Respondents Brief — California v. Rooney

Supreme Court, U.S,

r~,\ FILED

No. 05.1898 7 DEC 29 1986

JOSEPH © SPANIOL, JR,

CLERK

ee ong

In The

Supreme Court of the United States

October Term, 1986

CALIFORNIA,

Petitioner,

vs.

PETER ROONEY,

Respondent.

WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE

STATE OF CALIFORNIA FOR THE

SECOND APPELLATE DISTRICT

DIVISION 7

BRIEF OF RESPONDENT

Rocer S. Hanson, Esa. ARTHUR Lewis, Esa.

1517 East Fourth Street 205 South Broadway

Santa Ana, California 92701 Suite 802

(714) 953-0638 Los Angeles, California

90012

(213) 624-4901

Attorneys for Respondent

Members of the Bar United States Supreme Court

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

~ BEST AVAILABLE COPY |

QUESTIONS PRESENTED

1. Whether there can be reasonable expectation of

privacy, for the purposes of the Fourth and Fourteenth

Amendments, with respect to garbage placed in a com-

munal trash bin of a multi-unit apartment building.

2. Whether there is an abandonment of property,

for purposes of the Fourth and Fourteenth Amendments,

when garbage is placed in a communal trash bin of a

multi-unit apartment building.

3. Whether the Fourth and Fourteenth Amendments

are violated when a police officer searches a communal

trash bin of a multi-unit apartment building without a

search warrant, probable cause, or consent.

il

TABLE OF CONTENTS

Item Page Appearing

Questions Presented i

Table of Authorities ...................... ‘ ili

Introduction ....................

i RE FI a 2

PI sissciicciccsenraitiiegia ee

Constitutional and Statutory Provisions Involved ....... 2

Statement of the Case

Summary of Argument oe 5)

Argument:

I. Where Police plan to search and seize the con-

tents of a domestic garbage can/communal trash

bin they should secure a search warrant; if exi-

gent circumstances can be demonstrated, they can

reduce the garbage can to their custody and then

secure a search warrant to enter it; absent prob-

able cause to believe it contains contraband, war-

rantless searches are disfavored 8

II. Based on analytie in-depth logic, there is a rea-

sonable expectation of privacy in a domestic gar-

bage can or communal trash bin; the existing law

of California, viable for over 15 years, gave re-

spondent a judicially insured reasonable expec-

tation of privacy, disallowing warrantless, non-

probable cause, non-consensual searches of Calli-

fornia garbage eans 0... ssoniniimnnsipaetttaidiae 12

OO 43

iii

TABLE OF AUTHORITIES CITED

Pages

Unrtep States SupreME Court Casss:

Abel v. United States, 362 U.S. 217 (1960)

ouaiilad 6, 7, 23, 24, 25, 26, 31, 37

Arkansas v. Sanders, 442 U.S. 753 (1979)

Us AER seleeae 5, 6, 10, 26, 27, 28, 29

Bowers v. Hardwick, — U.S. —, 54 L.W. 4919 0 22

Carroll v. United States, 267 U.S. 1382 ee 5, 10

Chambers v. Maroney, 399 U.S. 42 2. ccccccccsesseneeseeneeneen 5, 10

Coolidge v. New Hampshire, 408 U.S. 448 20000... 5, 9, 11, 48

Griswold v. Connecticut, 381 U.S. 479 22

Jones v. United States, 362 U.S. 257 (1960) ow 32

Katz v. United States, 389 U.S. 347 (1967)

lita 5, 6, 13, 14, 25, 30, 31, 43

McDonald v. United States, 335 U.S. 451 (1948) 200. 5

Oliver v. United States, 466 U.S. 170 (1984) 000 14

Robbins v. California, 453 U.S. 420 (1981) 2000000. 5, 6, 10

Stanley v. Georgia, 394 U.S. BOT nn cnccecesecescesseeneeeseennerneenes 22

United States v. Chadwick, 433 U.S. 1

i Ses 5, 6, 10, 26, 27, 28, 29, 30, 43

United States v. VanLeeuwen, 397 U.S. 249 WW... 33

Oruer Feperat Cases:

Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974) .......... 24

Magda v. Benson, 536 F.2d 111 (6th Cir. 1976) .......... 28, 37

United States v. Biondich, 652 F.2d 743 (8th Cir.

ES 31, 38, 40

United States v. Blok, 188 F.2d 1019 (D.C. Cir. 1951)... 32

iv

TABLE OF AUTHORITIES CITED—Continued

Pages

United States v. Crowell, 586 F.2d 1020 (4th Cir.

SES ope UnUT Rear a Ocean den Mes. sree, 29, 30, 38

United States v. Dela Espriella, 781 F.2d 1432 (9th

REE Se eS Aes Se 39

United States v. Dzialak, 441 F.2d 212 (2nd Cir..

a Pelt FESEN. 26, 27, 37

United States v. Kahan, 350 F.Supp. 784 (S.D.

REE ate ae ee See a ES ME eae 31, 34

United States v. Kramer, 711 F.2d 789 (7th Cir.

EE Se eS ee ee 39

United States v. Michaels, 726 F.2d 1307 (8th Cir.

AS Seen Pe aL ie ee Ae, PS 39

United States v. Minker, 312 F.2d 632 (3rd Cir.

Ee eee Pe ee Te 25, 26, 27, 37

United States v. Mustone, 469 F.2d 970 (1st Cir.

a Peres ol Ee 26, 27, 37

United States v. O’Bryant, 775 F.2d 1528 (11th

Ree ee eye ee her RE Re ee 39

United States v. Reicherter, 647 F.2d 397 (3rd

RE, CRIT TD icc: cicsisenicancte elticedcoicecmapeianiadednceiteiehite cee ann ett 30, 38

United States v. Shelby, 573 F.2d 971 (7th Cir.

SUT cccitsindindcshicicncnssacilaian edi deaieeeit ie ear ima ote a ed 28, 38

United States v. Sumpter, 669 F.2d 1215 (8th Cir

TI as ae OS 31

United States v. Terry, 702 F.2d 299 (2nd Cir. 1983) 31, 38

United States v. Thornton, 746 F.2d 39 (D.C. Cir. 1984) 39

United States v. Vahalik, 606 F.2d 99 (Sth Cir. 1979) 30, 38

Work v. United States, 243 F.2d 660 (D.C. Cir. 1957) . 24

ES ON a te ta

TABLE OF AUTHORITIES CITED—Continued

Pages

Strate Cases:

Ball v. State, 57 Wis.2d 653, 205 N.W.2d 353 (1973) .. 23

Bolen v. State, 544 S.W.2d 918.0000. 23

Everhart v. State, 274 Md. 459 ........ 23

People v. Dumas, 9 Cal.3d 871, 109 Cal.Rptr. 304,

Ry a Te CI ccc einceciineisnnesssetinetiinbciieaiiaea 5, 10, 42

People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr.

633, 458 P.2d 713 (1969) ................ 8, 13, 15, 22, 23, 41, 42, 43

People v. Greenwood 182 Cal.App.3d 729, 227 Cal.

Rptr. 539 (1986) 42

People v. Huddleston, 38 Ill.App.3d 277, 347 N.E.2d

76 (1976) 13, 23, 35

People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62,

7 gt BB), | Rn neneces runes ame eeeoNi passim

People v. Rooney, 175 Cal.App.3d 634, 221 Cal.

De GD CID ictnenkcncccinitecenssencinicnssnciaacataibnae 2, 6, 10, 42, 44

Smith v. State, 510 P.2d 793 (Alaska 1973) WW... 18, 23, 35

State v. Broom, 113 Ariz. 495, 557 P.2d 1052 ... 24

State v. Brown, 20 Ohio App.3d 36, 484 N.E.2d

I IE siccitichaaitncctietinbainls 40

State v. Chapman (Maine), 250 A.2d 203 . 8

State v. Oquist, 327 N.W.2d 587 (Minn. 1982) .......... 40

State v. Schultz, 388 So.2d 1326 (Fla.Dist.Ct.

, *. £_aaS on 19, 35, 40

vi

TABLE OF AUTHORITIES—Continued

Pages

CONSTITUTIONAL AND SratuTorY Provisions:

;

U.S. Const. Amend. TV cence ene reeeneef MESSI

U.S. Const. Amend, XIV oc ccccscssesssnssesernnny Ty 11, 14, 43

California Constitution, Art. I, See. 13 000. aa 3

No. 85-1835

In The

Supreme Court of the United States

October Term, 1986

fh»

Vv

CALIFORNIA,

Petitioner,

vs.

