Respondents Brief — California v. Greenwood

Suprema Court, U.S,

{ BILLED

| SEP 12 wer

No. 86-684 JOSEPH F. SPANIOL, JR,

E1L.ERK

In The

Supreme Court of the United States

October Term, 1986

ra’

Vv

THE STATE OF CALIFORNIA,

Petitioner,

vs.

BILLY GREENWOOD AND DYANNE VAN HOUTEN,

Respondents.

o- - --—-

On Writ of Certiorari To The

Court of Appeal of California,

Fourth Appellate District, Division Three

ty

Vv

BRIEF FOR RESPONDENT DYANNE VAN HOUTEN

hh

—_—

Ricuarp L. ScHWARTZBERG

401 Civie Center Drive West

Suite 820

Santa Ana, California 92701

714-835-3339

Counsel for Respondent

Dyanne Van Houten

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

or call collect (402) 342- 2831

_ BEST AVAILABLE COPY

en ote ae

QUESTIONS PRESENTED*

Twice the California Supreme Court concluded that

trash left at curbside is protected under the Fourth

Amendment from the federal Constitution’s proscription

against unreasonable searches and seizures. Where police

lacked probable cause or any reasonable suspicion Billy

Greenwood had committed a crime, eschewed any attempts

to obtain a search warrant, could point to no exemption

to the warrant requirement, and yet repeatedly searched

Billy Greenwood’s trash, did the court of appeal err in

concluding that the search and subsequent seizure violated

Billy Greenwood’s and Dyanne Van Houten’s reasonable

expectation of privacy? As a matter of public policy,

should the Court conclude individuals have a right to ex-

pect that police will not conduct warrantless and un-

supported excursions into their trash and that such ex-

pectations are both reasonable and legitimate? Should

police be required to possess probable cause to believe an

individual’s trash left at curbside contains evidence of a

crime before conducting a warrantless search?

*All parties to the proceeding in the California Court of

Appeal, Fourth Appellate District are listed in the caption.

il

TABLE OF CONTENTS

Page(s)

Questions Presented ccc seni i

Table of Authorities —....... ' —

Constitutional and Statutory Provisions Involved ... 1

ee ef 2

Summary of Arguncat $$ _._... 5

EEE 10

I. THE MERE FACT AN INDIVIDUAL

PLACES TRASH AT CURBSIDE FOR PICK-

UP DOES NOT DETERMINE HIS REASON-

ABLE EXPECTATION OF PRIVACY UN-

DER THE FOURTH AMENDMENT |. 10

A. Property Law Concepts Are Irrelevant For

Determining A Defendant’s Reasonable Ex-

pectation Of Privacy . ssiilag sihacies

B. The Use Of pata Law Onan To Re-

solve Whether An Individual Has A Le-

gitimate Expectation Of Privacy Fails To

Account Fo. Changes In —— And

Personal Values ................. inicio 12

C. Although The Great t Weight Of Auiediey

Finds Garbage Searches To Fall Outside

The Fourth Amendment, They Uniformly

Err In Basing Their Conclusion Upon

Abandonment Primeiples 0... 14

Il. THE WARRANTLESS AND UNSUPPORT-

ED SEARCH OF BILLY GREENWOOD’S

GARBAGE VIOLATED DYANNE VAN HOU-

TEN’S REASONABLE EXPECTATION OF

PRIVACY MANDATING SUPPRESSION OF

THE FRUITS OF THAT SEARCH |.) «14

ili

TABLE OF CONTENTS—Continued

Page(s)

A. Billy Greenwood’s Decision To Place His

Trash At Curbside For Collection Met The

Subjectivity ee Of Katz v. United

| ieee a 14

B. Possession Of An essiation Of ieee

In Garbage Left For Collection Is Both Rea-

sonable And Legitinmate 0... ccc eccccccccceecsee 18

Ill. THE COURT MUST AT THE VERY LEAST

ADOPT A RULE REQUIRING THE POLICE

HAVE PROBABLE CAUSE PRIOR TO CON-

DUCTING WARRANTLESS SEARCHES OF

TRASH LEFT AT CURBSIDE .. a,

A. United States v. Ross Establishes A Middle

Ground Where An Individual Has A Legiti-

mate But Lowered Expectation Of Privacy.. 24

B. The Court Should Adopt A Rule Govern-

ing Trash Services That Where An Indi-

vidual Has Exhibited A Reasonable Expec-

tation Of Privacy In Trash Police May

Conduct Warrantless Searches Only —

el aT 25

C. The Search Of Billy Greenwood’s Trash

Was Without Probable Cause Mandating

The Quashing Of The Search Warrant For

EO 27

EE 28

iv

TABLE OF AUTHORITIES

Pave(s)

CasEs

Abel v. United States, 362 U.S. 217 (1960) — 11, 21

Arkansas v. Sanders, 442 U.S. 753 (1979) ncceccceccenrenrennnen 24

California v. Ciraolo, 476 U.S. —, 106 §.Ct. 1809,

90 L.Ed.2d 210 (1986) Foe a! Cr CS Rn 11

California v. Krivda, 409 U.S. 33 (1972) onnceccccccceecsocesneenen 5, 21

California v. Krivda, 412 U.S. 919 (1973) 5, 21

California v. Rooney, — U.S. —, 107 S.Ct. 2852,

97 L.Ed.2d 258 (1987) 11,15

Carroll v. United States, 267 U.S. 132 (1925) 24, 25

Delaware v. Prowse, 440 U.S. 648 (1979) on ceccceeeeeeneene 19

Ex Parte Jackson, 96 U.S. 727 (1878) a 13

Illinois v. Gates, 462 U.S. 213 (1983) nn eneceeccsocesneeeneeenee 27, 28

In re Lance W., 37 Cal. 3d 873 (1985) .... 15

Katz v. United States, 389 U.S. 347 (1967) ........... 5, 8, 11, 14,

15, 16, 19

Magda v. Bensen, 536 F.2d 111 (6th Cir. 1976) 10

Oliver v. United States, 466 U.S. 170 (1984) .... 11, 19

People v. Edwards, {1 Cal. 2d 1096 (1969) ................ 7, 20, 21

People v. Greenwood, 182 Cal. App. 3d 729 (1986) ........ 5

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

Be We IID hsicsstshcaisstaldeiinccd ipneiaielihltdapeitninieehitecoipcirivie 10, 2i

People v. Krivda, 5 Cal. 3d 357 (1971) . 0, 7, 21

People v. Krivda, 8 Cal. 3d 623 (1973) —........... 5, 13, 21

People v. Whotte, 113 Mich. Si 12, 317 N.W.2d

SUR. III” iccacicissccusincciggbelenriatieilaiaens eh BS

Robbins v. California, 453 U.S. 420 (1984) 0.

