Respondents Brief — California v. Greenwood

Supreme Court brief1988

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QUESTION PRESENTED

Do warrantless searches of closed trash containers vio-

late the Fourth and Fourteenth Amendments?

i

TABLE OF CONTENTS

QuEsTio;ns PRAGEINTED. .....ccccscccsteuseeuunene

TASLE OF ARSTRORSTUNS. «oo ccceccesesseseenee

STATEMENT OF THE CAGE . wo. ccccccccccccccssccceens

SUMMARY OF ARGUMENT. .......0.ccccccccccccccess

ARGUMENT

CONTROLLED TRASH PICK-UP, ACCOMPLISHED

WitTHouT BENEFIT OF A WARRANT OR PROBABLE

CAUSE, VIOLATED RESPONDENTS REASONABLE

EXPECTATION OF PRIVACY. ..cccsccccccessseen

CONCLUSION. «oc cccccccccceccecssnnnee 23,

~ xt ee eee

TABLE OF AUTHORITIES

Cases Page

California v. Ciraolo, 476 U.S. ‘ , 106 S.Ct.

cs ccc ccccccccscceees 5, 20

California v. Rooney, 483 U.S. ——, 107 S.Ct. 2852, 2859

Eee caweccccesscecccess 3, 11, 138

Croker v. State, (1970) 477 P.2d 122 .................. 6

Hewitt v. Helms, 459 U.S. 460 (1960). ................ 23

In Re Lance W., (1985) 37 Cal.3d 873, 886-887......... 17

Magda v. Benson, (6th Cir. 1976) 536 F.2d 111......... 5

Mapp v. Ohio, 367 U.S. 643 (1961).............. 21, 22, 23

Miller v. United States, 357 U.S. 310, 305, 2 L.Ed.2d

1332, 1336 78 S.Ct. 1190 (1958) .............--5-- 17

Mason v. United States, 719 F.2d 1485 (10th Cir. 1983). 18

New York v. Burger, 482 U.S., ——, (1987) ........... 16

O’Connor v. Ortega, 480 U.S. MG osesteoese 13, 20

Oliver v. United States, 466 U.S. 170, 177 (1984)....... 20

People v. Edwards, 71 Cal.2d 1096 (1969).............. 6, 7

People v. Huddleston, (1976) 38 Ill. App.2d 277, 347

EE ES 6

People v. Krivda, 5 Cal.3d 357 (1971)............ 6, 8, 9, 16

People v. Tanaka, 701, P.2d 1274 (1985)............... 8

People v. Whotte, (1982 Michigan) 317 N.W. 2d 266..... 6

Smith v. State, (1973 Alaska) 510 P.2d 793 ............ 6

State v. Brown, (1984 Ohio) 484 N.2d 215............. 6

State v. Fassler, (1972 Oregon) 503 P.2d 807........... 6

State v. Purvis, (1968 Oregon) 438 P.2d 1002 .......... 6

State v. Oquist, (1982 Minnesota) 327 N.W.2d 587...... 6

State v. Schultz, (1980 Fla.) 388 So.2d 1326 ........... 6

State v. Stevens, (1985 Wisconsin) 367 N.W.2d 788 ..... 6

Steagald v. United States, 451 U.S. 204, 212(1981).... 4

Stoner v. California, 376 U.S. 483 (1964) ............. 14

U.S. v. Alexander, 761 F.2d 1294, 1298 (9th Cir. 1985).. 20

U.S. v. Crowell, 586 F.2d 1020, (4th Cir. 1978), cert. den.

Ten ee en ecco cccces 5, 14

U.S. v. Day, 455 F.2d 454, 455 (3rd Cir. 1972) ......... 20

U.S. v. Dela Espirella, (9th Cir.) 781 F.2d 1432 (1986).. 5, 6

U.S. v. Di Re, 332 U.S. 581, 589 (68 S.Ct. 222, 226, 92

Tees hadececcoccccacececceess 17

U.S. v. Henderson, 721 F.2d 662, 664 (9th Cir. 1983)... 20

iv

Table of Authorities Continued

Page

U.S. v. Jacobsen, 466 U.S. 109, 113-114 (1984)......... 14

U.S. v. Jarabek, 726 F.2d 889, 900 (1st Cir. 1984) ...... 19

U.S. v. Kovac, 795 F.2d 1509, 1511 (9th Cir. 1986)...... 20

U.S. v. Little, 753 F.2d 1420 (9th Cir. 1984) ........... 20

U.S. v. Manfredi, 488 F.2d 588, 598 (2d. Cir. 1973)..... 19

U.S. v. McNulty, 729 F.2d 1248, 1251 (10th Cir. 1983).. 18

U.S. v. Mitchell, 783 F.2d 971, 973-974 (10th Cir. 1963). 18

U.S. v. Mustone, 469 F.2d 970 (1st Cir. 1972).......... 5

U.S. v. O’Bryant, 775 F.2d. 1528 (11th Cir. 1985) ...... 6

U.S. v. Reicherter, 647 F.2d 397 (3rd Cir. 1981)........ 5

U.S. v. Rickus, 737 F.2d 360 (3rd Cir. 1984)........... 18

U.S. v. Shelby, (7th Cir. 1978) 573 F.2d 971 (cert. den. 439

Sh Ee Ue IE sono a sctiibie vcéeic 5, 11, 12, 13

U.S. v. Terry, (2nd. Cir. 1981) 702 F.2d 299, cert. den. 461

i ditan bneadevun adaeletiitde tks. bio. 5, 12

U.S. v. Vahalik, (5th Cir. 1979) 606 F.2d 99 (cert. den. 606

_° PRRs AR ident eae 5

U.S. v. Watson, 423 U.S. 411, 420 fn. 8, 46 L.Ed. 2d 598,

607 96 S.Ct. eee Dae 17

Uphaus v. Wyman, 364 U.S. 388, 389 (1960) .......... 16

Vitek v. Jones, 445 U.S. 480, 488 (1980)................ 22

Walter v. United States, 447 U.S. 649, 657 (1980) ...... 14

CONSTITUTION

United States Constitution Fourth Amendment. .... passim

United States Constitution Fourteenth

ah cide cGiedvceecs 1, 2, 17, 21, 23, 24

California Constitution, Article I §1................. 16

California Constitution, Article I, §7................. )

