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

OPINION

CONNOR, Justice.

Appellant was convicted by a superior court jury of unlawful and felonious possession of heroin in violation of AS 17.10.-010. Three days prior to trial, appellant moved to suppress as evidence all property seized during execution of a search warrant issued September 4, 1970, by district court Judge Dorothy O. Tyner. In that motion appellant alleged that the search warrant was issued upon information obtained by three illegal searches. This appeal is based on the denial of that motion.

On or about August 22, 1970, appellant and one Charles Smith occupied Apt. No. 409 of the Caye Ann Apartments, located at 731 B Street in Anchorage. Having received information that Charles Smith was involved in narcotics activities, Investigator Dean Bivens of the Alaska State Troopers instituted on August 22, 1970, a “stakeout” giving 24-hour coverage of the Caye Ann Apartments. This surveillance lasted approximately 12 days.

Investigator Bivens and the state troopers who worked with him operated from a camp trailer across B Street from the Caye Ann Apartments. This vantage point afforded them a view both of the apartment building and of the dumpster garbage receptacle located outside the building, adjacent to the northwest corner of the building, closest to B Street. Bivens specifically assigned the troopers manning the stakeout to remove garbage placed in the dumpster by either Charles Smith or the appellant.

In addition to the dumpster located outside the apartment building, the facilities of the Caye Ann Apartments included an indoor garbage room located on the ground floor, equipped with a 20-gallon garbage hand cart. At the time in question, it was the practice of the resident manager of the apartment building to empty the contents of the 20-gallon hand cart into the dumpster whenever the hand cart became filled up. The dumpster itself was slightly sheltered by an overhang of the building. Municipal refuse collection was made exclusively from the dumpster and not from the indoor garbage room.

On August 22, 1970, Trooper Wes Taylor removed two ba,gs of garbage which he had seen Charles Smith place in the dumpster. On August '31, Trooper Casper Johnsen removed a tan colored plastic garbage bag, which he had seen appellant place in the dumpster. On September 2, Trooper Taylor again removed items from the dumpster which he had seen Charles Smith, accompanied by appellant, place there. Each of the bags or other containers thus obtained was opened by Investigator Bivens and the contents of each provided evidence that occupants of Apt. No. 409 were involved with unlawful drugs.

On the basis of the evidence taken from the dumpster, a search warrant was subsequently issued, and a number of drug-related items were found in the apartment, including marijuana, cigarette papers, hypodermic syringes and, in a paper “slip”, approximately one gram of a brownish powder which chemical analysis proved to be unusually pure heroin. In addition, the troopers found and seized a can of “milk sugar”, a substance commonly used to dilute heroin before use.

Appellant contends that the police activity outlined above constitutes an illegal search. Specifically, she argues that official removal and examination of the contents of various bags and other garbage receptacles placed in the dumpster by herself and Charles Smith violates both the Fourth Amendment of the United States Constitution ¹ and Article I, Section 14, of the Alaska Constitution.² In short, appellant reads both constitutions to require that the police should have demonstrated probable cause to an • independent magistrate and secured a search warrant before undertaking the search of Smith’s garbage.³

We disagree, and we hold that the trial court’s failure to grant appellant’s motion to suppress does not constitute error. However, inasmuch as we are profoundly-committed to the preservation of personal privacy and deeply sensitive to the dependence of our most cherished rights upon judicial vindication, we are unwilling to announce a general rule sanctioning official gathering and analysis of an individual’s refuse. Accordingly, we limit our holding to the particular facts of the case at bar.⁴

We commence our analysis with the observation that the protection of the Fourth Amendment does not extend to abandoned property.⁵ Using traditional property law concepts, we find it difficult to avoid the conclusion that any items of garbage placed in a receptable outside the dwelling — and certainly the items removed from the dumpster in the case at bar — are abandoned. In the words of one recent scholar:⁶

“In the law of property, it has been recognized that the act of abandonment is demonstrated by an intention to relinquish all title, possession, or claim to property, accompanied by some type of activity or omission by which such intention is manifested. As one court has stated:

‘The abandonment of property is the relinquishing of all title, possession, or claim to or of it — a virtual intentional throwing away of it. It is not presumed. Proof supporting it must be direct or affirmative or reasonably beget the exclusive inference of the throwing away.’ ” [Emphasis added by Mascolo].⁷

We view the sequence of an individual’s placing an article in a receptacle, from which routine municipal collections are made, and then withdrawing from the area⁸ as activity clearly indicative of “an intention to relinquish all title, possession, or claim to property.” ⁹

A determination that the refuse retrieved by the state troopers in this case was abandoned, however, is not conclusive of the reasonableness of their search. As the United States Supreme Court said in Katz v. United States:

“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312, 315; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202, 1204. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877, 879.” 389 U.S. at 351-352, 88 S.Ct. at 511, 19 L.Ed.2d at 582.

Expanding on this theme in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed. 2d 889, 899 (1968), the Court added:

“. . . and wherever an individual may harbor a reasonable ‘expectation of privacy,’ [389 U.S.] at 361, 88 S.Ct. at 516 [19 L.Ed.2d at 588] (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion.” (Citation in brackets added.)

The nourishment we derive from these two propositions is this: if appellant can be said to have harbored a “reasonable expectation of privacy” in the dumpster, then the protection afforded by the Fourth Amendment extends to that receptacle and the warrantless search is illegal.

The question presented by this case, in short, is how to determine whether a reasonable expectation of privacy exists here. Our touchstone is Justice Harlan’s separate concurrence in Katz:

“My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’. Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed,2d at 587-588.

On the record before us, we are not satisfied that either test has been met.

First, appellant’s and Charles E. Smith’s activities of depositing garbage in the dumpster and withdrawing from the area, described in Investigator Biven’s Affidavit for Search Warrant,¹⁰ were clearly exposed to plain view. The dumpster was located outside the building, appurtenant to the corner of the building nearest the street. The trips were made during daylight hours. Any passerby could havé easily observed appellant’s or Smith’s various trips'. No attempt was made to empty the bags or boxes or to commingle their contents with the collective mass of garbage. Any person later emptying refuse in the dumpster could easily segregate the items placed therein by the Smiths. Had they wished to keep their activities to themselves, the Smiths could easily have left any items of garbage in the 20-gallon hand cart located in the indoor garbage room. On these facts, we are satisfied that appellant harbored no “actual (subjective) expectation of privacy”.¹¹

But even assuming arguendo that the facts overwhelmingly indicated appellant’s subjective expectation of privacy, this court is unable to hold that “society is prepared to recognize [such an expectation] as ‘reasonable,’ ” at least in the case at bar.

To be sure, the question is very close. A review of several recent garbage can search cases ¹² reveals a basic core of factors to be considered in determining whether a reasonable expectation of privacy exists. These factors are:

1. Where the trash is located,

2. Whether the dwelling is multiple or single unit,

3. Who removed the trash,

4. Where the search of the trash takes place.

One may readily arrange these factors to form a continuum. At one end of the continuum is trash located close to a single-family dwelling, on the same property as the dwelling, and searched by police officers at that location. We observe, without so deciding, that this would be a strong case for holding the expectation of privacy to be reasonable. At the other end of the continuum is trash located off the premises of a multiple-unit dwelling, and searched by a person authorized to remove it. In such a case we would be unable to hold that the expectation of privacy was reasonable.

The instant case presents an on-premises search by police officers of a multiple-dwelling trash receptacle from which municipal collections were made. We note at the outset that almost every human activity ultimately manifests itself in waste products and that any individual may understandably wish to maintain the confidentiality of his refuse. As the California Supreme Court stated in People v. Edwards:

“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, Half truths leading to rumor and gossip may readily flow from an attempt to ‘read’ the contents of another’s trash.” 80 Cal.Rptr. 633, 638, 458 P.2d 713, 718 quoted in, 96 Cal.Rptr. 62, 68, 486 P.2d 1262, 1268.

