State v. Crane

2011-NMCA-061 Mexico, Plaintiff- of New

STATE

Appellant, CRANE, Defendant-Appellee.

Kevyn 29,470.

No. Appeals of New Mexico.

April Granted, June

Certiorari 33,014. 2011, No. General, King,

Gary Attorney K. Anita General, Carlson, Attorney Santa Assistant NM, Fe, Appellant. McCall, L.L.C., A. Albu-

Law Works John NM, Appellee. querque, OPINION FRY, Judge. appeals The State the district court’s by the suppressing evidence discovered

order acetone, garbage bags empty empty warrantless search sealed can cans of Heet antifreeze, left for collection in motel We gas line and several matchbook should extend consider whether we covers. 140 N-M. evidence, Agent Wright on Based recognized in which this Court left the Inn obtain Choice to a search war- right an to sealed individual’s Agent stayed rant. Rains at the to motel alley bage left for collection in an behind a conduct further surveillance and saw two single-family persuaded We are not home. men Room leave 316. The men were later by attempts distinguish the to the Kevyn identified as Kidd and Defendant guest held a motel a large Crane. Kidd carried out red suitcase dumpster places garbage

who room, the motel it in a car white from the held an up, got that drove and the car. Defendant places garbage who of a individual outside got parked into a different vehicle that was suppression We residence. affirm the the lot. Agent stopped motel De- Rains evidence. Kidd, fendant, and the driver of the white BACKGROUND car, explained police tip had received a following undisputed. facts are methamphetamine production, about and anonymous Police received an call from a asked them for identification. Defendant patron reporting strong of the Choice Inn agent staying told the that he was in Room emanating adjacent chemical odor an from and he had to return to the to room Suspecting methamphetamine motel room. Agent retrieve his identification. ac- Rains production, Agent Waylon Agent Rains and companied him signs and did not see of a Wright Steven the drug Clovis task lab, meth but he smelled the same chemical investigate. force traveled to the motel odor that had emanated from the Agent did detect Rains a chemical smell bags. reported from outside Room the motel provided by room. From information the Agent Wright returned with a search staff, Agent Rains discovered that the warrant, permitted agents which registered guest in that room was Christo- They search Room and cars. found pher conducting Kidd. While surveillance of manufacturing additional para- items and lot, parking Agent Room 316 from the motel scales, phernalia, digital including glass Rains an later observed individual identified acid, fuel, pipes, baggies, muriatic Coleman walking as Kidd from that motel room the acetone, jar bi-layered liquid. and a dumpster throwing away open motel’s and an Agents personal also found letters to Defen- box. Agent dumpster, Rains went to the dant stored box in the closet. Defendant box, removed which had latex contained charged trafficking methamphet- was gloves, it empty. and found unsealed and amine possession drug paraphernalia. checking While he was the box behind a on Defendant filed motion based wall, Agent cinder block Rains heard more suppress the Granville to evidence found garbage being dumpster, discarded into the The district court an held although he was unable to view the individual evidentiary hearing granted Defendant’s garbage, discarding the and he heard a motel suppression motion as to the items sealed Presuming room close door shut. it was plastic bags. findings the black of fact again discarding Agent Kidd garbage, Rains law, and conclusions of the district court dumpster, returned found two sealed sharing determined Defendant was plastic garbage black bags, and removed they motel room with Kidd and decided on Although them. based could not see the con- that Defendant bags, agents strong tents of the had smelled a obtaining odor. the motel room and chemical Without first warrant, agents opened discarded from the room. The and searched the bags. They found several items district court therefore concluded that used methamphetamine, agents including manufacture could not search the refuse thrown empty pseudoephedrine pills, boxes without warrant. Pursuant 39-3-3(B)(2) (1972), garbage reveals evidence of of an individual’s