California Constitution, Article I §13 ................ 16

California Constitution, Article I §28d ............... 17

STATEMENT OF CASE

This case involves a series of warrantless controlled

pickups of the trash, at the home of Respondent Green-

wood. On various occasions between February and May,

1984, officers of the Laguna Beach Police Department

waited until Respondent Greenwood placed his garbage

at the street for collection; the officers made arrange-

ments with the trash collector to put Greenwood’ gar-

bage aside, not to intermingle it with other collected

trash, and to deliver said trash to the officers. (J.A. 4-5;

7-8). The trash had been placed out for collection, appar-

ently on its regular pick up day, and was in dark plastic

trash bags. There is no evidence that the trash could be

seen through the dark plastic bags prior to the time they

were opened. (J.A. 6; 32-33; 40-41). It appears that

Respondent Greenwood’s trash had been monitored

between February and April of 1984. (C.T. 112-113.)

Search warrants were issued on April 6, 1984, and May

6, 1984, based in large part on the fruits of the trash

searches.

SUMMARY OF ARGUMENT

Two search warrants were issued for Respondent

Greenwood’s residence based in large part on a series of

controlled trash pick ups and subsequent searches of

Respondent’s trash. The trash searches were conducted

without warrants and without any claim of exigency.

(C.T. 82)

Respondent respectfully contends that the trash

searches were invalid and violated Respondent's reason-

able expectation of privacy under the Fourth and Four-

teenth Amendment to the United States Constitution.

Respondent Greenwood further contends that his

expectation of privacy must be considered legitimate and

2

reasonable within the meaning of the Fourth and Four-

teenth Amendments to the United States Constitution

because of the impact of state law establishng a right of

privacy as to trash placed out for collection.

ARGUMENT

CONTROLLED TRASH PICK-UP, ACCOMPLISHED

WITHOUT BENEFIT OF A WARRANT OR PROBABLE

CAUSE, VIOLATED RESPONDENT’S REASONABLE

EXPECTATION OF PRIVACY.

In order to properly address the issues presented by

this case, it is first necessary to properly define the pre-

cise question posed by the proposition herein advanced by

Petitioner and Amici Curiae. For the issue herein is not

merely that of whether or not a criminal suspect’s trash

may be searched; the issue more accurately defined is that

whether or not any citizen’s garbage, contained in opaque

plastic garbage bags (J.A.! 6), may be seized by law

enforcement officials and searched without a search war-

rant, without probable cause, and without any claim of

exigency.

Petitioner, as well as amici curiae, contend that such

police conduct is valid, not because it is in some sense

necessary to the preservation of a well-ordered society,

but because trash is to be viewed as “abandoned” prop-

erty, deserving of no Fourth Amendment protection

whatsoever.

The serious Constitutional infirmity inherent in the

police conduct involved in this ease, and in the argument

of Petitioner and Amici Curiae, lies in its misdirected

focus on the nature of the trash itself, rather than the

privacy interests of the citizen whose trash is involved,

'J.A. refers to Joint Appendix.

3

and the reasonable expectations of a citizen who places his

garbage out for collection in opaque closed containers. As

noted by Justice White in his recent dissenting opinion in

California v. Rooney 483 U.S. ——, 107 S.Ct. 2852, 2859

(1987):

The primary object of the Fourth Amendment is to

protect privacy, not property, and the question in this

case, as the Court of Appeal recognized, is not

whether Rooney had phe aed his interest in the

property sense, but whether he obtained a subjective

expectation of privacy in his trash bag that society

accepts as objectively reasonable.

And in the dissenting opinion in Rooney, the revealing

nature of garbage was specifically noted. California v.

Rooney, supra, at 483 U.S. ——, n.3; indeed, an entire

lifestyle can be well-determined from an examination of a

citizen’s trash. See, Rathje, “Archeological Ethnography.

_. . Because Sometimes It Is Better To Give Than To

Receive,” in Explorations in Ethnoarchaeology, 49 (R.

Gould ed. 1978). Certainly, a periodic examination of a

person’s eating preferences, drinking habits, literary

interests, political associations, and occasionally, private

thoughts, can be revealed by an examination of his trash.

Further, the magnitude of the invasion of privacy

involved in controlled trash pick-ups is evident in the

present case. For Petitioner herein seeks to justify not

just a one-time examination of discarded refuse, but a

periodic and perhaps systematic monitoring of that trash,

that may have involved numerous seizures over a two

month period. (See, J.A. 20; 54-55; C.T.* 150-151; see

112-113) Petitioners seek to justify this monitoring in the

2C.T. refers to clerk's transcript.

4

absence of a search warrant, probabie cause, or any claim

of exigency.

Were this Court to adopt, for the first time, the proposi-

tion advanced by Petitioner, the Court would thereby

authorize the uncontrolled systematic monitoring by the

Government of citizens’ lifestyles and attitudes. Such an

approach cannot rationally be harmonized with accepted

Fourth Amendment principles.

