Commonwealth v. Bryant, Record No. 2715-04-1 (VA 5/3/2005), Record No. 2715-04-1.

Decision Date03 May 2005
Docket NumberRecord No. 2715-04-1.
CourtVirginia Supreme Court
PartiesCOMMONWEALTH OF VIRGINIA v. JEFFREY A. BRYANT.

Appeal from the Circuit Court of the City of Virginia Beach, A. Bonwill Shockley, Judge.

John H. McLees, Senior Assistant Attorney General (Judith W. Jagdmann, Attorney General, on brief), for appellant.

Melinda R. Glaubke (Slipow, Robusto & Kellam, P.C., on brief), for appellee.

Present: Judges Frank, Kelsey and Senior Judge Overton.

MEMORANDUM OPINION*

JUDGE D. ARTHUR KELSEY.

The Commonwealth appeals a trial court order granting Jeffrey Bryant's motion to suppress incriminating evidence found in a trash can he left by the side of the road for pickup. The trial court held Bryant retained an objectively reasonable privacy interest in the garbage found in his trash can. We disagree and hold the court erred as a matter of law in concluding that Bryant retained any Fourth Amendment privacy interest in his discarded trash.

I.

Jeffrey Bryant leases a trailer in the Derby Run Trailer Park, a privately owned residential community in Virginia Beach. A common access road leads into the community, providing ingress and egress for both the residents and the public. Though no gate or guard station blocks the entry into the community, the property manager placed a no-trespassing sign near the entrance of the road. The public nonetheless has full access, unimpeded by any physical impediments, to the neighborhood.

A private refuse service provides regular garbage collection for the community. Like many residents, Bryant puts his trash can by the side of the road the night before the next morning's pickup. On February 19, 2004, as he usually does, Bryant placed the can about two to three feet from the side of the road, expecting the trash truck the following day to dump the trash into the truck and leave the can for future use.

Bryant did not know it, but the police had been gathering information from confidential sources suggesting that he manufactured and distributed marijuana from his residence. After Bryant put his trash out on the evening of February 19, officers drove up the common access road to the edge of Bryant's yard. From the passenger side of the vehicle, an officer "just opened the lid and grabbed the trash right out." The trash can, which Bryant estimated to be the usual two to three feet from the side of the road, was within the officer's reach. In his testimony, the officer agreed that the can was "at the curb side for collection where a trash truck would be able to get to it." The officer explained that he did not physically "take steps to go up on the curb or go up on the property or anything like that."

The officers found evidence of marijuana in Bryant's garbage. They used this evidence to obtain a search warrant for his residence, which resulted in the discovery of additional inculpatory evidence leading to Bryant's indictment for possession of marijuana with intent to distribute in violation of Code § 18.2-248.1. Prior to trial, Bryant moved to suppress the evidence retrieved pursuant to the search warrant on the ground that the warrant relied solely on the garbage collected from his trash can. The police seized the garbage, Bryant argued, in violation of the Fourth Amendment as well as the Virginia Constitution. The trial judge agreed finding it legally dispositive that the police entered the community on a private access road marked by a no-trespassing sign. "In this case," the judge explained, "if the police had asked the owner of the trailer park to come in, I've got no problem." "We had a trespassing sign," the judge noted. When the prosecutor raised a point of clarification, asking "had there been permission, it would have been different?," the judge answered yes.

After granting the motion to suppress from the bench, the trial judge entered an order memorializing her ruling. The order stated that "for the reasons set forth in the record," the court granted the motion to suppress all evidence obtained from the "curtilage" of Bryant's residence. The Commonwealth filed this interlocutory appeal pursuant to Code § 19.2-398(2). Accepting the historical facts adopted by the trial court, the Commonwealth argues that the court erred as a matter of law both in its reasoning and result.

II.
A. STANDARD OF REVIEW IN FOURTH AMENDMENT CASES

We defer on appeal to the trial court's findings of "historical fact," but consider de novo the "ultimate question" whether the officer violated the Fourth Amendment. Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003) (quoting Barkley v. Commonwealth, 39 Va. App. 682, 689-90, 576 S.E.2d 234, 237-38 (2003)).

