
lenged evidence to be admissible. That decision was
overturned when the California Supreme Court granted
a hearing and ruled, four to three, that the evidence
was inadmissible. (App. A & C, Pet. for Cert.) It
can scarcely be said that this monumental state of con-
fusion was the result contemplated when the exclusion-
ary rule was devised. It is therefore imperative that the
rule be re-examined in an attempt to eliminate the in-
tolerable state of uncertainty which faces every law
enforcement officer performing his day-to-day duties
in the field.
A. The Exclusionary Rule Has Proved Ineffective as a Safe-
guard of Fourth Amendment Rights While Diverting Critical
Resources From the Major Goals of the Criminal Process
The principal function of the exclusionary rule in
the field of search and seizure has been explained by
this Court on numerous occasions. In Elkins v. United
States, supra, at 217, the Court stated:
“The purpose of the exclusionary rule is to
deter—to compel respect for the constitutional
guaranty in the only effectively available way—
by removing the incentive to disregard it.”
When this Court applied the exclusionary rule to the
States in Mapp v. Ohio, 367 U.S. 643 (1961), the
Elkins statement was quoted with approval in setting
forth the purpose of the rule as commanded by the due
process requirements of the Fourteenth Amendment.
Id. at 656. Subsequently in Linkletter v. Walker,
381 U.S. 618, 637 (1965), the Court reiterated that
“the purpose [of the Mapp decision] was to deter the
lawless action of the police.”
There has been growing skepticism as to whether
the exclusionary rule has more than a minimal effec
eaeeetiimaammet
= —35—
in deterring unlawful searches and seizures. The most
thorough study of this issue to date concluded:
ieee. foregoing findings represent the
largest fund of information yet assembled on the
effect of the exclusionary rule, but they obviously
fall short of an empirical substantiation or refuta-
tion of the deterrent effect of the exclusionary rule.
. . .” Oaks, Studying the Exclusionary Rule in
Search and Seizure, 37 U. Chi. L. Rev. 665, 709
(1970).
There are, however, strong indications that the de-
terrent effect of the exclusionary rule is limited to a
narrow range of cases. First of all, the rule is structured
so that it applies only when the fruits of an unlawful
search are introduced at a criminal trial. When an un-
lawful search fails to reveal evidence of crime, the
victim of that search is not protected by the exclusion-
ary rule. Any deterrent effect as to this class of cases
depends solely upon the individual policeman’s re-
spect for the Constitution. In those cases where the
protections of the Fourth Amendment have been ap-
plied to invalidate administrative searches, the exclu-
sionary rule has not come into play. See Camara vy.
Municipal Court, 387 US. 523 (1967): See vy. City
of Seattle, 387 U.S. 541 ( 1967). Hence these cases do
not dilute the force of Chief Justice Warren’s obser-
vation in Terry v. Ohio, 392 US. 1, 14 (1968), that:
“Regardless of how effective the rule may be
where obtaining convictions is an important ob-
jective of the police, it is powerless to deter
invasions of constitutionally guaranteed rights
where the police either have no interest in prose-
cuting or are willing to forego successful prose-
cution in the interest of serving some other goal.”
(Footnote omitted. )
init,
In those instances where the police are motivated
by goals other than obtaining convictions, the exclu-
sionary rule cannot claim any truly deterrent effect.
Examples of such objections are found in the enforce-
ment of liquor, gambling and narcotics laws where
confiscation of contraband is at least as important as
securing the offender’s conviction. In these types of
cases, this Court has not removed the incentive for
potentially unlawful searches or seizures because the
confiscation is upheld regardless of whether the de-
fendant is convicted. As this Court has held on more
than one occasion, the suppression of evidence does
not in itself entitle the aggrieved person to the return
of contraband. Warden v. Hayden, 387 US. 294, 307-
08 (1967); Trupiano v. United States, 334 US. 699,
710 (1948).
Secondly, the deterrent effect that may exist appears
to be without real force. It does not operate directly as
a sanction on the police officers involved and its edv-
cational value is diminished by the great time lag be-
tween the challenged search and the ultimate decision
of the highest court to review the case. See Bivens y.