To allow the Government an unfettered and free rein to

monitor the activities of private citizens, without the

intervention of a neutral and detached magistrate, clearly

violates the Fourth Amendment's warrant requirement.

As noted in the case of Steagald v. United States, 451 U.S.

204, 212 (1981):

The purpose of a warrant is to. allow a neutral

judicial officer to assess whether the police have

probable cause to make an arrest or conduct a search.

As we have often explained, the placement of this

check point between the Government and the citizen

implicitly acknowledges that an “officer engaged in

the often competitive enterprise of ferreting out

crime,” Johnson v. United States, supra, at 14, 92

L.Ed. 436, 68 S.Ct. 367, may lack sufficient objec-

tivity to “— correctly the strength of the evidence

supporting the contemplated action — the indi-

vidual’s interest in protecting his own liberty and the

privacy of his home. Coolidge v. New Hampshire,

supra, at 449-451, 29 L.Ed.2d 564, 91 S.Ct. 2022:

McLonald v. United States, 335 U.S. 451, 455-456,

93 L.Ed. 153, 69 S.Ct. 191 (1948)

Petitioner, however, would have this court hold inap-

plicable these constitutionally compelled principles, by

defining the nature of the property involved to be such

that it is deserving of no constitutional protection what-

2

ever. This analysis misdirects the focus to the property,

rather than the privacy interest involved.

As stated in the majority opinion in California v. Cir-

aolo, 476 U.S. ; , 106 S.Ct. 1809, __ (1986):

The touchstone of Fourth Amendment analysis is

whether a person has a “constitutionally protected

reasonable expectation of privacy.” Katz v. United

States, 389 U.S. 347, 360, 19 L.Ed.2d 576, 88 S.Ct.

507 (1967), (Harlan, J., concurring). Katz posits a two

part inquiry: first, has the individual manifested a

—— expectation of privacy in the object of the

challenged search? Second, is society willing to rec-

—_ that expectation as reasonable? See Smith v.

Maryland, 442 U.S. 735, 740, 61 L.Ed.2d 220, 99

S.Ct. 2577 (1979).

In the present case, as noted in more detail, infra,

Respondent exhibited an expectation of privacy; that

expectation, contrary to the argument of Petitioner and

Amici Curiae, is one which society ought properly to

recognize, and protect.

Authorities dealing with this issue are not in agree-

ment.

Petitioner and Amici Curiae cite a plethora of Federal

Circuit Court decisions holding that there is no reason-

able expectation of privacy in garbage which has been set

out for collection. (United States v. Mustone (1st Cir.

1972) 469 F.2d 970; United States v. Terry (2nd Cir. 1981)

702 F.2d 299, cert. den. 461 U.S. 931; United States v.

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

Crowell (4th Cir. 1978) 586 F.2d 1020, cert. den. 440 U.S.

959: United States v. Vahalik (5th Cir. 1979) 606 F.2d 99

(cert. den. 606 U.S. 1081); Magda v. Benson (6th Cir.

1976) 536 F.2d 111; United States v. Shelby (7th Cir. 1978)

573 F.2d 971 (cert. den. 439 U.S. 975); United States v.

6

Dela Espirella (9th Cir. 1986) 781 F.2d 1432; United

States v. O’Bryant (11th Cir. 1985) 775 F.2d 1528.)

But these decisions, as well as those of the state courts

upon which Petitioner relies, (see People v. Huddleston

(1976) 38 Ill. App.3d 277, 347 N.E.2d 76; Smith v. State

(1973 Alaska) 510 P.2d 793; State v. Fassler (1972 Arizona)

503 P.2d 807; Croker v. State (1970 Wyoming) 477 P.2d

122; State v. Purvis (1968 Oregon) 438 P.2d 1002; People v.

Whotte (1982 Michigan) 317 N.W.2d 266; State v. Oquist

(1982 Minnesota) 327 N.W.2d 587; State v. Brown (1984

Ohio) 484 N.2d 215; State v. Stevens (1985 Wis.) 367

N.W.2d 788; State v. Schultz (1980 Fla.) 388 So.2d 1326.)

have almost uniformly defined the issue in terms of aban-

donment, without any extended analysis of the privacy

issues involved.

By contrast, the California Supreme Court in the case

of People v. Edwards, 71 Cal.2d 1096 (1969), analyzed the

rationale for finding a reasonable expectation of privacy in

refuse. In so holding a unanimous Court noted, Jd. 71

Cal.2d at 1104:

We can readily ascribe many reasons why

residents would not want their castaway clothing,

letters, medicine 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 meanin

by becoming part of a large conglomeration of tras

elsewhere. Half truths leading to rumor and gossip

may readily flow from an attempt to “read” the con-

tents of another's trash.

Two years later, a divided California Supreme Court

applied the Edwards principle in People v. Krivda 5

Cal.3d 357 (1971). In so holding, the Court noted, /d., 5

Cal.3d at 366-367:

7

The placement of one’s trash barrels into the side-

walk for collection is not, however, necessarily an

abandonment of one’s trash to the police or general

public. To the contrary, many municipalities have

enacted ordinances which restrict the right to collect

and haul away trash to licensed collectors, whose

activities are carefully regulated. (See, e.g., Los

Angeles County Ord. No. . ch. IX, §§ 1611-1622,

1681-1691.) Moreover, these ordinances commonl

prohibit unauthorized persons from tampering wit

trash containers. (/d.,§ 1710.) The provisions of these

ordinances would appear to refute the view that the

contents of one’s trash barrels become public prop-

erty when placed on the sidewalk for collection.