PETER ROONEY,

Respondent.

‘a™

a

WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE

STATE OF CALIFORNIA FOR THE

SECOND APPELLATE DISTRICT

DIVISION 7

4)

ww

BRIEF OF RESPONDENT

f).

Vv

To the Honorable William H. Rehnquist, Chief Justice

of the United States, and to the Honorable Associate Jus-

tices of the United States Supreme Court:

Respondent Peter Rooney, by his counsel, presents his

brief in the above entitled matter, urging affirmance of the

California Court of Appeals for the Second Appellate Dis-

trict.

2

OPINION BELOW

The opinion of the Court of Appeal of the State of

California, Second Appellate District, Division Seven is re-

ported (as modified) as People v. Rooney, 175 Cal.App.3rd

634, 221 Cal. 49 (1985). A copy of this opinion is set forth

at pages 72-111 of the Joint Appendix.

o—

VV

JURISDICTION

The judgment of the Court of Appeal of the State of

California, Second Appellate District, Division Seven was

filed on December 13, 1985, and the opinion was modified

on December 19, 1985. (JA 72,110.) Timely petitions for

rehearing were denied by the Court of Appeal on January

7, 1986. (JA 112.) Timely petitions for review were denied

by the California Supreme Court on March 13, 1986. A

Petition for Certiorari was filed on May 6, 1986 by the State

of California and that Petition was granted on October 14,

1986. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(3).

ft

——

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

‘*The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.’’ U.S.

CONST. amend. IV.

‘‘[Njor shall any State deprive any person of life,

liberty, or property without due process of law...’’ U.S.

CONST. amend. XIV, § 1.

The pertinent California constitutional provisions in-

clude :

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

houses, papers, and effects against unreasonable seizures

and searches may not be violated; and a warrant may not

issue except on probable cause, supported by oath or af-

firmation, particularly describing the place to be searched

and the persons and things to be seized.’’ CAL. CONST.

art I, $13.

>.

Ww

STATEMENT OF THE CASE

On December 3, 1983, an informant told the affiant on

the affidavit in support of the ultimately issued search war-

rant, Officer Shorb, that respondent, Peter Rooney, was

accepting wagers on professional football games over the

telephone and with an answering machine at (213) 656-8430.

Although the informant told Shorb that respondent was

‘‘in the location between 1600 hours and 1800 hours,’’ the

informant did not tell Shorb the address of ‘‘the location.’’

On December 7, 1983, Shorb ascertained through the

telephone company that the number given to him by the

informant was registered to a Peter Ryan at 1120 North

Flores Street, Apartment #8, West Hollywood. Shorb

also determined that the utilities at that address were reg-

istered in the name of Peter Ryan.

4

On December 13, 1983, Shorb learned from respon-

dent’s arrest record that respondent had been arrested

three years earlier for bookmaking activities at 1120 North

Flores Street, Apartment #8, West Hollywood. Shorb

obtained a booking photo of respondent from the prior ar-

rest.

On December 15, 1983, Officers Shorb’ and Wyeth

went to 1120 North Flores Street, West Hollywood, a 28

unit apartment building with a subterranean garage. The

officers entered the garage and conducted a search of the

communal trash bin, which measured approximately

8’x4’x5’, and was filled to capacity. Upon reaching the

bottom half of the bin, Shorb discovered a brown paper

shopping bag with mail addressed to defendant, but not to

Peter Ryan, at 1120 North Flores Street, Apartment + 8

West Hollywood, the address obtained from the telephone

company and defendant’s arrest record. The bag also

contained pieces of paper with ‘‘sports wagers, pays and

owes, and a tally sheet of wagers on professional football

teams....”’

Based on this trash bin discovery, a search warrant was

obtained for respondent’s apartment, respondent was ar-

rested, and charges were brought against him under rele-

vant California bookmaking statutes.

Eventually the trial court granted a motion to suppress

ev.auence on the grounds that, inter alia, police had violated

respondent’s reasonable expectation of privacy in conduct-

ing a warrantless, non-probable cause, non-consensual

search of the closed opaque trash bag located deep in re-

spondent’s communal trash bin.

Ly

i

SUMMARY OF ARGUMENT

1. There is a preference for the obtaining of a search

warrant when police officers intend to search a particular

location, having, as here, a sufficient and necessary nexus

to a private abode, for evidence of crime. Coolidge v. New

Hampshire, 403 U.S. 4438, 91 S.Ct. 2022.

2. Searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only

to a few specifically established and well delineated excep-

tions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507, 515, 19 L.Ed.2d 576. Coolidge v. New Hampshire, 403

U.S. 443, 454-455, 91 S.Ct. 2022, 2032; those who seek exemp-

tion from this rule must show that an exigency made the

warrantless search imperative. McDonald v. United States,

335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153.

3. If probable cause exists to believe that a garbage

container is a repository for evidence of crim.nal activity,

it may be seized under its analogy to the so-called “auto-

mobile exception’’ to the securing of a search warrant, and

if reduced to police custody to obviate an exigency, a search

warrant must be obtained to search it. Carroll v. United

States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975; Coolidge v. New Hamp-

shire, 403 U.S. 443, 458, 90 S.Ct. 2022, 2033; People v.

Dumas (1973), 9 Cal.3d 871, 882; United States v. Chad-

wick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977),

Arkansas v. Sanders, 442 U.S. 752, 99 S.Ct. 2586, 61 L.Ed.

2d 235 (1979); Robbins v. California (1981), 453 U.S. 420,

101 S.Ct. 2841, 69 L.Ed.2d 744.

4. No probable cause existed in the case at bar to sup-

port that respondent’s segregated garbage, deposited in a

closed opaque brown paper bag, contained evidence of

crime such as to open it after it was seized and reduced to

police custody without first securing a search warrant.

People v. Rooney, 175 Cal. App. 3rd 634, 221 Cal.Rptr. 49

(1985).

5. The Fourth Amendment to the United States Con-

stitution protects people, not places, or areas; what a per-

son knowingly exposes to the public, even in his own home

or office, is not a subject of Fourth Amendment protection ;

but what he seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected.

Katz v. United States (1967), 389 U.S. 347, 351-352.. In

the case at bar, respondent concealed his garbage in a

closed, opaque brown paper bag which, when reduced to

policy custody, must be opened only via the warrant pro-

cess. United States v. Chadwick, 433 U.S. 1; Arkansas v.

Sanders, 442 U.S. 753; Robbins v. California, 453 U.S. 420.

6. The genesis for the bulk of federal and state gar-

bage can privacy decisions, Abel v. United States, 362 U.S.

217 (1960), is distinguishable on its facts; in Abel, the de-

fendant left a hotel room via the check out process and thus

had not expectation of privacy in either the room or its

wastebasket, since he no longer had any connection with

either that room or its wastebasket; moveover, Abel de-

posited his items in the wastebasket right under the very

eyes of arresting officers, and thus he could hardly have a

reasonable expectation of privacy in these items; in the

domestic garbage can cases, the homeowner maintains own.

ership or has standing in his use of the communal trash bin

and has not severed any connection to the trash container/

communal bin; thus all federal/state garbage can cases

stemming from Abel v. United States (1960), 362 U.S. 217

have a faulty foundation/premise and are devoid of analy-

sis.

7. Garbage placed in the domestic garbage cans of

America by American citizens is not ‘‘abandoned’’ in the

property sense, but is merely placed in the can as a tempo-

rary conduit to its ultimate place of destruction/burning/

burying in the garbage dumps; the citizens of America

recognize that, potentially, professional scavengers, chil-

dren, and animals may dislodge the garbage but have a

reasonable expectation that their garbage will remain pri-

vate and free from search and rummage by officers of the

law acting without warrant, probable cause, or consent.

Because of this, there is a reasonable expectation of pri-

vacy for the purposes of the Fourth and Fourteenth

Amendments with respect to garbage placed in closed

garbage cans to comply with whatever the local law pro-

vides for the removal of the garbage from the domestic

home/curtilage.

8. The Fourth and Fourteenth Amendments are vio-

lated when a police officer searches a domestic trash can/

communal trash bin without search warrant, probable

cause or consent.

