State v. Boland

• Decision Date: 15 November 1990
• Docket Number: No. 56666-6,56666-6
• Citation: 800 P.2d 1112,115 Wn.2d 571
• Court: Washington Supreme Court
• Parties: , 59 USLW 2361 The STATE of Washington, Respondent, v. Bradley M. BOLAND, Petitioner. En Banc

Page 571

115 Wn.2d 571

800 P.2d 1112, 59 USLW 2361

The STATE of Washington, Respondent, v. Bradley M. BOLAND, Petitioner.

No. 56666-6.

Supreme Court of Washington,

En Banc.

Nov. 15, 1990.

Michael A. Frost, Seattle, for petitioner.

John F. Raymond, Jefferson County Prosecutor, Mark Huth, Deputy, Port Townsend, for respondent.

Allen & Hansen, P.S., Richard Hansen, Katrina C. Pflaumer, Seattle, Winston & Cashatt, Robert H. Whaley, Bryan P. Harnetiaux, Spokane, amici curiae on behalf of Washington Ass'n of Criminal Defense Lawyers, Washington State Trial Lawyers Ass'n and Americian Civil Liberties Union of Washington.

DOLLIVER, Justice.

Sometime in September 1986, both the office of the Prosecuting Attorney for Jefferson County and the Port Townsend City Police Department received anonymous letters alleging defendant Bradley Boland was distributing legend drugs. Legend drugs are drugs of which federal law prohibits distribution without a prescription from a physician. The anonymous letter was accompanied by a brochure containing the names of Health West Products and Brad Boland. Shortly after receiving the letter, the investigating officer attempted to order legend drugs from the defendant through the mail. When defendant received the letter, he responded with a letter stating he did not understand the inquiry. The letter, however, was returned to defendant with a notation stating the addressee did not live at the address given.

In October 1986, the investigating officer applied for a search warrant (based on the letter and brochure) in order to gain access to defendant's power records for the purpose of verifying his address. The warrant was served on November 6, 1986, and defendant's address was subsequently verified.

On March 18, 1987, the police began a series of four warrantless searches of defendant's garbage hoping to locate sufficient evidence to obtain a warrant to search his residence. The other three searches occurred on March 25, April 1, and April 8. Before each of the searches, police officers would observe defendant take his trash out to the corner for collection where he would place his trash can in approximately the same location. The lid of defendant's trash container fit securely on the can, and each time defendant took the can out, he would place a heavy piece of wood on top of the lid. On each occasion, the officers returned to defendant's residence during the night, emptied the contents of the trash can into a plastic bag and transported it to the police station. Once there, the trash was made available to state and federal agents who would examine its contents for evidence of drug-related activities. On at least three of these occasions, such evidence was uncovered.

After inquiring with the Washington State Board of Pharmacy in order to verify defendant did not hold a license to dispense legend drugs, the investigating officer applied for a warrant to search defendant's home. The warrant was issued based on the evidence obtained from defendant's trash and the letter and brochure received from the informant. On April 8, 1987, the police searched defendant's house and seized a large quantity of legend drugs as well as a card of tablets and a bottle containing controlled substances. Defendant was charged with unlawful possession of legend drugs (RCW 69.41.030) and two counts of possession of a controlled substance with intent to deliver (RCW 69.50.401(a)(1)(i) and (ii)).

Defendant filed a motion to suppress the evidence gathered during the search of his house. Defendant argued the evidence was the fruit of the warrantless search of his garbage which violated the fourth amendment to the United States Constitution and Const. art. 1, § 7. The trial court granted the motion, stating that in light of Const. art. 1, § 7,

it is clear that a law enforcement officer's examination of the contents of a garbage container placed curbside for collection is an unconstitutional intrusion into a person's private affairs, particularly when the city ordinance requires the container to be removed from the person's property and placed at the side of the street for ease of collection.

The trial court also ordered suppression of the evidence seized in defendant's home since, without the evidence taken from the garbage, no probable cause existed upon which to base the search warrant. The trial court subsequently ordered the charges against defendant be dropped.

The State appealed the trial court's ruling to the Court of Appeals, which reversed the trial court. State v. Boland, 55 Wash.App. 657, 659, 781 P.2d 490 (1989). Defendant appeals the Court of Appeals decision to this court. We reverse the Court of Appeals and affirm the trial court.

