State v. Hempele

Citation576 A.2d 793,120 N.J. 182
Parties, 59 USLW 2092 STATE of New Jersey, Plaintiff-Appellant, v. Conrad P. HEMPELE and Sharon Hempele, Defendants-Respondents. STATE of New Jersey, Plaintiff-Respondent, v. James J. PASANEN, Defendant-Appellant.
Decision Date17 July 1990
CourtUnited States State Supreme Court (New Jersey)

Boris Moczula, Trenton, for plaintiff-appellant and plaintiff-respondent State of N.J. (Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney).

Edward V. Gannon, for defendant-appellant James J. Pasanen (Gannon, Murphy & Schwartz, Morristown, attorneys).

Arthur J. Russo, Phillipsburg, for defendant-respondent Sharon Hempele.

Ernest F. Duh, Phillipsburg, for defendant-respondent Conrad P. Hempele.

The opinion of the Court was delivered by

CLIFFORD, J.

The issue in these appeals, argued together, is the constitutionality of warrantless seizures and searches of garbage bags left on the curb for collection.

In State v. Hempele the trial court suppressed evidence seized under a warrant obtained after the warrantless seizure and search of defendants' garbage. In State v. Pasanen the trial court denied defendant's motion to suppress evidence obtained under similar circumstances. The Appellate Division affirmed both the suppression order in Hempele and the order denying suppression in Pasanen. We affirm the Appellate Division judgment in Hempele and reverse in Pasanen.

I

-A-

In State v. Hempele a confidential source informed the state police that defendants, Conrad D. Hempele and Sharon Hempele, were distributing illicit drugs from their home at 303 Mill Street in Belvidere. The informant claimed to have seen fifty pounds of marijuana in Conrad's bedroom.

On the basis of that information, a trooper seized the trash sitting in front of 303 Mill Street six months later. 303 Mill Street is one of about ten attached row houses, each with its own front entrance. A short stairway runs from each row house to an eight-foot-wide sidewalk abutting the street. The seized trash was next to the flight of stairs leading to 303 Mill Street. Two weeks later the trooper again seized the garbage in front of the Hempeles' home. On both occasions the trooper removed white plastic trash bags from a plastic garbage can and took the bags to the State Police Tri-Man Unit, where, without a warrant, he opened them and analyzed their contents. He discovered traces of marijuana, cocaine, and methamphetamine in the trash.

A search warrant for defendants' home issued on the basis of the informant's tip and the evidence found in the garbage. When the subsequent search turned up controlled substances and drug paraphernalia, the Hempeles were indicted for drug offenses.

The trial court suppressed the evidence from the warrantless garbage searches because the State had not proven that the trash had been left for collection or had been seized on public property. The court therefore held that the search warrant for the house was invalid because the only other basis for it--the information provided by the informant six months earlier--had been stale when the warrant issued.

-B-

In State v. Pasanen the Boonton police began surveilling the home of defendant, James J. Pasanen, after learning from confidential sources that "drug activity" was taking place there. When the surveillance disclosed that people previously convicted of drug-related crimes were frequenting the house, the police started to monitor the garbage there. On seven occasions they conducted warrantless seizures and searches of gray plastic garbage bags placed near the street. The bags contained drug paraphernalia and traces of illegal drugs. After obtaining a search warrant, the police found quantities of cocaine, heroin, and marijuana in defendant's house.

Following his indictment for drug offenses, defendant challenged the warrantless garbage searches and the search warrant for the house. Denying the suppression motion, the trial court held that defendant's privacy expectation in his trash had not been absolute. Because defendant had had only a qualified privacy expectation in his garbage, the police had needed only reasonable suspicion, rather than a warrant based on probable cause, for the search. The trial court held that the police had had "some plausible grounds for suspicion": two informants had told them that drug activity was taking place at defendant's house; people with prior drug convictions had been frequenting that address; and one informant had claimed that a resident had approached him about purchasing drugs. The trial court therefore found that the garbage searches and the ensuing search warrant had been valid. Defendant thereafter pled to one count of the indictment.