EEE ee

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Smith v. Maryland, 442 U.S. 735 (1979) 12,17

Smith v. State, 510 P.2d 793 (Alas. 1973). ........... 6, 10, 21, 23

Sou'h Dakota v. Opperman, 428 U.S. 364 (1976) ........... .- &

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

215 (1984) . ok abe 10

State v. Chine 250 A.2d 203 (Supp. Jud.Ct.Me.

EIN caliente soveinasslieoncadinniisnatadietdanaadniaatanusatagiiiiiie Oameiidaese 21

State v. Johnson, 413 A.2d 931 _ Jud.Ct.Me.

UIE cciucistensaniiaiens ; 21

State v. Olquist, 327 N.W.2d 587 (Minn. 1982)... 16, 20

State v. Purvis, 249 Or. 404, 438 P. 2d 1002 (1968)... 10

State v. Schultz, 388 So.2d 1326 (Fla.App. 1980)... 10, 22

State v. Stevens, 123 Wise.2d 303, 367 N.W.2d 788

| 10, 22

State v. Tanaka, 701 P.2d 1274 (Hawaii 1985) .......... 21, 27

Terry v. Ohio, 392 U.S. 1 (1968) 27

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

1981) . 9, 20

United States v. Burne! e, 698 F.2d 1038 (9th Cir.

IG" “iccniiveiieciealenie 10, 12

United States v. Chadwick, 433 U.S. 1 (1977). 9, 24

United States v. Crowell, 586 F.2d 1020 - Cir.

1978) . ana 9, 20

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

(9th Cir. 1986) 10

United States v. Dunn, — U.S. —, 107 S.Ct. 1134,

94 L.Ed.2d 326 (1987) site 11, 13, 20

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

1971) . ait Goeacumiieamemaid ae

vi

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Jacobsen, 466 U.S. 109 (1984)... 5,13

United States v. Kahan, 350 F.Supp. 784 (8.D.

N.Y. 1972) 8, 22

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

IIT" tacicebisrieehcetshadlehblieieanetiscnaiteaeiclannaslaehiintahiahabadtinlinntonee. 10

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

1972) 10

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

1981) 10, 17

United States v. Rass, 456 U.S. 798 (1982) ............... 24, 25, 27

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

1978) 10

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

1982) 20

United States v. Terry, 702 F.2d 299 (2nd Cir.

1983) 9, 10, 16, 20

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

A 9

United States v. Van Leeuwen, 397 U.S. 249 (1970) ....... 13

CoNSTITUTION

Cal. Const. art. 1, § 28 —............ 2,15

I ID TET cceanctiasdenipuniniinaibetinincnintenial passim

STaTUTES

Orange County Municipal Code § 3-3-85 18

Orange County Municipal Code § 4-3-45 0... 18

West Cal.Amn. Pemal Code § 739 nec eeecsensesseseseessseeseee ae

Vii

TABLE OF AUTHORITIES—Continued

West Cal.Ann. Penal Code § 995

Page(s)

4

West Cal.Ann. Penal Code § 1538.5

West Cal.Ann. Penal Code § 11350

West Cal.Ann. Penal Code § 11351

2

2

2

Ruues or Court

Rules of the U.S. Supreme Court, Rule 21

OTHER

LaFave, W., Search and Seizure 2d (1978)

15

ee eweeeteneeeeseeees

Note, 60 N.Y.U.L. Rev. 725 (1985)

Orwell, G., 1984 (1983 Ed.)

No. 86-684

io

a

In The

Supreme Court of the United States

October Term, 1988

~—f>

a

THE STATE OF CALIFORNIA,

Petitioner,

vs.

BILLY GREENWOOD AND DYANNE VAN HOUTEN,

Respondents.

—~Q—

On Writ of Certiorari To The

Court of Appeal of California,

Fourth Appellate District, Division Three

BRIEF FOR RESPONDENT DYANNE VAN HOUTEN

Bee

Vw

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourth Amendment of the United States Constitution,

tion,

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

houses, papers, and effects, against unreasonable

1

2

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

California Constitution Article 1, 4 28, subdivision (cd),

Except as provided by statute hereafter enacted by a

two-thirds vote of the membership in each house of the

Legislature, relevant evidence shall not be excluded in

any criminal proceeding, including pretrial and post

conviction motions and hearings, or in any trial or

hearing of a juvenile for a criminal offense, whether

heard in juvenile or adult court... .

“y

ww

STATEMENT OF THE CASE

In a complaint filed July 30, 1984, respondent Dyanne

Van Houten was alternatively charged by the Orange

County District Attorney with simple possession of cocaine

and possession of cocaine for purposes of sale.’ R. 1.2 A

preliminary examination was conducted before a magistrate

on October 2, 3 and 4, 1984. R. 7-249. Concurrent with the

preliminary examination the magistrate heard respondent’s

joint motion to suppress evidence.’

'West Cal.Ann. Penal Code §§ 11350, 11351.

2The record is referenced to the clerk's transcript on appeal.

3West Cal.Ann. Penal Code § 1538.5 (1982) provided that,

“la] defendant may move for return of property or to suppress

as evidence against him any tangible or intangible thing ob-

tained as a result of a search or seizure on either of the follow-

ing grounds: (1) The search or seizure without a warrant was

unreasonable. (2) The search or seizure with a warrant was

unreasonable because ... . (f) [i]f the property or evidence

relates to a felony offense initiated by complaint, the motion

(Continued on following page)

3

The sole evidence admitted against respondents was

the product of a search warrant served on respondent

Greenwood’s residence. At the preliminary examination,

Jenny Stracner testified she was a narcotics investigator

for the City of Laguna Beach. R. 129. In February based

upon information received from an anonymous informant,

she began a practice of monitoring the trash at Billy Green-

wood’s residence. R. 113. She would ask the trash col-

lectors to pick up the trash at Greenwood’s residence, keep

it separate from all other trash in the truck, and bring it

down the street where she would wait. R. 129.

The trash was brought in a segregated area of the

trash truck in a dark trash bag tied at the top. R. 102.

There was no evidence any contraband or contents couid

be seen without opening the bag. Inside the bags officer

Stracner found items she believed indicated drug use;

bindles with residue, straws with residue, and baggies with

residue. R. 91.

Based upon these findings, she sought and obtained a

search warrant for 1575 Fayette, Laguna Beach. J.A. 27.

On April 6, 1984, she and other police officers executed the

search warrant on the house.* J.A. 43.

During the search of respondent Greenwood’s house,

officer Richard Seapin went upstairs to search additional

(Continued from previous page)

may be made in the municipal or justice court at the prelim-

inary exarnination.”

