Smith v. State

Appellant, SMITH, Judith Appellee. Alaska,

STATE

No. 1587. of Alaska.

May Kulik, Defend- Public Asst.

Lawrence J. Defender, er, Soli, Anchor- Herbert Public age, appellant. for Atty., Dunning, Stephen Asst. Dist. G. Buckalew, Atty., Anchor- Dist. Seaborn J. Havelock, Gen., Atty. Juneau, age, E. John appellee. RABINOWITZ, J., and C. Before BOOCHEVER, CONNOR, ERWIN JJ-

OPINION CONNOR, Justice. superior by a convicted

Appellant was pos- jury unlawful felonious court 17.10.- violation AS of heroin session trial, appellant days prior Three all suppress as evidence moved a search war- during execution seized by district September rant issued In that Dorothy Tyner. O. Judge search alleged that motion upon 22, 1970, warrant was issued August information ob- Trooper On Tay- Wes illegal ap- tained three searches. This lor ba,gs garbage removed which he peal based on the denial motion. place seen Charles Smith in the dumpster. '31, August Casper Trooper On 22, 1970, August appellant On or about plastic gar- removed a tan colored one occupied Apt. and Charles Smith Johnsen No. bage bag, which appellant he had seen Caye Apartments, Ann located place in the September On Anchorage. B Having 731 Street re- Trooper Taylor again removed items from ceived information that Charles Smith was dumpster which he had seen Charles activities, involved in narcotics Investiga- Smith, accompanied by appellant, place Dean tor Bivens of the Alaska State bags there. Each of the contain- other Troopers 22, 1970, August instituted on opened ers thus by Investiga- obtained was giving coverage “stakeout” 24-hour of the tor pro- Bivens and the contents of each Apartments. Caye Ann This surveillance vided occupants Apt. evidence that No. approximately days. lasted 409 were involved with drugs. unlawful Investigator troop- Bivens and the state operated ers who worked with him from a the basis of the On evidence taken from camp Caye trailer across B from the Street subse- search warrant was Apartments. vantage point Ann This af- issued, quently drug-relat- and a number of apartment forded them a view both of the apartment, ed items were found in the building dumpster garbage marijuana, cluding cigarette papers, hypo- adja- ceptacle building, located outside the and, syringes paper “slip”, ap- dermic in a cent northwest corner the build- proximately gram pow- of a brownish ing, closest specifical- to B analysis proved Street. Bivens der chemical to be ly assigned troopers addition, manning pure unusually stake- heroin. garbage placed out to remove found and seized a “milk can of dumpster by sugar”, Charles commonly either or the a substance to di- Smith used appellant. before lute heroin use. dumpster

In addition to the Appellant police located out- contends that the activi apartment building, side ty illegal facilities above outlined constitutes Caye Apartments of the Ann included an Specifically, argues she that offi search. garbage ground indoor room located on the cial removal and examination of the con floor, equipped with a 20-gallon garbage bags tents of various and other re hand cart. At the in question, ceptacles time it was placed dumpster by herself practice manager the resident of and Charles Smith violates both the Fourth apartment building empty the contents Amendment of the Con 20-gallon dump- I, of the hand cart into the stitution and Article Section ster the hand short, whenever cart became filled Alaska Constitution.2 up. dumpster slightly itself was shel- require reads both constitutions tered an overhang building. Mu- probable have should demonstrated (cid:127) nicipal refuse collection was made independent exclu- magistrate cause to an sively dumpster from the and not from the secured search warrant before undertak indoor room. ing garbage.3 of Smith’s the search Constitution, right people 1. The United States Fourth of the to be secure “The Amendment, provides part prop- : in their houses and other people papers, against erty, effects, “The to be secure un- persons,, houses, papers, seizures, in their searches and shall effects, against searches violated.” unreasonable not be seizures, violated,..." shall not be 3.See, g., Katz v. e. 347, 356-357, 19 L.Ed. I, Constitution, 2. The Alaska Article Sec- 2d provides part: tion trial disagree, hold that the from the in the case at bar—are and we We appellant’s motion grant failure abandoned. In the words of one recent court’s error. suppress not constitute scholar:6 does However, profoundly- as we are inasmuch been property, “In the it has law personal preservation of committed to the recognized the act of abandonment depend- deeply sensitive the to relin- by is demonstrated an intention to upon ju- rights our most cherished ence of title, possession, all to quish or claim vindication, an- unwilling are dicial we of property, accompanied by type some general sanctioning official a rule nounce activity inten- by or which such omission analysis of an individual’s gathering As has tion is manifested. one court Accordingly, limit our refuse. we stated: at bar.4 particular facts of the case the the property ‘The of is abandonment analysis title, our with possession, commence or relinquishing