to NMSA intimate private traits and ruling. person’s most appealed from this the State ¶¶ 25-26. The Court deter- affairs. See id. DISCUSSION gar- that when an individual conceals mined argues, as it did appeal, the State On by placing his or her bage plain view expec- below, did not have an that Defendant opaque personal can or an items society prepared to privacy of that tation expectation an of bag, that action “exhibits The does not recognize as reasonable. State ¶ Id. 27. privacy that is not unreasonable.” exception an to the warrant re- argue that agree, in applied. parties The quirement Arguments The State’s arguments and the raised light of Granville present case The State contends court, privacy that the relevant in district facts a critical distinction from the contains examined under the New interest should be consti- precludes of that the state Granville result, inqui- As a our Mexico Constitution. that the search protection, tutional which is ry to the reasonableness of motel is limited dumpster, in garbage found a motel was of in guest’s expectation privacy of his or her found in cans outside the New Mexico Constitution. garbage under circumstance, the State home. Given ¶¶ Granville, 2006-NMCA-098, 9, 34-35, essentially argument with two makes one 345, only (analyzing 140 N.M. P.3d 933 (1) garbage in a sub-parts: person placing privacy in state constitutional claim of expectation motel lesser residence where the state garbage from one’s privacy would have if the than he she excep- argue the existence of another did not a home because were outside requirement). We ana- tion to the warrant (a) person that has less control over the questions under a de lyze these constitutional (b) and disposition of the ¶ of review. Id. 9. novo standard greater garbage placed has far access that, maintains motel The State The Decision Granville together, establish taken these circumstances Granville, applied this Court not have a reasonable does approach announced in v. interstitial expectation Gomez, 1997-NMSC-006, ¶¶ 19, 22-23, 122 777, 1, depart N.M. decided jurisprudence. from the Fourth Amendment Analysis Framework of ¶¶ 10-19, 33, Granville, 2006-NMCA-098, 345, 142 rejected addressing the ar 140 N.M. P.3d 933. We Before guments, applicability “it we consider the of the federal notion that is unreasonable to two-prong analysis privacy expectations have an States, readily set forth in Katz v. United 389 U.S. when it is accessible to member ¶¶ 507, 19 L.Ed.2d 576 public.” (explaining of the Id. 21-23 88 S.Ct. Greenwood, J., (Harlan, concurring), which considers first rationale of California 35, 1625, actual or sub 100 L.Ed.2d 30 whether the defendant has an U.S. 108 S.Ct. second, (1988), and, jective expectation holding and courts consistent with Greenwood, society permit is one that which warrantless “whether prepared recognize as reasonable.” garbage). searches and seizures of The Granville, 2006-NMCA-098, 11, tak 140 N.M. adopted approach Court Granville Hempele, 142 P.3d 933. As this Court noted en State v. 120 N.J. Greenwood, Granville, (1990), A.2d since the decision 799-808 the seminal case pri began to utilize the Katz test recognizing a reasonable “other courts Granville, vacy searches.” residential left for collection relation 2006-NMCA-098, ¶ 20, 345, 142 140 N.M. under a state constitution. See ¶¶ 2006-NMCA-098, 15, 22-23, 140 P.3d 933. We further observed N.M. passed prong over the first P.3d 933. The New Mexico Greenwood Court and focused on the second explained, provides greater privacy of the test society recognize as protections prong would recognizes that the contents —whether those that indicate the of the reasonableness ¶¶ bage. expectation.” 576 A.2d at 801. The addition, Hempele P.3d 933. gave court the example of a war- Jersey Supreme in Hempele the New rantless plastic purse. search of a clear Id. rejected the two-prong Katz test and con- objective at “Thus the fact of the trans- Jersey cluded that the New Constitution “re- parency purse of the could be evidence either only quires that an subjective failure to manifest Hempele, reasonable.” 576 A.2d at 802. expectation or of the unreasonableness subjective privacy expectation. de- {10}Weagree with the court apply cision to prong fact one rather Hempele and conclude that under Article the arbitrary.” than other would be Id. 10 of the New Mexico requisite inquiry expecta the is whether the Analysis privacy particular tion of instance is analyzing Before the in issue reasonable; therefore, we need not consider terms of the garbage location where the was expectation Defendant