9. Garbage placed in garbage cans may be subject

to inspection or dislodging by professional, civilian scaven-

gers, children, and animals, but much less probability ex-

ists that police will search any given can; the mathematical

improbability gives a reasonable expectation of privacy

of and in itself.

8

10. Respondent, being a California citizen, had an

already heightened, established, judicially determined rea-

sonable expectation of privacy in his garbage. People v.

Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713

(1969); People v. Kriwvda, 5 Cal.3rd 357, 95 Cal. Rptr. 62,

468 P.2d 689 (1971). This existing law governed the illegal

seizure of his garbage from the communal trash bin in the

subterranean garage of his apartment and any change in

that law must be non-retroactive as to respondent.

ARGUMENT I

WHERE POLICE PLAN TO SEARCH AND

SEIZE THE CONTENTS OF A DOMESTIC

GARBAGE CAN/COMMUNAL TRASH BIN

THEY SHOULD SECURE A SEARCH WAR-

RANT; IF EXIGENT CIRCUMSTANCES CAN

BE DEMONSTRATED, THEY CAN REDUCE

THE GARBAGE CAN TO THEIR CUSTODY

AND THEN SECURE A SEARCH WARRANT

TO ENTER IT; ABSENT PROBABLE CAUSE

TO BELIEVE IT CONTAINS CONTRABAND,

WARRANTLESS SEARCHES ARE DISFA-

VORED.

It is plain that in the case at bar police willfully and

premeditatively entered into the subterranean garage of

respondent’s multi-unit apartment complex and conducted

a search of the communal trash bin; this bin was 8’x5’x4’

and was filled to capacity with various trash containers/

bags deposited by the residents.

Upon reaching the bottom half of the 160 cubie foot

container, they found a closed opaque brown paper bag

identified as belonging to respondent.

9

The clear goal of the police was to look for evidence

of criminal activity, here bookmaking on the part of re-

spondent.

Respondent urges throughout his thesis and this brief

that he was entitled to a reasonable expectation of privacy

in his trash deposited in a closed, opaque bag in his as-

signed trash bin, and such authorities of this Court as

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022

requires police to obtain a search warrant on such a

planned seizure and search for evidence of a crime.

The domestic trash cans of America are so integrally

connected to the domestic scene that they should be treated

analogous to a home, a garage, or an automobile, or a

telephone booth, and if probable cause exists to believe

any one of these domestic related appurtenances is a ve-

hicle for crime commission, a search warrant should be

obtained to search it, or, given probable cause and exigent

circumstances, it may be searched on the spot if it could

not be reduced to police custody.

In its ruling that a search warrant is necessary for

the seizure of objects in a premeditated entry, seizure,

and search, this Court said in Coolidge v. New Hampshire,

403 U.S. 443, 484, 91 S.Ct. 2022. 2047:

‘‘We are convinced that the result reached in this

case is correct, and that the principle it reflects—that

the police must obtain a warrant when they intend to

seize an object outside the scope of a valid search

incident to arrest—can be easily understood and ap-

plied by courts and law enforcement officers alike.

It is a principle that should work to protect the

citizen without overburdening the police, and a princi-

ple that preserves and protects the guarantees of the

Fourth Amendment.’’

10

However, it is, of course, true that a garbage can may

or may not be as mobile as a vehicle, and thus, analogous

to the so-called ‘‘automobile exception’’ to the 4th Amend-

ment it may be searched without a warrant assuming

probable cause exists to believe it contains contraband.

This would be true of the relatively easily moved personal

domestic trash can placed at curbside to await the pickup

of the garbage hauler. That can, upon probable cause,

could be searched on the spot, or in more compliance with

the concept of a closed opaque container reduceable to

police custody, seized and thereafter a warrant obtained

to enter it. The automobile search rules of Carroll v. Uni-

ted States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, could be

and should be, and have been. applied to the garbage can

believed to contain contraband. See, for example, People

v. Dumas (1973), 9 Cal.3d 871, 882 Fn. 9, 884; People v.

Rooney, 175 Cal.App.3d 634, 221 Cal.Rptr. 49 (1985).

(nder the reasoning of United States v. Chadwick, 433

LS. 1, Arkansas v. Sanders, 442 U.S. 753, and Robbins v.

California, 453 U.S. 420. where it is believed that a closed

opaque trash can, or a given closed opaque trash bag with-

in a communal trash bin offends, and it ean be reduced

to police custody, the removal of exigent circumstances

upon seizure dictates that a search warrant should be se-

cured. In this sense the individual home domestic trash

ean and the individual trash bag sought in and seized

from the communal trash bin are like the trunk shipped

via rail to Boston and are unlike the ‘‘automobile excep-

tion’’, as is made clear by the Chadwick-Sanders-Robbins

trilogy.

11

Plainly, under the facts of this case, no exigent cir-

cumstances prevailed which would circumvent the general

rule of Coolidge v. New Hampshire, 403 U.S. 443; as early

as December 3, 1983, some 12 days prior to the warrant-

less, non-consensual search of the communal trash bin,

police had information concerning respondent’s alleged

bookmaking activities, and knew of his telephone number.

These facts would have allowed them to attempt to place

bets via telephone, and if they were successful, seek a

search warrant to search the trash bin on the usual theory

that police advance, namely, that experienced police offi-

cers, ‘‘familiar with bookmakers habits, believe that they

dispose of betting paraphernalia in their trash,’’ ete.

But, intending to seize and search in the trash bin,

the warrant process was circumvented, in defiance of the

Coolidge mandate, by the police. Indeed, after reducing

respondent’s trash to their custody, the police still did

not comply with such additional mandates governing the

search of closed opaque containers believed, of and in

themselves, to offend agaii..t the law, set forth by this

Court in Chadwick-Sanders-Robbins.

Of and in itself this constitutes a violation of re-

spondent’s rights to a reasonable expectation of privacy

under the 4th and 14th Amendments.

12

ARGUMENT II

BASED ON ANALYTIC IN-DEPTH LOGIC,

THERE IS A REASONABLE EXPECTATION

OF PRIVACY IN A DOMESTIC GARBAGE CAN

OR COMMUNAL TRASH BIN; THE EXISTING

LAW OF CALIFORNIA, VIABLE FOR OVER

15 YEARS, GAVE RESPONDENT A JUDICIAL-

LY INSURED REASONABLE EXPECTATION

OF PRIVACY, DISALLOWING WARRANT.

LESS, NON-PROBABLE CAUSE, NON-CON-

SENSUAL SEARCHES OF CALIFORNIA GAR-

BAGE CANS.

As an extension of either the person or the home,

the domestic garbage can and communal trash bin are

intregal parts of the domestic scene. It is surely one of

the effects of the person and home since it is clearly a

necessary and salient element of the carrying on of life

itself.

No one quarrels with the proposition that the domestic

garage is an extension of the home and is therefore en-

titled to 4th Amendment protection. Indeed, while a do-

mestic garage could arguably be dispensed with, the car

housed outside in the weather, it is likely less easy to make

an argument that the garbage can, bag, receptacle, or

whatever, could be similarly done away with, for then

the citizens would be hard pressed to carry on the com-

hbustion of life itself. As such, the domestic garbage can

is an indispensible and integral extension of both the

person and the home and is itself an effect often contain-

ing papers that, while abandoned in the personal property

sense, are not abandoned in the reasonable expectation of

privacy sense as we analyze below. In preparation for

that analysis, we note with careful interest that the cases

13

upholding the warrantless, non-probable cause, non-con-

sensual seizure and search of the domestic garbage cans

(notably the multitude of U.S. Cireuit Courts) of this na-

tion do so with zero to little analysis, but simply, and

tersely, state that ‘‘abandoned property’’ is entitled to

no reasonable expectation of privacy. We echo one proba-

tive dissenting state judge (People v. Huddleston, 38 Il.

App.3d 277, 347 N.E.2d 76, 81, Justice Stouder) that the

‘‘results in the cases relied upon by the majority support

the majority opinion (but) these cases have internal weak-

nesses and are not sufficiently persuasive.’’

Of course they are not ‘‘sufficiently persuasive’’ for

they are totally conclusionary, unsupported by any con-

sidered analysis. In contrast, such leading cases as People

v. Edwards, 71 Cal.2d 1096 and People v. Krivda, 5 Cal.