We of all protection the the the that of claim to or it—a intentional observation of virtual pre- does not extend not throwing away Fourth Amendment of is it. property.5 Using traditional supporting abandoned sumed. Proof it must it difficult property concepts, reasonably law we find or or be- direct affirmative of any that items the get the conclusion the inference of to avoid exclusive ” receptable the placed throwing in a added away.’ [Emphasis outside certainly the items removed dwelling by Mascolo].7 —and 970, apparent agents Mustone, in is the “It 469 F.2d 5. United States v. (1st Mascolo, 1972), Yet with restraint. this case acted The Role 972 Cir. of inescapable fact is that this the in the Law Application Abandonment Search of imposed by agents An straint Misdirected Seizure: judicial themselves, by 399, Emphasis, a officer. not 20 Buff.L.Rev. 400-01 They required, (1970), were com- [cited not before cited therein cases present mencing search, Mascolo]. hereafter as probable cause for detached estimate scrutiny 6. Mascolo 401-02. magistrate. by neutral a compelled, They during R., were not v. R. 228 New York Consol. Foulke itself, (1920), 269, 237, conduct of the search to observe N.E. N.Y. by precise approval quoted in limits established advance xoith specific 83, (2d 1968) Cowan, a Nor court order. v. 396 F.2d Cir. directed, 14). (cases the search had been after cited Mascolo at n. completed, notify authorizing passing note in AVe Mascolo would magistrate finding all federal in detail of that had been on rest of abandonment again this local seized. ‘Over and rather than on constitutional law emphasized property concepts light has the mandate of the “con-- requires [Fourth] Amendment elusive abandonment under effect of judicial processes,’ [being] adherence [F]ourth [A]mendment United Jeffers, right, 48, 51, States 342 U.S. termination of an individual’s expectation, 93, 59, particular 95, 64, privacy in 96 L.Ed. and that S.Ct. judicial piece property.” searches conducted outside the process, Mascolo at 402. AVe prior approval by In our take opinion, somewhat different view. judge magistrate, per legality are un- se search turns on under the Fourth Amend- not on nature of refuse but subject only specifical- receptacle to a lies few within ment — ly established and ex- zone of afforded the Fourth well-delineated ceptions.” Amendment. Thus which [Footnotes omitted]. abandoned but which rests Although Fairbanks, under Baker dwelling temporarily maintained inside a (Alaska 1970), P.2d 401-402 we could be searched or seized interpret our ex- own constitution more police unless a warrant issued. pansively comparable than the federal g., See, Purvis, e. State v. 249 Or. provision, per- constitutional we are not A officer suaded that suspected such should be done possession the defendant marijuana. requested working case. He maids sequence an protects indi Fourth peo- We view Amendment “[T]he receptacle, ple, places. placing vidual’s article in a knowing- What exposes municipal ly public, routine collections even in his own office, made, subject from the withdrawing are and then home is not a activity clearly of “an area8 protection. indicative Amendment Fourth See title, relinquish possession, all Lewis v. United intention to 385 U.S. property.” or claim 315; Lee, United States v. A determination the refuse retrieved 71 L.Ed. in this aban the state case was doned, however, preserve But what not conclusive seeks private, even in an As the area accessible to the of their search. reasonableness public, may constitutionally protected. Katz Court said 253, Rios See v. United 364 U.S. v. United States: in where defendant resided the hotel day bring “That on or contents the about the 31st of him the defendant’s August, part approximately emptied wastebasket, 9:30 which were at p. m., Trooper Casper I normal the ob- conferred with of the maids’ duties. Of wastebasket, following jects from the the Johnsen he indicated the removed transpired day August, on the 31st court said: objects de- “The which defendant 1970: (a) posited trays That he the ash and waste had observed in regarded Judy known to him as Leo can be as abandoned Smith exit baskets CayeAnn Apartments, During property. the time the dis- the located at Street, Anchorage, Alaska, B in room remained the at carded approximately p. it, the not entitled to 3 :35 m. were seize (b) Judy right That at that Lee not because claimed a time Smith defendant possession items, in her in these iiad tan colored but because plastic garbage bag. the the the room it- (c) proceeded dumpster That invaded such a she to a would be seizure. self However, Caye- the removal serves the residents of the of the contents of Apartments, trays and Ann the ash into the which is located at baskets the hallway maids, building. northwest corner were of that who (d) privileged Judy in That to be room were Lee Smith cleaning plastic garbage bag the tan authorized to remove trash in colored in it, dumpster did constitute an in- unlawful and then re-entered the privacy.” CayeAnn Apartments. vasion defendant’s [Em- phasis (e) Trooper Casper added]. 