whether had an actual placed, we acknowledg reiterate Granville’s privacy of in garbage. the The United ment that person’s “[t]he contents of a gar Supreme States Court itself has acknowl bage are private [or evidence of his her] most subjective edged expectation priva that a of traits and intimate affairs.” 2006-NMCA- cy can irrelevant in certain cases. ¶ 142 N.M. P.3d 933. Gar example, if [government For the were bage pursuits, can reveal recreational “sexual suddenly to announce on nationwide televi- personal hygiene practices; and information all sion that homes henceforth would be health, finances, about one’s ... political subject entry, to warrantless individuals preferences” relationships and details about might any thereafter not in entertain fact and beliefs. Court Id. This said in actual privacy regarding or people “We believe that greatly most would homes, papers, their and effects. Similar- object if reality faced with the of another ly, refugee if country, a from a totalitarian person’s snooping private in their affairs traditions, unaware of this Nation’s errone- ¶26. sorting through garbage.” their Id. ously assumed police that were continuous- backdrop Given “pre the ly monitoring conversations, telephone his sumption that privacy is subjective expectation privacy a regard- garbage when is in a container ing might the contents of his calls be lack- view,” plain conceals the contents from circumstances, ing well. In as such where turn arguments. to the we Id. subjective expectations an individual’s had State, According despite to the Granville’s been conditioned influences alien to determination person that a has a reasonable well-recognized Fourth Amendment free- in out doms, subjective expectations those obvi- family home, it side is unreasonable ously play could meaningful no in role person expecta conclude has a similar ascertaining scope what the of Fourth garbage tion in a motel protection Amendment was. determin- (1) person This is because the ing legitimate expectation whether a placing garbage dumpster has less cases, existed such a normative over garbage control the and the inquiry proper. would be greater garbage in dumpster. access to Maryland, Smith U.S. n. (1979) (internal S.Ct. L.Ed.2d 220 respect point, With to the first omitted). quotation marks argues We fail to see person inevitably State that a loses subjective why Thus, garbage. control over his or her have person reasonably expect would additional relevance in cases cannot or her his addition, present like the one. In confidentially as noted in to be treated and with analysis Hempele, two-prong respect by “the entails an those who access to the arbitrary distinction between facts that mani- or those with access subjective privacy expectation fest after the removed disposal. is the contents a home- argues that while further The State into her bage his or thrown directly transmits owner collector, Defendant threw between homeless to the “There a difference clothes, it to motel owners dumpster and left scavenging for food and [sjtate disposition. scrutinizing to control the con- of the an officer bag incriminating ma- tents of need not that we We first observe at 805. terials.” Id. expecta- with concern ourselves garbage that applicable to tions further contends State away being hauled process pains emphasize took those are garbage dump because Gran- garbage [in “it was because case, present we are In the facts before us. home, was from a found ville] person’s privacy inter- only with a concerned home, greater cans outside the dump- disposed of in a motel est support, protection warranted.” was away or dumpster is hauled before the ster following language in highlights the commingled are emptied, or its contents Granville: dump. containers or at the other holding today, acknowledge our we With argument It that the appears specific language “homes and effects” the is, effect, the same as its related to control II, Section 10. As we detailed [in] Article great- the has argument public second —that above, contents of an individual’s re- the a dumpster. er access private are of intimate and fuse evidence placing garbage in notes that a State home, the affairs that are conducted within great- a garbage can the home “has a outside of It is protected the most areas. reason- instance, ability to access to it —for er control expecta- individual to an able an open about the bin.” by stopping someone of in these effects of the home. tion contrast, observes, In Defendant the State 345, right pulling 2006-NMCA-098, 1133, from “had no to exclude others 140 N.M. 142 (citation omitted). dumpster garbage bags his out the and P.3d 933 looking into them.” We think the State reads Granville Importantly, the Court Gran- a not narrowly. too While motel room is the explained “home,” that a reasonable ville person’s a same as the United States necessarily privacy is not rendered unrea that Supreme recognized has closed, opaque sonable where guest purposes, a motel Fourth Amendment public. bag is left in an area to the accessible he interests similar to those or ¶¶ The Court reasoned that See id. 28-31. home. v. she has when the Stoner Califor possibility by public the the mere access nia, 483, 490, 889, 376 11 U.S. 84 S.Ct. negate expec person’s does not (1964) (explaining L.Ed.2d 856 that less “[n]o and the that the tation house, occupant than a tenant of a or the of a in governmental will be free house, boarding guest room hotel by trusion before it is removed protection to constitutional room entitled ¶¶ disposed truck and of. id. 30-31. See against unreasonable searches seizures” 10, protects citizens from “Article (citation omitted)). appellate Our state intrusions, intrusions from governmental recognized principle the ana courts same general public, members lyzing searches under the Fourth Amend ¶29. collector, nearby wildlife.” Id. Zamora, v. 2005-NMCA- ment. See State addition, noted, Hempele aptly as the court ¶¶ 039, 301, 110 P.3d 517 “[although are areas subjective (holding ex “[the that defendant's public, accessible to the the contents are not room is pectation one exposed public.” A.2d at 576 society recognize as prepared rea an invited sonable” where defendant was dumpster may be While a motel more overnight guest occupied by easily room than accessed cousin). residence, aunt Like the defendant single-family can outside we and his fail Zamora, present why to see Defendant case this should result in reduced 673, (2002) sharing according Kidd’s motel room 54 P.3d 236-38 (holding was finding. the defendant had no unchallenged district court’s interest in the can); Thus, next-door-neighbor’s garbage expansive protections State v. under the more Rodriguez, Wash.App. 828 P.2d afforded our State we con- (1992) (holding garbage bag full expecta- had the same clude Defendant defendant, property of stolen in an at- in the “effects” of his motel tion it, tempt community to hide discarded in a room as he would have in the effects of his apartment at his mother’s complex home. staying where he was part was not of his support argument To further affairs). constitutionally protected private Defendant had a diminished Boland, however, Washington court ex- privacy, on the State relies several out-of- pressly emphasized that “impor- there is an cases, recognize state which declined to tant Washing- doctrinal difference” between privacy in garbage. Some of ton case law and federal case law or the law party the cases turn on the fact that a third of other states that have relied on their state police. turned over the to the constitutions. 800 P.2d at 1116. The Wash- Howard, v. State 342 Or. 157 P.3d ington specifically court distinguished the (2007) (involving company sanitation reasoning upon relied, which Granville stat- that turned over the defendant’s to ing analysis that the Washington under the an officer after the was collected Constitution was not whether an home); Purvis, from the defendant’s reasonable, was but rather 249 Or. 1002-04 ‘private “whether the affairs’ of an individual (en banc) who, (involving acting a hotel maid Boland, unreasonably have been violated.” marijuana at the police, behest of the found a at (distinguishing analysis on gave butt the floor of a room and it to Jersey of the New court under its state police). operative The facts in the current rejected in Hempele constitution federal Here, materially ease are distinct. Defen- searches). garbage case law on residential garbage dant his sealed from the mo- Washington We do find helpful not case law directly garbage recep- tel room in the motel in construing our own constitution in this tacle, agent which the himself removed and case. party searched. There was no third intru- The State’s focus on control over {22} and, result, sion as a these out-of-state eases access to persuasive authority. are not to than amounts little more the Fourth remaining cases the State relies public accessibility theory in Amendment apply analysis on either under the Feder- rejected in Greenwood that we Granville. rejected al which we in Gran- Importantly, we determined that the defen ville, they rely materially or on a distinct expecta dant Granville had a reasonable See, e.g., state constitution. United States v. disposed tion of he (11th Hall, Cir.1995) 47 F.3d 1094-96 public alley located behind his brother’s (denying a Fourth Amendment inter- 2006-NMCA-098, ¶¶ 3, 33-35, home. 140 garbage placed est a business’s in a com- facts, N.M. 142 these With jurispru- mercial under federal opinion great lengths to went dence). heavily The State relies on case law “[wjhat explain seeks to Washington, from the State of because it has private, preserve as even an area accessi departed from federal law in ease the context may constitutionally public, ble to the searches, (internal of residential but it has protected.” quotation Id. 28 omitted). protect garbage refused to discarded in an Nothing in marks and citation apartment complex or next to an abandoned require opinion peo indicates an intention to Boland, house. v. See State Wash.2d ple accept greater governmental intrusions (holding 1116-17 privacy expectations and diminished where that a search of residential left garbage receptacle multiple curb- is used governmental in- party arranges side was unreasonable or where a third residents trusion); Hepton, Wash.App. disposal guests’ garbage. fact, expect placing Granville often relied on the defendants to their Morris, expressed in particular place notions State v. and manner (1996), purpose disposal, only garbage Vt. A.2d 90 which the for the constitution, protected,