Six Unknown Named Agents of Fed. Bureau of Nar-
cotics, 403 U.S. 388, 416-18 (1971) (dissenting opin-
ion of Mr. Chief Justice Burger).
The trenchant criticisms of the exclusionary rule
are well known to this Court. As Mr. Justice Jackson
observed in Irvine v. California, 347 U.S. 128, 135-37
(1954):
“What actual experience teaches we really do
not know. Our cases evidence the fact that the
federal rule of exclusion and our reversal of
conviction for its violation are not sanctions
which put an end to illegal search and seizure
=
by federal officers. The rule was announced in
1914 in Weeks v. United States, 232 US. 383.
The extent to which the practice was curtailed, if
at all, is doubtful. The lower federal courts, and
even this Court, have repeatedly been constrained
to enforce the rule after its violation. There is
no reliable evidence known to us that inhabitants
of those states which exclude the evidence suffer
less from lawless searches and seizures than those
of states that admit it... . That the rule of ex-
clusion and reversal results in the escape of
guilty persons is more capable of demonstration
than that it deters invasions of right by the police.
. The disciplinary or educational effect of
the court’s releasing the defendant for police mis-
behavior is so indirect as to be no more than
a mild deterrent at best.” (Footnote omitted. )
This Court must eventually consider whether the
social cost of retaining the exclusionary rule outweighs
the minimal protection afforded by this approach to
enforcement of the Fourth Amendment. The tension
created by the rule stems from the fact that it serves
“neither to protect the victim nor to punish the offender
but rather to compensate the guilty victim by acquittal
and to punish the public by unloosing the criminal into
their midst. . . .” 8 Wigmore on Evidence § 2184, pp.
51-52 (McNaughton ed. 1961 i
Professor Oaks expressed similar concern in his
1970 study of the exclusionary rule:
“The use of the exclusionary rule imposes ex-
cessive costs on the criminal justice system. It
provides no recompense for the innocent and it
frees the guilty. It creates the occasion and in-
—
centive for large-scale lying by law enforcement
officers. It diverts the focus of the criminal pros-
ecution from the guilt or innocence of the defend-
ant to a trial of the police. Only a system with
limitless patience with irrationality could tolerate
the fact that where there has been one wrong, the
defendant’s, he will be punished, but where there
have been two wrongs, the defendant’s and the
officer’s, both will go free. This would not be an
excessive cost for an effective remedy against po-
lice misconduct, but it is a prohibitive price to
pay for an illusory one. . . .” Oaks, supra, 37 U.
Chi. L. Rev. at 755.
Other commentators have also concluded that the es-
sentials upon which the exclusionary rule depends
have not been adequately achieved. LaFave & Rem-
ington, Controlling the Police: The Judge’s Role in
Making and Reviewing Law Enforcement Decisions,
63 Mich. L. Rev. 987, 1003 (1965).
In the field of constitutional adjudication, it has
long been recognized that the policy considerations
favoring the doctrine of stare decisis are less compelling
than in other fields of law where “it is more impor-
tant that the applicable rule of law be settled than that
it be settled right.” Burnett v. Coronado Oil & Gas Co.,
285 U.S. 393, 406, 410 (1932) (dissenting opinion of
Mr. Justice Brandeis). When experience proves that a
rule created by judges should never have been created
at all, or that their rule, though originally sound, has
become unsuited to new social conditions* a reconsid-
eration of the old rule may reveal “the unwisdom of
its expansion or imperatively require its revision or
abandonment.” Francis v. Southern Pacific Co., 333
_— =
U.S. 445, 453 (1948). As Mr. Justice Douglas has
written, “So far as constitutional law is concerned
stare decisis must give way before the dynamic
component of history.” Douglas, Stare Decisis, 49 Col-
um. L. Rev. 735, 737 (1949).
Since this Court held in Mapp y Ohio, 367 USS.