Effective January 1, 1987, the procedures contained in sub-

division (f) were radically modified but do not affect the present

proceedings.

‘There was a subsequent search based upon a second search

warrant. However, only the first search involved Ms. Van

Houten.

rooms. R. 160. On the floor he observed a purse. Officer

Seapin opened the purse and looked inside seeing a sheet

of magazine, crumpled up. R. 161. Seapin removed the

paper from the purse, opened it and found white powder

which he turned over to officer Straener. R. 161-162.

The purse contained un identification card with Dy-

anne Van Houten’s name and picture. R. 163. When offi-

cer Jimenez went downstairs with the purse and asked

whose it was, Dyanne Van Houten claimed it. R. 175.

Van Houten was then arrested. R. 70. The white powder

was determined to be cocaine. R. 61.

The magistrate denied Van Houten’s motion to sup-

press evidence and held her to answer solely upon the pos-

session charge. J.A. 9. Nine days later petitioner filed

an information charging the identical criminal counts as

alleged in the complaint.’ J.A. 10. On February 1, 1985,

a motion to dismiss was heard in the superior court based

upon the magistrate’s denial of the motion to suppress evi-

denee. The motion to set aside the information was grant-

ed and the charges were dismissed. J.A. 75.

5West Cal.Ann. Penal Code § 739 (1985) permits the filing

of an information based upon the evidence presented to the

magistrate notwithstanding the magistrate’s order discharging

a defendant on a selected count. A defendant's remedy is to

seek to set aside the count(s) charged in this manner. West

Cal.Ann. Penal Code § 995 (1985).

6West Cal.Ann. Penal Code § 995, subdivision (a)(2) (1985)

provides, “[s]ubject to subdivision (b) of Section 995a, the

indictment or information shall be set aside ~ the court in

which the defendant is arraigned, upon his or her motion, in

either of the following cases: [{]] If it is an information: (A)

That before the filing thereof the defendant had not been

legally committed by a magistrate. (B) That the defendant had

been committed without reasonable or probable cause.”

5

Petitioner appealed to the Fourth District Court of

Appeal, Division Three. In a published opinion, People v.

Greenwood, 182 Cal. App. 3d 729, 227 Cal.Rptr. 539 (1986),

the court concluded that People v. Krivda, 5 Cal. 3d 357, 96

Cal.Rptr. 62, 486 P.2d 1262 (1971), (Krivda I) cert. grtd.

and remanded California v. Krivda, 409 U.S. 33 (1972), and

People v. Krivda, 8 Cal. 3d 623, 105 Cal.Rptr. 521, 504 P.2d

457 (1973) (Krivda II), cert. den., California v. Krivda,

412 U.S. 919 (1973), compelled suppression of evidence ob-

tained from a warrantless, non-exigent seizure of a trash

bag and its contents. The California Supreme Court de-

nied petitioner’s application for review.

S

SUMMARY OF ARGUMENT

This Court has repeatedly,

‘* ‘emphasized that the mandate of the Fourth Amend-

ment requires adherence to judicial processes,’ United

States v. Jeffers, 342 U.S. 48, 51, and that searches

conducted outside the judicial process, without prior

approval by the judge or magistrate, are per se un-

reasonable under the Fourth Amendment—subject only

to a few specifically established and well-delineated

exceptions.’’ Katz v. United States, 389 U.S. 347, 357

(1967), footnotes omitted.

Unquestionably, when police, individually or through the

employment of an agent, break the seal on a closed, opaque

container to observe and seize its contents, both a search

and seizure occurs within the meaning of the Fourth

Amendment. As Justice Stevens pointed out in United

States v. Jacobsen, 466 U.S. 109, 114 (1984),

‘*{]jetters and other sealed packages are in the general

class of effects in which the public at large has a legiti-

mate expectation of privacy; warrantless searches of

such effects are presumptively unreasonable.’’

The issue before the Court is to what extent Billy

Greenwood possessed and is permitted to possess a reason-

able and legitimate expectation of privacy in the closed,

opaque container he left for the garbage man to transport

to a county owned and operated landfill for disposal. If

his expectation of vrivacy receives the Court’s stamp of

approval, then the warrantless and unsupported search and

seizure of the bag and its contents was unreasonable and

subject to suppression. If not, its contents, and the road

maps of all citizens it contains will be forever open to the

capricious actions of the police and our various govern-

mental agencies, restrained only by the size of their budgets,

their sense of morality and the degree of their curiosity.’

Privacy in a free society is perhaps the cornerstone of

what separates Americans from those totalitarian states

we collectively abhor. As Walter Crenkite commented in

his introduction to George Orwell’s 1983 edition of 1984,

‘*7984 is an anguished lament and a warning that we

may not be strong enough or wise enough nor moral

enough to cope with the kind of power we have learned

to amass. That warning vibrates powerfully when we

7A sign of this fear, whether real or imagined, invaded the

decision of the Alaska Supreme Court when the court deter-

mined that under some circumstances police could conduct

warrantless and unsupported trash searches. As the majority

concluded, “we are unwilling to announce a general rule sanc-

tioning official gathering and analysis of an individual’s refuse.”

Smith v. State, 510 P. 2d 793, 795 (Alas. 1973), cert. den. Smith

v. Alaska, 414 U.S. 1086 (1973).

allow ourselves to sit still and think carefully about

orbiting satellites that can read the license plates in a

parking lot and computers that can tap into thousands

of telephone calls and telex transmissions at once and

other computers that can do our banking and purchas-

ing, can watch the house and tell a monitoring station

what television program we are watching and how

many people there are in the room.’’

No one questions that the refuse of our lives, whether

labelled trash or garbage,* is the road map of our exis-

tence. Anthropologists daily explore the very trash heaps

of societies long-ago made extinct utilizing their waste as a

window into their sophistication, morality and daily rit-

uals. As the California Supreme Court reiterated in

People v. Krivda, supra, 5 Cal. 3d 357, 366,

‘*! w]e can readily ascribe many reasons why residents

would not want their castaway clothing, letters, medi-

cine bottles or other telltale refuse and trash to be

examined by neighbors or others, at least not until the

trash had lost its identity and meaning by becoming

part of a large conglomeration of trash elsewhere. Half

truths leading to rumor and gossip may readily flow

from an attempt to ‘read’ the contents of another’s

trash.’’ See also People v. Edwards, 71 Cal. 2d 1096,

1104, 80 Cal. Rptr. 633, 458 P.2d 713 (1969).

