State v. Pasanen

• Decision Date: 12 January 1989
• Citation: 552 A.2d 212,229 N.J.Super. 553
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James J. PASANEN, Defendant-Appellant. STATE of New Jersey, Plaintiff-Appellant, v. Conrad P. HEMPELE and Sharon Hempele, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 553

229 N.J.Super. 553

552 A.2d 212

STATE of New Jersey, Plaintiff-Respondent, v. James J. PASANEN, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Appellant, v. Conrad P. HEMPELE and Sharon Hempele, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 25, 1988.

Decided Jan. 12, 1989.

Susan Bielanowski, Stanhope, for appellant James J. Pasanen (Gannon, Murphy & Schwartz, attorneys; Edward V. Gannon, Morristown, on the brief).

Boris Moczula, Deputy Atty. Gen., for plaintiff-respondent, plaintiff-appellant. (W. Cary Edwards, Atty. Gen. of New Jersey, attorney; Boris Moczula, of counsel and on the brief).

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

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

Before Judges ANTELL, HAVEY and BROCHIN.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

In these appeals, which we have consolidated for review, we consider the extent to which police may, without a warrant, constitutionally search for and seize evidence, from containers of household refuse. In State v. Pasanen, the trial court found that defendant's plastic garbage bags had been left out on the public roadway for collection. It held, however, that by placing a container of garbage out for collection, one does not necessarily relinquish all privacy interests in its contents. Reasoning that although one may justifiably expect that such garbage will not be searched arbitrarily, it concluded that expectations of privacy were not justified as to searches made in furtherance of a police investigation grounded in "some plausible suspicion" of criminal wrongdoing. It found that the police acted on the basis of suspicions which, though not rising to the level of probable cause, were nevertheless sufficient to "alert them to the fact that there [was a] reasonable professional basis for investigation," and it denied defendant's motion to suppress. The items sought to be suppressed had been seized under a search warrant issued in partial reliance upon the evidence previously taken without a warrant from defendant's garbage. Defendant appeals.

In State v. Hempele, the State appeals from the trial court's order suppressing evidence also seized under a warrant based upon the results of a warrantless garbage search. ¹ The court stated that it was granting relief because the State had failed to demonstrate that the plastic pail from which the refuse was taken was located on public property at the time of the search.

Although the question immediately presented in both cases is whether the search warrants were valid, our inquiry focuses on the legitimacy of the garbage seizures. We conclude that police may search without a warrant through abandoned household refuse where they have information which, though less than probable cause for the issuance of a search warrant, may reasonably induce conscientious and experienced police officers to believe that their exploration will uncover evidence of crime.

In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), decided after the determinations here under review, the United States Supreme Court held that "the warrantless search and seizure of garbage left for collection outside the curtilage of a home" was not prohibited by the Fourth Amendment to the United States Constitution. Id., 486 U.S. at ----, 108 S.Ct. at 1627, 100 L.Ed.2d at 34. Although it did not believe this fact to be critical, the trial court in State v. Pasanen found that the bags put out for collection in that case "were within the legal limits of the roadway and therefore off the private property." Under Greenwood, therefore, that search was valid pursuant to federal constitutional standards. Greenwood leaves unanswered, however, questions as to whether the seizure of household garbage is invalid under federal standards where the container searched is located, as in State v. Hempele, on private property, ² and as to the status of garbage searches under Article I, paragraph 7 of the New Jersey Constitution.

Although the narrow question framed in Greenwood addressed the validity of a warrantless search and seizure of garbage "left for collection outside the curtilage of a home," 486 U.S. at ----, 108 S.Ct. at 1627, 100 L.Ed.2d at 34, the Supreme Court ruled that the answer was controlled by whether or not defendants manifested a "subjective expectation of privacy in their garbage that society accepts as objectively reasonable." 486 U.S. at ----, 108 S.Ct. at 1628, 100 L.Ed.2d at 36. The Court then rejected defendants' claim of privacy in the following language:

Here, we conclude that [defendants] exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.