438 P.2d at That 1005. Johnsen had CayeAnn Apart- occasion observe the Investigator 8. Biven’s Affidavit for Search dumpster continuously ments and with- part: in AVarrant reads interruption p. m., out from :343 when day August 1970, “That the 22nd on plastic bag tan colored was approximately p. m., Trooper at 5 :15 AAres deposited by Judy Smith, Lee until Taylor following: me of informed p. m., personally 4:10 when it was (a) That he had observed E. Charles dumpster by Trooper moved from the CayeAnn Apartments Smith exit Johnsen. Anchorage B located at in Street at (f) during That the above interval be- approximately 11:59 a. m. the 22nd on p. p. m., tween 3:34 m. and 4:10 no day August, 1970. approached deposited garbage nor (b) That Charles E. Smith had dumjjster in the which contained the tan possession (2) yellow bags grocery two plastic garbage bag.” colored with the name “CARR’S” on written course, pos- side. at Mascolo (c) placed pattern That E. Charles Smith sible that variations on this fact (2) yellow might require grocery bags “CARR’S” a different In- conclusion. CayeAnn Apartments dumpster concealment, into the instance, tentional is not located at the northwest an Chapman, corner act abandonment. See State v. apartment building. (Me.1969), 250 A.2d (d) That Charles E. Smith entered a cited Mascolo at 402 n. black over blue 1970 Alaska Cadillac departed License n the area. us, 1688; parte the record before we are not satis- Ex On 80 S.Ct. fied that either test has been met. Jackson, 24 L.Ed. 96 U.S. 351-352, at at 88 S.Ct. 879.” 389 U.S. First, appellant’s and Charles E. 511, L.Ed.2d at 582. depositing activities of Smith’s Ohio, Expanding Terry on theme dumpster withdrawing from L.Ed. 88 S.Ct. area, Investigator Af described in Biven’s (1968), added: 2d the Court Warrant,10 clearly fidavit for Search exposed plain dumpster The view. an individual “. and wherever building, appurtenant ‘expectation of located outside the may harbor a reasonable building the corner of the nearest privacy,’ [389 U.S.] day during (Mr. trips were made street. 588] [19 easi Harlan, light Any passerby to be hours. could havé concurring), he is entitled various ly observed or Smith’s free from unreasonable trips'. attempt empty was made to (Citation added.) No trusion.” brackets bags con commingle or boxes derive these two The nourishment we garbage. mass tents with collective propositions can be is this: emptying Any person refuse later expec- said have harbored “reasonable segregate items easily could then privacy” tation of placed Had therein the Smiths. the Fourth afforded them activities to keep wished to receptacle and to that Amendment extends selves, have left easily could Smiths illegal. is the warrantless search 20-gallon hand any garbage in the items of case, in presented by this question indoor room. cart located in the short, rea- whether a is how to determine appel facts, that these we are satisfied On here. expectation privacy exists sonable ex (subjective) “actual lant harbored no separate Harlan’s is touchstone Our privacy”.11 pectation in Katz: concurrence arguendo that assuming But even has understanding of the rule that “My overwhelmingly indicated facts is that emerged prior decisions this privacy, subjective expectation requirement, first there is a twofold pre- “society is is unable to hold (sub- an actual person a exhibited have expectation] an pared recognize to [such ” sec- privacy and, jective) expectation of ‘reasonable,’ bar. at at least the case as ond, that so- expectation that the be one sure, question very close. is To be recognize as ‘reason- ciety prepared is to can recent A review of several most Thus a man’s home for able’. 12 fac a basic core search cases reveals priva- purposes, expects a where he place determining tors to considered activities, objects, statements cy, but expectation priva a whether reasonable ‘plain out- exposes that he to view’ are: factors cy exists. These ‘protected’ no siders are not because located, is the trash 1. Where has to them himself been keep tention to multiple dwelling 2. Whether at exhibited.” 389 U.S. L.Ed,2d unit, single at 587-588. 19 supra. People Krivda, v. 5 Cal.3d 96 Cal. 10. n. See 8 Rptr. 62, (1971), vacated P.2d 1262 486 11. unclear on this record While a determination remanded for items, whether the various rested holding has a state or federal exposed plain in the basis, L. 93 34 view, consequence no this is of People Edwards, (1972) ; v. Ed.2d 45 analysis. (1969) Purvis, Mustone, ; F.2d v. Or. State (1st 1972) ; 438 P.2d 1002 Cir. (2d 1971) ; Dzialak, 441 F.2d Cir. trash, removed with the Who combination of several factors. with, begin dumpster To accommodat- the search of trash takes Where apartments. ed several many Therefore place. people living building in the certainly —and readily arrange One these factors superintendent conceivably —would form a At continuum. end of the con- scavenge have occasion look into it and single- tinuum is trash located close ato heap. in the Secondly, about collective all dwelling, family on the same municipal pickups were made from this by police the dwelling, and searched offi- Therefore, any tenant observe, cers that location. We Caye Apartments Ann could be sure so deciding, strong that this would be a periodically group persons of third expectation privacy case possibly look into the scav- At the other reasonable. end of Thirdly, dump- items enge therefrom. premises continuum is trash located off the building ster located outside the multiple-unit dwelling, of a and searched Therefore, parking area. it would be rea- authorized to remove it. expect trash accidentally sonable to be such a we case would be unable to hold dumpster by running from the removed expectation that the was reason- cars, children, stray dogs, passing or even able. building. tenant visitor of another presents on-premises The instant case Taking together, these various factors we search by police multiple- officers of are unable to conclude that could dwelling from which mu- objectively have harbored an nicipal collections were made. We note dumpster.13 every activity outset that almost human