3rd 357, and studied dissents in the cases of terse and

shallow majority opinions upholding warrantless seizures,

present in depth analysis in support of a reasonable ex-

pectation of privacy in the domestic garbage can.

In fact, one broad introductory comment must be made:

it is the garbage can, or the communal trash bin, which is

the arm of the person, the home and the effect that is to

be accorded protection; the contents achieve their protec-

tion derivatively by virtue of being within the key pro-

tected garbage can. Naturally, if one spews his refuse out

in the open for all to see without required rummaging or

searching, we do not illogically assert a reasonable ex-

pectation of privacy in that limited circumstance.

This Court declared in Katz v. United States, 389 U.S.

347. 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) that the

‘‘Fourth Amendment protects people, not places.’’ Under

14

the proper interpretation of Oliver v. United States, 466

U.S. 170, 176, in considering the scope of the Fourth

Amendment as to the protection afforded to ‘‘persons,

houses, papers and effects,’’ it is clear that the domestic

garbage can/communal trash bin is a necessary and actual

extension of the person and the house, and is itself a

necessary effect which may and does contain papers of

the owner of that can, or the user of the communal bin,

so as to afford protection under the 4th and 14th Amend-

ments.

Thus the fact that respondent’s trash bin was located

in the subterranean common garage is not the focus; the

proper perspective remains on the common bin itself, not

its fortuitous location. It is the bim which is linked to, the

person, the house, and is the 4th Amendment effect. Thus,

under the protection under Katz to the person, it is the

garbage can/bin which is to be protected, not its loca-

tion.

Justice John Marshall Harlan, in a concurring opinion,

expressed a two-fold requirement that a person have ex-

hibited an actual (subjective) expectation of privacy and,

second, that the expectation be one that society is pre-

pared to recognize as ‘‘reasonable.’’ (389 U.S. 347, 361).

In the case at bar, respondent did all that he needed to

do under the law of California now extant: he placed his

trash in a closed, opaque bag and deposited it in a trash

bin judicially determined to be immune from warrantless,

non-probable cause, non-consensual search. We argue that

society is prepared to recognize garbage can privacy

under a manifold of facts known about the manner of

garbage collection, the habits of professional/amateur

15

scavengers, children and animals, the inability of police to

meaningfully use garbage can searches as a crime com-

bative tool in a random manner, and finally under a gen-

eral broad overall canopy that few, if any citizens, wel-

come police scrutiny of their effects and papers, including

love letters, bank deposit information, contraceptives, tam-

pons, restricted reading materials, and other tell-tale items

on the road map of life in the previous week.

It is too akin to telephone tapping and clandestine

visual surveillance into private areas of life to find sanc-

tion by this Honorable Court without the interposition

of a neutral magistrate in the search warrant process.

Thus, the citizens of the United States, and surely

those in California. have a reasonable expectation of pri-

vacy in their domestic garbage cans/communal trash bins

as to warrantless, non-probable cause, non-consensual

seizures and searches by police. This is based on well-

recognized, or logical reasons and the law of California

concerning the search of California garbage cans existing

since 1969 in People v. Edwards, 71 Cal.2d 1096, 80 Cal.

Rptr. 633, 458 P.2d 713 (1969), extended by People v.

Krivda, 5 Cal.3rd 357, 95 Cal.Rptr. 62, 468 P.2d 689 (1971).

A. The realities of, and knowledge of the citizens

concerning, how domestic garbage is collected.

One need go no further, to be convinced that the like-

lihood of garbage haulers themselves seizing and search-

ing domestic garbage cans is small to non-existant, than

to observe the domestic garbage collection process in actual

operation.

In any domestic neighborhood, it is usually done by at

lea ‘ two men operating huge, covered trucks. As one

16

man drives, the other hops off the truck, grabs the can or

cans, upends each into the well of the truck, and upon the

actuation of an elevating mechanism button, the garbage is

elevated into the common huge receptacle of the truck.

The truck quickly moves on to the next location, and the

process is repeated, and so on through the neighborhood.

There is simply insufficient to zero time for professional

garbage haulers to rummage in each can to look for such

‘‘valuable’’ items as spent soft-drink/beer aluminum cans,

items of clothing, broken but repairable appliances and

other jettisoned matters. We further suspect that pro-

fessional garbage haulers would not even recognize ‘‘ pay-

owe’’ sheets, pari-mutuel betting slips, or ‘‘drug residue’’

so as to have revealed to them possible criminal activity

of our citizens. Thus the li//elihood of non-police personnel,

such as professional garbage haulers, discovering contra-

band in the small percent of cans which might contain it

on a given pick-up day must be miniscule. It is this math-

ematically small probability that, of and in itself, must

dictate a reasonable expectation of privacy in our domestic

garbage cans. The average homeowner in America believes

that his refuse will be quickly removed from his can, ele-

vated into a truck to join other garbage therein and be-

come intermixed in such an indistinguishable manner as

to defy further identification; it will be hauled to the

dump, where it will be burned/destreyed/plowed under

by Caterpillar tractors, to form the foundation for new

housing developments. These beliefs are, of course, well

founded because these beliefs are the realities of garbage

collectors.

Mathematically, then, the sheer probability of

garbage examination by the professional haulers is so

17

small as to be virtually molecular/atomic in magnitude,

and thus a reasonable expectation of privacy at this stage

is virtually certain.

B. The professional and amateur scavenger, the

child, and the animal.

It is contended by some, including amicus curiae

Americans for Effective Law Enforcement, that the al-

ways potential presence and activities of professional and

amateur trash can scavengers diminishes, if not totally

abrogates, a reasonable expectation of privacy in domestic

garbage cans/communal trash bins.

Of course, it is acknowledged that such persons often

make their living by rummaging among the jettisoned

items, from a home, deposited in a trash can. Thus the

economic gains derived from recycling of aluminum beer

and soft drink cans is said to attract scavengers to the

trash can, destroying privacy.

The obvious answer to this is that these scavengers

look into every trash can on the street for readily discerni-

ble items such as the aluminum cans, or items of clothing,

or repairable appliances, and upon finding these items,

take them and depart. They do not play the role of gov-

ernment, police, and law enforcement carrying out clan-

destine and surreptitious surveillance, search and seizure

for evidence of crime. Indeed, these scavengers, likely

would not even recognize indicia of crime interposed with

the aluminum cans, such as ‘‘pay-owe’’ sheets, pari-mutuel

slips, or slight marijuana residue, and hence constitute

a far different problem than the clandestine garbage can

search by police. The other obvious answer is that the 4th

18

Amendment was never designed to protect the citizen

against search/seizure encroachments by their fellow citi

zens; it was designed to insulate against government acts

which violate a reasonable expectation of privacy.

At least one learned jurist has recognized in an exten-

sively analyzed dissent this readily discernible major dif-

ference between the scavenger and the professional police-

men, i.e., a ‘‘differential expectation of privacy.”’

In Smith v. State (1973) Alaska, 510 P.2d 793, 803,

Chief Justice Rabinowitz stated:

‘‘Without elaborating, the court rejects as being

‘too attenuated’ appellant’s theory of ‘differential ex-

pectations of privacy’ and in so doing fails to recog-

nize that citizens might expect a few, infrequent inva-

sions of their privacy by third persons, but might

simultaneously expect their privacy to remain immune

from governmental intrusion. I disagree. A telephone

cailer, for example, who conducts a conversation on a

‘party line’ might reasonably expect brief interrup-

tions from others who were attempting to ascertain

if the line were in use. It does not necessarily follow,

however, that the same caller would also expect that

government agents might be conducting a full-scale

warrantless ‘search’ or tap of his conversations. Simi-

larly, one who deposits refuse into a dumpster might

expect some minor, inadvertent examination by gar-

bagemen or other third persons, but such expectations

would not necessarily include a detained, systematized

inspection of the garbage by law enforcement person-

nel. As the California Supreme Court correctly ob-

served in Krivda:

‘‘Of course, one must reasonably anticipate that

under certain circumstances third persons may invade

his privacy to some extent. It is certainly not unfore-

seen that trash collectors or even vagrants or children

19

may rummage through one’s trash barrels and remove

some of its contents. However, as stated in People v.