Understandable as this desire for confidentiality may be, it is not conclusive of society’s willingness to recognize an expectation of privacy in a garbage receptacle as reasonable. Turning to the dumpster in the case at bar, we are impressed with the combination of several factors. To begin with, this dumpster accommodated several apartments. Therefore many people living in the building — and certainly the superintendent — would conceivably have occasion to look into it and scavenge about in the collective heap. Secondly, all municipal pickups were made from this dumpster. Therefore, any tenant in the Caye Ann Apartments could be sure that periodically a group of third persons would look into the dumpster and possibly scavenge items therefrom. Thirdly, the dumpster was located outside the building in the parking area. Therefore, it would be reasonable to expect trash to be accidentally removed from the dumpster by running children, passing cars, stray dogs, or even a visitor of another tenant in the building. Taking these various factors together, we are unable to conclude that appellant could have harbored an objectively reasonable expectation of privacy in the dumpster.¹³

We are urged, however, to adopt a concept of differential expectations of privacy. We are cited to State v. Stanton, 490 P.2d 1274 (Or.App.1971), in which the Court of Appeals of Oregon stated:

“We recognize that while it may not be objectively reasonable for a person to expect privacy as to one class of persons or persons with one purpose, he may reasonably expect privacy as to the same or other classes with other purposes. A person may not expect privacy in his open field or backyard as against children at play or parents looking for lost or tardy children. Yet he may subjectively expect and objectively be entitled to expect privacy as against policemen making a ‘dragnet’ search of a whole group of private fields or a whole neighborhood of backyards in the assumption that if they search long enough and far enough they will find some evidence of some crime.” 490 P.2d at 1279.¹⁴

That view we decline to adopt in this case. In our opinion, the reasoning which would openly countenance scavenging in the dumpster by an indeterminate number of third persons, freely admit a constant invitation to the public authorities of the municipality to remove the contents, yet require the police to secure a search warrant before pursuing their investigation is too attenuated. Accordingly, we hold that the trial court’s denial of defendant’s motion to suppress did not constitute error.

Affirmed.

FITZGERALD, J., did not participate.

1 . The United States Constitution, Fourth Amendment, provides in part :

“The right of the people to be secure in their persons,, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..."

2 . The Alaska Constitution, Article I, Section 14, provides in part:

“The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

3 .See, e. g., Katz v. United States, 389 U.S. 347, 356-357, 88 S.Ct. 507, 514, 19 L.Ed. 2d 576, 585 (1967).

“It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. . . . ‘Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” [Footnotes omitted].

4 . Although under Baker v. Fairbanks, 471 P.2d 386, 401-402 (Alaska 1970), we may interpret our own constitution more expansively than the comparable federal constitutional provision, we are not persuaded that such should be done in this case.

5 . United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972), Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff.L.Rev. 399, 400-01 (1970), and cases cited therein [cited hereafter as Mascolo].

6 . Mascolo at 401-02.

7 . Foulke v. New York Consol. R. R., 228 N.Y. 269, 127 N.E. 237, 238 (1920), quoted xoith approval in United States v. Cowan, 396 F.2d 83, 87 (2d Cir. 1968) (cases cited by Mascolo at 402 n. 14).

AVe note in passing that Mascolo would rest a finding of abandonment on federal constitutional law rather than on local property concepts in light of the “con-elusive effect of abandonment under the [F]ourth [A]mendment [being] the termination of an individual’s right, or expectation, of privacy in a particular piece of property.” Mascolo at 402. AVe take a somewhat different view. In our opinion, the legality of the search turns not on the nature of the refuse but on whether the receptacle lies within the zone of protection afforded by the Fourth Amendment. Thus property which is abandoned but which rests in a receptacle temporarily maintained inside a dwelling could not be searched or seized by the police unless a warrant had issued.

