State v. Sampson

• Decision Date: 16 January 2001
• Docket Number: No. 17,17
• Citation: 362 Md. 438,765 A.2d 629
• Parties: STATE of Maryland v. Donna L. SAMPSON.
• Court: Maryland Court of Appeals

765 A.2d 629

362 Md. 438

STATE of Maryland v. Donna L. SAMPSON.

No. 17, Sept. Term, 2000.

Court of Appeals of Maryland.

January 16, 2001.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Md., on brief), Baltimore, for petitioner.

Stephen Z. Meehan (David C. Wright and Joseph B. Tetrault of Wright & Meehan, on brief), Chestertown, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL and HARRELL, JJ.

WILNER, Judge.

Respondent was convicted in the Circuit Court for Dorchester County of possession of cocaine and maintaining a common nuisance. Those convictions rested in large part on evidence seized from her home pursuant to a search warrant. The probable cause for the warrant, in turn, was based principally on evidence taken by the police from trash bags that Respondent left out for collection by the municipal trash collector. The issue is whether the seizure of the trash bags and their contents violated respondent's rights under the Fourth Amendment and, as a result, fatally tainted the warrant, thereby making the evidence seized pursuant to it inadmissible. The Court of Special Appeals resolved that issue in respondent's favor and reversed her convictions. Sampson v. State, 130 Md.App. 79, 744 A.2d 588 (2000). We disagree and shall reverse the judgment of the Court of Special Appeals.

BACKGROUND

The Cambridge City police became suspicious of respondent when an area merchant reported to them that respondent had engaged the merchant to repair her car and had paid for the repairs with more than $3,000 in cash. Finding that to be unusual, the merchant took the cash to the police station, where an officer had the money scanned by a K-9 unit dog for the presence of controlled dangerous substances. The dog made a positive alert, following which Officer Lewis ascertained the identity and address of respondent and learned that she (1) had been convicted previously of possession and possession with intent to distribute cocaine, and (2) was living with a man who at least one citizen in the community informed the police was a major cocaine dealer.

With that information, Officer Lewis began looking for evidence by searching through respondent's trash.² He learned that the trash was routinely collected from respondent's home on Monday and Thursday mornings. On six successive trash collection days, either Officer Lewis or Officer Bromwell drove to the block where respondent lived just before the trash collector was due to arrive, picked up the trash bag(s) set out by her for collection, and took them to the police station, where they were opened and searched. The trash bags were opaque, made of white or green plastic and tied at the top. Among other things found in the bags were clear plastic baggies, with the bottom corners cut out, that contained traces of cocaine.

Respondent's home has a rather shallow front yard that leads to a municipal sidewalk, on the far side of which are the curb and the public street. In the yard near the sidewalk is a tree, and the trash bags were left in front of the tree, about two to three feet from the sidewalk. Standing on the sidewalk, the officer simply reached over the two to three feet of lawn and picked up the bag(s) without stepping on the lawn itself.

Respondent claimed at the suppression hearing that she had a "No Trespassing" sign posted prominently in her front window. The two officers testified that the sign was not present during the month-long period that they picked up the trash but was put up later. The trial judge credited the officers' testimony.

DISCUSSION

Whether it is permissible for the police, either directly or through prior arrangements with a trash collector, to seize and search through trash routinely set out by persons for collection has been the subject of considerable discussion in both court opinions and academic commentary. The basic principles guiding the discussion, at least since 1988, are found in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), in which the Court held that the police do not intrude upon Fourth Amendment rights when, through a prior arrangement with the regular trash collector, they obtain, open, and search through trash containers set out on the curb "outside the curtilage of a home" for collection. The debate in the courts has been whether that holding is limited to those circumstances, or whether it also embraces the situation that we have here, where the resident places the trash container within the curtilage of the property and the police take the trash directly from the property, rather than from the trash collector.³ Most of the courts have not found those differences to be significant; nor do we.

The touchstone of the Fourth Amendment analysis is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which tested whether the placement of a listening device on the roof of a public telephone booth constituted a violation of the Fourth Amendment rights of persons using the booth. The questions framed by the parties were whether a public telephone booth is a "constitutionally protected area" such that attachment of the listening device violated the right to privacy of a user of the booth, and whether physical penetration of a "constitutionally protected area" is necessary for a search to be regarded as violative of the Fourth Amendment. The Court began by expressly rejecting that formulation of the issue, noting that "the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase `constitutionally protected area.'" Id. at 350, 88 S.Ct. at 510, 19 L.Ed.2d at 581. Elucidating that point, the Court stated:

"[T]his effort to decide whether or not a given `area,' viewed in the abstract, is `constitutionally protected' deflects attention from the problem presented by this case. For the 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. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

Id. at 351-52, 88 S.Ct. at 511, 19 L.Ed.2d at 582 (citations omitted) (footnote omitted). Turning then to the Government's argument that the lack of physical penetration of the telephone booth withdrew the matter from Fourth Amendment concern, the Court noted that, although at one time the absence of penetration was thought to foreclose further Fourth Amendment inquiry, that view no longer prevailed—that the underpinnings of that notion, set forth in cases such as Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) "have been so eroded by our subsequent decisions that the `trespass' doctrine there enunciated can no longer be regarded as controlling." Katz, supra, 389 U.S. at 353,88 S.Ct. at 512,19 L.Ed.2d at 583.

In a concurring opinion, Justice Harlan noted that, although the Fourth Amendment did protect people rather than places, the protection it afforded required reference to a place. In a cogent and oft-quoted statement, he regarded the rule as being 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.'" Id. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 588 (Harlan, J., concurring). Thus, he explained, "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." Id.

Greenwood fed, to a large extent, on Katz, and, in particular, on Justice Harlan's concurring opinion in Katz. After her suspicions had been aroused by other information indicating that Greenwood was engaged in drug trafficking, a police officer arranged with the neighborhood's regular trash collector to deliver to her the trash bags picked up from the street in front of Greenwood's house, and she used the evidence found in those bags to obtain a search warrant. The California courts dismissed the ensuing charges, finding that the warrantless trash searches violated the Fourth Amendment.⁴

The Supreme Court reversed. Conceding that Greenwood may have entertained some subjective expectation of privacy in that he "did not expect that the contents of [his] garbage bags would become known to the police or other members of the public," Greenwood, supra, 486 U.S. at 39, 108 S.Ct. at 1628, 100 L.Ed.2d at 36, the Court concluded that such an expectation was not objectively reasonable:

"Here, we conclude that respondents 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. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage `in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,' respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded."

Id. at 40-41, 108 S.Ct. at 1628-29, 100 L.Ed.2d at 36-37 (emphasis added) (footnotes omitted) (citations omitted) (quoting United States v. Reicherter, 647 F.2d 397 (3d Cir.1981)).

Reinforcing its conclusion that society would not accept as reasonable Greenwood's subjective claim to an expectation of privacy, the Court noted "the unanimous...