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Furthermore, as we have held, 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. Hence, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." [ 389 U.S. 347] at 351, 19 L Ed 2d 576, 88 S Ct 507 [at [ 486 U.S. at ---- - ----, 108 S.Ct. at 1628-1629, 100 L.Ed.2d at 36-37 (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 % L.Ed..2d 576, 582 (1967) (footnotes omitted) (emphasis supplied) ) ].

The implication of the foregoing is that the trash container's presence on private property does not conclusively impair the validity of a warrantless police search under the federal Constitution. Other courts have also reached this result where the refuse was otherwise accessible to the public. See, e.g., United States v. Kramer, 711 F.2d 789, 792 (7th Cir.1983), cert. den. 464 U.S. 962, 104 S.Ct. 397, 78 L.Ed.2d 339 (1983) (police removed trash bags from plastic trash containers located by roadside within fence in front of defendant's home); United States v. Sumpter, 669 F.2d 1215, 1221 (8th Cir.1982) (police retrieved garbage from collector who removed it from defendant's premises); United States v. Biondich, 652 F.2d 743, 744-745 (8th Cir.1981), cert. den. 454 U.S. 975, 102 S.Ct. 527, 70 L.Ed.2d 395 (1981) (police obtained garbage from defendant's private garbage-hauling service which removed it from defendant's property); United States v. Crowell, 586 F.2d 1020, 1024-1025 (4th Cir.1978), cert. den. 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979) (defendant's private trash collector removed trash bag from defendant's property and turned it over to police); United States v. Alden, 576 F.2d 772, 776-777 (8th Cir.1978), cert. den. 439 U.S. 855, 99 S.Ct. 167, 58 L.Ed.2d 161 (1978) (federal agents removed items from pile of partially burned trash located on defendant's property); United States v. Shelby, 573 F.2d 971, 973-974 (7th Cir.1978) (at request of federal agents, sanitation workers removed and turned over garbage located within fence on defendant's property); Cooks v. State, 699 P.2d 653, 656 (Okla.Crim.1985), cert. den. 474 U.S. 935, 106 S.Ct. 268, 88 L.Ed.2d 275 (1985) (police confiscated evidence found in trash can located in defendant's front yard); State v. Stevens, 123 Wis.2d 303, 314-317, 367 N.W.2d 788, 794-797 (1985), cert. den. sub nom. Stevens v. Wisconsin, 474 U.S. 852, 106 S.Ct. 151, 88 L.Ed.2d 125 (1985) (collector removed garbage from defendant's garage and turned it over to police); State v. Ronngren, 361 N.W.2d 224, 228-230 (N.D.1985) (police seized garbage which a dog had removed from defendant's property and transported to a neighbor's yard); State v. Oquist, 327 N.W.2d 587, 589-591 (Minn.1982) (deputies removed garbage placed near public alley behind defendant's house); People v. Whotte, 113 Mich.App. 12, 317 N.W.2d 266, 268-269 (1982) (police recovered garbage located in backyard of two-family house where defendant resided); State v. Schultz, 388 So.2d 1326 (Fla.App.1980) (police confiscated trash bags located on sidewalk in front of defendant's home); State v. Fassler, 108 Ariz. 586, 592-593, 503 P.2d 807, 813-814 (1972) (police removed burlap bags from garbage cans located in alleyway on the side of defendant's house); State v. Trahan, supra, note 2, 229 Neb. 683, 428 N.W.2d 619, cert. den. sub nom. Trahan v. Nebraska, 488 U.S. 995, 109 S.Ct. 561, 102 L.Ed.2d 586 (1988) (police searched containers on defendant's property four feet from door of his home).

The determining factor in the foregoing cases was whether or not the garbage had been abandoned. That it may have been taken from private property evidently did not dictate how the question of abandonment would be resolved.

In State v. Novembrino, 200 N.J.Super. 229, 240, 491 A.2d 37 (App.Div.1985), aff'd 105 N.J. 95, 519 A.2d 820 (1987), we noted that "our State Supreme Court has made clear its intention to afford persons in this State greater protection against unreasonable searches and seizures than afforded by the United States Supreme Court's interpretation of the Fourth Amendment." It is natural, then, that in considering the views expressed thereon by the weight of authority we remain mindful of the basically intrusive character of garbage searches. Justice Brennan described it in his dissent from Greenwood in the following language:

A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. 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...