643, 657 (1961) that the exclusionary rule was an
essential part of both the Fourth and Fourteenth
Amendments, any alteration of the rule must come
from this Court, rather than from Congress or any
State legislature. It is, of course, open to serious
question whether the exclusionary rule is constitution-
ally required as an inherent part of the Fourth Amend-
ment’s guarantee against unreasonable searches and
seizures. In Wolf v. Colorado, 338 U.S. 25, 28 (1949),
the Court noted that the initial application of the ex-
clusionary rule to the federal system “was not derived
from the explicit requirements of the Fourth Amend-
ment.” Mr. Justice Black expanded on this view of the
origin and requirements of the exclusionary rule with
these words:
“Had the framers of this Amendment desired
to prohibit the use in court of evidence secured
by an unreasonable search or seizure, they would
have used plain appropriate language to do so,
just as they did in prohibiting the use of en-
forced self-incriminatory evidence in the Fifth
Amendment. Since the Fourth Amendment con.
tains no ianguage forbidding the use of such
evidence, I think there is no such constitutional
rule. So I continue to believe that the exclusion-
ary rule formulated to bar such evidence in the
Weeks case is not rooted in the Fourth Amend-
ment but rests on the ‘supervisory power’ of this
a
Court over the other federal courts—the same
judicial power involved in McNabb v. United
States, 318 U.S. 332... .” Berger v. New York,
388 U.S. 41, 76 (1967) (dissenting opinion).
Mr. Justice Blackmun joined with Mr. Justice Black,
concurring and dissenting in Coolidge v. New Hamp-
shire, 403 U.S. 443, 497, 510, wherein it was said:
“The Weeks opinion made no express confes-
sion of a break with the past. But if it was
merely a proper reading of the Fourth Amend-
ment, it seems strange that it took this Court
nearly 125 years to discover the true meaning of
those words, The truth is that the source of the
exclusionary rule simply cannot be found in the
Fourth Amendment. . . .”
Against this backdrop, Mr. Chief Justice Burger
wrote in his Bivens dissent that:
“I do not propose, however, that we abandon
the Suppression Doctrine until some meaningful
alternative can be developed. In a sense our legal
system has become the captive of its own creation.
. . .” Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, supra, 403 U.S. at 420
(dissenting opinion).
Many alternatives to the exclusionary rule have
been suggested, most of which would also have some
deterrent effect upon Fourth Amendment violations.
See, e.g., Report of the Task Force oa Law and Law
Enforcement to the National Commission on the Causes
and Prevention of Violence, Law and Order Recon-
sidered, pp. 365-409 (1969); Cox, The Decline of the
Exclusionary Rule: An Alternative to Injustice, 4 Sw.
—
U. L. Rev. 68 (1972); Horowitz, Excluding the Ex-
clusionary Rule—Can There Be an Effective Alter-
native, 47 L.A. -Bar Bull. 91 (1972). The absence of
an effective alternative was one of the grounds of de-
cision in Mapp. v. Ohio, supra, 367 U.S. at 652. It
should be noted, however, that this Court’s almost ex-
clusive reliance upon the exclusionary rule as a means
of preserving Fourth Amendment rights may constitute
the principal obstacle to the development of effective
alternatives. Professor Oaks study concluded:
“The exclusionary rule cannot be replaced as
long as it remains a constitutional requirement.
However, there is no legal obstacle to supplement-
ing the exclusionary rule, especially in areas
where it is admittedly ineffective. The obstacle is
a practical one. The enormous concentration and
reliance upon the exclusionary rule may forestall
the development of alternative mechanisms for
controlling improper behavior by the police. By
a peculiar form of federal preemption, the Mapp
decision may sap state officials’ energy and de-
termination to control law enforcement officials
in alternative ways that might prove just as ef-
fective and even more comprehensive than the
exclusionary rule. . . .” Oaks, supra, 37 U. Chi.
L. Rev. at 753. (Emphasis in original; footnote
omitted. )
While no one reasonably disagrees with the prop-
Osition that there should be some remedy for illegal
searches and seizures violative of the Fourth Amend-
ment, the real question “is whether Suppression of the
truth with consequent acquittal of the guilty is a fair
and an effective measure to that end.” State vy. Bisac-
cia, 58 N.J. 589, 590, 279 A.2d 675, 677 (1971).
ft Those Circumstances Which Gave Rise to the Need for
they
pleased for goods imported in violation of British tax
The Fourth Amendment to the Constitution of the
The exclusionary rule, or suppressifn doctrine,
found expression by the United States Supreme Court
in Weeks v. United States, 232 U.S. 383, 398 (1914).