Aside from municipal ordinances, there may exist

an additional element of expected privacy whenever

one consigns his property to the trash can, to be

dumped, destroyed and forgotten. As stated in

Edwards, “The marijuana itself was not visible with-

out ‘rummaging’ in the receptacle. So far as appears

defendants alone resided at the house. In the light of

the combined facts and circumstances it appears that

defendants exhibited an expectation of privacy, and

we believe that expectation was reasonable under the

circumstances of the case. We can readily ascribe

many reasons why residents would not want their

castaway clothing, letter, medicine bottles or other

telltale refuse a trash to be examined by neighbors

or others, at /east not until the trash had lost its

identity and meaning of becoming part of a large

conglomeration of trash elsewhere. Half truths lead-

ing to rumor and gossip may readily flow from an

attempt to ‘read’ the contents of another's trash.”

(Italics added; People v. Edwards, supra, 7 Cal.2d

1096, 1104.)

Similarly, in the instant case the contraband was

concealed in paper sacks within the barrels, and was

not visible without emptying or searching through

the barrels’ content. The fact that the officers did not

examine the contents until the trash had been placed

8

into the well of the refuse truck does not distinguish

Edwards, for at no time did defendants trash lose its

“identity” by being mixed and combined with the

a, of trash previously placed in the

truck. Under such circumstances, we hold that

defendants had a reasonable expectation that their

trash would not be rummaged through and picked up

by police officers acting without a search warrant.

Of course, one must reasonably anticipate that

under certain circumstances third persons may

invade his privacy to some extent. It is certainly not

unforeseen that trash collectors or even vagrants or

children may rummage through ones trash barrels

and remove some of its contents. However, as stated

in People v. McGrew, 1 Ca.3d 404, 412 [82 Cal. Rptr.

473, 462, P.24 1], “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.”

And the analysis of the majority in Krivda was recently

followed in Hawaii, in the case of People v. Tanaka, 701

P.2d 1274 (1985). Noting that the various Federal Circuit

Courts had held otherwise, the Supreme Court of Hawaii

construed its own Constitution to preclude warrantless

trash searches. In so holding, the court observed, /d., 701

P.2d at 1276-1277:

In light of the facts in these cases, we believe

defendants expectations of privacy are ones society

is prepared to recognize. People reasonable believe

that police will not indiscriminately rummage

through their trash bags to discover their personal

effect. Business records, bills correspondence, mag-

azines, tax records and other telltale refuse can

reveal much about a person’s activities, associations,

and beliefs. If we were to hold otherwise, police could

search everyone's trash bags on their property with-

out any reason and thereby learn of their activities,

9

associations, and beliefs. It is exactly this type of

overbroad governmental intrusion that Article 1s i

of the constitution compels us to agree with Professor

LaFave when he said:

[this] type of police surveillance . . . should not

go unregulated, for a society in which all “our

citizens” trash cans could be made the subject of

police inspection” for evidence of the more intimate

aspects of their personal life upon nothing more

than a whim is not “free and open.”

LaFave, Searches and Seizures § 2.6(c) at 378

(1978) (footnote omitted) (quoting People v. Krivda, 5

eee 367, 468 P.2d 1262, 1269, 96 Cal. Rptr. 62,

69 (1971)).

II.

The fact that we hold the defendants have reason-

able expectation of privacy in their trash bags does

not mean that the police were powerless to search

defendant’s trash bags. It yo od means that absent

exigent circumstances, the police will have to have a

search warrant based on the probable cause. State v.

Dias, 62 Haw. 52, 56, 609 P.2d 637, 640 (1980).

To eq ite placing one’s trash out for collection with

abandonment, moreover, is unreasonable. As observed in

LaFave, “Search and Seizure, A Treatise on the Fourth

Amendment,” 2nd ed. 1987, §2.6(c), p. 477:

Though the court in Edwards implied that defend-

ant had not really abandoned the items in the trash

cans, the more significant part of the holding is that

which recognizes there can be a justified expectation

of ale in garbage. It does seem clear that

Edwards had abandoned the objects he placed in his

trash cans; unlike the defendant in Work, he demon-

strated an unequivocal intent to part with them for-

ever. But this is not determinative. A justified expec-

tation of privacy may exist as to items which have

10

been abandoned in the property law sense, just as it

is true that no such expectation may exist on some

occasions even though the property has been aban-

doned. (Fn. omitted.)

In the present case, Petitioner factually exhibited an

expectation of privacy. His trash was placed out for collec-

tion on the day of expected regular pick up. (J.A. 32) the

trash was contained in apparently opaque plastic garbage

bags. (J.A. 6, C.T. 101-102) Respondent's reasonable

expectation was that the trash collector would pick up the

bags shortly after they had been deposited for collection,

and would intermingle the items with other trash, and

would thereafter deposit mixed trash at an appropriate

dump site. Members of the general public would not be

able to see into the dark plastic bags; the bags would not

be on the street long enough to make likely its inspection

by anyone.

It is at this point, however, that governmental conduct

intervened; for the officers herein waylaid the opaque

containers, by instructing the trash collector to keep

Respondent’s trash separate, to not comingle it with oth-

ers trash, and to deliver said trash to the officers. The

nature of the governmental intervention in the trash col-

lection process at this juncture is both revealing, and

perhaps determinative, of the issues in this case.

For the fact that the officers had to act at that precise

moment on the day of the trash collection underscores

Respondent's reasonable expectations as to what would

occur with respect to his trash once it was placed out for

collection. It was to be picked up shortly thereafter, and

taken to the dump. Illustrative is the fact that, on one of

the occasions, the collector had not maintained several of

the bags separate from other trash, and Petitioner's trash

became irretrievable. (C.T. 147-149, J.A. 8.)

ll

Equally as important, the timing and details of the

government's intervention with the collection process

serves particularly to define the relationship of Respond-

ent, the trash collector, and the government. In placing

his trash out for collection, Respondent entrusted the

collector with a duty he could well have done for himself.

