Litchfield v. State, 50S03-0408-CR-382.

• Citation: 824 N.E.2d 356
• Decision Date: 24 March 2005
• Docket Number: No. 50S03-0408-CR-382.,50S03-0408-CR-382.
• Parties: Patrick LITCHFIELD and Susan May Litchfield, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

824 N.E.2d 356

Patrick LITCHFIELD and Susan May Litchfield, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 50S03-0408-CR-382.

Supreme Court of Indiana.

March 24, 2005.

Tom A. Black, June E. Bules, Plymouth, IN, Attorneys for Appellants.

Steve Carter, Attorney General, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

BOEHM, Justice.

We hold that a search of trash recovered from the place where it is left for collection is permissible under the Indiana Constitution, but only if the investigating officials have an articulable basis justifying reasonable suspicion that the subjects of the search have engaged in violations of law that might reasonably lead to evidence in the trash.

Factual and Procedural Background

Beginning in approximately 1999, the federal Drug Enforcement Administration had been providing the Indiana State Police with information subpoenaed from companies that advertised in High Times, a publication for marijuana growers. In the summer of 2002, the DEA supplied a list of Indiana addresses that had received shipments from Worm's Way, a gardening supply store that was among the subpoenaed advertisers. Among the addresses was the Litchfields' home in rural Marshall County. On July 5, 2002, and July 22, 2002, Indiana State Police troopers Daniel Ringer and Chad Larsh went to the address where they found trash barrels in the same general area where the collection service normally picked up the trash and where the containers were routinely kept. The barrels were located on the Litchfields' property approximately fifteen to twenty-five feet from the edge of the pavement, and approximately 175 feet from the nearest corner of the Litchfields' house.

On both occasions, the troopers entered onto the property and removed several garbage bags. A search of the Litchfields' trash revealed plant stems, seeds, and leaves that tested positive for marijuana. The bags seized on July 22 also contained burnt rolling papers and hemp rolling paper packaging. Based on this evidence, Ringer prepared and obtained a warrant to search the Litchfields' home. Police executed the warrant on July 24, and discovered fifty-one marijuana plants growing on the back deck of the Litchfields' home.

The Litchfields were charged with possession of marijuana and maintaining a common nuisance. The trial court denied their pretrial motion to suppress the evidence obtained from the searches of their garbage and the subsequent search of their home. The Court of Appeals affirmed. Litchfield v. State, 808 N.E.2d 713, 714 (Ind.Ct.App.2004). We granted transfer. Litchfield v. State, 822 N.E.2d 973 (Ind.2004).

The Search of Trash

The standard of appellate review of a trial court's ruling on a motion to suppress is similar to other sufficiency issues. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). We determine whether substantial evidence of probative value exists to support the trial court's ruling. Id. We do not reweigh the evidence and consider conflicting evidence most favorably to the trial court's ruling. Id.

A. Fourth Amendment Doctrine

Searches of garbage are generally permissible under the Fourth Amendment to the Federal Constitution. Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the reasonableness of a search under the Fourth Amendment has turned on whether the subject of the search has an expectation of privacy and if so whether that subjective expectation is reasonable judged by the objective criterion of the views of society as a whole. Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring). In California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court upheld the warrantless search of the defendant's garbage left at the curb for pickup. The Court reasoned that because the garbage was easily accessible to the public, the defendant did not have a reasonable expectation of its privacy. Federal courts have also upheld the warrantless search of garbage located on a resident's private property, focusing on the objective reasonableness of an expectation of privacy in the garbage rather than its location. Thus, in United States v. Kramer, 711 F.2d 789, 797 (7th Cir.1983), a warrantless search of the defendant's garbage was upheld where the garbage was located inside a low fence enclosing the defendant's yard. The court reasoned that the garbage had been abandoned and exposed to the public and the officers who seized the garbage did not threaten the peace and quiet of the defendant's home or interfere with his trash disposal routine. In United States v. Hedrick, 922 F.2d 396 (7th Cir.1991), the court sustained the search of trash located in the defendant's driveway eighteen feet from the sidewalk. The court took the view that it was common knowledge that members of the public often sort though others' garbage. As a result, "an expectation of privacy may be objectively unreasonable because of the common practice of scavengers, snoops, and other members of the public in sorting through garbage. In other words, garbage placed where it is not only accessible to the public but likely to be viewed by the public is `knowingly exposed' to the public for Fourth Amendment purposes." Id. at 400.