however, adopt urged, We are ultimately prod- manifests itself cept expectations priva- of differential ucts any and that individual under- Stanton, cy. We are cited State v. standably wish to maintain confiden- (Or.App.1971), P.2d which the tiality of his refuse. As the California Su- Appeals Oregon of of Court stated: preme People Court stated in v. Edwards: recognize “We that it may while not readily many “We can ascribe reasons objectively person reasonable for why residents want their cast- would not expect privacy persons as to one of class away letters, clothing, medicine bottles persons purpose, or with or other telltale refuse and trash to be reasonably expect privacy toas the same others, examined neighbors or purposes. or other with classes other A leading Half truths to rumor expect privacy not in his and gossip may readily flow from an at- open backyard against field or as chil- tempt to ‘read’ the of contents another’s parents play looking dren at or for lost trash.” 80 458 P.2d tardy may subjec- children. Yet he quoted in, Cal.Rptr. 62, tively expect objectively and be entitled P.2d expect privacy against policemen Understandable as this desire making a of a ‘dragnet’ search whole confidentiality may be, it is not conclusive group private neigh- fields a whole of society’s willingness recognize an ex backyards assumption borhood pectation of privacy recepta long enough that search and far cle as Turning reasonable. dump to the enough they find some evidence will ster in bar, case impressed arewe crime.” 490 some 1279.14 See People Work v. Krivda, also See App.D.C. 237, (1957) Cal.Rptr. 62, 69, F.2d 486 P.2d opinion (dissenting by Burger, (1971) Circuit : Judge). course, reasonably “Of one must anticipate that under circum- certain search that hold warrantless adopt in this would we decline view That unrea- instant case was reasoning which conducted opinion, the case. In our unconstitutional, and would scavenging sonable and openly countenance denial of the trial court’s number therefore reverse dumpster by an indeterminate suppress. motion to freely a constant admit of third public authorities invitation outset, At the I think it is essential contents, yet re- remove the municipality to recognize open society a free can- a search warrant police to secure quire the right people not exist without investigation is too pursuing their before from interference be immune unreasonable Accordingly, hold we attenuated. by representatives government. of their motion of defendant’s trial court’s denial preserve protect this order to constitute error. suppress did not privacy, Founding promulgat- Fathers our fourth amendment to the United ed the Affirmed. As the United States States Constitution.' repeatedly has observed: FITZGERALD, participate. did J., purpose The basic Fourth] [the RABINOWITZ, (dissent- Chief Amendment, recognized in countless ing). Court, safeguard of this decisions security individuals privacy con- agree majority’s with the I cannot arbitrary govern- possess against invasions did clusion mental officials.3 reasonable intrusion into her people, rights amendment Fourth which was rights Alaskan citizens as well as the my view, reason- expectation was both I, I, sec- or article under article section 14 amend- protected the fourth able and constitution, jeal- are to be tion 22 of our ment to the United Constitution1 courts, any gov- ously guarded by the I, I, section section 14 article and article invasion of individuals’ ernmental Thus, I 22 of the Alaska constitution.2 only is to be authorized when persons may third stances invade seizures, shall reasonable searches and certainly privacy to some extent. (Emphasis not be violated. not unforeseen collectors added.) vagrants may rum- or even or children Alternatively, in accordance with mage through one’s trash barrels develop duty additional court’s “to However, remove some of its contents. rights privileges under our stitutional People McGrew, in as stated v. Cal. .,” Baker v. . . Alaska Constitution 404, 412, 3d Fairbanks, City 471 P.2d 1, 6, guest may 462 P.2d ‘The hotel appel- (Alaska 1970), I hold that reasonably expect a maid enter privacy lant’s up, room to clean but absent unusual adopted protected recently circumstances held to should be I, section the Alaska article expect that a hotel clerk will lead pro- Specifically, section stitution. ” police on a search of his room.’ : vides right people is The of the 1. The fourth amendment to the United infringed. recognized and shall not be provides pertinent in States Constitution legislature implement The shall part: section. right people The of the in to be secure persons, houses, papers, their Municipal Court, v. 3. Camara 387 U.S. effects, against searches 1727, 1730, unreasonable 87 S.Ct. seizures, violated,.. shall not be (1967). amendment The fourth applicable has been made to the states through Ker the fourteenth amendment Const, . I, provides 2. Alaska art. 14§ California, 374 U.S. pertinent part: (1963) ; Mapp Ohio, 10 L.Ed.2d 726 people The to be secure prop- houses and other erty, papers, effects, against un- and undertaken in accordance with my judgment, preferable it is to en judicial requirements process per- strict trust the priva decision to invade citizens’ taining cy to the issuance of a search war- scrutiny judicial of neutral offi regard rant. situations where a police cials rather than po officers—even necessary, search warrant is not lice operating officers great under self-re Supreme Court of United States As straint. Supreme Hampshire,4 Coolidge v. New cautioned Court noted in McDonald v. United that: States:8 exceptions ‘jealously