That he entrusted this task to the trash collector, and

consented to (and inferrably paid for) the trash collector

to take the bags for the purpose of depositing them at the

dump cannot be equated with a consent that the collector

give the bags to the police instead.

It is in this context that Petitioner seeks to have this

Court apply the rationale of Federal Circuit Court deci-

sions holding that, because trash collectors or scavengers

might be able to examine a person's trash, it should be

viewed as not entitled to Fourth Amendment protection.

(e.g., United States v. Shelby, supra; United States v.

Terry, supra.)

Further support for this proposition is found in the

dissenting opinion of Justice White in California v.

Rooney, supra, 483 U.S. at:

Respondent knowingly nna his betting papers

to the public by depositing them in a trash bin which

was accessible to the public. Once they were in the

bin, he no longer exercised control over them. While

he may not have welcomed intrusions, respondent

did nothing to ensure that his refuse de: pres be

discovered and appropriate. Indeed, he placed his

papers in the bin for the express purpose of con-

veying them to third parties, the trash collectors,

whom he had no reasonable expectation would not

cooperate with the police.

* * *

Any distinction between the examination of trash

by trash collectors and scavengers on the one hand

12

and police on the other is untenable. If property is

exposed to the general public, it is ex in equal

measure to the police. It is clear from Ciraolo that the

Fourth Amendment does not —— the police to

avert their eyes from evidence of criminal activit

that any member of the public would have observed,

even if a casual observer would not likely have real-

ized that the object indicated criminal activity or

would not likely have notified the police even if he or

she had realized the object's significance. It may of

course be true that a person minds an examination b

the police more than an examination of an arimal,

child, a neighbor, a scavenger, or a trash collector,

but that does not render the intrusion by the police

illegitimate.

This concept is closely related to the proposition that, if a

citizen wishes to maintain the privacy of his refuse, he

should dispose of it on his own, either by incinerating it

himself, or by shredding or grinding it. (United States v.

Shelby, supra; United States v. Terry, supra.)

It is respectfully submitted that the analysis evident in

those cases cannot properly be applied. |

First, the record in the present case does not support

such an application; however open to general public

inspection trash placed in a communal trash bin may be,

the same cannot be said of opaque trash bags placed

outside of a single family residence shortly before its

expected collection and disposal.

Second, the analysis evident in those cases is, it is

respectfully submitted, circuitous; it assumes the pre-

mise that there is no expectation of privacy, and tends to

equate an effective right of privacy with the question of

who owns the most efficient incinerator or paper shred-

der. The realities of modern life in this country are other-

wise. Millions of Americans place their trash out for

13

collection on the appropriate day, expecting that the per-

sonal secrets contained therein will be forever buried at

the local dump. They have neither time, nor the money, to

handle their own waste disposal.

Third, the remote possibility, on the facts of this case,

that scavengers or animals may have had access to

Respondent's trash in that short interval after it was

placed for collection, and prior to its actual collection,

adds little to this analysis. For that remote possiblility

serves only to demonstrate that Respondent's expectation

of privacy, while reasonable, may not have been abso-

lutely certain. The lack of absolute certainty in privacy

expectations, however, does not support a finding that the

privacy expectation was unreasonable. As observed by

Justice Scalia in his concurring opinion in O’Conner v.

Ortega, 480 U.S. , , 107 S.Ct. 1492, 1505 (1987):

It is privacy that is protected by the Fourth

Amendment, not solitude. A man enjoys Fourth

Amendment protection in his home, for example,

even though his wife and children have the run of the

place—and, indeed, even though his landlord has the

right to conduct unannounced inspections at any

time. Similarly, in my view, one’s personal office is

constitutionally protected against warrantless intru-

sions by the police, even though the employer and co-

workers are not excluded.

Further, virtually no dimunition of an expectation of

privacy can properly be inferred from the fact that

Respondent entrusted his trash to a collector who might

thereafter have cooperated with the police. Some support

for a dimunition in the expectation of privacy can be found

in the dissenting opinion of Justice White in California v.

Rooney, supra, 483 U.S. at __, and see U.S. v. Shelby,

supra; U.S. v. Crowell, supra; U.S. v. Terry, supra. The

analysis in these cases might properly apply if the trash

14

collector had, on his own initiative, searched Respond-

ent’s trash, and delivered incriminating results to the

police. Under such circumstances, the trash collector's

search would involve no state action, and would not

involve Fourth Amendment considerations. But even this

analysis would apply only if the trash collector was not

acting as an agent of any governmental official. As

observed by Justice Stevens in his opinion in United

States v. Jacobsen 466 U.S. 109, 113-114 (1984):

This Court has also consistently construed his pro-

tection as proscribing only governmental action; it is

wholly inapplicable “to a search or seizure, even an

unreasona fe one, effected by a private individual

not acting as an agent of the Government or with the

‘participation or knowledge of any governmental

official.” Walter v. United States, 447 U.S. 649d, 662,

65 L.Ed.2d 410, 100 S.Ct. 2395 (1980) (Blackmun, J..

dissenting). (Fn. omitted.)

In the present case, no private search occurred in fact.

The trash collector clearly acted at the request of the

police. Moreover, even if the rationale of a private search

were applied, the government's utilization of the seized

materials could not properly exceed the scope of the pri-

vate search. United States v. Jacobsen, supra, 466 U.S. at

115; Walter v. United States, 447 U.S. 649, 657 (1980).

Applied to the facts of the present case, the private party,

i.e., the trash collector, conducted no search. Any govern-

mental search would be within the ambit of the Fourth

Amendment.

