People v. Smith
| Decision Date | 28 October 1975 |
| Docket Number | Cr. 25843 |
| Citation | 52 Cal.App.3d 514,125 Cal.Rptr. 192 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory Donald SMITH, Defendant and Appellant. |
Benson Schaffer, LaMirada, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty, Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., and Shunji Asari and John R. Gorey, Deputy Attys, Gen., for plaintiff and respondent.
Gregory D. Smith appeals from a judgment of conviction for possession of marijuana (Health & Saf. Code, § 11357) and possession of marijuana for the purpose of sale (Health & Saf. Code, § 11359). He was found to have been convicted of one earlier felony. The appeal lies. (Pen.Code, § 1237, subd. (1).)
Appellant makes a number of contentions regarding police conduct and trial proceedings. Because of our disposition of the appeal and the unlikelihood of a retrial in this matter, we find it necessary to discuss only one of appellant's contentions: that evidence obtained by the police and introduced at trial against him should have been suppressed as the fruit of an unconstitutional search and seizure. We agree and reverse.
Appellant was charged by information with the above two crimes (one count each) and the conviction of one prior felony. He pleaded not guilty and denied the prior. Appellant's motion, pursuant to Penal Code section 153.5, to suppress certain contraband seized by the police at the time of his arrest was granted in part and denied in part by the court below.
At approximately 5:00 a. m. on January 20, 1974, Glendale Police Officer Jeffrey Lord, on duty in a marked patrol car, was approached by a young man who identified himself as Derek Dolson. Dolson told Lord that he had recently left a Glendale apartment where a number of persons were engaged in smoking and preparing for sale large quantities of marijuana. Dolson further indicated that he could show Lord a certain automobile parked outside the apartment which was being used to transport the contraband and he could show Lord the contents of a shopping bag, discarded from the apartment and placed in the communal trash receptacle at the rear of the building, in which marijuana debris and certain other items of refuse would be found.
Lord transported Dolson to the vicinity of 614 East Garfield Street in Glendale where the officer observed the car described by Dolson. The two then went to the rear of an eight to ten unit apartment building and located the large trash receptacle. It was full but not overflowing and contained a number of large brown paper shopping bags. Dolson pointed out one particular bag; it was retrieved from the bin and opened. Lord at that time observed the refuse items which Dolson had indicated would be found, along with small amounts of a substance which the officer concluded from its appearance and odor was marijuana.
Officer Lord turned the shopping bag contents over to his superiors and a search warrant was issued based upon that evidence and the other information related by Dolson. The warrant authorized the search of the Dodge automobile and the premises of apartment 4 at the Garfield Street address.
Pursuant to the warrant, officers searched both the automobile and the apartment. The search of the former uncovered a quantity of marijuana; this contraband was ordered suppressed at appellant's 1538.5 hearing as the product of an unconstitutional search and seizure. 1 Appellant's motion to suppress the contraband and paraphernalia found in the apartment was denied.
Dolson testified at trial that he had been a guest of appellant at the apartment from Friday, January 18, until early Sunday morning. During that time, Dolson saw appellant and others in the apartment preparing marijuana for resale by cutting it into smaller portions and packaging it in small plastic bags. Appellant, as well as Dolson, smoked marijuana at various times during the weekend. Dolson watched while one occupant of the apartment put certain garbage in a brown shopping bag, along with discarded plastic bags, blue tape and marijuana debris. The bag was later taken from the apartment; Dolson surmised that it had been put in the apartment building's communal trash bin. Dolson testified that he left the apartment after appellant falsely accused him of stealing twenty dollars.
In determining whether the protection of the Fourth Amendment of the United States Constitution and article I, section 13, of the California Constitution against unreasonable searches and seizures is to be applied to a given area or object, two questions must be asked. First, does the individual claiming protection have a reasonable expectation of privacy regarding the area or object, and second, have government officials unreasonably intruded upon that expectation of privacy? (Katz v. United States (1967) 389 U.S. 347, 350-352, 88 S.Ct. 507, 510-512, 19 L.Ed.2d 576, 581-582; People v. Bradley, 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 469 P.2d 129; People v. Edwards, 71 Cal.2d 1096, 1104, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Burrows, 13 Cal.3d 238, 243, 118 Cal.Rptr. 166, 529 P.2d 590.)