The Fourth Amendment safeguards "the privacy and security of individuals against arbitrary invasions by governmental officials." El-Amin v. Commonwealth, 269 Va. 15, 20, 607 S.E.2d 115, 117 (2005) (citation omitted). The Fourth Amendment "does not proscribe all seizures, only those that are `unreasonable.'" Hodnett v. Commonwealth, 32 Va. App. 684, 690, 530 S.E.2d 433, 436 (2000) (citations omitted); Barkley, 39 Va. App. at 691, 576 S.E.2d at 238. The text of the Fourth Amendment draws the line there; so too must the courts.

Essential to the reasonableness inquiry is determining whether the defendant had a subjective expectation of privacy in the area or items implicated by the search. Megel v. Commonwealth, 262 Va. 531, 534, 551 S.E.2d 638, 640 (2001). And even if he has, the constitutional legitimacy of this expectation in the end depends not only on the person's subjective beliefs — society, too, must be "willing to recognize that expectation as reasonable." Kyllo v. United States, 533 U.S. 27, 33 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211 (1986)). The burden of proving a reasonable expectation of privacy rests on the defendant. Sharpe v. Commonwealth, 44 Va. App. 448, 455, 605 S.E.2d 346, 349 (2004).

B. PRIVACY INTEREST IN GARBAGE LEFT FOR STREET-SIDE PICKUP

Under settled law, discarded garbage placed on the side of the street for pickup does not fall within any recognized privacy interest protected by the Fourth Amendment. See California v. Greenwood, 486 U.S. 35, 40-42 (1988); United States v. Kramer, 711 F.2d 789, 792 (7th Cir. 1983); United States v. Crowell, 586 F.2d 1020, 1025 (4th Cir. 1978). When someone puts trash out for collection, he knows someone else (usually a total stranger) will be taking the garbage away — hopefully never to be seen again. An individual places "refuse at the curb for the express purpose of conveying it to a third party, the trash collector," who might himself sort "through [the] trash or [permit] others, such as the police, to do so." Greenwood, 486 U.S. at 40. When left by the side of the road, trash becomes "readily accessible to animals, children, scavengers, snoops, and other members of the public." Id.

The trial court appeared to accept this proposition in the abstract, but concluded that it had no application here for three reasons. First, the court held the police drove down the common access road to the private community in violation of the no-trespassing sign. Had the officers obtained permission to enter from the owner, the trial judge stated, she would have "no problem" with it. In addition to the alleged trespass, the court also found legally relevant that private, not public, trash trucks picked up the refuse in this community. Finally, the court concluded that the trash can — though only two to three feet from the street — was still subject to a reasonable expectation of privacy because Bryant left the can within (albeit barely) the curtilage of his residence. We find none of these points persuasive.

(i) The No-Trespassing Sign & The Private Common Access Road

Trespass law has marginal, at best, relevance to the Fourth Amendment analysis. As has been often said, "the Fourth Amendment does not protect possessory interests in land." Kramer, 711 F.2d at 794 (citing Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (1978), and Hester v. United States, 265 U.S. 57 (1924)). "Every trespass, by definition, invades someone's right of possession, but not every government trespass violates the Fourth Amendment." Id. A trespass is neither "necessary nor sufficient" to a finding of a Fourth Amendment violation. United States v. Karo, 468 U.S. 705, 713 (1984). As a result, the law of trespass has "little or no relevance to the applicability of the Fourth Amendment." Oliver v. United States, 466 U.S. 170, 183-84 (1984).1 The primary focus of the Fourth Amendment remains always on the legitimacy of the claimed privacy interest implicated by the seizure — not on technical trespass principles employed by the common law.

Greenwood found no legitimate privacy interest in garbage left by the side of the road for pickup. True, the particular fact pattern in Greenwood involved a public street, and thus, the police committed no trespass by driving on it. But nothing in the reasoning of Greenwood suggests that fact had any legal significance. The point of the case was the accessibility of the discarded garbage to "animals, children, scavengers, snoops, and other members of the public" and the deliberate decision by the owner to expose his garbage to these risks "for the express purpose of having strangers take it" away for disposal. Greenwood, 486 U.S. at 40-41. It would not be sensible to say one loses his privacy interest in discarded trash to every dog, child, scavenger, and snoop in the neighborhood (along with every nameless worker on the trash truck), but still retains a legitimate privacy interest in the discarded trash as against all law enforcement officers. The concept of privacy, as delicate as it might be, cannot be so easily segmented.

The trial court, therefore, erred in finding the police officers' use of a private common access road posted with a no-trespassing sign to be legally dispositive. To be sure, the...

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