The are and care- dealing We are not with formalities. drawn,’ fully and there must ‘a presence be show- aof search warrant serves ing by exemption those who seek high grave function. Absent some exigencies emergency, the Fourth Amendment has imperative.’ interposed situation made that course magistrate between the citi- seeking burden on those police. zen and the This ‘[T]he was done not exemption to show the need for it.’ to shield criminals nor to make the home (Footnotes omitted.) illegal safe haven for activities. objective was done so that an mind exceptions, well-recognized With few might weigh pri- the need to invade that rule is that searches vacy in order to enforce the law. The constitutionally only pursuant conducted right of privacy precious was deemed too valid search As the warrants. to entrust to the discretion of those Court stated Katz v. job whose is the detection of crime and United States:6 the arrest of criminals.9 Searches conducted without warrants Here, comply failed to with have been held unlawful notwithstand- possess- the warrant rule. That without ing unquestionably showing proba- facts warrant, ing inspected valid search cause,’ ble . for the Constitution portions appellant’s garbage seized requires deliberate, impartial ‘that the Ac- judgment judicial of a officer cordingly, present unless the warrantless interposed between the citizen and the search falls within one of the narrow ex- ‘Over and ceptions rule, warrant-requirement I again emphasized this Court has that the would hold that the search was unconstitu- mandate of the Amendment re- [Fourth] tional under both the federal and state quires judicial processes,’ adherence to constitutions. and that searches conducted outside judicial process, my analysis by noting I commence prior approval by judge magistrate, the fourth amendment and Alaska’s consti- per are se protect persons unreasonable under physical tution rather than Fourth subject only “private” locations. I note further that the Amendment— few specifically “public” established and well-de- or physical nature of the sur- exceptions. lineated (Footnotes roundings and ci- in which the claim to 7 omitted.) tations purposes asserted is irrelevant for of con- 443, (Alaska 4. 2022, 127, 1971); 403 Ferguson U.S. 91 S.Ct. 29 L.Ed.2d 132 v. 564, rehearing denied, 874, State, 1032, (Alaska 404 92 U.S. 488 1036-1037 26, (1971). 1971) ; State, S.Ct. 252, 30 L.Ed .2d 120 v. Sleziak 454 P.2d (Alaska 1969). 256 455, 5. 2032, Id. at 91 at S.Ct. 29 L.Ed.2d 451, 191, 8. at 335 69 576. U.S. S.Ct. 93 L.Ed. 153 (1948). 347, 6. 507, 389 U.S. 88 19 S.Ct. 455-456, 193, 9. Id. at 69 at S.Ct. 93 L.Ed. (1967). 576 158; at see also Katz v. United 357, 7. 514, Id. at 88 S.Ct. at 19 L.Ed.2d at 88 S.Ct. 19 L.Ed. 585; McCoy State, see also (1967). v. 491 P.2d 2d 585