Our Supreme Court has answered these two questions affirmatively with regard to the refuse of an individual homeowner. In People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, the high court held that the Fourth Amendment 3 prohibited a warrantless search of defendant's trash conducted after defendant had set out the trash for collection, after municipal employees had deposited it in their truck, and after the truck's machinery had begun to mix defendant's trash with that of others. (Id. at pp. 366-367, 96 Cal.Rptr. 62, 486 P.2d 1262.) The defendant in Krivda was found to have an expectation of privacy regarding his garbage despite the fact that (a) it might become mingled with others' garbage in the normal course of disposal and (b) it might be examined and perhaps taken away by vagrants, children or other persons who habitually pick through items discarded by others. Notwithstanding these foreseeable exceptions to the seclusion of one's garbage, the householder who puts his or her trash in its receptacle for routine collection and disposal reasonably expects that it will not be inspected by government authorities who lack a search warrant.
Krivda did not discuss the privacy expectation of persons who use communal trash receptacles, i.e., containers holding the refuse of more than one household unit. The People argue that two decisions of this statewide court have, at least in dictum, dealt with this issue. In People v. Superior Court (Barrett), 23 Cal.App.3d 1004, 100 Cal.Rptr. 604, police officers observed one of the defendants deposit a large, opaque plastic bag in her neighbor's rather than her own trash receptacle. The officers retrieved the bag without a warrant. As an alternate basis for its refusal to suppress the contraband found in the bag, 4 the Barrett court declared that the defendant's decision to use a trash can other than her own was an 'abandonment' and placed her beyond the scope of Krivda's privacy protection. (Id. at pp. 1009-1010, 100 Cal.Rptr. 604.)
We do not find the reasoning of Barrett persuasive in disposing of appellant's claim of Fourth Amendment protection. The defendant in Barrett only abandoned her trash because she deliberately avoided using the normal receptacle reserved for her refuse. In contrast, someone from the Garfield Street apartment disposed of the incriminating shopping bag in the manner and at the location to be expected of a tenant of the apartment house. (Cf. People v. Krivda, supra, 5 Cal.3d at 365-366, 96 Cal.Rptr. 62, 486 P.2d 1262.)
The People also rely on People v. Stewart, 34 Cal.App.3d 695, 119 Cal.Rptr. 227. The defendant in Stewart was a bookmaker who lived in an apartment and who was seen carefully placing certain papers at the bottom of a communal trash bin. These items were seized by police without a warrant. The Stewart court expressed agreement with the Attorney General that '[i]t may well be * * * that this case can be distinguished from Krivda solely on the basis of the fact that the apartment trash cans involved were used in common by all of the apartment house tenants.' (Id. at p. 700, 110 Cal.Rptr. at p. 230.) The court opined that apartment dwellers have less reason to believe the contents of their refuse will remain unknown than do householders. While we agree with this proposition, we do not find that it suggests an absence of Fourth Amendment protection for users of communal trash receptacles.
Krivda itself acknowledged that privacy expectations as regards trash are subject to obvious and foreseeable limitations, including exposure to certain types of people and mixture with the trash of others. Users of the communal receptacle undoubtedly do recognize the possibility that another tenant will discover the contents of their garbage after it is placed in the container. But they have no more reason than the householder in Krivda to expect their trash to be examined by police officers.
In view of the broad principle enunciated in Krivda, we are constrained to hold that communal trash receptacles are within the ambit of Fourth Amendment protection. 5
The statements of facts in the briefs of both parties to this appeal assume that the informer Dolson and Officer Lord engaged in a search of the communal receptacle followed by the further search of the brown shopping bag in which the seized evidence was located. Our reading of the relevant portions of the trial transcript...
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