Com. v. Krisco Corp.

• Decision Date: 02 August 1995
• Citation: 653 N.E.2d 579,421 Mass. 37
• Parties: , 42 ERC 1023 COMMONWEALTH v. KRISCO CORP. (and eleven companion cases 1 ). Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 579

653 N.E.2d 579

421 Mass. 37, 42 ERC 1023

COMMONWEALTH v. KRISCO CORP. (and eleven companion cases ¹).

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 3, 1995.

Decided Aug. 2, 1995.

Martin E. Levin, Asst. Atty. Gen., for the Com.

Morris M. Goldings, Boston (Amy J. Axelrod, with him), for defendants.

Before LIACOS, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

LIACOS, Chief Justice.

The defendants, Krisco Corp. and Kristopher Ogonowsky, each were indicted by a Middlesex County grand jury on four counts of violating G.L. c. 21C, § 5 (1994 ed.), which prohibits, inter alia, the transfer of hazardous waste to an unlicensed individual. Each defendant was also indicted on two counts of attempting an illegal transfer of hazardous waste in violation of the statute. The defendants filed a motion to suppress evidence seized from a dumpster on the defendants' commercial premises. After an evidentiary hearing, a judge in the Superior Court granted the defendants' motion. A single justice of this court allowed the Commonwealth's application for interlocutory appeal. We affirm the allowance of the motion to suppress.

We recite the facts found by the motion judge. The defendants operated an auto body repair and paint shop in Somerville under the name MAACO. The business came to the attention of the Department of Environmental Protection (department) when it received an anonymous telephone call from a "disgruntled former employee" regarding the improper disposal of hazardous paint materials at the shop. The former employee stated that he had been paid regularly while under the defendants' employ not to reveal the illegal disposal method. He described how the defendants disposed of the paint by placing one-gallon cans in the shop's dumpster shortly before pick up by a waste hauler. The former employee also stated that the truck driver was paid to haul the paint away and to remain silent about the illegal scheme.

Based on this information, David Spector, an inspector from the "Environmental Strike Force" (comprised of members of the department, the Attorney General's office, and the State police) began a surveillance of the dumpster from the upper story of a neighboring building. The dumpster was located in an alley that was kept closed most of the time except during the emptying of the dumpster. From his surveillance point, Spector could see the alley and the surface of the inside of the dumpster. Spector conducted surveillance of the dumpster over a period of weeks.

The contents of the dumpster were not visible to passersby in the alley. However, it was possible to climb into the dumpster and look through its contents. Occasionally, objects were thrown into the dumpster by unknown persons. The dumpster was emptied weekly into a truck which compacted the material immediately. A private company, Waste Management Company, was under contract with the defendant corporation to pick up the contents of the dumpster and haul it away. ² There was no evidence regarding the ultimate destination of the garbage.

The dumpster was emptied every Thursday between July 23, 1992, and October 8, 1992. On twelve dates Spector made observations of the dumpster and, on many of these dates, saw paint cans thrown into the dumpster by people on the premises, shortly before pick up. He also observed the defendant Ogonowsky pass what he believed to be money to a waste disposal company employee when the dumpster was emptied. He recorded these observations with a video camera. The observations were consistent with the information received from the disgruntled former employee.

Spector conferred with Nancy Thornton, an environmental engineer attached to the strike force, and showed her the video-tape of his surveillance. Thornton knew that the kind of paint used in auto body shops contained ingredients which make paint a hazardous material requiring special disposal and that both placement of the material into the dumpster and its subsequent disposal by Waste Management would be unlawful. The judge concluded that, based on this information, Thornton had probable cause to believe that the defendants were engaged in a regular and knowing illegal scheme to dispose of paint by prearrangement with the operator of the disposal truck to put the paint cans in the dumpster shortly before pick up so as to avoid detection.

By mid-September, Thornton made a decision to conduct an administrative inspection as a way to gain entrance to the premises and to seize paint cans from the dumpster for use as evidence in a later enforcement proceeding. Thornton planned to wait until Spector observed cans being thrown into the dumpster and then enter the premises and search the dumpster before the arrival of the Waste Management truck.