More apt in this context is this Court’s holding in Stoner

v. California, 376 U.S. 483 (1964), where in this Court

held that while a motel guest implicitly consents to entry

into his room in the performance of their janitorial duties,

he does not consent to their authorization for a police

15

search. In so holding this Court observed, /d., 376 U.S. at

489-490:

It is true, as was said in Jeffers, that when a person

engaged a hotel room he undoubtedly gives “implied

or express permission” to “such persons as maids,

janitors or repairmen” to enter his room “in the per-

formance of their duties.” 342 U.S. at 51, 96 L.Ed. at

64. But the conduct of the night clerk and the police in

the present case was of an entirely different order. In

a closel ——— situation the Court has held that

a search by police officers of a house occupied by a

tenant invaded the tenant's constitutional right, even

though the search was authorized by the owner of the

house, who presumably had not only apparent but

actual authority to enter the house for some purpose,

such as to “view waste.” Chapman v. United States,

365 US 610, 5 L.Ed.2d 828, 81 S.Ct. 776. The Court

pointed out that the officer's purpose in entering was

not to view waste but to search for distilling equip-

ment, and concluded that to uphold such a search

without a warrant would leave tenant's home secure

only in the discretion of their landlords.

By parity of reasoning, when a citizen places his trash

out for collection on the designated pick up day, he would

reasonably expect that his refuse would be intermingled

with other trash, and thereafter forever buried at the

local dumpsite. It is quite unreasonable to assume that

such a person expressly or impliedly gives consent to the

trash collector to deliver his trash, intact or otherwise, to

the police for inspection.

Finally, the reasonableness of Respondent's expecta-

tion of privacy must be seen in the context of applicable

state law. For to the extent that notions of a reasonable

expectation of privacy must rest in part on those expecta-

tions that society will accept as reasonable, the pro-

nouncements of that society on the subject should not be

16

ignored. Were Respondent living in an area in which trash

was by law made available for public inspection on a

regular basis, no expectation of privacy could be consid-

ered reasonable.? However, in a State in which a citizen is

held to have a reasonable expectation of privacy in his

trash, which state laws will protect from governmental

invasion, it would seem that Fourth Amendment analysis

should recognize the citizen's expectation of privacy as

reasonable.

California is such a state. California by constitutional

provision,* protects a citizen's right to be free from unrea-

sonable searches and seizures, which has been inter-

preted to prohibit the kind of governmental search which

occurred in this case. People v. Krivda (1971) 5 Cal.3d 357.

And California has a separate constitutional provision

protecting a citizen’s right to privacy which is declared to

be an inalienable right. California Constitution, Article I

§ 1.° California's interpretation of those provisions is bind-

ing on this Court. See Uphaus v. Wyman, 364 U.S. 388,

389 (1960).

* Assuming, of course, the validity of the state regulation. See,

e.g., New York v. Burger 482 U.S., —_., (1987)

* California Constitution, Article I § 13, provides:

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 affirmation, particularly describing the

place to be searched and the persons and things to be seized.

° California Constitution, Article I § 1 provides:

All people are by nature free and independent and have inalienable

rights. Among these are enjoying and defending life and liberty,

acquiring, possessing, and protecting property, and pursuing and

obtaining safety, happiness, and privacy.

17

Since the advent of Article I § 28(d), of the California

Constitution, a California Court no longer has a state

exclusionary rule to provide a remedy for violations of

state laws, although Article I § 28( d) does not by its terms

alter existing state law as to the validity of any search or

seizure. In re Lance W. (1985) 37 Cal.3d 873, 886-887.

The question thus posed is that of whether or not a right

of privacy, guaranteed by state law, is enforceable directly

or indirectly under the Fourth and Fourteenth Amend-

ment exclusionary rule. For several reasons, it is

respectfully submitted that this question should be

answered in the affirmative.

First, there is precedent for this Court’s application of

state law to determine the validity of a search or seizure

for Fourth Amendment purposes.

Although in part commanded by act of Congress, this

Court noted in the case of U.S. v. Di Re, 332 U.S. 581, 589

(68 S.Ct. 222, 226, 92 L.Ed.210] (1948):

We believe, however, that in absence of an applica-

ble federal statute the law of the state where an

arrest without warrant takes place determines its

validity. By one of the earliest acts of Congress, the

principle of which is still retained, the arrest by

judicial process for a federal offense must be “agree-

ably to the usual mode or process against offenders in

such state.” There is no reason to believe that state

law is not an equally appropriate standard by which

to test arrests without warrant, except those cases

where Congress has enacted a federal rule. Indeed

the enactment of a federal rule in some specific.cases

seems to imply the absence of any general federal law

of arrest.

(In accord, Miller v. United States 357 U.S. 310, 305, 2

L.Ed.2d 1332, 1336 78 S.Ct. 1190 (1958); U.S. Watson,

18

423 U.S. 411, 420 fn.8, 46 L.Ed.2d 598, 607 96 S.Ct. 820

(1976). )

Federal circuit decisions do not appear unanimous on

this issue, and its resolution would appear to depend

largely on the particular context involved. As noted in

U.S. v. McNulty 729 F.2d 1243, 1251 (10th Cir. 1983):

We do not say that federal courts need never con-

strue or apply state law. Where the circumstances

dictate the propriety of applying state law, it will be

recognized. An example of this United States v.

Dudek, 530 F.2d at 690. The failure of Ohio police

officers to file a timely report and a verified inventory

was held (in Dudek) to not require vitiation of an

otherwise validity executed search warrant issued

under Ohio law. A dearth of federal law on the issue in

question is one such constraint. United States v. Re,

332, U.S. 581, 589-91, 68 S.Ct. 222, 226-27, 92 L.Ed.