See, e. g., State v. Purvis, 249 Or. 404, 438 P.2d 1002 (1968). A police officer suspected the defendant of possession of marijuana. He requested maids working in the hotel where defendant resided to bring him the contents of the defendant’s wastebasket, which were emptied as part of the maids’ normal duties. Of the objects removed from the wastebasket, the court said:

“The objects which defendant deposited in the ash trays and waste baskets can be regarded as abandoned property. During the time the discarded property remained in the room the police were not entitled to seize it, not because defendant claimed a right of privacy in these items, but because the right to the privacy of the room itself would be invaded by such a seizure. However, the removal of the contents of the ash trays and waste baskets into the hallway by the maids, who were privileged to be in the room and were authorized to remove trash in cleaning it, did not constitute an unlawful invasion of defendant’s privacy.” [Emphasis added]. 438 P.2d at 1005.

8 . Investigator Biven’s Affidavit for Search AVarrant reads in part:

“That on the 22nd day of August 1970, at approximately 5 :15 p. m., Trooper AAres Taylor informed me of the following:

(a) That he had observed Charles E. Smith exit the CayeAnn Apartments located at 731 B Street in Anchorage at approximately 11:59 a. m. on the 22nd day of August, 1970.

(b) That Charles E. Smith had in his possession two (2) yellow grocery bags with the name “CARR’S” written on the side.

(c) That Charles E. Smith placed the two (2) yellow “CARR’S” grocery bags into the CayeAnn Apartments dumpster located at the northwest corner of the apartment building.

(d) That Charles E. Smith entered a black over blue 1970 Cadillac Alaska License ⅝6673 and departed the area.

“That on or about the 31st day of August, 1970, at approximately 9:30 p. m., I conferred with Trooper Casper Johnsen and he indicated the following had transpired on the 31st day of August, 1970:

(a) That he had observed a person known to him as Judy Leo Smith exit the CayeAnn Apartments, located at 731 B Street, Anchorage, Alaska, at approximately 3 :35 p. m.

(b) That at that time Judy Lee Smith iiad in her possession a tan colored plastic garbage bag.

(c) That she proceeded to a dumpster which serves the residents of the Caye-Ann Apartments, which is located at the northwest corner of that building.

(d) That Judy Lee Smith deposited the tan colored plastic garbage bag in the dumpster and then re-entered the CayeAnn Apartments.

(e) That Trooper Casper Johnsen had occasion to observe the CayeAnn Apartments dumpster continuously and without interruption from 3 :34 p. m., when the tan colored plastic garbage bag was deposited by Judy Lee Smith, until 4:10 p. m., when it was personally removed from the dumpster by Trooper Johnsen.

(f) That during the above interval between 3:34 p. m. and 4:10 p. m., no one approached nor deposited garbage in the dumjjster which contained the tan colored plastic garbage bag.”

9 . Mascolo at 401. It is, of course, possible that variations on this fact pattern might require a different conclusion. Intentional concealment, for instance, is not an act of abandonment. See State v. Chapman, 250 A.2d 203, 212 (Me.1969), cited in Mascolo at 402 n. 14.

10 . See n. 8 supra.

11 . While it is unclear on this record whether the various items, as they rested in the dumpster, were exposed to plain view, that is of no consequence to this analysis.

12 . United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212 (2d Cir. 1971); People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated and remanded for a determination of whether the holding has a state or federal basis, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972); People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969); State v. Purvis, 249 Or. 404, 438 P.2d 1002 (1968).

13 . See Work v. United States, 100 U.S. App.D.C. 237, 243 F.2d 660, 663 (1957) (dissenting opinion by Burger, Circuit Judge).

14 . See also People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 69, 486 P.2d 1262, 1269 (1971):

“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 one’s trash barrels and remove some of its contents. However, as stated in People v. McGrew, 1 Cal. 3d 404, 412, 82 Cal.Rptr. 473, 478, 462 P.2d 1, 6, ‘The hotel guest may reasonably expect a maid to enter his room to clean up, but absent unusual circumstances he should not be held to expect that a hotel clerk will lead the police on a search of his room.’ ”