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
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