THE PEOPLE, Plaintiff and Appellant, v. JUDITH KRIVDA et al., Defendants and Respondents.
Crim. No. 15295
In Bank
July 12, 1971
357
THE PEOPLE, Plaintiff and Appellant, v. JUDITH KRIVDA et al., Defendants and Respondents.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Daniel L. Lieberman, Deputy District Attorneys, for Plaintiff and Appellant.
Sam Bubrick for Defendants and Respondents.
BURKE, J.—The question presented by this appeal is whether a householder who places contraband in trash barrels and subsequently places the barrels adjacent to the street for pickup by the rubbish collector may be deemed to have abandoned the trash at that location and to have forsaken any reasonable expectation of privacy with respect thereto.
The pertinent facts leading to defendants’ arrest are as follows: On July 1, 1968, Officer Gates received a telephone call from an anonymous informant who told him that “Roger,” “Judy” and “Frankie,” residing at 1901 Nolden, Los Angeles, were engaged in sex and narcotic activities and were injecting Judy‘s two children with methedrine. Thereafter Officers Gates and Marsden located the premises, a single family dwelling, observed two young female children in front, and ran a utility check which showed that Judy Krivda paid the utilities there. Investigation also showed that Edward Krivda, whose wife was named Judy, had previously been arrested for narcotic activity. About 11 a.m. on July 19, 1968, the officers returned to the address and saw several trash barrels in front on the parkway adjacent to the sidewalk; they also observed the refuse collectors approaching and stopped them about half a block west, identified themselves and requested them to empty the well of their trash truck and pick up the trash in the cans in front of 1901 Nolden.
The officers watched the men empty the well of their truck, drive to the front of the premises and empty the trash barrels; one block north the officers examined the contents of the well and found five paper sacks containing miscellaneous marijuana debris and marijuana seeds. One sack also contained four to six partially burned marijuana cigarettes, an envelope bearing the words “Edward Krivda, 1901 Nolden,” a white, lined piece of paper on which was a handwritten letter with the name “Frankie” mentioned in it dated Saturday, 13th, signed by “Al,” and a three by five card dated Wednesday, 6-26, bearing the names “Roger” and “Judy.” The officers took a position of vantage and watched the premises; they observed defendant Roger Minor come out of the house at that address, pick up the trash barrels and carry them to the front porch of the house. They then approached the premises, effected entry, discovered defendants in the residence and recovered additional marijuana and paraphernalia.
On September 18, 1968, defendants were charged by information with possession of marijuana (
We have concluded that the court had no jurisdiction to entertain defendants’ renewed motion to suppress, once its order denying the prior motion had become final as to that court, since the sole and exclusive remedy prior to conviction to review the denial of a motion to suppress is by means of an extraordinary writ of mandate or prohibition pursuant to
The People first contend that the trial court had no jurisdiction to entertain defendants’ renewed motion to suppress. That contention finds support in the language of
As we pointed out in People v. Superior Court (Edmonds) 4 Cal. 3d 605, 610 [94 Cal.Rptr. 250, 483 P.2d 1202], one of the purposes underlying the enactment of section 1538.5 was to reduce the unnecessary waste of judicial time and effort involved in rehearing and redetermining
Defendants point out that in the instant case, their renewed motion was presented in the form of a motion to “reopen” to the same judge who had previously denied it. Defendants urge us to hold that under such circumstances the judge had jurisdiction to reconsider and correct his own prior ruling on defendants’ motion to suppress. It is true that there are several cases which hold that a court has the inherent power to reconsider, and thereupon to modify, revoke or set aside, a prior order upon determining that its order was erroneous. (See People v. Eggers, 30 Cal.2d 676, 692 [185 P.2d 1]; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 634 [150 P.2d 881]; Harth v. Ten Eyck, 16 Cal.2d 829, 832-834 [108 P.2d 675]; San Francisco Lathing, Inc. v. Superior Court, 271 Cal.App.2d 78, 81 [76 Cal.Rptr. 304]; Big Bear Mun. Water Dist. v. Superior Court, 269 Cal.App.2d 919, 928 [75 Cal.Rptr. 580]; 2 Witkin, Cal. Procedure
Without attempting to reconcile these various cases,2 or to determine whether motions to suppress may be characterized as “procedural” only,3 it seems apparent from the language of subdivision (i) of
However, until the 30-day period has expired and the order has become final, the court should have the inherent power, prior to trial, to reconsider and “reopen” its prior ruling.4 The 30-day limitation on reconsideration should minimize the likelihood of substantial delay of trial, and should enable the judge to review his ruling while the facts underlying the motion and the law applicable thereto are still fresh in mind. Of course, successive applications based upon the same factual showing should be discouraged, and ordinarily the court should refuse to consider a renewed motion supported by substantially the same facts as the one denied, but until its order has become final the court should have jurisdiction to reconsider
In the instant case, defendants failed to request reconsideration of the court‘s order denying their motion to suppress until after the 30-day period under subdivision (i) had expired. Accordingly, the trial court should not have entertained their renewed motion, and its order granting the same was beyond its jurisdiction and void. Nevertheless, both parties have briefed and argued the merits of defendants’ motion, and we are prepared to rule upon it at this time rather than to reverse and remand the case for trial, for we have concluded that defendants’ original motion to suppress should have been granted. Since the People have conceded that there is no additional evidence against defendants, it is apparent that the People‘s appeal from the order of dismissal must be denied.5
The People contend that the search of defendants’ trash barrels and the seizure of their contents were reasonable. They point out that the barrels were located near the sidewalk on public property, that neither the officers nor trash collectors committed a trespass in seizing and examining the contents of the barrels, and that under the facts in this case defendants may be deemed to have abandoned their trash and to have forsaken any reasonable expectation of privacy with respect thereto.