210 (1948). In that case, the Court ruled that state

law governed the propriety of seizure of evidence of a

federal crime by a state officer working with a federal

officer, because there was insufficient federal law on

the question of warrantless arrest. More to the point

here, a relevant federal statute may prescribe refer-

ence to state law in certain instances. Cf.

Fed.R.Evid. 501 (privilege in certain actions to be

determined in accordance with state law). Thus a

careful examination of title III. The federal wiretap

statute, is necessary here. (Fn. omitted.)

(See also, U.S. v. Mitchell, 783 F.2d 971, 973-974 (10th

Cir. 1963) holding Federal Law controlling: ef. Mason v.

United States 719 F.2d 1485 (10th Cir. 1983) referring to

state law; U.S. v. Rickus, 737 F.2d 360 (3rd cir. 1984),

holding federal law controlling. )

And, in a series of cases dealing with wiretap evidence

some courts have relied on state law, since the issue

involved the basic right of privacy, particularly when state

19

officers act pursuant to a state warrant. As stated in U’.S.

v. Manfredi, 488 F.2d 588, 598 (2nd Cir. 1973):

In dealing with the question of the validity of the

warrants themselves, clearly a question of state law,

it will be recalled that the Crodelle affidavit submit-

ted to the state court judge in support of the petition

seeking the wiretap order contained an agreement

“to limit the seizure of conversations to those specifi-

cally pertaining to the aforementioned Penal Law

violations.” (Fn. omitted. )

But this doctrine concededly is rot without its limitation.

As stated in U.S. v. Jarabek, 726 F.2d 889, 900 (ist Cir.

1984):

Curreri involved a state investigation with the use

of wiretap equipment authorized by a state court

order. Federal officials becarne involved only after

the wiretapping was completed. The analysis in this

case, upon which appellant’s rely, must be read in the

context of the court’s observation that a stricter state

statute regarding wiretap interception will be

‘applied by a federal court only in the event electronic

surveillance is conducted pursuant to a state court

authorization. Curreri provides no support for

appellant’s claim.

We have found no federal case that has relied on

state law in judging the admissibility of evidence of

intercepted communications in any circumstances

other the where the electronic surveillance was con-

ducted pursuant to a warrant or order. On the other

hand, a number of cases stand for the proposition

that in federal criminal trials, regardless of any viola-

tion of state law, the admissibility of wiretap evidence

always is a question of federal law. E.g., United

States v. Butera, 677 F.2d 1376, 1380 (11th Cir. 1982),

cert. denied, ___ U.S. (1983); United States v.

Horton, 601 F.2d. 319 323 (7th Cir.) cert. denied, 444

U.S. 937 (1979); United States v. Nelligan, 573 F.2d.

20

251, 253 (5th Cir. 1978); United States v. Shaffer, 520

F.2d 1369, 1371-2 (3d Cir. 1975) (per curiam), cert.

denied, 423 U.S. 1051 (1976). In the instant case it is

not necessary for us to rest our decision upon this

proposition, for here we have federal officers who

ormed their duties in a lawful manner in a joint

investigation. The mere involvement of state officers

is not sufficient reason to look to state law to deter-

mine the admissibility of interception evidence. (fn.

omitted. )

(See also, United States v. Henderson, 721 F.2d 662,

664 (9th Cir. 1983); United States v. Alexander, 761 F.2d

1294, 1298, (9th Cir. 1985); U.S. v. Kovac, 795 F.2d 1509,

1511 (9th Cir. 1986); United States v. Day, 455 F.2d 454,

455 (3rd Cir. 1972); state law controlling; United States v.

Little, 753 F.2d 1420 (9th Cir. 1984) federal law controls in

federal proceedings. )

Second, to hold that the Fourth Amendment exclusion-

ary rule applies to exclude evidence obtained in violation

of a right of privacy guaranteed by a state constitution

does not necessarily hold more than that the reason-

ableness of a citizen’s expectation of privacy is determined

in large measure by state law. Once it is determined that

state law has declared an expectation of privacy to have

been reasonable, the criteria for the application of the

Fourth Amendment's exclusionary rule would appear to

have been met. (See California v. Ciraolo, supra, 476

U.S. at —__; Oliver v. United States 466 U.S. 170, 177

(1984); O’Connor v. Ortega, supra 480 U.S. : 2

And on one final ground California's interpretation of its

own constitutional right of privacy should control the

disposition of this case. Even if this Honorable Court

were to hold that, in the absence of state law considera-

tions, the Fourth Amendment does not preclude trash

searches such as those in the present case, it is re

21

spectfully submitted that this Court should hold that the

Fourth Amendment, as applied to the states through the

Fourteenth Amendment, compels application of the

exclusionary rule for violations of at least fundamental

state constitutional rights. In Mapp v. Ohio, 367 U.S. 643

(1961) this Honorable Court held the exclusionary rule

was essential to the enforcement of the right of privacy,

and without the rule, the right was rendered “a form of

words” and illusory. This Court therein stated, Id., 367

U.S. at 655-656:

Since the Fourth Amendment’ right of privacy has

been declared enforceable against the States through

the Due Process Clause of the Fourteenth, it is en-

forceable against them by the same sanction of exclu-

sion as is used against Federal Government. Were it

otherwise, then just as without the Weeks rule the

assurance against unreasonable federal searches and

seizures would be “a form of words,” valueless and

undeserving of mention in a perpetual charter of

inestimable human liberties, so tuo, without that rule

the freedom from the state invasions of privacy would

be so ephemeral and so neatly severed from con-

ceptual nexas with the freedom from all brutish

means of coercing evidence as not to merit this

Court’s high regard as a freedom “implicit in the

concept of ordered liberty.”