McGrew, 1 Cal.3d 404, 412, 82 Cal. Rptr. 473, 478, 462

P.2d 1, 6, ‘The hotel guest may reasonably expect a

maid to enter his room to clean up, but absent unusual

circumstances he should not be held to expect that a

hotel clerk will lead the police on a search of his

room.’ ’’ (5 Cal.3rd 357, 364)

Similariy, in dissent in State v. Schultz, Fla.App., 388

So.2d 1326, 1330-1331, Florida Appellate Judge Anstead

enunciated :

‘‘In my view, a homeowner, upon placing items in

a closed garbage container and placing the container

in a position on his property where the container can

be conveniently removed by authorized trash collec-

tors, is entitled to reasonably expect that the container

and the trash therein will be removed from his proper-

ty only by those authorized to do so, and that such

trash will be disposed of in the manner provided by

ordinance or private contract. By sealing the con-

tainers in a secure manner and placing the containers

on his own property, the owner has done everything

within his own means to insure the privacy of the con-

tents thereof, shore of delivering the containers to a

central disposal site himself.

‘‘While it is true that one cannot reasonably ex-

pect trash containers to be completely safe from the

probing of dogs, curious children, the trash collectors

themselves, and possibly others, common sense tells us

that one should be able to expect that his property and

trash containers will be free from search and seizure

by the police, neighbors and others who are and should

be more knowledgeable and respectful of the property

and privacy rights of others. The fact that dogs, or

others, may occasionally and wrongfully trespass upon

private property and go through one’s ‘private’ trash

20

does not justify others in doing so. We should still

be mindful of the adage that two wrongs do not make

a right. Moreover, we are simply not involved here

with the accidental disclosure of contraband because

of the activities of dogs, children, or trash collectors.’’

Of course, children rummaging in the trash would be

even less likely than adult scavengers to look for evidence

of crime, or recognize it if they saw it, and of course hun-

gry animals would have zero ability to look for, or discern,

criminal activity. I+ is the police officer, under the 4th

Amendment protection afforded every citizen, that is of

severe concern to the concept of reasonable expectation of

privacy; the meaningful judicial analyzer can readily dis-

miss the issue of the scavenger, the child, and the animal

as being potential encroachers upon the citizen’s right to

be let alone and free of government invasion of his privacy

expectations, and thus reject the specious argument that

one should not reasonably expect to have privacy from

police if one does not from the seavenger, a child, or an

animal.

C. The non-probable cause search of garbage cans by

police.

Again, mathematical probability dictates a reasonable

expectation of privacy in domestic garbage cans by police

acting without probable cause to believe a given can con-

tains contraband.

-

A city such as Los Angeles contains, say, 5 million

people, and employs, say 10,000 policemen. Obviously the

great bulk of these police are employed in combatting

known criminals who are engaging in known criminal

activities. This means that extremely few law enforcement

_- +

21

personnel could be used in non-probable cause garbage

ean searches in a random manner. Assuming even 100

police could be used to search the some million garbage

can of a metropolitan area, it follows that the ratio would

be a mere 100 police/1,000,000 cans or 1 officer per 10,000

cans, a demonstrably impossible task. When one recog-

nizes that likely relatively few cans, on a given date, con-

tain evidence of crime, it is plain that the local chief of

police will not opt for a routine garbage can search detail,

burdening his apparently thin force with such unproduc-

tive activity.

Of course, if probable cause does exist to search a

given can, that is a different matter, and calls for the

search warrant process.

This mathematical analysis speaks logically and loudly

for a belief by the citizenry that there does in fact exist a

reasonable expectation of privacy in the domestic garbage

cans of America.

D. The logical desire and expectation of the United

States citizen as to his garbage contents privacy.

It goes without saying that the contents of one’s do-

mestiec garbage can is a road map of many factors of his

or her life. Everything from contraceptives, used tampons,

liquor bottles, pornographic magazines, love letters, medi-

cine bottles, bank deposit information, demands for unpaid

bills, and food residue, can and does occupy the typical

garbage can. Some even, albeit few, contain marijuana

residue and other indicia of crime.

The California Supreme Court, in its well-reasoned

cases now constituting the law of warrantless garbage can

searches said:

22

‘¢| | . We can readily ascribe many reasons why

residents would not want their cast-away clothing, let-

ters, medicine bottles, or other telltale refuse and trash

to be examined by neighbors or others, at least not

until the trash has lost its identity and meaning by be-

coming part of a large conglomeration of trash else-

where. Half-truths leading to rumor and gossip may

readily flow from an attempt to ‘read’ the contents of

another’s trash.’’ People v. Edwards, 71 Cal.2d 1096,

1104, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Krivda,

5 Cal.3d 357, 366, 96 Cal.Rptr. 62, 486 P.2d 1262.

We-can perceive little to zero reason why any Cali-

fornia citizen, or of any state, would wish to embrace

police /law enforcement/government routinely searching

his trash can, thus revealing to government his intimate

and private life. Surely following the advent of Bowers v.

Hardwick, — U.S. —, 54 L.W. 4919, our friends of perhaps

different sexual preference would not desire the residue of

their activities, deposited in their garbage cans, to fall into

the hands of law enforcement. The Roman Catholic Church

still takes a stand against the use of contraceptives for

birth control; our nation’s many million Catholics who may

transgress this element of the church would find little

solace in the knowledge that tell-tale contraceptives would

show up in their garbage. Cf. Griswold v. Connecticut,

381 U.S. 479. In a like vein, although approved by this

Court in Stanley v. Georgia, 394 U.S. 357, the showing of

home pornographic movies is not approved by all in our

society; evidence thereof appearing in the domestic gar-

bage may give concern to a good many ef our populace.

It is of significant interest that cases upholding a rea-

sonable expectation of privacy in domestic garbage cans

do so with excellent, well-reasoned, logical, in depth analy-

23

sis, while those who deny such reasonable expectation of

privacy do so with little to no analysis. See in addition to

People v. Edwards, 71 Cal.2d 1096 and People v. Krivda,

5 Cal.3d 357, the following: People v. Huddleston, 347

N.E. 2d 76, 81-86, Stouder, Justice, dissenting; (Justice

Stouder accuses these cases of ‘‘having internal weak-

nesses and not sufficiently persuasive ;’’ Federal Circuit

cases are marked with an absence of any real analysis save

merely quoting each other by citation.) Smith v. State of

Alaska, 510 P.2d 793, 799-805, Rabinowitz, Chief Justice

dissenting; compare, and in accord with Edwards and

Krivda, Everhart v. State, 274 Md. 459, 337 A.2d 100,

114-116; Ball v. State of Wisconsin, 57 Wis.2d 653, 205

N.W. 2d 353.

In State v. Chapman, Maine, 250 A.2d 203, 212, the

Supreme Judicial Court of Maine noted that a bottle de-

posited in a trash barrel, still in the garbage, well down in

the barrel and covered with trash and paper, exactly as in

the instant case, strongly suggested that it was intentional-

ly hidden and concealed, and thus a reasonable expecta-

tion of privacy appertained. Abel v. United States (1960)

362 U.S. 217, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 was distin-

guished, where, in Abel, it was clear that the defendant

abandoned his hotel room and the wastebasket therein in

which he had deposited evidentiary items right before the

eyes of the police just before his final departure.

In Bolen v. State, 544 S.W.2d 918, the Tennessee Court

of Criminal Appeals accorded reasonable expectation of

privacy in a large trash dumpster located on the defen-

dant’s property absent a showing on the part of the prose- |

eution that the defendant had the mental state of abandon-

ment.

24

In State of Arizona v. Broom, 113 Ariz. 495, 557 P.2d

1052 the Supreme Court of Arizona accorded privacy to a

small bag placed behind trash cans, but not within them.

There was no showing that defendant had ‘‘abandoned’’

the brown paper bag nor had he ‘‘knowingly exposed it’’.

See also, for privacy expectation, Fizel v. Wainwright,

492 F.2d 480, 483-484 (5th Cir. 1974) (trash container in

fenced backyard of apartment building).

The great majority of Federal Circuit Court cases

tersely deny an expectation of privacy in trash receptacles

in a nonanalytical single sentence, i.e. that ‘‘abandoned’’

property is not entitled to any ‘‘reasonable expectation of

privacy.’’ Yet these cases never really tell us why one

should not expect privacy in the trash, and the instant

petitioner’s brief is likewise devoid of virginal and analyti-

cal supportive explanation. Surely the issue is most sim-

plistie and facile to these laconic Federal and State Courts

and the advocates who have successfully urged their un-

supported conclusions of ‘‘abandonment’’ equalling no rea-

sonable expectation of privacy.