It is privacy, not the receptacle, which must be pro-

tected by this Court by acknowledging that society should

8For purposes of analyzing whether “trash” is constitution-

ally protected, it is unfortunate the “package” is so labelled

bringing with it the connotations associated with scavengers,

rodents and bag ladies sifting through banana ego and used

dinner napkins. Included within the bag are also letters from

children at college divulging their indiscretions, our financial

records, our discarded drug prescriptions and innermost family

secrets.

expand rather than contract the available venues within

which privacy in a crowded and electronically invaded na-

tion may be protected. As Judge Motley so correctly

pointed out,

‘*{t}he concept of privacy is paramount in deciding a

claimant’s standing to invoke the protection of the

Fourth Amendment. Courts should be hesitant to

narrow that concept because, in this society, the sphere

of personal privacy has become more and more con-

fined. In a real sense, if courts begrudge the scope of

the privacy expectations of the populace, not only will

there be less freedom of the person, but his or her ex-

pectations of freedom will wither and with them the

values of individuality and privacy from increasingly

intrusive government control.’’ United States v. Ka-

han, 350 F. Supp. 784, 793-794 (S.D.N.Y. 1972), aff’d

in part 415 U.S. 239 (1974).

Whether the Court analyzes the issue presented in

terms of the law of property or the oft-referenced test in-

terpreted by Justice Harlan in Kaiz, it still remains for

this Court to make a value judgment regarding where a

homeowner /citizen’s right to keep his life private ends

and the government’s right to intrude begins.? It is not

enough to say that if a citizen wants privacy in his refuse,

he must do something more than merely locking it in a

*Professor LaFave suggests in this treatise the analysis the

Court engages in in most respects is a mere tautology; the

Fourth Amendment protects those interests that may justifiably

claim Fourth Amendment protection. 1 W. LaFave, Search and

Seizure 2d § 2.1 (1978). In short, the Court engages in a weigh-

ing process pitting a determination of what deserves protection

from government intrusion in addition to the degree of free-

dom lost (cost) versus the need for effective law enforcement

(effect). To that extent, some compromise may be necessary

to balance the interests of the citizen and the State. See Issue

ill, ante.

9

closed, opaque container." United States v. Terry, supra,

702 F.2d 299, 309. As Chief Justice Burger pointed out,

in general,

‘‘Tb]y placing persona! effects inside a double-locked

footlocker, respondents manifested an expectation of

privacy that the contents would remain free from pub-

lic examination.’’ United States v. Chadwick, 433

U.S. 1, 11 (1977). emphasis added.

Surely it is not the container or the means of closure which

separates Billy Greenwood from Chadwick.

Our society, with ever-increasing density, electronic

sophistication, justified paranoia and very real threats

brought on by drugs and disease, still looks to the Con-

stitution to protect the very liberties threatened by these

developments and their cures. A momentary perusal of

current literature demonstrates that the topic of drug test-

ing in the work place and electronic eavesdropping offe

both solutions to these problems and potential infringement

of individual liberty. The issue the Court must now de-

termine is whether the benefits of permitting wholesale

Courts have found various excuses for denying the ob-

vious; closed, opaque containers do not expose their contents

to the world. Thus United States v. Biodich, 652 F.2d 743, 745

(8th Cir. 1981); United States v. Crowell, 586 F.2d 1020, 1025

(9th Cir. 1978); and United States v. Vahalik, 606 F.2d 99, 101

(5th Cir. 1979) each predicated their respective decisions upon

the failure of the defendant to make special arransements with

the garbage men (what could they have done?). Similarly

United States v. Terry, 702 F.2d 299, 309 (2nd Cir. 1983) sug-

gested a defendant shred or burn his trash or personally deliver

refuse to a garbage grinding machine. Unfortunately, the

thought of every citizen possessing a shredder large enough to

consume a weekly household of trash, violating local ordinances

by transporting their own trash or worse yet burning it (the Air

Quality Maintenance District of Los Angeles and the Environ-

mental Protection Agency notwithstanding) is no answer to

privacy interests.

10

searches of our nation’s trash are justified by the loss of

those protections. Further, if law enforcement is to be

permitted to search trash unencumbered by a search war-

rant, should some restraint be placed upon the exercise of

that right?

ri

Vv

ARGUMENT

I

THE MERE FACT AN INDIVIDUAL PLACES

TRASH AT CURBSID™ FOR PICK-UP DOES

NOT DETERMINE HIS REASONABLE EX-

PECTATION OF PRIVACY UNDER THE

FOURTH AMENDMENT.

4. Property Law Concepts Are Irrelevant For

Determining A Defendant’s Reasonable And

Legitimate Expectation Of Privacy.

While a number of state courts and federal circuits

have concluded that the only analysis necessary in deter-

mining whether a defendant has a legitimate expectation

of privacy is to conclude garbage is abandoned property,"

"United States v. Dzialak, 441 F.2d 212, 215 (2nd Cir. 1971);

United States v. Reicherter, 647 F.2d 397, 399 (3rd Cir. 1981);

United States v. Minker, 312 F.2d 632, 634-635 (3rd Cir. 1963);

United States v. Mustone, 469 F.2d 970, 972 (5th Cir. 1972);

Magda v. Bensen, 536 F.2d 111, 112 (6th Cir. 1976); United

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

v. Burnette, 698 F.2d 1038, 1047 (9th Cir. 1983); United States

v. Dela Espriella, 781 F.2d 1432, 1437 (9th Cir. 1986); United

States v. Crowell, supra, 586 F.2d 1020, 1025; United States v.

Terry, supra, 702 F.2d 299, 309; People v. Huddleston, 38 Ill.

App. 3d 277, 347 N.E.2d 76, 80 (1976); Smith v. State, supra,

510 P.2d 793, 795; State v. Brown, 20 Ohio App. 3d 36, 484

N.E.2d 215, 218 (1984); State v. Purvis, 249 Or. 404, 438 P.2d

1002, 1005 (1968); State v. Schultz, 388 So.2d 1326, 1330 (Fla.

App. 1980); State v. Stevens, 123 Wisce.2d 303, 367 N.W.2d 788

(1985).

—

11

property law concepts such as abandonment play little or

no role in the privacy decision. Beginning with the Court’s

decision in K atz v. United States, supra, 389 U.S. 347 the

Court made it clear that,

‘*the Fourth Amendment protects people, not places.

What a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth

Amendment protection. [Citations]. But, what he

seeks to preserve as private, even in an area acces-

sible to the public, may be constitutionally protected.’’

Id., at 351-352.

Although the Court had earlier suggested abandon-

ment was sufficient to negate a reasonable expectation of

privacy, Abel v. United States, 362 U.S. 217, 239 (1960),

later in Olwver v. United States, 466 U.S. 170 (1984), the

Court again rejected the notion that the touchstone of the

Fourth Amendment is a defendant’s property rights.

