State v. Morris, 94-299

Decision Date22 March 1996
Docket NumberNo. 94-299,94-299
Parties, 62 A.L.R.5th 729 STATE of Vermont v. Richard MORRIS.
CourtVermont Supreme Court

Jeffrey L. Amestoy, Attorney General, and Karen R. Carroll, Assistant Attorney General, Montpelier, for plaintiff-appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.


JOHNSON, Justice.

Today, we hold that the Vermont Constitution protects persons from warrantless police searches into the contents of secured opaque trash bags left at curbside for garbage collection and disposal. In our view because persons have an objectively reasonable privacy interest in the contents of such containers, police must obtain a warrant before searching through them. In this case, absent the evidence obtained from the unlawful search of defendant's trash, the warrant permitting the search of his house was not supported by probable cause; accordingly, we reverse defendant's conviction for possession of marijuana.


Sometime before March 1993, a confidential informant told an officer of the Brattleboro Police Department that defendant was selling marijuana from his apartment and from the parking lot of a certain grocery store. On March 1, 1993, a regularly scheduled trash collection day, two police officers went to the apartment building where defendant resided and seized the five or six opaque trash bags that had been set out for collection near the curb about five or six feet from the building. From the exterior of the bags, there was no way to identify which tenant had deposited which bags. All of the bags were transported to the police station and searched without a warrant. Inside defendant's bags, which were identified through discarded pieces of mail, the police found marijuana seeds and stems and baggies containing flakes of marijuana.

Based on the items found in the trash, the information supplied by the confidential informant, and an unidentified neighbor's report that defendant had received many different visitors during the past month, the police sought and obtained a warrant to search defendant's residence. Approximately four ounces of marijuana were found, and defendant was charged with possession of marijuana. Defendant moved to suppress all evidence seized from his apartment on the ground that the search warrant was defective because it was based primarily on evidence discovered during an illegal warrantless search of his garbage. The district court denied defendant's motion to suppress, ruling that defendant had no expectation of privacy in his discarded garbage.

On appeal, following his conviction based upon a conditional plea of no contest, defendant argues that the Vermont Constitution prohibits the warrantless search of opaque trash bags placed at curbside for collection on a regularly scheduled trash pick-up day. In response, the State contends that the Vermont Constitution does not prohibit the warrantless search of curbside trash, and that even if it did and evidence found in defendant's trash bags was suppressed, the other information in the warrant application and affidavit is sufficient to support a finding of probable cause to search defendant's apartment.


Our task is to discover and protect the core value of privacy embraced by Chapter I, Article 11 of the Vermont Constitution. 1 State v. Savva, 159 Vt. 75, 85, 616 A.2d 774, 779 (1991); State v. Kirchoff, 156 Vt. 1, 6-7, 587 A.2d 988, 992 (1991). Article 11 protects persons "from unreasonable, warrantless governmental intrusions into affairs which they choose to keep private." State v. Zaccaro, 154 Vt. 83, 91, 574 A.2d 1256, 1261 (1990). The first and foremost line of protection is the warrant requirement. Requiring advance judicial approval before subjecting persons to police searches represents a balance in which an individual's privacy interest outweighs the burdens on law enforcement in obtaining a warrant. Savva, 159 Vt. at 85-86, 616 A.2d at 780. Thus, absent exceptional circumstances, the government's decision to invade a person's privacy must be made by a neutral judicial officer rather than the police. Id. at 85, 616 A.2d at 779.

Of course, Article 11 does not "protect areas or activities that have been willingly exposed to the public." Kirchoff, 156 Vt. at 7, 587 A.2d at 993. In determining whether persons have a privacy interest in any given area or activity, we examine both private subjective expectations and general social norms. State v. Blow, 157 Vt. 513, 517-18, 602 A.2d 552, 555 (1991). The manifested privacy interest must be a reasonable one, but as we have cautioned before, constitutional rights are not limited by waning expectations of privacy resulting from increased governmental intrusion into people's lives. See Kirchoff, 156 Vt. at 12, 587 A.2d at 995-96. Ultimately, the question is " 'whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional constraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.' " 1 W. LaFave, Search and Seizure § 2.6(c), at 592 (3d ed. 1996) (quoting A. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 403 (1974)).

Given the facts of this case, we believe that defendant manifested a privacy interest recognized by society, and we conclude that unconstrained government inspection of people's trash is not consistent with a free and open society. As Justice Brennan stated in his dissent in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), "Scrutiny of another's trash is contrary to commonly accepted notions of civilized behavior." Id. at 45, 108 S.Ct. at 1632 (Brennan, J., dissenting). While at first blush there may be a tendency to accept the notion that a person has no reasonable privacy interest in discarded trash, that attraction vanishes when one contemplates the "prospect of police officers, without any cause whatever, opening a securely tied and opaque trash bag, the contents of which are hidden from public view, and then searching the bag to determine the activities, behavior, habits, and lifestyles of persons who deposited the trash in front of their home for disposition by a trash collector." People v. Hillman, 834 P.2d 1271, 1278 (Colo.1992) (Quinn, J., dissenting).

Because "almost every human activity ultimately manifests itself in waste products," it is understandable that persons would want to maintain privacy in the contents of their refuse. Smith v. State, 510 P.2d 793, 798 (Alaska 1973). An individual's trash will often reveal intimate details of that person's financial obligations, medical concerns, personal relationships, political associations, religious beliefs, and numerous other confidential matters. See State v. Tanaka, 67 Haw. 658, 701 P.2d 1274, 1276-77 (1985) ("Business records, bills, correspondence, magazines, tax records, and other telltale refuse can reveal much about a person's activities, associations, and beliefs."); see also People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 638, 458 P.2d 713, 718 (1969) (half truths leading to rumor and gossip may readily flow from attempt to "read" contents of another's trash). As Justice Brennan so cogently stated in his Greenwood dissent:

A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests. It cannot be doubted that a sealed trash bag harbors telling evidence of the "intimate activity associated with the 'sanctity of a man's home and the privacies of life,' " which the Fourth Amendment is designed to protect.

486 U.S. at 50, 108 S.Ct. at 1634 (Brennan, J., dissenting) (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984)). Given the intimate details of people's lives that may be revealed by searching through their refuse, we conclude that persons have a reasonable interest in keeping private the contents of their sealed trash containers. See State v. Hempele, 120 N.J. 182, 576 A.2d 793, 803 (1990) (undoubtedly, most people would be upset to see another person sifting through their garbage, perusing their discarded mail, reading their bank statements, looking at their empty pharmaceutical bottles, and checking receipts to see what videotapes they rent).

Further, that privacy interest is not lost merely because people follow the customary practice of depositing their garbage in closed containers at curbside for collection and disposal. First, the placement of trash in closed, opaque bags manifests an intent that the contents of the bags not be subjected to examination by the public in general or the police in particular. The State's point that opaque bags are used merely because they are the most common type of bag available only reinforces our point that most people would prefer the type of bag that will keep their trash private until it is commingled with other trash and loses its identity. See Note, California v. Greenwood: A Proposed Compromise to the Exploitation of the Objective Expectation of Privacy, 38 Buff.L.Rev. 647, 663 (1990) (nearly exclusive availability of opaque trash bags is result of consumers' desire for privacy). There is a privacy interest in opaque trash bags just as there is in any other closed container whose contents are not in plain view. See Savva, 159 Vt. at 89-90, 616 A.2d at 782 ("unworthy container" doctrine rejected; privacy interest exists in closed containers, regardless of their worth).

Second, by placing trash bags at curbside for...

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