-C-

The Appellate Division reviewed these two cases together. 229 N.J.Super. 553, 555, 552 A.2d 212 (1989). After observing that the protections of the fourth amendment to the United States Constitution do not apply to garbage left for collection, the Appellate Division held that article I, paragraph 7 of the New Jersey Constitution prohibits unreasonable searches and seizures of such garbage. Determining that a person retains a qualified, but not an absolute, expectation of privacy in garbage left for collection, the Appellate Division adopted the reasonable-suspicion standard used by the trial court in Pasanen.

The Appellate Division found that the police had had a reasonable basis for searching Pasanen's garbage because two "reliable informants" had told them about "drug dealing." 229 N.J.Super. at 562, 552 A.2d 212. Therefore the trial court in Pasanen had been correct in upholding the searches and denying the suppression motion.

Although disagreeing with the reasoning of the trial court in Hempele, the Appellate Division nevertheless affirmed the suppression order in that case. It held that the questions of whether the trash had been left for collection and whether the trash had been left on public property were not controlling. Instead, after finding that the defendants had retained a qualified privacy expectation, the Appellate Division determined that because of the "patent staleness" of the information that had motivated the searches, the police had not had reasonable suspicion. Id. at 564, 552 A.2d 212. The searches had therefore violated the New Jersey Constitution. Because the validity of the warrant for the house depended on the fruits of the illegal garbage searches, the items seized during the house search were to be suppressed as well.

We granted the State's motion for leave to appeal in Hempele, 117 N.J. 50, 563 A.2d 818 (1989), and Pasanen's petition for certification, 117 N.J. 46, 563 A.2d 816 (1989).

II

We consider first whether the garbage searches in these two cases violated the United States Constitution.

-A-

In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court held that the fourth amendment does not prohibit unreasonable searches and seizures of garbage left for collection in an area accessible to the public. In that case a police investigator learned that a truck carrying illegal drugs was en route to Billy Greenwood's home. A neighbor also complained about the heavy late-night traffic in front of Greenwood's residence. According to the neighbor, the vehicles would remain at Greenwood's house for only a few minutes. The investigator observed the traffic patterns for herself and followed a truck from Greenwood's place to a house targeted in a previous narcotics investigation.

The officer later asked the neighborhood's regular garbage collector to give her the trash bags that Greenwood had left on his curb. During a warrantless search of the bags, the investigator found items indicative of drug use. She then obtained a search warrant for the house. The subsequent search turned up quantities of cocaine and hashish. The police arrested Greenwood and Dyanne Van Houten on narcotics charges.

While free on bail, Greenwood continued to receive many late-night visitors at his house. Another warrantless garbage search conducted in the same manner as the first turned up additional evidence of drug use. After securing a second search warrant, the police discovered more narcotics in Greenwood's house. They arrested Greenwood again. Greenwood and Van Houten challenged the constitutionality of the warrantless garbage searches.

The Supreme Court held that the warrantless searches of Greenwood's garbage "would violate the Fourth Amendment only if respondents [had] manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable." California v. Greenwood, supra, 486 U.S. at 39, 108 S.Ct. at 1628, 100 L.Ed.2d at 36. Ruling that a privacy expectation in garbage is not reasonable, the Court rejected the defendants' argument.

The Court decided that people lose any reasonable expectation of privacy in their trash by leaving it in bags alongside the street, because such garbage is vulnerable to an unscrupulous person or scavenging animal. Furthermore, garbage is placed on the curb for the specific purpose of having a third party remove it. The defendants should have realized that the trash collector might look through the garbage or allow another person to do so. The Court added that the fourth amendment does not protect what a person knowingly exposes to the public because "the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public." Id. at 41, 108 S.Ct. at 1629, 100 L.Ed.2d at 37.

Having decided that an expectation of privacy in trash left for collection in an area accessible to the public is unreasonable, the Court found it unnecessary to determine whether the defendants had manifested a subjective expectation of privacy. The warrantless garbage searches did not violate the fourth amendment.

-B-

The facts in Greenwood are almost identical to those here. The...

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