People v. Whotte

• Decision Date: 31 March 1982
• Docket Number: Docket No. 52138
• Citation: 317 N.W.2d 266,28 A.L.R.4th 1211,113 Mich.App. 12
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard WHOTTE a/k/a Richard Breathour, Defendant-Appellant. 113 Mich.App. 12, 317 N.W.2d 266, 28 A.L.R.4th 1211
• Court: Court of Appeal of Michigan — District of US

Page 266

317 N.W.2d 266

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard WHOTTE a/k/a Richard Breathour Defendant-Appellant.

Docket No. 52138.

113 Mich.App. 12, 317 N.W.2d 266, 28 A.L.R.4th 1211

Court of Appeals of Michigan.

Submitted Aug. 20, 1981.

Decided Feb. 2, 1982.

Released for Publication March 31, 1982.

[113 MICHAPP 13] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal[113 MICHAPP 14] Atty., Appeals, and Janice M. Joyce, Asst. Pros. Atty., for the People.

Gail Rodwan, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before J. H. GILLIS, P. J., and T. M. BURNS and KAUFMAN, JJ.

KAUFMAN, Judge.

On July 20, 1977, defendant was convicted by a jury of four counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. He was thereafter sentenced to four concurrent prison terms of 13 to 20 years. Following remand by this Court for a Tucker ¹ hearing, defendant was resentenced to four concurrent prison terms of 6 1/2 to 12 years. He now appeals by leave granted, claiming that he was denied a fair trial by the admission into evidence of certain items recovered by the police during a warrantless search of trash bags located in defendant's backyard.

The charges against defendant arose out of the December 4, 1976, robbery of the Little Paris Bar in Grosse Pointe Park. An employee of the bar testified that defendant and another man entered the bar that day and forced her at gunpoint to give them all of the money in the cash register. In addition, the gunmen relieved three bar customers of their money or wallets. Of the ten trial witnesses who were in the bar at the time of the robbery, five were able to identify defendant and a sixth gave an equivocal identification, indicating that she had discussed the case earlier with some of the other witnesses when defendant was pointed out to her.

[113 MICHAPP 15] Defendant was also connected to the robberies by his apparent possession of a wallet belonging to one of the victims. The wallet was recovered by Detective James La Pratt from a garbage bag located in the backyard of the two-family house where defendant resided. Defendant's marriage license was also found in the same garbage bag. La Pratt testified that when he visited the residence he was told by defendant's wife that she was married to a "Richard Martin Johnson". That day, the detective observed garbage scattered over the backyard as if dogs or cats or other animals had been through it. He took particular notice of a gas station credit slip with the name Johnson on it. When La Pratt returned the following day after having checked into other possible aliases that defendant may have been using, no one was home at defendant's residence. The detective went to the backyard and again looked at the "Johnson" credit slip and other papers with the name Johnson on them. Within a rubbish bag, La Pratt saw and retrieved a white envelope found to contain defendant's marriage license. La Pratt testified that he also took from the rubbish bag a wallet belonging to Robert Lappin, one of the robbery victims. During trial, Lappin identified the wallet as his own.

Whether and to what extent the Fourth Amendment protects against warrantless searches of an individual's garbage is a question of first impression within Michigan. The majority of other jurisdictions considering the issue have determined that such searches are constitutional. ² However [113 MICHAPP 16] those cases have generally involved searches of rubbish left out in anticipation of collection by public or privately contracted garbage collectors. For the most part, the courts have concluded that garbage left in a place from which it is to be removed for collection is abandoned and, therefore, outside the protection of the Fourth Amendment. E.g., Magda v. Benson, 536 F.2d 111 (CA 6, 1976). However, other courts have held that an individual has a reasonable expectation of privacy in trash set out for pickup until the trash loses its identity and meaning by being mixed and combined with other refuse. People v. Krivda, 5 Cal.3d 357, 366, 96 Cal.Rptr. 62, 68, 486 P.2d 1262 (1971), rev'd on other grounds 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), citing People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969).