801 (subjective) “an actual analysis. As tablish stitutional the United that this privacy,” and he must show Supreme Court stated in Katz: More vacy” Ohio,11 stated: What a is not public, protection. accessible to the tionally We have privacy,’ may harbor a reasonable Amendment omitted.) free from unreasonable trusion. preserve which are precisely, even person knowingly exposes protected. subject (Citations omitted.) recently and wherever an individual personal “expectations . in his protects people .. private, the constitutions afford reasonable. . public, may . he of Fourth Amendment . But what he seeks held that ‘the Fourth own home or . governmental even in an area Supreme ‘expectation entitled In (Citations Terry constitu- places,’ office, Court to be pri- in v. pared my most cases. tive cy. ble to consider expectation is “one that the manifestations of ascertain his or ply Edwards.14 lated the California ate test is whether been violated and, ited mental extremely opinion, In this expectations or a reasonable two-pronged test following formula: intrusion.15 so, recognize Supreme Court [W]e regard, I would establishing In difficult, seems Edwards, by unreasonable an individual believe expectation of as ‘reasonable.’ expectations of mental external, behaviorial to me if not person has exhib- that an the court set forth person’s expectation has society to be adopt and attitudes will impossible, in order to People appropri- prefera- privacy, govern- subjec- by articu- ” priva- pre- ap- In case, two defendants In regard, utility I find little marijuana for sale. possession of victed of majority’s physical references to the loca- trial upon relied at evidence The dumpster; tion of of fac- “core can trash in a warrantless been obtained tors” which the location of the includes upon acting There, policemen, two search. trash; importation and to its into neigh- provided defendants’ information analysis realm of constitutional of “tradi- be- tracks bor, the railroad “walked down property concepts” tional law such as into entered residence and hind defendants’ ti- “relinquishment “abandonment” and residence.” yard area’ of tle, open ‘the back possession property.” or claim to an unau- policemen then conducted bar, we are case concerned with cans located three trash search of thorized rights determination of rath- constitutional away from defendants’ feet three spatial relationships er than bag uncovering a eventually porch, back significance According these terests. There, the Califor- marijuana. containing factors, view, my adopt led the court to convic- reversed nia ap- imposes upon an unworkable test tions, possessed defendants holding that pellant impossible burden. That regard privacy in expectation of employs the test laid down cans, expecta- such and that to their separate concurring opinion Harlan in his by an unreasonable had been violated tion formula, appellant Katz.13 Under later, years intrusion. Two requirements: must es- meet two he must Cal.Rptr. 633, 347, 351-352, 10. 389 U.S. (1969). (1967). P.2d 713 19 L.Ed.2d Id. Krivda, People 715; also, see P.2d at Cal.Rptr. 62, 357, 486 P.2d 96 5 Cal.3d 9, 1873, at 20 U.Ed.2d Id. (1971), for and remanded vacated 1262 at 899. holding had determination of whether 33, basis, 347, 360-362, or federal U.S. S.Ct. state U.S. (1972). (1967). 34 L.Ed.2d S.Ct. 587-588 Edwards was followed the California they conduct that while have antici- Supreme People pated v. Krivda.16 In inspection some inadvertent of their Krivda, the defendants had set several trash third garbage such as collectors, parkway trash adjacent barrels “on the passersby, children did the single necessarily expect in front of their not sidewalk” fami- that law enforcers ly ap- picking Police officers would through residence. halted scrap each collectors, proaching requested refuse them their refuse. And while in Krivda the well, empty pick to first their truck trash cans were immediately adjacent next set up trash, permit and then the to the in preparation defendants’ street pick-up removal, inspect officers to the contents of the de- the case before us garbage fendants’ shortly apartment thereafter. Dur- located close to the build- search, ing ing, “just police such under overhang warrantless cover” of the quantities marijuana. Acting According majority’s found structure. to the physical-location “reopened” suppression analysis, hearing, positioning the trial sup- of the granted garbage defendants’ motion to cans in Krivda would seem press to suggest and dismissed the an even greater action. The Cali- intention Supreme prosecu- fornia “abandon” the part Court denied on the order, appeal defendants than exists from the dismissal here. tion’s holding that “defendants had reasonable Supreme Like the California Court in expectation that their trash would not be Krivda, persuaded I am that in the instant rummaged through picked by po- over case, appellant exhibited a ex- reasonable acting lice officers a search war- pectation respect with rant,” and that such had been garbage deposited she violated an “unreasonable The refuse openly was not onto the strewn intrusion.” public streets, sidewalks, public or into a