Following the holdings of such cases as Work v. United

States, 100 U.S. App. D.C. 237, 243 F.2d 660 (1957), the

law of garbage can searches in the United States Cireuit

Courts is bottomed on cases lacking in depth analysis as

to reasonable expectation of privacy. Commencing with

germinal cases stemming from Abel v. United States, 362

U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, each succeeding cir-

cuit case embraces its predecessor, or conglomerate prede-

cessors, to conclude that trash is ‘‘abandoned’’ and there-

fore not subject to a reasonable expectation of privacy.

Abel, however, must be distinguished because there the

em

25

defendant placed the seized items in the wastebasket right

under the eyes of the arresting police, and thus it is diffi-

cult, if not impossible, to suggest that Abel had any reason-

able expectation of privacy; moreover, Abel preceded the

ease of Katz v. United States, 389 U.S. 347, and therefore

must not be read to countermand Katz’s subsequently de-

veloped reasonable expectation of privacy criteria.

One of the first of such cases concluded, in 1962, that

a communal trash bin was ‘‘ outside the curtilage’’ and that

trash was ‘‘abandoned’’, however, without reference to

Abel. The 3rd Cireuit concluded that because of the non-

individual control of the trash receptacle, the victim of

the garbage seizure had an ‘‘insubstantial interest’’ in

the communal bin. In United States v. Minker, 312 F.2d

632 (3rd Cir. 1962), a wagering case, the defendant was sus-

pected of running a gambling operation in Reading, Penn-

sylvania. Various ‘‘raids’’ conducted by the government

on several of defendant’s locations failed to turn up any

evidence linking the defendant to the operation, although

adding machines, numbers slips, tally sheets, and other

indicia of the profession were uncovered. Eventually gov-

ernment agents arranged with one Damore, a trash col-

lector, to permit them to examine the contents of a trash

receptacle located on the premises of the defendant’s apart-

ment building used by four tenants and the building su-

perintendent. This step was more fruitful, for ‘‘hand-

writing identified as Minker’s’’ appeared on some of the

seized papers, which were leisurely examined off the situs

by the agents. The 3rd Circuit held that Minker had

‘‘abandoned’’ this property, although acknowledging that

‘‘abandonment was largely a question of intent... and

26

intent, in turn, is a question of fact ...’’ The opinion

did not disclose whether the paper was lying in plain view

within the communal bin, or was in repose within a closed,

opaque bag in the bin.

The aftermath of Abel surfaced in a 1971 Second

Cireuit case. In United States v. Dzialak, 441 F.2d 212

(2d Cir. 1971), company security investigators believed

the defendant, a Railway Express employee, was pilfering

articles entrusted to him for delivery, and set up a sur-

veillance of his home; agents seized a closed, opaque card-

board box which was part of trash left between the side-

walk and street in front of the home; a second ‘‘trash’’

seizure occurred a week later. Each revealed incriminating

evidence of articles shipped by Railway Express and ap-

parently being diverted to the defendant’s personal gain.

While noting that local municipal ordinances precluded

such rummaging into trash, the Second Circuit asserted

that it was not ‘‘persuaded’’, because it was, to them,

‘‘abundantly clear that Dzialak abandoned the property’’,

relying on Abel v. United States, 362 U.S. 217, 241, 80 S.Ct.

683, 698, 4 L.Ed.2d 668 (1960).

Of course. like many of the Federal Circuit cases, the

seizure of the closed, opaque, cardboard box, and its re-

duction to police custody, with no inquiry whether a search

warrant should be sought, preceded the analysis of United

States v. Chadwick, 433 U.S. 1 and Arkansas v. Sanders,

442 U.S. 753.

The U.S. First Circuit then embraced, without analy-

sis, the Dzialak and Minker rationale, finding ‘‘abandon-

ment’’ had obliterated any reasonable expectation of pri-

vacy. In United States v. Mustone, 469 F.2d 970 (1st Cir.

ee —

27

1972), as early as March 3, 1971, U.S. Secret Service agents

believed that the defendants were printing counterfeit mon-

ey at a location in Lynn, Massachusetts, since they heard

‘*the sound of an offset press in operation’’ while conduct-

ing a surveillance of the premises. Six days later, without

securing a search warrant, surveilling U.S. Secret Service

officers watched one defendant carrying two large ‘‘tied

closed’’ opaque trash bags, and saw them placed on the

sidewalk near some garbage cans ‘‘several doors away”’

from their place of operation. The agent seized the bags

and took them to the Boston Secret Service office where

they were leisurely opened the next day, and agents found

impressions of three and one half counterfeit ten dollar

notes and three aluminum offset plates stained with green

ink. While People v. Krwda, 5 Cal.3d 357, was noted, the

First Cireuit held ‘‘... we are not persuaded by this au-

thority, however. and hold that when Brennan deposited

the bags on the sidewalk he abandoned them... Implicit

in the concept of abandonment is a renunciation of any

reasonable expectation of privacy in the property aban-

doned ... The contrary suggestion strikes us as anoma-

lous ...’’ (469 F.2d at 927).

This 1972 case, of course, preceded the ‘‘closed opaque

container, reduced to police custody, requiring a search

warrant to enter it’? reasoning of United States v. Chad-

wick, 433 U.S. 1 and Arkansas v. Sanders, 442 U.S. 753.

The U.S. 6th Cireuit followed suit in 1976, basing

its terse ‘‘abandonment equals no reasonable expectation

of privaey’’ ruling on United States v. Mustone, 469 F.2d

970 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212

(2d Cir. 1971), and United States v. Minker, 312 F.2d 632

28

(3rd Cir. 1962). In Magda v. Benson, 536 F.2d 111 (6th

Cir. 1976), the defendant was suspected of United States

post office burglary; surveillance of his home noted the

defendant placing his apparently closed, opaque garbage

bag on the ‘‘tree lawn’’ next to the street adjacent to his

residence. The surveilling postal inspector later retrieved

the bag and opened it without a warrant, although its re-

duction to the postal inspector’s custody obviated any con-

tention of ‘‘exigency’’, and allowed the leisurely securing

of a warrant pursuant to United States v. Chadwick, 433

U.S. 1 and Arkansas v. Sanders, 442 U.S. 753. The Dis-

trict Judge had ruled that People v. Krivda, 5 Cal.3rd 357,

and its ‘‘interpretation of the U.S. Constitution by a Cali-

fornia Court is not binding on this Court’’, and that ‘‘no

legitimate expectation of privacy exists as to abandoned

property’’. The Sixth Cireuit Agreed.

The U.S. 7th Cireuit embraced ‘‘abandonment’’ in

1978 although giving some space in its opinion to considera-

tion whether a person placing garbage in a trash can could

expect it to remain free of disturbance; that Cireuit con-

cluded that the defendant ‘‘knowingly risked exposure to

the public’’ by placing anything in his trash barrel. In

United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978)

the F.B.I. requested the Milwaukee, Wisconsin garbage

collectors to turn over closed, opaque bags taken from de-

fendant’s garbage cans from behind his home to enable the

F.B.I. agents to search these bags for coin wrappers which

would evidence that the defendant had been returning to

banks for which he had once been the janitor, via a re-

tained key, and there had pilfered coins. The Seventh

Circuit first ruled that the defendant had standing to ob-

29

ject to the seizure of his garbage bags under the Fourth

Amendment (573 F.2d at 973), but ruled that the concept

of ‘‘abandonment’’ made any purported reasonable ex-

pectation of privacy a ‘‘bad judgment’’ on the part of

the defendant. Here it would appear that no exigent cir-

cumstances foreclosed securing a search warrant for the

closed, opaque bags, once they were seized, within the

reasoning of United States v. Chadwick, 433 U.S. 1 and

Arkansas v. Sanders, 442 U.S. 753, as F.B.1. agents had

previously received information that the defendant was

bringing substantial quantities of coins into local banks

and depositing them.

All of the foregoing cases were tersely cited to sup-

port the ‘‘abandonment”’ theory.