‘The existence of a property right is but one element

in determining whether expectations of privacy are

legitimate. ‘‘*The premise that property interests

control the right of Government to search and seize

has been diseredited.’’’’’. Jd. at 183.

For those very reasons the dissent in California v. Rooney,

— US. —, 107 S.Ct. 2852, 2858-2859, 97 L.Ed. 2d 258

(1987) recognized that property interests do not control

Fourth Amendment analysis, even where the property is

garbage. See also United States v. Dunn, — U.S. —, 107

S.Ct. 1134, 94 L.Ed. 2d 326 (1987); California v. Ciraolo,

476 U.S. —, 106 S.Ct. 1809 90 L.Ed. 2d 210 (1986).

12

B. The Use Of Property Law Concepts To Re-

solve Whether An Individual Has A Legitimate

Expectation Of Privacy Fails To Account For

Changes In Technology And Personal Values.

It is far too simplistic to label as abandoned property

an individual’s decision to place his life’s possessions in a

pail or bag at curbside for collection and end the inquiry.

This is because courts seem far too quick to define aban-

donment in property law terms; i.e., ‘‘the intention to

[permanently] retain’’ an interest in the object. United

States v. Burnett, supra, 698 U.S. 1038, 1047. If the Court

were to adopt such a simplistic approach, the problems

would be manifold.

Individuals permanently and without. reservation pro-

vide numerous tangible and intangible items to third per-

sons and yet retain and have a legitimate expectation of

privacy in them once they leave their possession. Al-

though this Court has sanctioned the warrantless use of

pen registers, Smith v. Maryland, 442 U.S. 735 (1979),

Katz sanctifies the words which leave our mouths and are

conveyed to a third party (the telephone company) for

transmission to a receiver."? Similarly, the Court has sanc-

The problems inherent in the Court’s erosion of what is

a legitimate expectation of privacy best come into play in Katz.

When Katz was decided in 1967, few would have anticipated

the widespread use of cordless telephones which permit home

eavesdropping, intentionally or unintentionally, by neighbors

and the police. Similarly, the advent of portable cellular tele-

phones will soon open the door to Dick Tracy-like wrist tele-

phones expanding the horizons of those interested in our con-

versations. Finally, telephone companies increasingly send our

conversations and electronically transmitted documents via sat-

ellite, a form of transport open to interception by anyone with

a twelve foot dish in their backyard. In short, as society be-

comes more sophisticated, privacy as defined by the Court

becomes a scarcer commodity. :

13

‘tioned a privacy interest in mail which every day is con-

veyed to both governmental and private entities for de-

livery to receivers. United States v. Jacobsen, supra, 466

U.S. 109; United States v. Van Leeuwen, 397 U.S. 249

(1970) ; Ex Parte Jackson, 96 U.S. 727 (1878).

It is for that very reason it is a mistake to attempt to

draw a bright-line that all persons whose trash is left for

collection lose a legitimate expectation of privacy based

upon the property law concept of abandonment. This

Court should reject a per se rule as was suggested by the

Government recently in United States v. Dunn, supra, —

U.S. —, 107 S.Ct. 1134, 1139, footnote 4, and the State of

California herein. As the Court aptly pointed out when

defining the concept of curtilage,

‘*la]pplication of the Government’s ‘first fence rule’

might well lead to diminished Fourth Amendment pro-

tection in those cases where a structure lying outside

a home’s enclosing fence was used for domestic ac-

tivities.’’

Similarly, a bright-line rule concluding all garbage

left for collection is abandoned and thus outside the Fourth

Amendment would diminish Constitutional protections

where facts clearly indicate both a reasonably held and

legitimate expectation of privacy.“ The Court should re-

ject abandonment as the touchstone of garbage searches.

Because People v. Krivda, supra, 8 Cal. 3d 623 compelled

the court of appeal and the superior court to suppress the fruit

of the trash search at issue here, no effort was made by either

party to establish respondents’ reasonable expectation of pri-

vacy and society's expectation trash left at curbside is protected.

14

C. Although The Great Weight Of Authority

Finds Garbage Searches To Fall Outside The

Fourth Amendment, They Uniformly Err In Bas-

ing Their Conclusion Upon Abandonment Prin-

ciples.

As pointed out earlier at note 10, and repeatedly by

petitioner and amicus, all federal circuits have concluded

garbage left at curbside forfeits the depositor’s reason-

able expectation of privacy. But in all but a few of the

decisions the result is a mere incantation of the apparent

axiom; garbage is abandoned and abandoned property is

unprotected by the Fourth Amendment.

It is this erroneous and facile reasoning the Court

must avoid in formulating a standard by which to judge

such searches. For although it appears that the weight

of authority finds garbage searches to be outside the

Fourth Amendment, such decisions were uniformly prem-

ised upon erroneous property law concepts condemned and

discarded by this Court.

II

THE WARRANTLESS AND UNSUPPORTED

SEARCH OF BILLY GREENWOOD’S GAR-

BAGE VIOLATED DYANNE VAN HOUTEN’S

REASONABLE AND LEGITIMATE EXPEC.

TATION OF PRIVACY MANDATING SUP-

PRESSION OF THE FRUITS OF THAT

SEARCH.

A. Billy Greenwood’s Decision To Place His

Trash At Curbside For Collection Met The Sub-

jectivity Component Of Katz v. United States.

Katz v. United States, supra, imposes a two-part test

for determining the protection afforded by the Fourth

15

Amendment. Justice Harlan, in interpre .ng the majority

opinion defined the test as,

‘*first that a person have exhibited an actual (subjec-

tive) expectation of privacy and second, that the ex-

pectation be one that society is prepared to recognize

as ‘reasonable.’ ’’ Id., at 361, (Harlan, J. concurring).

No court has defined what the subjective component

in Katz is but rather have discussed it solely within the

context of the specific facts of each case. Whether it re-

fers to a defendant’s actual expectation of privacy or

whether the court looks to the facts to determine whether

the dweller exhibited an expectation of privacy,'* the facts

here point to an expectation of privacy by Billy Green-

wood.'* Stronger than in Rooney where the dissent ‘‘as-

sumed [ __| under state law | Rooney] retained an owner-

ship or possessory interest in the trash bag and its con-

tents,’’’® the trash bag here was in an individual bag, de-

See Note, 60 N.Y.U.L. Rev. 725, 743-/44 (1985).

5Petitioner no longer argues respondent Van Houten lacked

standing to object to the search of Greenwood’s residence or

trash and thus has waived the issue before the Court. Rules

of the U.S. Supreme Court, Rule 21.