United States was ratified in 1791 against the “:mtel-
The words of the Fourth Amendmeni reflect the de-
Wilkes during the 1760s. Marcus v. Search Warrant,
367 US. 717, 728-29 (1961). An effective but abusive
tool of the Crown had been use of general warrants.
termination of the newly independent Americans to be
free “from intrusion and seizure by officers acting under
the unbridled authority of a general warrant,” which
was known as a writ of assistance and had given cus
tom officials blanket authority to search where
laws. Stanford v. Texas, 379 U.S. 476, 481 (1965).
Purely as “a matter of judicial implication” to protect
the “security of one’s privacy against arbitrary int
lectual matrix” of the struggle between the Crown and
the opposition press led by author and editor John
—_— =
sion by the police—which is at the core of the Fourth
free from unreasonable state intrusion. Mapp v. Ohio,
367 U.S. 643, 654-55 (1961).
From its inception the exclusionary rule “has had
only a precarious tenure in this Court.” Mancusi y.
DeForte, 392 U.S. 364, 373 (1968) (Justices Stewart
and Black dissenting). “[DJespite its impressive sup-
92.
the average citizen was described by Professor John
Waite as causing a deprecation of group ideals which
results in derogation of the potentiality that abstention
from crime will be achieved through conformity with
group idealism. Waite, Judges and the Crime Bur-
, 54 Mich. L. Rev. 169, 192-93 (1955). Judge
oe
Shirley M. Hufstedler of the United States Court of
Appeals for the Ninth Circuit has articulated the extent
to which the exclusionary rule exacts a high price in
terms of the respect for our institutions of justice.
in a civil proceeding because legis-
courts have not created effective
Eighth Annual
livered before
of New York, May 11, 1971, p. 20. (Foot-
omitted. )
the Association of the Bar of the
==
657 (1961), held that the exclusionary rule was an
essential part of both the Fourth and Fourteenth
Amendments. What due process requires, however, is
‘ not fixed adherence to standards of what has previously
been deemed reasonable and right. Due process is a
living principle which cannot be confined to what may
at a given time be deemed the limits or the essentials
of fundamental rights. Wolf y. Colorado, 338 US.
25, 27 (1948). ““Due process’ is an elusive concept.
Its exact boundaries are undefinable, and its content
varies according to specific factual contexts.” Hannah
v. Larche, 363 U.S. 420, 442 ( 1960). The question,
then, is whether the essentials of due process have at
all been altered by the eleven-year evolution following
the epic decision in Mapp.
In considering the interaction of due process and
Fourth Amendment violations, it is well to remember
the two basic aims suggested by Mr. Chief Justice
Warren E. Burger in his article entitled, “Who Will
Watch the Watchman?” 14 Am. U. L. Rev. 1, 10
(1964):
“Perhaps we can all agree on two basic aims:
first, that deterring official misconduct in law en-
forcement is a vital objective for society; and
second, that society and the administration of
justice are best served by vastly reducing, and if
possible eliminating, the need to exclude rele-
vant and probative evidence from a criminal trial
whose very truth-seeking function is necessarily
stultified to some degree by such exclusion. . me
At present the exclusionary rule fails in its princi-
pal objective of deterring official misconduct, and it
thereby fails to protect the individual substantially
_—
while at the same time it causes a disproportionate loss
of protection for society. But the major emphasis is not
one of contrasting interests between the individual aud
society, for the individual is society. What we are
actually considering is contrasting interests of the in-
dividual in society. The right to privacy can be violated
by the criminal as well as the police. This point was
recognized by Chief Justice Weintraub of the New
Jersey Supreme Court when he wrote:
“The first right of the individual is to be pro-
tected from attack. That is why we have govern-
ment, as the preamble to the Federal Constitution
plainly says... . The Bill of Rights was not in-
tended to deny that primary mission. This is not
to belittle the inestimable rights thus consecrated,
but rather to say that those rights may not be
read to defeat the very reason for government
itself.
“We must be mindful that the contest is not
between the State and the individual. The contest
is wholly between competing rights of the indi-
vidual—the right to be protected from criminal
attack and the several rights in the Amendments.