A number of cases in upholding searches in open fields or grounds around a house have stated their conclusions in terms of whether the place was a “constitutionally protected area,” (see, e.g., cases cited in People v. Edwards, supra, 71 Cal.2d 1096). That phrase, however, does not afford a solution to every case involving a claim of an illegal search and seizure (see Katz v. United States, 389 U.S. 347, 350-352 [19 L.Ed.2d 576, 581-582, 88 S.Ct. 507]), and we have held that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion (People v. Bradley, 1 Cal.3d 80, 84 [81 Cal.Rptr. 457, 460 P.2d 129]; People v. Edwards, supra, 71 Cal.2d 1096, 1104-1105).
As the People point out, the facts in the instant case differ from those in Edwards in certain respects. In Edwards, the officers searched trash cans which were placed in the “open back yard area” behind defendants’ residence, a few feet away from the back door. Consequently, the officers were required to trespass upon defendants’ property in order to make the search. Although the foregoing facts were relevant to our determination that defendants had a reasonable expectation of privacy, they were not necessarily dispositive of that determination. The fact that a search may or may not involve a trespass or other invasion of defendant‘s property interests is not conclusive, for “The prohibition in the [Fourth] amendment is against unreasonable searches and seizures, not trespasses.” (People v. Terry, supra, 70 Cal.2d 410, 427.) As stated in Katz v. United States, supra, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected [Citations.]” (Italics added; 389 U.S. at pp. 351-352 [19 L.Ed.2d at p. 582].)
The question remains whether defendants herein had a reasonable expectation of privacy with respect to the contents of their trash barrels. The People urge that the placement of the barrels near the sidewalk for collection constituted an abandonment of their contents. Indeed, had defendants simply cast their trash onto the sidewalk for anyone to pick over and cart
The placement of one‘s trash barrels onto the sidewalk for collection is not, however, necessarily an abandonment of one‘s trash to the police or 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.,
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 without ‘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, 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 meaning by becoming part of a large conglomeration of trash elsewhere. Half truths leading to rumor and gossip may readily flow from an attempt to ‘read’ the contents of another‘s trash.” (Italics added; People v. Edwards, supra, 71 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’ contents. The fact that the officers did not examine the contents until the trash had been placed into the well of the refuse truck
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, 462 P.2d 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.”
It is also clear, as in Edwards, that defendants’ reasonable expectation of privacy was violated by unreasonable governmental intrusion. (See People v. Edwards, supra, 71 Cal.2d 1096, 1104-1105.) We should hesitate to encourage a practice whereby our citizens’ trash cans could be made the subject of police inspection without the protection of applying for and securing a search warrant.
Since the marijuana found in defendants’ trash barrels was the result of an illegal search and seizure, that evidence should have been ordered suppressed pursuant to
The judgment of dismissal is affirmed.
Peters, J., Tobriner, J., and Mosk, J., concurred.
WRIGHT, C. J., Concurring and Dissenting.—I join in the opinion of the majority that a motion to suppress illegally seized evidence, made pursuant to
I do not question the proposition enunciated in People v. Edwards, supra, 71 Cal.2d 1096 [80 Cal.Rptr. 633, 458 P.2d 713], that trash cans immediately adjacent to a home, in a place to which the general public is not invited, are within a “constitutionally protected area” (Hoffa v. United States (1966) 385 U.S. 293, 301 [17 L.Ed.2d 374, 381, 87 S.Ct. 408]) as to which the owner may reasonably expect privacy from governmental intrusion. That expectation, however, is inextricably bound up in the physical location of the trash cans. I cannot accept the proposition that either Edwards or the Constitution compels extension of protection to trash cans to those placed adjacent to or on a public thoroughfare, nor do I find any constitutional compulsion for the newly developed doctrine of “commingled trash.”
The majority purport to find support for their conclusion that the police invaded defendants’ reasonable expectation of privacy as to their trash container in Katz v. United States, supra, 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], where the court held that electronic eavesdropping on a telephonic conversation violated the defendant‘s privacy on which he justifiably relied. Since Katz, however, the court has further refined the constitutionally justifiable expectations which are protected by the Fourth Amendment. In United States v. White (1971) 401 U.S. 745 [28 L.Ed.2d 453, 91 S.Ct. 1122], the court emphasized the continued viability of Hoffa v. United States, supra, 385 U.S. 293, and prior cases approving various means by which governmental agents or informers, using electronic equipment, record or transmit their conversations with wrongdoers who believe the conversation will remain private. If White and Katz have any applicability in areas other than electronic eavesdropping, it is in their holdings that an actual expectation of privacy based on a belief that a confederate or one believed to be a confederate will not reveal a defendant‘s secrets, is not a constitutionally justified expectation of privacy
We need not adopt the position of the Second Circuit that trash placed at curbside for pickup may be characterized as “abandoned” (U.S. v. Dzialak (2d Cir. 1971) 441 F.2d 212 [9 Crim. L. 2046]) since, whether intended to be abandoned solely to the authorized collector or not, it is neither in a constitutionally protected area nor the subject of a constitutionally justifiable expectation of privacy.
I would reverse the judgment.
McComb, J., and Sullivan, J., concurred.
Appellant‘s petition for a rehearing was denied August 16, 1971. Wright, C. J., McComb, J., and Sullivan, J., were of the opinion that the petition should be granted.