California v. Rooney, supra, — U.S. —, —, 107 S.Ct. 2852,

2858, 97 L.Ed.2d 258 (White, dissenting). Under In re Lance W.,

37 Cal.3d 873 (1985) the California Supreme Court concluded

Article |, § 28, subdivision (d) of the California Constitution

merely eliminated from independent state grounds the judicial

remedy of suppression where a protected interest came in con-

flict with a decision of this Court. Thus, Krivda’s conclusion

trash left at curbside is protected under the California equivalent

of the Fourth Amendment still controls the privacy interest

ae by defendant. See Amicus Los Angeles Public De-

ender.

16

posited in an individual homeowner’s trash pail for which

only Billy Greenwood had an interest.”

As to the first portion of the Katz test, even courts

which have concluded the subjective expectation of privacy

in trash is not reasonable (legitimate) have conceded that

one may maintain such an expectation in garbage left for

collection. In denying suppression of the fruits of a war-

rantless trash search, the Minnesota Supreme Court never-

theless conceded,

‘‘a householder may ordinarily have some expecta-

tion of privacy in the items he places in his garbage

ean.’’ State v. Oquist, 327 N.W.2d 587, 591 (Minn.

1982).

As to courts which reject any such possibility, their

reasoning, like those decisions which without more found

trash abandoned and unprotected, is both simplistic in

their assumptions and flawed in their analysis. Thus, the

court in United States v. Terry, supra, 702 F.2d 299, having

noted the trash search involved a ‘‘green bag closed with

a brown tape’’ left on the sidewalk, concluded without evi-

dence,

‘‘mere use of taped opaque containers as indicating

an intent to retain a privacy interest ... are obviously

designed to assure tidiness in appearance rather than

privacy.’’ Id., at 309.

17There is no evidence in the record, one way or the oth-

er, whether Greenwood personally or subjectively harbored an

expectation of privacy. This is a consequence of respondents’

and petitioner's reliance upon the absolute rule of Krivda which

provided respondents with a reasonable and legitimate expec-

tation of privacy as a matter of law.

17

Or as the court concluded in United States v. Reicherter,

supra, 647 F.2d 397, 399,

‘it is inconceivable that the defendant intended to re-

tain a privacy interest in the discarded objects.’’

Such assumptions, though perhaps indicative of the court’s

personal views, do injustice to an individual’s right to

‘*seek to preserve as private’’ his possessions and beliefs."*

Here, all the Court knows is that Billy Greenwood, to

exhibit an expectation of privacy did everything short of

placing a label on the container or bag, or placing a sign

on his lawn, strictly prohibiting garbage men or scaven-

gers from opening the containers. The bags were opaque

and sealed at the top, leaving nothing visible to the on-

looker. Nothing suggested an intention to do anything

more than convey the item to the garbage man for one

purpose: for transportation to a hole in the ground where

a bulldozer would bury it for antiquity."* Jf a home owner

may have an expectation of privacy in his trash left at

curbside, Billy Greenwood did everything necessary to

manifest his intent that the contents of the bag remain

private.

'8The Court made a similar assumption in doubting that

‘people in general entertain any actual expectation of privacy

in the numbers they dial.” Smith v. Maryland, supra, 442 U.S.

735, 742. The difficulty confronting individuals in determining

what the Fourth Amendment protects is the apparent need to

determine what society is willing to or believes should be pro-

tected, a form of “constitutional rights” by opinion poll.

If there is any doubt as to respondent's subjective expec-

tation of privacy, he should be permitted on remand to make

the requisite showing.

18

B. Possession Of An Expectation Of Privacy In

Garbage Left For Collection Is Both Reasonable

And Legitimate.

The societal necessity of turning over refuse to gar-

bage collectors for disposal is not one merely engaged in

out of volunteerism or a higher moral sense of ecology. In

Orange County, California, and particularly in Laguna

Beach where respondent Greenwood resided, the options

of burying or burning refuse are equally unlawful. Orange

County Municipal Code § 4-3-45, subdivision (a) commands

that,

‘*solid waste created, produced, or accumulated in or

about an apartment house, a dwelling house, or other

place of human habitation shall be removed from the

premises at least once each week.’’

Further, any residential burning of trash is strictly banned

in Orange County Municipal Code § 3-3-85. In sum, the

act of delivering trash to third persons is compelled

through use of a governmental, penal statute. If that is

the case, the real question then should be whether in ac-

complishing that act the house dweller exhibits an expecta-

tion the contents will not be exposed to the eyes of the

world. Placing the trash in a closed, opaque container does

just that.

‘

In concluding that Rooney failed to establish a legiti-

mate expectation of privacy, the dissent argued two salient

facts: trash is delivered to third parties and that it is

foreseeable that police would search trash bags. Since

19

delivery to third persons is legally compelled, the real issue

posed by the dissent is foreseeability.”

What the dissent meant by foreseeability is not entirely

known. As is obvieus, many actions of government may

be foreseeable yet improper. The same reasoning would

apply if police conducted daily check-points on the high-

ways after supplying notice to the public in newspapers

and magazines; yet the Court has held such spot checks

violative of the Fourth Amendment. Delaware v. Prouse,

440 U.S. 648 (1979). Certainly Pacifie Bell’s warning to

customers that their cellular telephone conversations may

not be private does not, for Fourth Amendment purposes,

diminish the expectation of privacy in the telephone cali

predicated upon Aatz.

A home dweller’s garbage deserves protection. Oliver

v. United States, supra, 466 U.S. 170; 1 W. LaFave, Search

Although Katz appears to protect the sanctity of telephone

conversations based upon society’s belief such communications

are due protection, under the Rooney dissent one must question

the reasonableness of even telephone conversations when Pa-

cific Bell now warns its customers in each billing that, “i]t

is a crime under state and federal law to eavesdrop on telephone

conversations. Normally, you don’t have to worry about the

privacy of conversations you have on telephones located in

your home or business. However, if you make calls using a

cellular telephone or receive calls from people who do, you

need to be aware that your conversations on these phones may

not be entirely private ... [] For this reason, the California

Public Utilities Commission (CPUC) has asked that those placing

calls on cellular telephones advise the people they are calling

about the privacy issue at the beginning of each conversation.

The CPUC also asked us to inform you that there are ‘scram-

bling’ devices for cellular phones ... .”” Presumably, the same

warning should apply to cordless telephones widely utilized

in residences and businesses.

20

and Seizure 2d 2.1(d) (1978). This Court has long

recognized.

“ ‘the security of one’s privacy against arbitrary in-

trusion by the pclice’ is ‘at the core of the Fourth

Amendment.’ .g., Berger v. New York, 338 U.S. 41,

53; Schmerbe; v. California, 384 U.S. 757, 767; Wolf v.

Colorado, 338 U.S. 25, 27 [overruled on another point

in Mapp v. Ohio, supra, 367 U.S. 643].)’’ People v.

