Smith v. State

• Decision Date: 25 May 1973
• Docket Number: No. 1587,1587
• Citation: 510 P.2d 793
• Parties: Judith SMITH, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 793

510 P.2d 793

Judith SMITH, Appellant, v. STATE of Alaska, Appellee.

No. 1587.

Supreme Court of Alaska.

May 25, 1973.

Lawrence J. Kulik, Asst. Public Defender, Herbert Soll, Public Defender, Anchorage, for appellant.

Stephen G. Dunning, Asst. Dist. Atty., Seaborn J. Buckalew, Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.

OPINION

CONNOR, Justice.

Appellant was convicted by a superior court jury of unlawful and felonious possession of heroin in violation of AS 17.10.010. Three days prior to trial, appellant moved to suppress as evidence all property seized during execution of a search warrant issued September 4, 1970, by district court Judge Dorothy O. Tyner. In that motion appellant alleged that the search warrant was issued upon information obtained by three illegal searches. This appeal is based on the denial of that motion.

On or about August 22, 1970, appellant and one Charles Smith occupied Apt. No. 409 of the Caye Ann Apartments, located at 731 B Street in Anchorage. Having received information that Charles Smith was involved in narcotics activities, Investigator Dean Bivens of the Alaska State Troopers instituted on August 22, 1970, a 'stakeout' giving 24-hour coverage of the Caye Ann Apartments. This surveillance lasted approximately 12 days.

Investigator Bivens and the state troopers who worked with him operated from a camp trailer across B Street from the Caye Ann Apartments. This vantage point afforded them a view both of the apartment building and of the dumpster garbage receptacle located outside the building, adjacent to the northwest corner of the building, closet to B Street. Bivens specifically assigned the troopers manning the stakeout to remove garbage placed in the dumpster by either Charles Smith or the appellant.

In addition to the dumpster located outside the apartment building, the facilities of the Caye Ann Apartments included an indoor garbage room located on the ground floor, equipped with a 20-gallon garbage hand cart. At the time in question, it was the practice of the resident manager of the apartment building to empty the contents of the 20-gallon hand cart into the dumpster whenever the hand cert became filled up. The dumpster itself was slightly sheltered by an overhang of the building. Municipal refuse collection was made exclusively from the dumpster and not from the indoor garbage room.

On August 22, 1970, Trooper Wes Taylor removed two bags of garbage which he had seen Charles Smith place in the dumpster. On August 31, Trooper Casper Johnson removed a ten colored plastic garbage bag, which he had seen appellant place in the dumpster. On September 2, Trooper Taylor again removed items from the dumpster which he had seen Charles Smith, accompanied by appellant, place there. Each of the bags or other containers thus obtained was opened by Investigator Bivens and the contents of each provided evidence that occupants of Apt. No. 409 were involved with unlawful drugs.

On the basis of the evidence taken from the dumpster, a search warrant was subsequently issued, and a number of drug-related items were found in the apartment, including marijuana, cigarette papers, hypodermic syringes and, in a paper 'slip', approximately one gram of a brownish powder which chemical analysis proved to be unusually pure heroin. In addition, the troopers found and seized a can of 'milk sugar', a substance commonly used to dilute heroin before use.

Appellant contends that the police activity outlined above constitutes an illegal search. Specifically, she argues that official removal and examination of the contents of various bags and other garbage receptacles placed in the dumpster by hereself and Charles Smith violates both the Fourth Amendment of the United States Constitution ¹ and Article I, Section 14, of the Alaska Constitution. ² In short, appellant reads both constitutions to require that the police should have demonstrated probable cause to an independent magistrate and secured a search warrant before undertaking the search of Smith's garbage. ³ We disagree, and we hold that the trial court's failure to grant appellant's motion to suppress does not constitute error. However, inasmuch as we are profoundly committed to the preservation of personal privacy and deeply sensitive to the dependence of our most cherished rights upon judicial vindication, we are unwilling to announce a general rule sanctioning official gathering and analysis of an individual's refuse. Accordingly, we limit our holding to the particular facts of the case at bar. ⁴

We commence our analysis with the observation that the protection of the Fourth Amendment does not extend to abandoned property. ⁵ Using traditional property law concepts, we find it difficult to avoid the conclusion that any items of garbage placed in a receptable outside the dwelling-and certainly the items removed from the dumpster in the case at bar-are abandoned. In the words of one recent scholar: ⁶

'In the law of property, it has been recognized that the act of abandonment is demonstrated by an intention to relinquish all title, possession, or claim to property, accompanied by some type of activity or omission by which such intention is manifested. As one court has stated:

'The abandonment of property is the relinquishing of all title, possession, or claim to or of it-a virtual intentional throwing away of it. It is not presumed. Proof supporting it must be direct or affirmative or reasonably beget the exclusive inference of the throwing away. " (Emphasis added by Mascolo). ⁷ We view the sequence of an individual's placing an article in a receptacle, from which routine municipal collections are made, and then withdrawing from the area ⁸ as activity clearly indicative of 'an intention to relinquish all title, possession, or claim to property.' ⁹

A determination that the refuse retrieved by the state troopers in this case was abandoned, however, is not conclusive of the reasonableness of their search. As the United States Supreme Court said in Katz v. United States:

'(T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312, 315; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202, 1204. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877, 879.' 389 U.S. at 351-352, 88 S.Ct. at 511, 19 L.Ed.2d at 582.

Expanding on this theme in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (1968), the Court added:

'. . . and whether an individual may harbor a reasonable 'expectation of privacy,' (389 U.S.) at 361, 88 S.Ct. at 516 (19 L.Ed.2d at 588) (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion.' (Citation in brackets added.)

The nourishment we derive from these two propositions is this: if appellant can be said to have harbored a 'reasonable expectation of privacy' in the dumpster, then the protection afforded by the Fourth Amendment extends to that receptacle and the warrantless search is illegal.

The question presented by this case, in short, in how to determine whether a reasonable expectation of privacy exists here. Our touchstone is Justice Harlan's separate concurrence in Katz:

'My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'. Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited.' 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 587-588.

On the record before us, we are not satisfied that their test has been met.

First, appellant's and Charles E. Smith's activities of depositing garbage in the dumpster and withdrawing from the area, described in Investigator Biven's Affidavit for Search Warrant, ¹⁰ were clearly exposed to plain view. The dumpster was located outside the building, appurtenant to the corner of the building nearest the street. The trips were made during daylight hours. Any passerby could have easily observed appellant's or Smith's various trips. No attempt was made to empty the bags or boxes or to commingle their contents with the collective mass of garbage. Any person later emptying refuse in the dumpster could easily segregate the items placed therein by the Smiths. Had they wished to keep their activities to themselves, the Smiths could easily have left any items of garbage in the 20-gallon hand cart located in the indoor garbage room. On these facts, we are satisfied that appellant harbored no 'actual (subjective) expectation of privacy'. ¹¹

But even assuming arguendo that the facts overwhelmingly indicated appellant's subjective expectation of privacy, this court is unable to hold that 'society is prepared to recognize (such an expectation) as 'reasonable," at least in the case at bar.

To be sure, the question is very close. A review of several recent garbage can search cases ¹² reveals a basic core of factors to be considered in determining whether a reasonable expectation of privacy exists. These factors are:

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...