When the truth is suppressed and the criminal is
set free, the pain of suppression is felt, not by the
inanimate State or by some penitent policeman,
but by the offender’s next victims for whose pro-
tection we hold office. In that direct way, Mapp
denies the innocent the protection due them.”
State v. Bisaccia, 58 N.J. 586, 590, 279 A.2d
675, 677 (1971).
It is a consideration of these contrasting interests of
the individual which gives proper definition to the ex-
clusionary rule. What must be sought is a reconciliation
between the purpose of the rule and the pain of
—47—
suppression inflicted upon innocent victims by its per-
sistent application.
The exclusionary rule was created to protect the
privacy of the individual from certain specific conduct
on the part of police officers. The conduct sought to
be controlled in Mapp was described as “official law-
lessness in flagrant abuse” of the right to privacy, “un-
conscionable invasions of privacy,” and “utter dis-
regard of the enforceable Fourth Amendment.” Mapp
v. Ohio, 367 U.S. 643, 655, 657, 658 (1961). The
conduct in Mapp was precisely that. Three police
_ Officers arrived at Miss Mapp’s residence pursuant
to information that a person was hiding in the home
who was wanted for questioning in connection with a
recent bombing. The officers knocked on the door and
demanded entrance, but Miss Mapp, after telephoning
her attorney, refused to admit them without a search
warrant. Three hours and four additional officers
later, the officers forcibly opened the door when Miss
Mapp did not respond immediately. Although Miss
Mapp’s attorney. arrived, he was not permitted to see
her or enter the house. When Miss Mapp demanded to
see a search warrant, a paper was held up by one of
the officers which she grabbed and placed into her
bosom. A struggle ensued in which the officers recovered
the paper, handcuffed Miss Mapp because she had
been belligerent, and twisted her hand, causing her to
yell and plead with the officers.
This conduct is similar to that which occurred in
other cases and engendered the following descriptions:
“flagrant disregard of the procedure which
Congress has commanded”—McNabb v. United
States, 318 U.S. 332, 345 (1943).
=_—
“arbitrary intrusion”—Wolf v. Colorado, 338
U.S. 25, 27-28 (1949).
“flagrantly, deliberately, and persistently vio-
lated the fundamental principles declared by the
Fourth Amendment—Irvine v. California, 347
US. 128, 132 (1954).
“willful disobedience of a Constitution they are
sworn to uphold”—Elkins v. United States, 364
US. 206, 223 (1960).
“arbitrary invasions by government officials” —
Camara v. Municipal Court, 387 US. 523, 528
(1967).
The words of these courts in describing the prohib
ited action fall into two categories: first, deliberate,
willful, and utter disregard; second, flagrant, arbitrary,
and unconscionable. Thus, the activity to be deterred
by the exclusionary rule is that which deliberately’ or
flagrantly violates Fourth Amendment rights. To deter
this conduct the exclusionary rule should be applied
only in case of deliberate or flagrant violation.
It is contrary to the philosophy of the exclusionary
rule to apply it where the violation by the police officer
is at most imadvertent. In order for the deterrence
theory to have any validity, the police officer must be
able to discern right from wrong. He must be able to
perceive that conduct which he is to avoid. As was
stated by Mr. Justice Traynor im delineating the exclu-
sionary rule in People v. Cahan, supra, 44 Cal. 2d at
448, 282 P.2d at 913: “Police officers agd prosecuting
officials are primarily interested in convicting criminals.
Given the exclusionary rule and a choice between secur-
img evidence by legal rather than by illegal means.
officers will be impelled to obey the laws themselves
— wn
since not to do so will jeopardize their objectives.” (Em-
phasis added.) This will be true only where the police
officer knows that he has a choice, that is, only where he
knows that his proposed activity would be in violation
of Fourth Amendment rights.
Application of the exclusionary rule must be tem-
pered with the realization that a police officer is not
as well equipped 4s an appellate court justice to deal
with legal technicalities. See Brinegar v. United States,
338 U.S. 160, 175 (1949). The police officer does not
have the same education, training, or experience as that
of an appellate court justice, nor is the police officer
iM a position to devote as much time to making a legal
determination. Indeed, as to the disparity in education
alone, a 1961 survey of over 300 police departments
revealed that 24 percent of those departments had no
minimum educational prerequisite, while less than
ome percent required any level of college preparation.