On October 8, 1992, Spector observed an employee dispose of from five to eight cans in the dumpster and passed the information to Thorton by walkie-talkie. In the company of another member of the strike force, Thornton entered the MAACO shop through the front door and told Ogonowsky that she was an inspector from the department and was there to do a "multimedia" inspection. Ogonowsky asked her what that was and she told him that it was an inspection for air pollution, water pollution, solid waste, hazardous waste, drains, and industrial waste. Ogonowsky told her that the Massachusetts Water Resources Authority had been there previously to inspect the drains. She said she would still like to do an inspection. He asked her to do it quickly because he was busy.

While Thornton's colleague inspected the shop's records, Thornton examined the shop and then moved to the dumpster. Ogonowsky was friendly and cordial and asked Thorton whether she was going to climb into the dumpster. When she said yes, he remarked he was glad he did not have her job.

Thornton retrieved paint cans from the dumpster and informed Ogonowsky that they were hazardous waste which could not lawfully be disposed of in the dumpster. Ogonowsky said the cans must have been placed there by accident.

The judge held that the warrantless search of the shop and the dumpster could not be justified as an administrative search, ³ under a theory of consent to search, or as a search based on exigent circumstances. The judge also disagreed with the Commonwealth's contention that the defendants lacked a reasonable expectation of privacy in the dumpster which would preclude protection under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution.

1. Expectation of privacy. The Fourth Amendment and art. 14 protect from unreasonable search and seizure those areas in which individuals have a subjective expectation of privacy that is objectively "reasonable," "justified," or "legitimate." California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988). See Commonwealth v. Welch, 420 Mass. 646, 653, 651 N.E.2d 392 (1995); Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 160-161, 580 N.E.2d 1014 (1991); Commonwealth v. Cote, 407 Mass. 827, 833, 556 N.E.2d 45 (1990), quoting Commonwealth v. Blood, 400 Mass. 61, 68, 507 N.E.2d 1029 (1987); Commonwealth v. Pratt, 407 Mass. 647, 660-661, 555 N.E.2d 559 (1990); Commonwealth v. Panetti, 406 Mass. 230, 231-232, 547 N.E.2d 46 (1989). Thus, the first step in analyzing a search or seizure by government agents is whether the individual against whom the fruit of the search or seizure is used as evidence (1) had a subjective expectation of privacy in the place searched or the item seized that (2) society would accept as reasonable. California v. Greenwood, supra at 39, 108 S.Ct. at 1628. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

Usually, the second part of the test, i.e., whether the asserted expectation of privacy was objectively reasonable, is the most disputed. This element is highly dependent on the particular facts involved and is determined by examining the circumstances of the case in light of several factors. Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 607, 624 N.E.2d 547 (1993). These factors include the nature of the intrusion, whether the government agents had a lawful right to be where they were, and the character of the location searched. See Commonwealth v. Welch, supra at 653-654, 651 N.E.2d 392; Commonwealth v. One 1985 Ford Thunderbird Auto., supra. An examination of the character of the location should include a determination whether the defendants owned the place or controlled access to it as well as whether the place was freely accessible to others. Commonwealth v. Welch, supra. Commonwealth v. Panetti, supra at 232, 547 N.E.2d 46. We also consider whether the defendant took normal precautions to protect his privacy. Commonwealth v. Pina, 406 Mass. 540, 545, 549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 67 (1990). Commonwealth v. D'Onofrio, 396 Mass. 711, 716-717, 488 N.E.2d 410 (1986). Commonwealth v. Simmons, 392 Mass. 45, 50, 466 N.E.2d 85, cert. denied, 469 U.S. 861, 105 S.Ct. 196, 83 L.Ed.2d 128 (1984).

In cases involving the reasonableness of an expectation of privacy in trash and garbage, courts have focused on the degree to which the garbage at issue was exposed, or accessible, to the public. California v. Greenwood, supra at 40-41, 108 S.Ct. at 1628-29. United States v. Comeaux, 955 F.2d 586, 589 (8th Cir.), cert. denied, 506 U.S. 845, 113 S.Ct. 135, 121 L.Ed.2d 89, and cert. denied sub nom. Roberson v. United States, 506 U.S. 944, 113 S.Ct. 387, 121 L.Ed.2d 296 (1992). United States v. Hedrick, 922 F.2d 396, 400 (7th Cir.), cert. denied, 502 U.S. 847, 112 S.Ct. 147, 116 L.Ed.2d 113 (1991). United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990), vacated on other grounds, 498 U.S. 1043, 111 S.Ct. 747, 112 L.Ed.2d 768 (1991). Commonwealth v. Pratt, supra at 660-661, 555 N.E.2d...