Edwards, supra, 71 Cal 2d 1096, 1103.

It is this fundamental privacy interest which the Court

must protect.”! People v. Whotte, 113 Mich. App. 12, 317

N.W.2d 266, 269 (1982) (Burns, J. di: senting).

It is the denigration of privacy interests which is rep-

resented by those decisions which find an expectation of

privacy illegitimate. Thus decisions such as State v.

Oquist, supra, 327 N.W.2d 587 find no legitimate expecta-

tion of privacy absent any attempt at analyzing societal

privacy needs. See also United States v. Sumpter, 669

i’2d 1215 (Sth Cir. 1982). Similarly, decisions exempli-

fied by United States v. Biondich, supra, 652 F.2d 743

premise the expectation of privacy issue on whether the

defendant made ‘‘special arrangements with the garbage

collector,’’ id., at 745, or sought to burn, shred or bury the

trash. United States v. Terry, supra, 702 F.2d 299; United

States v. Crowell, supra, 586 F.2d 1020.

2IThe Court noted in United States v. Dunn, supra, — U.S.

—, 107 S.Ct. 1134, that the curtilage focus for Fourth Amend-

ment purposes is upon “whether the area harbors the ‘inti-

mate activity associated with the “sanctity of a man’s home

and the privacies of life.”’” JId., at 1139. Surely an individual’s

refuse is at the core of everything man does; from what he

reads (ideas) to what he writes (thoughts).

21

That is not to say the issue of the legitimacy of privacy

in refuse hasn’t been analyzed. Obviously thrice the Cali-

fornia. Supreme Court has examined the question and con-

cluded that a householder has a legitimate expectation of

privacy in trash left at curbside. People v. Krivda, supra,

5 Cal. 3d 357, (Krivda 1) cert. grtd. and remanded Cali-

fornia v. Krivda, supra, 409 U.S. 33, and People v. Krivda,

supra, 8 Cal. 3d 623 (Krivda II), cert. den., California v.

Krivda, supra, 412 U.S. 919; People v. Edwards, supra, 71

Cal. 2d 1096. In addition, the state of Hawaii and the

Federai District Court, Southern District of New York

supplemented by thoughtful dissents in Illinois,” Michi-

gan,” Alaska,™ Florida and Wisconsin support the propo-

sition that privacy in a householder’s trash should and

must be protected.*

In State v. Tanaka, 701 P.2d 1274 (Hawaii 1985) the

Hawaii Supreme Court found that not only did the defen-

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

2d 76 (Stouder, J., dissenting).

31n People v. Whotte, supra, 317 N.W.2d 266, Michigan

adopted the multiphasic test proposed by the Alaska Supreme

Court in Smith v. State. See n. 24, ante. Justice Burns dissented

arguing the rule adopted by the majority effectively infringed

upon the fundamental privacy interests of the individual.

*4Smith v. State, supra, 510 P.2d 793 (Rabinowitz, J. dissent-

ing). The majority announced a four part test for determining

the legitimacy of a house dweller’s expectation of privacy (lo-

cation of trash, numbers of residential units, who removed the

trash, and where it was searched), but concluded Smith failed

to meet the test.

The Supreme Judicial Court of Maine in passing upon a

trash search occurring after a barrel was removed from the de-

fendant’s garage concluded that placing the contraband in the

barrel did not constitute an abandonment within the meaning

of Abel v. United States, supra, 362 U.S. 217. State v. Chapman,

250 A.2d 203 (Sup.jud.Ct.Me. 1969), overruled State v. Johnson,

413 A.2d 931 (1980).

22

dant have an ‘‘actual expectation of privacy [ ] by the

placing of the item in an opaque, closed container,’’ id., at

1276, but that under the doctrine of independent state

grounds Hawaii would recognize the legitimacy of that ex-

pectation. Similarly, Judge Motley in United States v.

Kahan, supra, 350 F.Supp. 784 analogized the act of placing

refuse in the hands of garbage men for transportation to

a disposal site to both throwing the refuse into a shredder

or more appropriately, handing a letter to a mail carrier.

In both cases, what prevents government intrusion is not

the shape or character of the container, but the expecta-

tion by society that placing the items contained therein in

a closed container maintains the privacy the owner has

reasonably come to expect.

Judge Anstead, dissenting in State v. Schultz, supra,

388 So.2d 1326 observed,

‘*'ijJn 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 collectors,

is entitled to reasonably expect that the container and

the trash therein will be removed from his property

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

will be disposed of in a manner provided by ordinance

or private contract. By sealing the containers 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 contents there-

of, short of delivering the containers to a central dis-

posal site himself.’’ Jd., at 1330.

26in a 4-3 decision of the Wisconsin Supreme Court, Justice

Heffernan dissented noting that “all [the defendant] did [was]

expose closed bags of garbage” rather than their contents to

public scrutiny. State v. Stevens, supra, 123 Wisc.2d 303, 367

N.W.2d 788 (Heffernan, J., dissenting).

23

In disposing of the argument that trash is open to the

prying eyes of anyone; be it man, woman or animal, who

chooses to sift through the refuse, Judge Anstead chided,

‘*(w)hile it is true that one cannot reasonably expect

trash containers to be completely safe from probing

dogs ... common sense tells us that one should be able

to expect that his property and the 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 the

privacy rights of others.’’ IBID.

In sum, contrary to petitioner’s assertions, those courts

which have sought to determine the legitimacy of a house-

holder’s expectation of privacy in trash containers are

neither unanimous nor necessarily foolhardy. They merely

recognize that in a society which is slowly losing its ability

to retain its thoughts, ideas, fears, and concerns private

from the world, the courts should collectively recognize that

our garbage is merely a conduit for burying the products

of our individual lives. As Justice Rabinowitz noted,

‘*a free and open society cannot exist without the right

of the people to be immune from unreasonable inter-

ference by representatives of government. In order

to preserve and protect this right of privacy, our

Founding Fathers promulgated the fourth amendment

to the United States Constitution. As the United

States Supreme Court has repeatedly observed: [{]

The basic purpose of the Fourth Amendment, as recog-

nized in countless decisions of this Court, is to safe-

guard the privacy and security of individuals against

arbitrary invasions by government officials.’’ Smith

v. State, supra, 510 P.2d at 799, footnote omitted.

Finding an expectation of privacy in a householder’s trash

to be both reasonable and legitimate is one means by which

24

this Court may protect we as individuals and as a society

from inroads of government intrusion.

III

THE COURT MUST AT THE VERY LEAST

ADOPT A RULE REQUIRING THE POLICE

HAVE PROBABLE CAUSE PRIOR TO CON-

DUCTING WARRANTLESS SEARCHES OF

TRASH LEFT AT CURBSIDE.