The President's Commission on Law Enforcement and
Administration of Justice, Task Force Report: The
Police, p. 126 (1967).
Certainly it is illogical to require of a policeman a
standard of performance which would be unconsti-
tutionally void for vagueness if applied to the ordinary
citizen because the standard required an intricate
knowledge of the law and the expertise of a legal
technician. As Judge Friendly has suggested, “Tt
_ does not seem consistent with the objective of deter-
rence that the maximum penaity of exclusion
should be forced for an error of judgment by a police-
man, necessarily formed on the spot and without a set
of the United States Reports in his hands, which is
not apparent years later to several Justices of the
irene Court.” Friendly, The Bill of Rights as a
a
—
Code of Criminal Procedure, 53 Calif. L. Rev. 929,
952 (1965).
It is clear that many authorities believe that the ex-
Clusionary rule cannot work where there is no “dis-
tinct rule consensus” in that a “nine man rule of reason
almost seems destined for vagueness.” Burns, Mapp
v. Ohio: An All-American Mistake, 19 DePaul L. Rev.
80, 88 (1969). Professor Charles Alan Wright has
criticized the complexity of the laws relating to search
and seizure and noted that:
“A police officer will not be deterred from an
illegal search if he does not know that it is illegal.
The law of search and seizure is hopelessly com-
plicated and confused . . . It defies reality to think
that the average police officer could hold all of
that arcane learning in his head or that he could
always apply it correctly when he is required to
make quick decisions in the course of the
difficult and often dangerous business of law en-
forcement.” Wright, Must the Criminal Go Free
if the Constable Blunders?, 50 Texas L. Rev.
736, 740-41 (1972).
The exclusionary rule has been successful in pro-
viding police officers with a basis of knowledge upon
which they may make an educated determination that
specific conduct is not a search or that the search is
reasonable. The California Attorney General has pre-
pared and distributed pamphlets designed to inform
police officers of the laws relating to search and
seizure. Barrett, Exclusion of Evidence Obtained by
Illegal Searches—A Comment on People v. Cahan, 43
Calif. L. Rev. 565, 587-88 (1955).
—
_—
In applying this basic knowledge to a determination
of probable cause, the police officer must determine
whether there is more evidence for than against, sup-
ported by evidence which inclines the mind to believe
but which leaves some room for doubt. People v. Ingle,
53 Cal. 2d 407, 412-13, 2 Cal. Rptr. 14, 17, 348 P.2d
577, 580 (1960); see also, Berger v. New York, 388
U.S. 41, 59 (1967). It has been noted by this Court
that “sufficient probability, not certainty, is the touch-
stone of reasonableness under the Fourth Amendment.”
Hill v. California, 401 U.S. 797, 804 (1971). There-
fore, when it appears to the police officer that it is
sufficiently probable that the action he intends to take
does not violate Fourth Amendment rights, the exclu-
sionary rule should not be applied. There is no deliber-
ate or flagrant violation of Fourth Amendment rights
to deter, and it is contrary to the spirit of the common
law to apply a rule to a situation in which the reason
for the rule does not exist. Crandall v. Woods, 8 Cal.
136, 143 (1857).
Of central importance in developing the criteria with
which to determine whether a violation is deliberate or
flagrant is the ease with which a police officer may
apply these standards to his conduct. An elaborate
and intricate system of rules can do little but confuse
an already perplexed police officer. Therefore police
conduct should be measured by considering whether:
1. The conduct has clearly been proscribed
by a settled rul2;
2. When the conduct is not covered by a set-
tled rule, it should appear to a reasonable officer
in like circumstances that the rationale of exist-
ing rules would prohibit the particular conduct;
einlRicsic
3. The time in which the officer was reason-
ably required to act permitted the officer ade-
quately to reflect upon the propriety of the pro-
posed conduct.®
Application of this test to the facts of the present
case demonstrates that the action taken by Officers Gates
and Marsden in examining respondents’ trash in the
well of the truck did not constitute a deliberate or fla-
grant violation of Fourth Amendment rights. As shown
in Argument I, supra, no settled rule proscribed the
action they took, and it would not appear to a reason-
able officer in like circumstances that the rationale of
existing rules would prohibit their conduct. Three jus-
tices of the Court of Appeal and three justices of the
California Supreme Court have so held. (App. A and
C, Pet. for Cert.)