We note at the outset that the United States Supreme Court has held under the fourth amendment to the United States Constitution that no reasonable expectation of privacy exists in garbage which has been left on the curbside for collection. California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Consequently, our review of the privacy interest at issue in this case is limited to an examination under our state constitution. Given that the fundamental purpose of the state constitution is to govern the relationship between the people and their government rather than to govern the relationship between private parties, Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wash.2d 413, 780 P.2d 1282 (1989), it also follows that we concern ourselves only with the reasonableness of governmental intrusion into a private individual's garbage and not the reasonableness of such intrusions by private individuals.

This court has previously held that the following six nonexclusive neutral criteria must be examined in order to determine whether Const. art. 1, § 7 provides greater protection of defendant's privacy interest than its federal counterpart:

(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.

State v. Gunwall, 106 Wash.2d 54, 58, 720 P.2d 808 (1986). The purpose of these factors is twofold: first, to lend assistance to counsel where briefing might be appropriately directed in cases in which independent state grounds are urged; and second, to help ensure that if the court does use independent state grounds in reaching its conclusion it will consider the six factors to the end that the decision shall be based on well founded legal reasons and not by merely substituting its own notion of justice for that of duly elected legislative bodies or the United States Supreme Court. Gunwall, at 62-63, 720 P.2d 808.

In Gunwall, we held that when police obtained the defendant's long distance telephone records by placing a pen register on her telephone without first obtaining a warrant, they unreasonably intruded into her private affairs under Const. art. 1, § 7. Gunwall, at 63, 720 P.2d 808. Since Gunwall involved comparing the same constitutional provisions as those to be examined here, we adopt its analysis of the first, second, third and fifth factors and examine only the fourth and sixth factors as they apply to this particular case.

Turning first to a consideration of preexisting state law, we note the Court of Appeals below partially based its decision to reverse the trial court on the grounds it found no preexisting state law governing privacy interests in garbage. Boland, 55 Wash.App. at 662, 781 P.2d 490. We disagree. Defendant cites one local ordinance which requires him to place his trash cans in a location "where they will be convenient for the collector." See Port Townsend Municipal Ordinance 6.04.030. Moreover, a Seattle ordinance makes it unlawful for anyone other than the owner of the trash can, or one authorized by the owner to place objects in the can, to remove its contents "except for collection." (Italics ours.) SMC 21.36.100. Although the Court of Appeals correctly points out the Port Townsend ordinance was intended to protect the health of the general public rather than individual privacy interests in garbage, we find this irrelevant. One can reasonably infer from these ordinances that only trash collectors and not others will handle one's trash. It would be improper to require that in order to maintain a reasonable expectation of privacy in one's trash that the owner must forego use of ordinary methods of trash collection. See Note, California v. Greenwood: Supreme Court Decides to Keep the Fourth Amendment Out of the Trash, 67 N.C.L.Rev. 1191, 1206 (1989). For purposes of our Gunwall analysis, we find the cited ordinances furnish the required support to review this case under independent state grounds.

Looking next to whether the privacy interest here is properly a matter of particular state interest or local concern, the Court of Appeals below also found this factor lacking. Boland, 55 Wash.App. at 663, 781 P.2d 490. Again we disagree. In California v. Greenwood, supra, the Supreme Court itself recognized the individual states' freedom to determine under independent state grounds whether a privacy right in garbage is reasonable. Greenwood, 486 U.S. at 43, 108 S.Ct. at 1630. In fact, several states have decided the issue under independent state grounds and have found such a privacy interest exists. See People v. Krivda, 5 Cal.3d 357, 486 P.2d 1262, 96 Cal.Rptr. 62 (1971), vacated and remanded, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), reaffirmed, 8 Cal.3d 623, 504 P.2d 457, 105 Cal.Rptr. 521, cert. denied, 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145 (1973); State v. Tanaka, 67 Haw. 658, 701 P.2d 1274 (1985); Smith v. State, 510 P.2d 793 (Alaska 1973) (although no privacy interest in garbage was found in this case, the court did hold that under more appropriate facts, such a right could be found). Having found the six Gunwall criteria fulfilled in this case, we now...