The 4th Circuit’s contribution occurred in 1978, again

relying on all of the above circuit court decisions, and con-

cluding that the act of placing the trash for collection is an

act of ‘‘abandonment’’, and thus the 4th Amendment does

not apply. United States v. Crowell, 586 F.2d 1020, :024-

1025 (4th Cir. 1978) (police directed private contract trash

collectors to turn over trash which had been collected from

within defendant’s residence; trash collectors ‘‘had no

permission’’ to do this; the Court observed: ‘*‘ While most

people probably expect that their garbage will not be in-

spected but rather will be taken to the dump, it is equally

true that most people have no clear understanding of what

happens to their garbage when it is removed from their

premises and have even less expectation of having any-

thing further to do with it once it is removed. The real

question is whether there is a reasonable expectation of

privacy that one’s garbage will not be searched.” 586 F.2d

30

at 1025). Nonetheless, this Fourth Circuit Panel held that

‘‘abandonment”’ as a personal property concept foreclosed

any further thoughtful analysis, without answering whether

the defendant had reasonable belief that police would not

be clandestinely contacting his private service garbage

man to enlist his cooperation to effect a search of his

closed opaque trash bag. In Crowell, supra, apparently

police surveillance over a period of time led to the conclu-

sion that a PCP synthesis laboratory was operating on the

premises, thus foreclosing any contention that exigent cir-

cumstances existed to circumvent securing a search war-

rant for the home and its then internal garbage bag. The

warrantless search of the closed opaque trash bag, once

reduced to police custody, would seem to violate the rea-

soning of United States v. Chadwick, 433 U.S. 1.

In 1979, the 5th Cireuit joined the ‘‘abandonment’”’

theory in United States v. Vahalik, 606 F.2d 99 (Sth Cir.

1979). Vahalik illustrates how the ‘‘analysis’’ becomes

shorter to nonexistant as the 5th Circuit Court embraces

each preceeding Circuit Court.

‘* . . We prefer the view adopted by every United

States Court of Appeals to consider the issue, that

the act of placing garbage for collection is an act of

abandonment which terminates any fourth amendment

protection ...’’ (606 F.2d 99, 101).

In United States v. Reicherter, 647 F.2d 397 (3rd Cir.

1981), the Court mentioned the ‘‘reasonable expectation of

privacy’’ principles of Katz v. United States, 389 U.S. 347,

88 S.Ct. 507, 19 L.Ed.2d 576 (1967), but once again ruled

‘trash placed in its can’’ to be ‘‘abandoned’’ in the per-

sonal property sense and thus not entitled to constitu-

tional protection. By now the reciting of the cases took

31

much more space than the area needed to assert the single

sentence holding ‘‘abandonment equals no reasonable ex-

pectations of privacy.’’ (See 647 F.2d 397, 399).

The U.S. Sth Cirenit case United States v. Btiondich,

652 F.2d 743 (8th Cir. 1981) did not totally rubber-stamp

the long line of predecessors, holding that only when the

trash was fully removed by the garbage haulers did the

reasonable expectation of privacy vanish; in Biondich, the

commercial haulers in fact, as in People v. Krivda, 3 Cal.

3rd 357, had removed the garbage from the premises, and

had thereafter cooperated with police in allowing a search

one block away in a parking lot; hence Biondich’s previous-

ly existing reasonable expectation of privacy had evapo-

rated by the act of removal of the garbage by the private

garbage hauling service. See also United States v. Sump-

ter, 669 F.2d 1215, 1220-1221 (Sth Cir. 1982), reaffirming

the somewhat unique 8th Cireuit concession to the ra-

tionale of Katz v. United States, 389 U.S. 347, that pri-

vaecy remains viable until the refuse is liberated from the

can by non-police garbage haulers.

United States v. Terry, 702 F.2d 299, 308-309 (2d Cir.

1983) returned to the usual norm of the Federal Circuit

Courts—long citations of their own cases absent any as-

sertion save that the trash constituted **abandoned’’ prop-

erty. Every conceivable Circuit case emanating from the

Abel decision of 1960 was cited.

In United States v. Kahan, 350 F.Supp. 784 (D.C.S.D.

N.Y. 1972), a much more thoughtful and scholarly analysis

surfaced, rather than a resort to the facile and shallow

‘‘abandonment”’ route. There a government employee was

suspected of criminal activity and his personal waste-

32

basket, cached beneath his desk, was steadily and daily

searched for whatever could be found to substantiate

generation of federal criminal charges. The Court initially

held that there were, indeed, searches, which the Fourth

Amendment recognized, occurring, and nothing could sup-

port exigent circumstances to obviate getting a warrant.

since they were done repetitively. (350 F.Supp. at 781,

paragraph (5)).

Secondly, the Court held that Kahan’s supervisor

could not consent to the search of Kahan’s wastebasket

(350 F.Supp. at 793, 794), since Kahan had exclusive and

personal use of the waste basket (cf. United States v.

Blok, 188 F.2d 1019, 88 U.S. App.D.C. 326 (D.C. Cir. 1951)

where supervisor could not consent to search of govern-

ment employee’s desk).

‘ The third issue was, and is, the omnipresent and

ubiquitous ‘‘cop-out’’ of abandonment of anything de-

posited in the waste basket from the law of personal prop-

erty.

The district judge, with uncommon erudition on the

concept of ‘‘abandonment’’, characterized the issue thusly :

‘*. , . the question is not whether there has been

abondonment in the property law sense compare Jones

v. United States, 362 U.S. 251, 265-267, 80 S.Ct. 725,

4 L.Ed.2d 697 (1960) with Kafz, supra, 389 U.S. at

351-352, 88 S.Ct. 507, but rather whether there has

been abandonment of a reasonable expectation of pri-

vacy as to the area searched or the property seized

..’’ (350 F.Supp. 784 at 795).

The Court then proceeds to the nub of the entire

garbage can search problem:

33

‘‘From this perspective, the flaw in the government’s

argument becomes immediately apparent. When Mr.

Kahan threw papers in his wastebasket, he did ‘‘aban-

don’’ them im the sense that he demonstrated an un-

equivocal intention to part with them forever. How-

ever, the undisputable expectation of an employee

who discards items in his own wastebasket is that they

subsequently will be disposed of and destroyed wtth-

out prior mspection by others. In this respect, a waste-

basket serves a similar function as the mails—a waste-

basket is a vehicle for destroying objects; a mailed

package is a vehicle for sending them to someone else.

In each case, the objects leave the possession of the

person, but his expectation that the vehicle in which

they have been placed will be free from unreasonable

governmental searches remains the same .. .”’

It has, of course, been held by this Honorable Court

that a person does not give up his expectation of privacy

with respect to letters and sealed packages when he depos-

its them in the mail. United States v. Van Leeuwen, 397

U.S. 249, 251-252, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970).

The Court noted, again with uncommon prescience,

that

‘¢ .. there is and can be no claim that Mr. Kahan’s

wastebasket was abandoned by him when he left his

office in the evening after work. So long as he re-

mained an employee with an assigned desk under

which lay a wastebasket for his exclusive use, whether

he was actually in the office at any particular time

could not possibly affect his expectation of privacy

with respect to that receptacle ...’’ (350 F.Supp.

at 797).

Thus, by analogy, the only vessel possible for dis-

posal of Mr. Rooney’s trash, the apartment house dump-

ster, is not ‘‘abandoned’’ by Rooney nor any other user,

34

and the concept of personal property ‘‘abandonment”’

totally misses the significant correct issue:

‘‘Does the depositor of trash give up, or abandon,

his reasonable belief that the trash he places within

the non-abandoned trash bin or container will not

be scrutinized by police, or others at police direction,

and does he still have the reasonable expectation of

prwacy in the ultimate fate of the trash, albeit the

trash is abandoned in the personal property sense?’’

(emphasis added)

Since Peter Rooney is, and was, an assigned user of

the common dumpster for the apartment complex, he ob-

viously has standing to object to its warrantless search.

The Kahan judge notes that, as we do, ‘‘Where the

government believes that criminal prosecution of an

employee is warranted, presumably it will have prob-

able cause to believe that the employee has committed,

or is committing a crime. In that case, if it has prob-

able cause to conduct a Fourth Amendment search or

seizure to obtain evidence of crime, it can follow the

warrant procedure ...’’ (emphasis added) (350 F.

Supp. at 798).