Several factual similarities exist between dump, through where it could be sorted cases, Krivda and the case at bar. In both by anyone. Rather, and examined occupants respective dwelling of their deposited dumpster: trash was into only deposited units trash in the their apartment building whose ceptacles facility. living sides, available for their very shape and structure would seem cases, In both contraband could seized discourage rather than invite human not have been inspection seen discovered without deposited of the materials there- actively rummaging through the Appellant’s garbage in. was not “commin- contents of the In both refuse containers. gled” together or mixed with the other cases, identity of the source of the destroy identity trash so as to of its yet destroyed through had been source.17 Nor were the contents of the commingling of the garbage bag casually upon top tossed trash; police with the other could and did “in existing plain stack of refuse clearly particular pieces trace any passerby. Rather, they view” of cases, back to the defendants. both wrapped up inside of closed containers: infer from the defendants’ yellow grocery bags; a tan colored Cal.Rptr. 62, 16. 5 castaway clothing, letters, 486 P. medicine (1971), 2d 1262 vacated and remanded bottles or other telltale refuse for determination of whether by neighbors trash to be examined basis, state or federal others, least not until the trash had 34 L.Ed.2d 45 identity meaning lost its be- coming large conglomeration part aof 17. As the California Court ob trash elsexchere. Half truths lead- People Krivda, served in 5 Cal.3d readily ing gossip to rumor and Cal.Rptr. 62, 68, 486 P.2d attempt flow from an to “read” (1971) : (Emphasis readily many contents of another’s trash.’ ‘We can ascribe reasons why original.) (Citations omitted.) residents want identity garbage. the contents a beer box bag; Schlitz garbage plastic the. too, protection the Inspector Here afforded the bag. Indeed, paper and a brown obliged parallel fourth amendment Alaska’s and the state Bivens provision the constitutional remove should obtain. open containers and to first the the examine and seize in order to contents elaborating, rejects as Without gar- Additionally, appellant’s contraband. appellant’s theory being “too attentuated” interior dropped bage had not into been expectations privacy” of “differential apartment there for the hand cart and left recognize doing and in so fails to that citi- larger, exterior manager dump into expect few, might infrequent zens a inva- Rather, receptacle. appellant and waste privacy by of their third but sions personally her husband expect might simultaneously en- arguably into tainers in- to remain immune be han- garbage that their would not sure caller, disagree. telephone trusion. I A suggest These facts persons. third dled example, for a conversation conducts who did not intend to me that “party might reasonably expect aon line” the con- knowingly public to the expose interruptions brief from others who were pos- bags; she garbage of her that tents attempting to ascertain if were in line privacy, sessed a reasonable necessarily follow, use. It does not how- officials, with government ever, at least from that the same caller would also ex- pect government agents might be con- respect to her trash. ducting a full-scale warrantless “search” upon physical focusing Rather than tap Similarly, of his one conversations. law location of the deposits dumpster might a who refuse into ownership in- notions abandonment expect minor, some inadvertent examina- terests, upon be- I would focus per- tion garbagemen other third in an to determine havior effort sons, expectations but such would not nec- disclose knowingly or not she intended to detailed, essarily systematized include communicate, or public, publicly inspection law enforce- For publicize garbage. the contents of personnel. ment As the California Su- instance, tele- public when one enters a preme correctly in Krivda: observed booth, him phone the door behind closes course, conversation, reasonably antici telephone one must and conducts a Of expecta- pate that certain person a reasonable under circumstances demonstrates privacy to persons may will third invade his that the discussion tion nature certainly confidential; unfore does some extent. remain caller publi- va behaviorally collectors or even an intention seen manifest through rummage publicly grants or children cize or disclose contents in- some telephone In such an one’s trash barrels remove conversation. However, stance, in Peo stated amendment as well its contents. fourth McGrew, ple 1 Cal.3d Alaska’s extend constitution 1, 6, By ‘The Cal.Rptr. P.2d telephone the contents of the call.18 case, expect a may reasonably in- guest who hotel analogy to the instant up, but room clean bag, seals maid to enter his serts refuse into should into unusual circumstances personally deposits bag absent bag his hotel clerk expect not be held only facility for available on search of place will lead the dwelling does not manifest disclose room.’19 publicly tention to communicate Stanton, P.2d SR also State v. Katz Oregon (Or.1971), where Court observed: recognize not he that while 19. 