court under its state companies collection would remove the tenant’s express purpose would do so for the by placing disposal.”). he discarded it near the presence curb of Without the oth- apartment complex opaque exception requirement, er to the warrant bags. See search of warrantless Defendant’s ¶¶ 22, 32-33, heightened pro- P.3d 933. was unreasonable under the Facing arguments similar that the State rais tections of Article Section 10 of the New here, Supreme es the Vermont in Mexico Constitution. third-party held that Moms intrusions or light holding, of our we need not negate consent did expec the reasonable argument address the State’s that Defendant tation one’s while re standing challenge did not have the search siding in multiple-unit a hotel room or dwell garbage bags question. of the The State’s Morris, ing. (noting 680 A.2d at 99-100 argument standing virtually on identical to Greenwood, “[a]part Supreme argument per- on the issue of whether a Court has never held that an intent to trans son has a reasonable object party fer an to a conversation third any expectations renders unrea CONCLUSION simply sonable party because the third could reasons, For these we affirm the object then police”). transfer We suppression district court’s of the evidence. Supreme believe the Vermont Court’s rea IT SO ORDERED. IS soning comports in Morris most with this interpretation Court’s of the New Mexico SUTIN, I CONCUR: JONATHAN B. Constitution in agree Granville. We Judge. opinion in Morris that while communal garbage receptacles may pose greater risk WECHSLER, Judge JAMES J. meddlers, hardly “unwanted this is (dissenting). effect, concluding, sound reason for WECHSLER, Judge (dissenting). police subject carte [ten blanche that, I do not believe as an extension {28} ants of a dwelling] multi-unit to detailed Granville, “society prepared recog scrutiny private appear [of affairs that in privacy expectation nize as reasonable” the in garbage].” their 680 A.2d at n. 3. We ¶ Granville, 2006-NMCA-098, 11, this case. also significant find it argu the State’s 345, 142 140 N.M. P.3d 933. against ments a interest in placed Granville, in a dumpster apply equally motel this Court addressed garbage placed by apart a resident 10, of an the issue of “whether Article complex ment in a dumpster. communal prohibits of the New Mexico Constitution suggest troubling contentions no warrantless of an search individual’s tion that a single- unable to a bags placed afford in trash containers located in an family house will suffer alley lesser constitutional behind residence” where the defen privacy protections. See id. dant resided. ¶¶ 1, 3, 345, 140 N.M. 142 P.3d 933. We By placing sealed, concluded that “an individual New Mexico opaque bags depositing directly it expectation has a reasonable in his dumpster provided guests, for motel Defen garbage placed opaque for collection in an dant’s actions demonstrated a reasonable ex ¶ container.” Id. 33. The issue before us