We agree that the appropriate test for weighing Fourth Amendment considerations is not an evaluation of the particular defendant's property interest but whether the search in question violated that defendant's reasonable expectation of privacy. ³ The Fourth Amendment protects people and [113 MICHAPP 17] not places, Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511-512, 19 L.Ed.2d 576 (1967). Therefore, wherever an individual may harbor a reasonable expectation of privacy, he is entitled to freedom from unreasonable governmental intrusion. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). The test then is whether the defendant has an actual expectation of privacy that is such that "society is prepared to recognize as 'reasonable' ". Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). After examining the case law from other jurisdictions, we also agree that this test is best applied by considering those factors set forth in Smith v. State, 510 P.2d 793, 797-798 (Alaska, 1973):

"1. Where the trash is located,

"2. Whether the dwelling is multiple or single unit,

"3. Who removed the trash,

"4. Where the search of the trash takes place.

"One may readily arrange these factors to form a continuum. At one end of the continuum is trash located close to a single-family dwelling, on the same property as the dwelling, and searched by police officers at that location. We observe, without so deciding, that this would be a strong case for holding the expectation of privacy to be reasonable. At the other end of the continuum is trash located off the premises of a multiple-unit dwelling, and searched by a person authorized to remove it. In such a case we would be unable to hold that the expectation of privacy was reasonable."

In the instant case, consideration of the third and fourth factors militates in favor of finding that a reasonable expectation of privacy existed. The search of the trash was conducted at the scene by Detective La Pratt. On the other hand, the house was a two-family unit and, therefore, the area was readily accessible to persons other than those living with defendant. The trial testimony was ambiguous[113 MICHAPP 18] as to the precise location of the rubbish bag in which the wallet was found. Although the bag was in the backyard it is not clear just how near it was to the house; Detective La Pratt testified that "there were many [bags] scattered through the backyard". Apparently, the bag was not placed in a location from where it would be picked up by garbage collectors. Still, we believe that the nature of the location of the garbage is significant in this case. Cf. People v. Huddleston, 38 Ill.App.3d 277, 347 N.E.2d 76, 80 (1976). The backyard was an open area where animals tore through the rubbish. It could be anticipated that trash left in bags would be scattered about the yard or even carried off the premises; particular items of refuse could be expected to be accessible not only to the other residents of the dwelling but to persons within the general area. The condition of the backyard should have served to remind defendant of the unreliability of any notion of privacy he may have had regarding the trash. Cf. United States v. Shelby, 573 F.2d 971, 974 (CA 7, 1978). Under these circumstances we can only conclude that any possible expectation of privacy on defendant's part was not a reasonable expectation. Consequently Detective La Pratt's actions in seizing the evidence in question did not violate the Fourth Amendment.

We have examined defendant's claim of instructional error and find it to be without merit.

Affirmed.

J. H. GILLIS, P. J., concurred.

T. M. BURNS, Judge (dissenting).

Defendant appeals his July 20, 1977, jury convictions of four counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. On September 6, 1977, defendant was sentenced to four concurrent prison terms of 13 to 20 years. On [113 MICHAPP 19] May 6, 1981, this Court remanded this cause for resentencing. Defendant was resentenced on June 18, 1981, to four concurrent prison terms of 6 1/2 to 12 years imprisonment.

The dispositive issue in this appeal concerns whether the defendant was denied a fair trial when certain items seized by the police during a warrantless search of trash bags in his backyard were admitted into evidence.

The question of whether a warrantless search of trash bags violates either the United States or the Michigan Constitutions turns upon the fundamental privacy interests of the individual who is the subject of the search. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The test is whether there is a reasonable expectation of privacy in the property. As was noted by the Michigan Supreme Court in People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973):

"From Katz * * * there has evolved a test, applied by the courts, to determine whether or not a search, by Fourth Amendment standards, has indeed taken place. Simply put, if an individual has a reasonable expectation of privacy in the area searched, or the materials seized, a search has been conducted. 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of a Fourth Amendment protection.' Katz, supra, [389 U.S. at] 351 ."

There is no Michigan precedent on the precise issue presented in this case. Other jurisdictions that have considered this issue have not been unanimous in their conclusions. The majority of state courts have held that property in trash containers is abandoned and not protected...