5 Cal.3d We (1971) ; objectively see Further, expectations protects wrong a such differential Fourth Amendment regardless privacy misplaced person seem to exist doer’s belief that a of would voluntarily of was located. confides where the whom wrongdoing that it is will not reveal it.21 court contends reasonable dump- expect refuse case, however, and the instant are Hoffa might be "accidental- ster in the case bar There, distinguishable. the defendants “by ly inadvertently removed” or observed knowingly voluntarily communicated cars, stray dogs running children, passing certain a incriminating information to or a .’’It seems even visitor person paid third a turned out to be who equally expect to me that it reasonable informer;22 another a communication to deposited in a ser- garbage trash can intentionally was and undertaken. initiated vicing single family dwelling might also intentionally Having conducted such com children, by passing dogs be seen or munication, obliged to defendants instances, Yet, strangers. ex- in both recipient assume the risk that the pectation privacy against governmental of might gov turn be a communication out to invasion would undiminished. In- remain expectation ernmental agent. pri Their of deed, majority impliedly ac- seems to circumstances, vacy, under such neces was knowledge by conceding that “trash lo- Here, sarily suggest diminished. the facts family dwelling” cated close a single voluntary that no knowing such or disclo present strong “a case for garbage sure the contents the closed expectation privacy to be reason- person bag any to the collectors or other Here, appellant’s expec- able.” reasonable attempted by If appellant. initiated or tation of intru- anything, suggest would seem to facts sion expecta- would not be defeated that appellant expected and her husband tion that some inadvertent examination “commingle” the refuse or de collectors to garbage sealed bags the collectors stroy depos garbage. If might occur process personal ited letters rather than contraband moval. seriously into it could not be A contrary compelled conclusion is not voluntarily maintained that she know case, Hoffa v. United In States.20 ingly meant communicate the contents Court held that police. of such letters to the collectors or the introduction into evidence of incrimi It is ex more reasonable to infer that she nating statements made the defendants pected be the contents of her to or in presence paid informer intermingled with other refuse the well did not violate defendants’ fourth amend truck, dumped ultimately into a rights. Stewart, ment Specifically, place central collection where the forces speaking for four members of the Court short, destory nature would them. stated: attempt knowingly without some com Neither any municating knowingly this Court to a nor third member of expressed has ever disclosing public, appellant did view that the expect privacy they long persons assumption as to one search class of persons enough purpose, enough with one and far will find lie rea- sonably expect privacy some evidence as of some crime. same or purposes. other classes with other A 20. 385 L.Ed.2d U.S. 87 S.Ct. person may expect privacy in his (1966), rehearing denied, 386 U.S. open backyard against field or S.Ct. L.Ed.2d 880 play parents looking children at tardy lost or children. Yet he subjectively expect objectively Id. at expect privacy against entitled to at 382. policemen making ‘dragnet’ search of Id., group private L.Ed. whole fields or a neighborhood backyards whole 2d at 382. occupying of citizens such third risk that have to assume the agents single family dwelling, those living informers or paid persons might multiple dwelling places. my opin- unit Her police. ion, unjustifiable such a intrusion distinction is against governmental arbitrary ultimately being either intact. remains grounded upon impermissible economic dis- appellant’s I am also of the view among crimination unit living dwellers.’ violated privacy was expectation of in Nowhere the text of fourth amend- intrusion. an unreasonable ment, I, I, article section 14 or article sec- without val- was undertaken The search proviso, tion 22 is the “for own- state idly warrant. The issued only.” ers Many, most, citi- our kept camp-trailer occupied zens cannot afford own their own place un- appellant’s dwelling dumpster and single family dwellings. homes and in live approximately der surveillance 24-hour Further, persons prefer some live words, for almost days. In twelve other Moreover, in apartments or condominiums. weeks, government ob- officials of many obliged urban dwellers reside are served, inspected appellant’s retrieved and apartment in high buildings, rise due to the approval products judicial without waste spatial crowded of our conditions cities. supervision discovering the con- before protection To make fourth govern- traband. I find such unauthorized amendment, I, article or article section 14 personal mental invasion of I, upon 22 depend section the economic sta- join the and decline to “unreasonable” individual, tus life-stye preferences police in conduct encouraging such spatial opin- my urban conditions As Cali- future. ion, unacceptable. appropriate analyt- wisely fornia cautioned Krivda: point ical appellant’s focal should be rea- prac- encourage a hesitate should We expectation privacy. my sonable trash cans whereby our citizens’ tice view, such will remain con- police subject of could be made the stant, regardless appellant’s of whether liv- inspection ing unit is spacious situated itself on a securing a search applying for and multi-acre upon estate or stacked others warrant.23 apartment building. multi-unit In other searches Authorizing warrantless words, I am convinced that resident’s ex- the con- private trash cans leaves citizens’ pectation that police will not scav- viability of fourth amendment tinued enging through his or when and article the United States Constitution I, I, 22 of the section section 14 article only such refuse is availa- dependent upon wheth- Alaska constitution living for the unit re- ble garbage with er citizens hand mix their same, mains the whether the dweller in a materials other waste split-level in a sides ranch home they procure private and use suburbs or a crowded tenement in my paper cinerators shredders. city. inner view, Constitu- neither above, I For the reasons mentioned should be tion nor the constitution Alaska narrowly. the trial court’s denial of irrationally and reverse construed so suppress grant motion majority’s Finally disagree I with the a new trial. discriminates between insofar 1262, 1269 357, 364, Cal.Rptr. 69, 486 P.2d 23. 5

Case Details

Case Name: Smith v. State

Court Name: Alaska Supreme Court

Date Published: May 25, 1973

Citation: 510 P.2d 793

Docket Number: 1587

Court Abbreviation: Alaska