pectation that those would remain free this pro case is whether this constitutional inspection warrantless law enforcement beyond tection extends the facts of Granville place at the placed where the garbage placed customary garbage collection. See Gran ville, 2006-NMCA-098, ¶ 31, 345, 140 N.M. I do not believe that there is a (“It 142 P.3d was reasonable for the reasonable in these I do not reach this view and the circumstances. collection of with- ¶ Granville, not reveal the in it. 2006-NMCA-098, because such does or that an private individual’s matters indi 140 N.M. P.3d 933 (adopting the reasoning Galloway, vidual can have a reasonable of State v. Or.App. (2005), for collection 109 P.3d 383 that when an indi- container; predicate opaque arrangements these were vidual makes for collection of garbage, I propositions of Granville. Nor do reach the individual has reasonable ex- guest pectation this conclusion because motel does the collection will place take as ar- ranged). disposing not have interest a motel An individual room; guest rights has the same this manner has ceded of it control concerning ap the search of the room that garbage beyond the individu- ply to the of a residence. privacy. search See Za al’s zone of ¶ mora, 2005-NMCA-039, 14, 137 N.M. I thus do not believe that a motel Rather, my 110 P.3d 517. I arrive at guest has a reasonable that, conclusion because I believe when garbage disposed dump- the motel’s objectively, guest viewed a motel does not guest’s ster outside of the respect- room and in fully opinion dissent from the of the Court. garbage placed outside of the motel room in a First, my opinion, dumpster

parking reasonably lot cannot be viewed as

part gen- of the motel room. I consider the 2011-NMCA-062

eral and reasonable disposal guest in a motel room to 254 P.3d 124 deposit would trash contain- FELTS, Andrea J. on behalf of herself provided by er the motel in the room. A similarly situated, and all others motel room is different from a residence in Plaintiff-Appellee, residence, -regard. At as indicated Granville, responsibility the resident has the place point at the collection MANAGEMENT, CLK Bat INC. f/k/a outside of the residence. 2006- Services, Inc. and Cash Advance Net NMCA-098, work, Inc., Defendants-Appellants. Thus, I do not consider eases such as 30,142, 29,702. Nos. parallel Zamora that draw a between a motel room and a residence for search and seizure Appeals Court of of New Mexico. purposes to control this case. April Second, issue, I view the at least Granted, Certiorari June part, one An as of control. individual who 33,011, 33,013. Nos. disposes residence, outside a inas nearly has full control of the bage is, until it is collected. That the indi- control,

vidual has not ceded and if the indi-

vidual chooses to retrieve items

collection, difficulty doing there is not so. hand, placing gar-

On the other an individual

bage in a dumpster at a motel does not have control; significantly same level of it is

more difficult to retrieve because it intermingled that did not Moreover,

originate from the individual.

motel, which no relation to the individual purpose,

for this has overall control of the

Case Details

Case Name: State v. Crane

Court Name: New Mexico Court of Appeals

Date Published: Apr 7, 2011

Citation: 254 P.3d 117

Docket Number: 29,470

Court Abbreviation: N.M. Ct. App.