Croker v. State

• Decision Date: 20 November 1970
• Docket Number: No. 3847,3847
• Citation: 477 P.2d 122
• Parties: Robert John CROKER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 122

477 P.2d 122

Robert John CROKER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 3847.

Supreme Court of Wyoming.

Nov. 20, 1970.

T. A. Fennell, Cheyenne, for appellant.

James E. Barrett, Atty. Gen., Richard A. Stacy, Asst. Atty. Gen., Cheyenne, for appellee.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Chief Justice GRAY delivered the opinion of the court.

The defendant, Robert John Croker, was charged with the possession of a narcotic drug, to wit marijuana, in violation of the provisions of § 35-350, W.S.1957, and upon trial to the district judge, sitting without a jury by consent of the parties, was found guilty of such charge. Judgment was entered accordingly and defendant appeals, contending first that the district judge erred in denying his motion to suppress certain evidence obtained as the result of a search of his home made by the police pursuant to a search warrant and admitted over his objection at the trial, and secondly that the affidavit in support of the warrant was deficient in several respects.

The salient facts with respect to these contentions are substantially undisputed. The defendant, with his wife, resided on the premises described as 860 North Tenth Street, Laramie, Wyoming. The premises upon which a dwelling had been constructed bordered Tenth Street on the east and an alley on the north. The garbage cans in question were covered by a lid and were located some seven or eight feet from the northwest corner of the dwelling inside a wooden picket fence enclosing the backyard of the premises but near a small gate bordering upon the alley which permitted ingress and egress from the alley. The garbage collectors for the city at regular intervals would enter the premises through the gate and empty the contents of the cans into 'a large green plastic barrel' used for that purpose, which was deposited in a truck in the alley to be transported to the city dump. On or about Febvruary 16, 1969, the police department determined to place the garbage cans of the defendant under surveillance and asked the garbage collectors when collecting defendant's garbage on their regularly scheduled days not to dump the contents of their barrel into the truck but to turn it over to the officers in charge of the investigation. This was done on four separate occasions commencing on February 19, 1969, to and including March 1, 1969. An examination of the contents of the barrel by the officers was made at places off the premises occupied by the defendant and on February 19, 1969, plant stems and seeds of marijuana were discovered. On February 22, 1969, no marijuana was discovered. On February 26, 1969, a hand-rolled cigarette butt containing marijuana was discovered and on March 1, 1969, another cigarette butt containing marijuana and four marijuana seeds were discovered.

On March 5, 1969, Officer James Cooper of the Laramie Police Department filed with the justice of the peace an affidavit in support of a request for issuance of a search warrant relating, among other things, the items obtained as the result of the surveillance of defendant's garbage cans and attached thereto was a certified copy of the Official Laboratory Report of the Department of Agriculture stating that analysis disclosed the items to be marijuana. On that same day the justice of the peace, after determining from the affidavit that the showing made established 'probable cause for believing that there is illegal marijuana concealed on said premises in the possession of the Defendants,' issued a search warrant authorizing a search of the 'dwelling house' situate upon the premises above described. It should here be pointed out that the items of marijuana obtained from defendant's garbage cans prior to issuance of the warrant were not introduced in evidence at the trial.

With respect to the foregoing circumstances, defendant makes the following contentions:

'* * * (1) that the garbage cans were within the curtilage of his residence they were within the area where he had a reasonable expectation of privacy; and therefore the garbage cans were within the constitutional guarantees against unreasonable search and seizure; (2) that the search of the garbage cans by the police officers without a warrant was unreasonable and unlawful; (3) that under the fruit of the poisonous tree doctrine, such unlawful search tainted all the evidence obtained after the search warrant was issued; and (4) that the admission of the articles seized after the search warrant was issued was prejudicial error requiring reversal of the trial court's judgment of conviction.'

The State, on the other hand, contends that the contents of the garbage cans were abandoned; that the doctrine of ccurtilage' and 'protected area,' if still viable, has no application to the facts in this case; that defendant had no reasonable expectation of privacy in his garbage cans; and that the doctrine of the 'fruit of the poisonous tree' does not apply.

The contentions of the parties on this phase of the case, as is apparent, are directed at the provisions of the Fourth Amendment to the United States Constitution pertaining to searches and seizures and Article 1, § 4 of the Wyoming Constitution, which with one exception not involved here is identical to the Fourth Amendment. The able briefs of the parties have quite thoroughly discussed the intricacies and complexities of the law relating generally to searches and seizures and more particularly as they apply to the special circumstances of this case. We think, however, that the specific question before us on search and seizure requires no extensive review of the general authorities.

Conceding that the constitutional provisions apply to the investigatory stage of a case, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676, it is our view that the contentions of the defendant must stand or fall upon the contention that the garbage cans 'were within the area where he (defendant) had a reasonable expectation of privacy,' and that the police in their investigation violated that right.

In advancing the contention, the defendant assumes as his premise that because of the prior arrangement between the police and the garbage collectors the garbage collectors were acting throughout as the 'alter ego' of the police. No authority is cited to sustain that assumption as a matter of law and in our view it is unsound. In State v. Hiteshew, 42 Wyo. 147, 292 P. 2, 5, where Federal prohibition officers had cooperated with State authorities in a search a premises for unlawful possession of intoxicating liquor, we rejected a similar argument on the basis that if the acts of the Federal officers were lawful the fact that they cooperated with the State officers did not make their acts unlawful per se and thus vitiate the State court conviction. Likewise in the case of Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, rehearing denied 362 U.S. 984, 80 S.Ct. 1056, 4 L.Ed.2d 1019, which involved cooperation between two separate departments of the Federal government, it was held that this was not improper when done in good faith. We think the rationale of Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 426, 17 L.Ed.2d 312, rehearing denied 386 U.S. 939, 87 S.Ct. 951, 17 L.Ed.2d 811, is also not without significance wherein the court said:

'Both petitioner and the Government recognize the necessity for some undercover police activity and both concede that the particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception. * * *'

Hence defendant's contention must be resolved in the light of existing circumstances.

To elaborate somewhat on the general statement of the salient facts set forth above and specifically directed to the extent of the cooperation by the garbage collectors with the police, Officer Cooper testified that the collectors 'were asked to pick up the garbage on their regularly scheduled collection date in their regular collection container' and were then further 'instructed not to dump their container into the truck but to turn it over to us immediately at the west end of the alley in the 900 block in which the house was located.' With the exception of the pickup which was made February 19, 1969, when the contents of defendant's garbage cans were turned over to the police at another location, the arrangement between the two arms of the city government was carried out. That was the extent of the garbage collectors' participation in the police surveillance. They made no search either on or off the premises and as can be seen were not instructed to make such a search and did nothing more upon the defendant's premises than they were licensed to do and which they regularly did in removing defendant's garbage from his premises.

Under those circumstances, and as we analyze the evidence, the trial court was not in error when it impliedly found by its order denying defendant's motion to suppress that no invasion of defendant's right of privacy occurred. Even assuming under the rationale of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and Work v. United States, 100 U.S.App.D.C. 237, 243 F.2d 660, and the holding in People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, that defendant did have a reasonable expectation of privacy to the contents of his garbage cans as long as the...