A. United States v. Ross Establishes A Middle

Ground Where An Individual Has A Legitimate

But Lowered Expectation Of Privacy.

In United States v. Ross, 456 U.S. 798 (1982) the Court

broke ground with a series of decisions which limited law

enforcement’s ability to conduct warrantless automobile

searches. See gen. Robbins v. California, 453 U.S. 420

(1981); United States v. Chadwick, supra, 433 U.S. 1; Ar-

kansas v. Sanders, 442 U.S. 753 (1979). In examining the

right to search where police have legitimately stopped an

automobile and possess probable cause to believe the auto

contains contraband, Justice Stevens writing for the Court

concluded that police,

‘*may conduct a search of the vehicle that is as thor-

ough as a magistrate could authorize in a warrant.

..’’ Id., at 800.

The holding, considerably more expansive in the degree

to vhich police could open closed containers found within

automobiles, appeared to be based upon the belief individ-

uals already possessed a lower expectation of privacy in

automobiles than in their homes. Thus the Court relied on

Carroll v. United States, 267 U.S. 132 (1925) and noted

that,

25

‘‘individuals always had been on notice that moveable

vessels may be stopped and searched on facts giving

rise to probable cause that the vehicle contains contra-

band, without the protection afforded by a magistrate’s

prior evaluation of those facts.’’ United States v.

Ross, supra, at 806, n. 8.

In sum, where an individual has a legitimate but lowered

expectation of privacy in an object easily moveable, the

Court has found a middle ground requiring police to be

armed with probable cause but foregoing the requirement

such cause first be tested by a neutral magistrate.”’

B. The Court Should Adopt A Rule Governing

Trash Searches That Where An Individual Has

Exhibited A Reasonable Expectation Of Privacy

In Trash, Police May Conduct Warrantless

Searches Only Upon Probable Cause.

Admittedly trash left at curbside is, like an automobile,

highly mobile. Carroll v. United States, supra. Assuming

arguendo the Court is disinclined to provide full Fourth

Amendment protection to a homeowner’s trash left at curb-

side, the Court should adopt a rule, similar to that in Ross,

holding that where an individual has exhibited a reason-

able expectation of privacy in trash left at curbside, police

27In South Dakota v. Opperman, 428 U.S. 364, 367-368

(1976), the Court in examining warrantless inventory searches,

concluded that an individual's, “expectation of privacy with re-

spect to one’s automobile is significantly less than that relating

to one’s home or office.” This resulted from (1) the mobility

of the vehicle and the individual’s reasonable expectations.

However, rather than follow a number of lower courts which

had either concluded inventory searches did not fall within

the protection of the Fourth Amendment or were not searches

at all, the Court found a middle ground concluding warrantless

searches following a valid seizure were reasonable.

26

may conduct warrantless searches only upon probable

eause. Such a rule would benefit both law enforcement

with minimal societal cost while at the same time preserv-

ing an individual’s reasonable and legitimate privacy in-

terest.

Clearly, whatever the level or degree of privacy in-

terest an individual has in trash left at curbside, it is not

identical to that experienced in the home. This is based

upon the fact that trash is open to scavengers (to what-

ever minimal degree in fact such behavior occurs) and is

placed in the custody of third persons.” It is the lowered

yet legitimate expectation of privacy which would be pro-

tected by imposition of the Ross rule with regard to trash

searches.

The requirement that law enforcement be possessed

with probable cause prior to searching an individual’s

trash protects society against arbitrary and capricious

searches by law enforcement. While not tested by a neu-

tral magistrate prior to a search, the search is ultimately

tested and thus checked by a court of law when the gov-

ernment seeks to utilize the fruits of the search at trial.

Law enforcement is not unduly hindered since society has

long accepted the cost of police action which must be predi-

28in the case of the use of the mail or telephone calls, in-

dividuals assume and perhaps must hope that others will re-

spect their privacy. Nothing guarantees that the mailman will

not violate the law and open the envelope or not break the

law and merely peer through it. Similarly, all an individual may

do is rely upon an implied covenant with private carriers they

will not break the package and inspect the contents. Finally,

party lines and inadvertent radio interception of telephone calls

regularly occur, yet individuals expect that once interception

occurs, the intervening party will hang up.

27

cated on more than hunch and rumor. [Illinois v. Gates,

462 U.S. 213 (1983); Terry v. Ohio, 392 U.S. 1 (1968).

In conclusion, the concerns of society would be pro-

tected from improper and capricious police actions while

at the same time insuring law enforcement’s ability to

obtain evidence of criminal actions without the necessity

of a warrant and the fear evidence of a crime would evapo-

rate. As the Hawaii Supreme Court convincingly noted,

‘*[pjeople reasonably believe that police will not in-

discriminately rummage through their trash bags to

discover their personal effects. Business records, bills,

correspondence, magazines, tax records and other tell-

tale refuse can reveal much about a person’s activities,

associations and beliefs ... [This] type of police sur-

veillance ... should not go unregulated, for a society in

which all our citizens ‘trash cans could be made sub-

ject of police inspection’ for evidence of more intimate

aspects of their personal life upon nothing more than

a whim is not ‘free and open.’’’ State v. Tanaka,

supra, 701 P.2d 1274, 1277, citing W. LaFave, Searches

and Seizures § 2.6(c) at 378 (1978).

C. The Search Of Billy Greenwood’s Trash Was

Without Probable Cause Mandating The Quashing

Of The Search Warrant For His Home.

Whether the search of Billy Greenwood’s trash were

conducted under the authority of a judicially issued search

warrant, a judicially recognized exigency or under the pro-

posed United States v. Ross rule, the search was unlawful.

Under any interpretation of the facts, officer Stracner

conducted the initial searches of respondent’s trash based

upon hunch, conjecture and the unsupported and uncor-

roborated information of an informant.

28

As the Court noted in Illinois v. Gates, supra, 462

U.S. 213, 239, the probable cause formula boils down to

making,

‘a practical, common-sense decision, whether, given all

the circumstances set forth in the [search warrant]

affidavit before [the magistrate], including the ‘ver-

acity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a

particular place.’’

Since the evidence before the Court establishes that officer

Stracner acted solely upon an anonymous, untested tip and

utilized the searches themselves to develop probable cause,

the Court should find that the searches violated the Fourth

Amendment and suppress the fruits discovered therein.

i)

CONCLUSION

For the foregoing reasons the dezision of the court of

appeal should be affirmed.

Respectfully submitted,

Ricuarp L. ScHwarRtTzBika

(Counsel of Record)

401 Civic Center Drive West

Suite 820

Santa Ana, California 92701

714-835-3339

Counsel for Respondent

Dyanne Van Houten