Thus Aahan presents an uncommonly searching and

scholarly analysis of the true issue of garbage can

searches:

It is not the abandonment of the trash in the personal

property sense that is at issue; indeed, the true issue is what

does the American citizen reasonable believe will be the

true fate of his trash, which he has abandoned in the per-

sonal property sense, but not in the reasonable expectation

of privacy sense?

The distinction is, of course, the turning point and

the key to erudite and correct analysis, and scholarly de-

cision, as opposed to a facile, truncated. cireumvented and

shallow analysis, and wrong decision.

LO ST ED Ss

35

Virtually all cases which approve garbage can search-

es do so on the non-analytical launch-pad, and point of

take-off, and route to cloudy thinking, that there is no

‘‘reasonable expectation of privacy’’ in ‘‘abandoned”’ per-

sonal property.

Such a path, urged by the State of California, sorely

points out the dichotomy necessary for proper perspec-

tive of the ‘‘garbage can’’ search issue of the United States

Constitution’s Fourth Amendment.

Similar terse state cases are available which hold that

‘‘abandoned’’ property in the trash can carries no rea-

sonable expectation of privacy. See, e.g. People v. Huddle-

ston, 38 Ill. App.3rd 277, 347 N.E.2d 76 (1976); but see

the scholarly and in depth dissent by Justice Stouder at

347 N.E.2d 76, 81 ff; Smith v. State, Alaska, 510 P.2d 793;

but see Chief Justice Rabinowitz’s detailed in depth dis-

sent at 799 ff; State v. Schultz, Fla.App., 388 So.2d 1326;

but see scholarly dissent by Judge Anstead at 1329ff.

The conclusion is inescapable that the adherents of

no reasonable expectation of privacy in domestic garbage

eans do so on the simplistic but non-analytical view that

the contents are ‘‘abandoned”’ personal property and then

follow with the conclusion that as a consequence no rea-

sonable expectation of property is extant. On the other

hand. thoughtful and logical analysis, coupled with de-

sires of the citizens of this freedom loving nation, sug-

gests a reasonable expectation of privacy in these arms

of the doméstie scene.

E. The equal protection of the law to all citizens

regardless of whether they live in a multi-unit apartment

house complex, or a single unit domestic home, and inde-

pendent of the local means that garbage is removed by

local custom.

36

Some cases seem to distinguish between expected pri-

vacy in an individually owned single depository trash can

and the unit at bar, the communal trash bin; other cases

seem to distinguish between the homeowner bringing the

garbage can from his private land onto a public curb for

collection purposes vis-a-vii the can remaining on the

property when it was seized and searched. Some cases

note trash ‘‘bags’’ being seized and searched as opposed

to the more formal garbage can. We suggest these differ-

ences are more an exultation of form over substance, and

not the true touchstone of the necessary issue whether the

equal protection of the law should or should not enshroud

all homeowners, not leaving to the fortuity of varied living

conditions to determine whether the homeowner might

reasonably expect that his trash container would be the

subject of warrantless, non-probable cause, non-consensual

seizure and search by police.

A matrix of representative Federal and State garbage

can cases showing a wide variety of physical garbage can/

bin variations, locations, and police-garbage collector in-

teraction next follows; all in general, tersely and errone-

ously, uphold the seizure and search of the receptacle irre-

spective of its shape or size and independent of its loca-

tion, on the simplistic ‘‘abandonment’’ of contents theory,

i.e., the contents are ‘‘abandoned’’ and thus, the contents

are anomalously not to have a reasonable expectation of

privacy. As argued, this simplistic approach is errone-

ous, for the container, as a necessary arm of the person,

the home, and as an effect, is entitled to 4th Amendment

protection, and the contents while within the closed opaque

container, are, at that time, engulfed with the 4th Amend-

ment protection of the closed opaque container.

37

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41

F. Notwithstanding any other contentions about

whether the citizens of America, in general, are entitled

to a reasonable expectation of privacy in their domestic

garbage cans, it is clear that respondent Rooney occupies

a status of reasonable expectation of privacy in his gar-

bage cans/communal garbage bin.

That reasonable expectation of privacy in the domes-

tic garbage cans has existed in California since 1969. In

People v. Edwards, 71 Cal.2d 1096, the Supreme Court of

California held that trash placed in a trash can located in

the defendant’s back yard was not abandoned, and police

violated the defendant’s Fourth Amendment rights by

vaulting his rear yard fence, entering upon his property,

and rummaging in his trash can. .

Two years later, the Supreme Court of California

reaffirmed the Edwards analysis in People v. Krivda,

(1971) 5 Cal.3rd 357. In Krivda, the garbage can was

placed at curbside to await pick-up by the garbage haul-

ers. Police, desiring to search it, intercepted the garbage

truck, convinced the driver to empty the well of the truck

to avoid commingling of Krivda’s garbage, dump the gar-

bage can of interest into that empty well, and drive down

the street to allow the police to search it at their leisure.

Even though the can was placed at curbside, and thus

police did not have to trespass on the property to seize it,

the California High Court, in an extensively analyzed

opinion, held, inter alia, that:

‘*. . . The placement of one’s trash barrels onto the

sidewalk for collection is not, however, necessarily

an abandonment of one’s trash to the police or gen-

eral public . . . Under such circumstances we hold

42

that defendants had a reasonable expectation of pri-

vacy that their trash would not be rummaged through

and picked over by police officers acting without a

search warrant .. .’’ (5 Cal.3rd 357, 366-367)

People v. Dumas, (1973) 9 Cal.3rd 871 reaffirmed the

protection, holding that the ‘‘secondary degree of pro-

tection [that] applies to automobiles .. . also appears to

apply to a trash can placed by the curb for the disposal

of its contents...’’

Of course, respondent’s own case decision, People v.

Rooney, 175 Cal.App.3rd 634, 221 Cal.Rptr. 49 (1985),

noted that Edwards and Krivda were still the viable law

of California, affording California residents a reasonable

expectation of privacy in their domestic garbage cans

against warrantless, non-probable cause, non-consensual

searches by police.

Rooney was followed by People v. Greenwood, 182

CalL.App.3rd 729, 227 Cal. Rptr. 539 (1986).

It is inescapable, therefore, that respondent was en-

titled to a reasonable expectation of privacy in his garbage

albeit contrary authority appertained in other jurisdictions.

Any change in the law of California should not be

made retroactive because of this well-established law gov-

erning California garbage can seizures and searches en-

titling California residents to rely on this protection, be-

lieving that they had a reasonable expectation of privacy.

43

CONCLUSION

Where police intend to seize and search a domestic

garbage can/trash bin, at a specific location, for evidence

of crime, a search warrant should be obtained. Coolidge

v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2047.

If exigent circumstances exist, and probable cause

exists to believe the can contains contraband, it may be

reduced to police custody and a warrant obtained. United

States v. Chadwick, 433 U.S. 1.

Logical analysis as to the methods of professional

garbage collectors, amateur/professional scavengers, chil-

dren, and animals, and application of available police per-

sonnel, dictate a reasonable expectation of privacy in the

domestic garbage can. Like the spoken word on the tele-

phone (Katz v. United States, 389 U.S. 347), the contents

of the domestic garbage can are often so intimate to life

itself as to engender a desire on the part of the citizens

that police not be sanctioned to perform warrantless, non-

probable cause, non-consensual searches in garbage cans.

The cases upholding garbage can searches do so on

the superficial, lack of analysis conclusion that ‘‘aban-

doned’’ property carried no 4th and 14th Amendment ex-

pectation of privacy.

California citizens stand in a different position be-

cause of People v. Edwards, 71 Cal.2d 1096 and People v.

Krivda, 5 Cal.3rd 357 as to a reasonable expectation of

privacy in domestic garbage cans, disallowing warrantless,

non-probable cause, non-consensual search of garbage cans.

Respondent Rooney thus has demonstrated a reason-

able expectation of privacy in the communal! trash bin,

uL

44

and the judgment of the California Court of Appeal in

People v. Rooney, 175 Cal.App.3rd 634, 221 Cal.Rptr. 49

(1985) must be affirmed.

Respectfully submitted,

ArtHurR Lewis, Esq.

Rocer 8S. Hanson, Ese.

Ernramm Marcouin, Esq.

California Attorneys for

Criminal Justice

Attorneys for Respondent

Peter Rooney