* * *

In short, the admission of the new constitutional

right by Wolf could not consistently tolerate denial of

its most important constitutional privilege, namely

the exclusion of the evidence which an accused had

been forced to give by reason of the unlawful seizure.

To hold otherwise is to grant the right but in reality

to withhold its privilege and enjoyment.

For the foregoing reasons, this Court in Mapp held that

the Due Process Clause of the Fourteenth Amendment

22

compels application of the exclusionary rule to searches

by state officers.

The holding in Mapp cannot reasonably be limited to

violations of rights recognized under federal, but not state

law. For a state cannot, consistent with the Due Process

Clause, create an “Inalienable” right of privacy, and

thereafter render that right meaningless and unenforcea-

ble.

That the Due Process Clause applies to enforce rights

which have their origin in state law, is now beyond dis-

pute. This Court so held, in Vitek v. Jones, 455 U.S. 480,

488.

We have repeatedly held that state statutes may

create liberty interests that are entitled to the pro-

cedural protections of the Due Process Clause of the

Fourteenth Amendment. There is no “constitutional

or inherent right” to parole, Greenholtz v. Nebraska

Penal Inmates, 442 U.S. 1, 799 S.Ct. 2100, 2103, 60

L.Ed.2d 668 (1979), but once a State ts a pris-

oner the conditional liberty pay ependent on

the observance of special parole restrictions, due pro-

cess protections attach to the decision to revoke

arole. Morrissey v. Brewer, 408 U.S. 471, S.Ct.

593, 33 L.Ed.2d 484 (1972). The same is true of the

revocation of — Gagnon v. Scarpelli, 411

U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In

be + McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

L. Ed.2d 935 (1974), we held that a state-created right

to good-time-created right to good-time credits,

which could be forfeited only for serious misbehavior,

constituted a liberty interest protected by the Due

Process Clause. We also noted that the same reason-

ing could justify extension of due process protections

to a decision to impose “solitary” confinement

because “[it] represents a major change in the condi-

tions of confinement and is rwy | imposed only

when it is claimed and proved that there has been a

23

mat act of misconduct.” Jd., at 571-572, n. 19, 94

S.Ct. at 2982, n. 19. Once a State has granted pris-

oners a liberty interest, we hold that due process

protections are necessary “to insure that the state-

created right is not arbitrarily abrogated.” /d., at 557

94. S.Ct. at 2975. Ud., 445 U.S. at 488-489).

This principle was also recognized by Justice Rehnquist

in his opinion in Hewitt v. Helms, 459 U.S. 460, 466,

(1983).

While no State may “deprive any person of life,

liberty, or property, without due process of law,” it is

well settled that only a limited range of interests fall

within this provision. Liberty interests protected by

the Fourteenth Amendment may arise from two

sources—the Due Process Clause itself and the laws

of the States. Meachum v. Fano 427, U.S. 215,

ony’ 96 S.Ct. 2532, 2537-2540, 49 L.Ed.2d 451

(1976). )

California has by its Constitution, and by its judicial

interpretations thereof, recognized a citizen’s right to pri-

vacy; it has recognized that the right to privacy precludes

controlled trash seizures and searches such as those in the

present case. Having created such a “personal liberty

interest,” the state cannot, consistent with the Due Pro-

cess Clause of the Fourteenth Amendment, arbitrarily

render that personal liberty interest a meaningless “form

of words.” (Mapp v. Ohio, supra, 367 U.S. at 655.)

Accordingly, the exclusionary rule of the Fourth and

Fourteenth Amendments must be applied to exclude evi-

dence seized in violation of personal liberty interests rec-

ognized by a state to be “inalienable.” The privacy of one’s

refuse is so recognized in California.

CONCLUSION

At issue herein is a basic right to privacy versus the

simple requirement that California State Law Enforce-

24

ment Officers obtain a search warrant, at least in the

absence at any exigency. There is no compelling need to

dispense with the requirement of probable cause and a

warrant in situations wherein no exigency exists.

To hold otherwise is to allow unfrettered government

monitoring of the most intimate details of the lives of

citizens. To avoid such monitoring and surveillance, a

citizen would have to either keep his refuse, or dispose of

it by his own means. For the vast majority of our citizens,

these alternatives are not feasible. But even more impor-

tantly, to hold valid such monitoring is to hold that, in

order to maintain freedom from government snooping, a

citizen must carefully screen and scrutinize that which

leaves his residence. This would be an unwarranted and

dangerous precedent, inconsistent with concepts of a free

society. The same rationale could be utilized to authorize

the monitoring of chimney emissions, plumbing, and

other indicia of a householder’s lifestyle. Balanced against

the pervasive nature of the governmental intrusion is the

relatively minor burden on law enforcement of obtaining a

search warrant, or, where exigent circumstances inter-

vene, of demonstrating probable cause. This latter bur-

den seems a small price to pay to maintain basic right of

privacy.

Further, in the unique posture at the present case, it is

respectfully submitted that no state can be allowed to

declare a right of privacy to be fundamental and inalien-

able, and arbitrarily render that right meaningless and

unenforceable by not applying an exclusionary rule to

evidence seized in violation of that right. Under such

circumstances, the Due Process Clause of the Fourteenth

Amendment should mandate exclusion.

25

The decision of the Court of Appeal should be affirmed.

Respectfully submitted,

MICHAEL IAN GAREY

611 Civic Center Drive West

Penthouse Suite, 4th Floor

Santa Ana, California 92701

(714) 834-1950

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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