A majority of states follow federal doctrine and hold that their state constitutions permit a warrantless search of trash that has been left out for collection based on a lack of a reasonable expectation of privacy.¹ As the Supreme Court of Maryland explained, "the law that has emerged since Greenwood is essentially the same as it was before that case was decided, although, as a general rule, it is based less on the property concept of abandonment than on the conclusion that, by depositing the trash in a place accessible to the public, for collection, the depositor has relinquished any reasonable expectation of privacy." State v. Sampson, 362 Md. 438, 765 A.2d 629, 634 (2001). Some states have rejected this view and have found trash searches violative of either the Fourth Amendment or their state constitutions. Most states reaching this conclusion have based it, contrary to Greenwood, on the view that a person has a reasonable expectation of privacy in garbage placed out for collection.²

Recognizing that Greenwood forecloses any claim under the Fourth Amendment, the Litchfields do not challenge the searches of their trash under the Federal Constitution, but ask us to exclude the evidence as the product of a search and seizure in violation of the Indiana Constitution.

B. "Reasonableness" of a Search under the Indiana Constitution

The Litchfields argue that the warrantless search of their trash was unreasonable and therefore violated Article I, Section 11 of the Indiana Constitution. Article I, Section 11 reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Although this language tracks the Fourth Amendment verbatim, Indiana has explicitly rejected the expectation of privacy as a test of the reasonableness of a search or seizure. The legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Moran v. State, 644 N.E.2d 536, 539 (Ind.1994). We have not elaborated on the methodology of evaluating reasonableness beyond the directive in Moran to consider the "totality of the circumstances." Specifically, we have not explicitly addressed whether "reasonableness" is to be evaluated from the perspective of the investigating officer (in this case, Trooper Ringer), or the subject of the search (the Litchfields), or both.

We believe that the totality of the circumstances requires consideration of both the degree of intrusion into the subject's ordinary activities and the basis upon which the officer selected the subject of the search or seizure. One factor that may render a search unreasonable is an arbitrary selection of the subject. Thus, we have permitted roadblocks for the purpose of testing for impaired drivers, but only under procedures that assure that no individual is subject to arbitrary selection. State v. Gerschoffer, 763 N.E.2d 960, 966 (Ind.2002); compare Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990)

(same under Fourth Amendment). We have also upheld legislation requiring motorists to use seat belts, but we have warned that stopping vehicles to inspect for violations is not permissible without an individualized basis to suspect noncompliance. Baldwin v. Reagan, 715 N.E.2d 332, 334 (Ind.1999). In both cases we were dealing with a seizure of the person, but the intrusion on the citizen was relatively minor—a brief stop of an automobile. And in both cases the scope of the permitted inquiry is limited, in one case to driving while intoxicated and in the other to seat belt use. In each case we nonetheless required either articulable individualized suspicion or a process designed to prevent officers from indiscriminate selection of those to be searched.

Even when officers have some indication of potential criminal activity, we have balanced it against a concern for excessive discretion in selection of a subject. In State v. Bulington, 802 N.E.2d 435 (Ind.2004), officers who stopped the driver of a vehicle suspected of methamphetamine manufacture based on purchases of packages of a known methamphetamine precursor did not have enough facts for individualized suspicion of criminal activity. The majority found the seizure unreasonable, concluding that if such a stop were allowed, the police would be given too much latitude to exercise arbitrary...