Therefore, it must be said that the action taken by
Officers Gates and Marsden was reasonable to a suf-
ficient probability and was not the type of flagrant or
deliberate violation of Fourth Amendment rights which
the exclusionary rule was designed to prevent. Appli-
cation of the exclusionary rule only to the situations
which it was designed to deter results in a benefit to
law enforcement by authenticating the fact-finding
process. “As against the minor peril to Fourth Amend-
ment protections, there is a major gain in effective law
enforcement.” Coolidge v. New Hampshire, 403 U.S.
443, 467 (1971).
In view of the lack of perceptible logic inherent in
the exclusionary rule and its apparent ineffectiveness
*This formulation contains the substance of the criteria de-
veloped by the American Law Institute for application in the pro-
posed “substantial violation” test. ALI, Model Code of Pre-Ar-
a Procedure, § SS 8.02(2), p. 23 (Tent. Draft No. 4,
—
in directly deterring Fourth Amendment violations, it
is essential that the scope of the exclusionary rule be
limited to those circumstances which gave rise to its
existence. Application of the deliberate or flagrant
violation test strikes a proper balance between the
competing interests of the individual in society—the
right to be protected from criminal attack and the right
preserved by the Fourth Amendment.
Conclusion
For the foregoing reasons petitioner, the State of
California, submits that examination of abandoned
trash does not amount to an unreasonable search and
seizure proscribed by the Fourth Amendment and
that, in any event, the exclusionary rule should not be
applied under the circumstances of this case. Petition-
er urges that the judgment of the California Supreme
Court be reversed.
Respectfully submitted,
EVELLE J. YOUNGER,
Attorney General of the State
of California,
EDWARD A. HINz, Jr.,
Chief Assistant Attorney General—
Criminal Division,
WILLIAM E. JAMEs,
Assistant Attorney General—A ppeals
Section,
S. CLARK Moore,
Deputy Attorney General,
RUSSELL IUNGERICH,
Deputy Attorney General,
WILLIAM R. POUNDERS,
Deputy Attorney General,
Atterneys for Petitioner.
7
The State of California has been authorized by the
Attorneys General of the following states and territo-
ries to list them as joining with us in our brief on the
merits.
Honorable William J. Baxley
Honorable Ray Thornton
Honorable Gary K. Nelson
Honorable Duke W. Dunbar
Alabama
Arkansas
Arizona
Colorado
Honorable John D. La Belle, Chairman
Council of State’s Attorneys
Honorable W. Laird Stabler, Jr.
Honorable Robert L. Shevin
Honorable Arthur K. Bolton
Honorable George Pai
Honorable W. Anthony Park
Honorable Theodore L. Sendak
Honorable Richard C. Turner
Honorable Jack P. F. Gremillion
Honorable Francis B. Burch
Honorable A. F. Summer
Honorable Robert L. Woodahl
Honorable Clarence A. H. Meyer
Honorable Robert List °.
Honorable Warren B. Rudinan
Honorable George F. Kugler, Ir.
Honorable Louis J. Lefkowitz
Honorable Helgi Johanneson
Honorable William J. Brown
Honorable J. Shane Creamer
Honorable Richard J. Israel
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Indiana
Iowa
Louisiana
Maryland
Mississippi
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New, York
North Dakota
Ohio
Pennsylvania
Rhode Island
a
Honorable Daniel R. McLeod South Carolina
Honorable Gordon Myland South Dakota
Honorable David M. Pack Tennessee
Honorable Crawford C. Martin. Texas
Honorable Vernon B. Romney Utah
Honorable James M. Jeffords Vermont
Honorable Ronald H. Tonkin Virgin Islands
Honorable Andrew P. Miller Virginia
Honorable Slade Gorton Washington
Honorable Robert W. Warren Wisconsin
Honorable Clarence A. Brimmer Wyoming
Ty tae ae on
thereof is hereby admitted this......7..~..
of July, A.D. 1972.
fusca hessien Zonder”
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