State v. Schultz

• Decision Date: 08 October 1980
• Docket Number: No. 78-2355,78-2355
• Citation: 388 So.2d 1326
• Parties: STATE of Florida, Appellant, v. David Eugene SCHULTZ, Appellee.
• Court: Florida District Court of Appeals

Page 1326

388 So.2d 1326

STATE of Florida, Appellant, v. David Eugene SCHULTZ, Appellee.

No. 78-2355.

District Court of Appeal of Florida, Fourth District.

Oct. 8, 1980.

Rehearing Denied Nov. 12, 1980.

Michael J. Satz, State's Atty., and Patti Englander, Asst. State's Atty., Fort Lauderdale, for appellant.

James O. Birr, Jr., Fort Lauderdale, for appellee.

MOORE, Judge.

This is an appeal by the State from an order granting the appellee's motion to suppress evidence obtained as a result of a search warrant. The warrant was issued on the basis of warrantless seizure by police of trash bags which had been placed by the appellee, David Schultz, in front of his residence for collection.

The sole issue for our consideration is whether one who places his trash in the swale area in front of his home for collection in accordance with applicable city ordinances governing trash collection maintains a reasonable expectation of privacy in that trash. We hold that he does not and reverse.

On January 26, 1978, while conducting an ongoing investigation and surveillance of Schultz's leased residence, Sergeant Craig Mott of the Sunrise Police Department observed a man exit the garage of the residence and place a total of five green, opaque, secured plastic bags and two silver trash cans on the swale area in front of the residence. Shortly thereafter, the officer confiscated the trash bags, removing them to an area where they were then examined by several officers. Examination revealed twelve partially smoked marijuana cigarettes and a cigarette holder with marijuana residue in it. Based on these findings a search warrant was issued for the premises and curtilage. In granting a motion to suppress the evidence obtained by execution of the warrant, the trial court held that Schultz had a reasonable expectation of privacy concerning the contents of his trash bags until the bags were collected by authorized trash collectors and their contents intermingled with the common trash in the garbage truck.

The essence of the State's contention is that Schultz, by placing the trash on the swale area for collection, abandoned the trash and relinquished any expectation of privacy which he might have had in the trash. Although noting that there is no Florida case directly on point, the State relies on a line of cases which hold that no search occurs when a person voluntarily abandons an item of property subsequently seized by the police. Mitchell v. State, 60 So.2d 726 (Fla.1952); State v. Oliver, 368 So.2d 1331 (Fla. 3rd DCA 1979); Freyre v. State, 362 So.2d 989 (Fla. 3rd DCA 1978); Smith v. State, 333 So.2d 91 (Fla. 1st DCA 1976); State v. Gallo, 279 So.2d 71 (Fla. 2nd DCA 1973); Riley v. State, 266 So.2d 173 (Fla. 4th DCA 1972); State v. Jackson, 240 So.2d 88 (Fla. 3rd DCA 1970). For the most part, these cases involved attempts to dispose of contraband upon the approach of police authorities:

Central to this line of cases is the court's conclusion that the police seizure of such evidence does not invade a reasonable expectation of privacy belonging to the person in question. In each case, the person has made a voluntary decision to avoid a police search by discarding evidence in an area where he has no Fourth Amendment protection. As a consequence, he cannot later claim that, notwithstanding his conduct, he was the victim of a police search as to the evidence he discarded. State v. Oliver, supra, at 1335.

Notwithstanding the lack of controlling authority directly on point, both sides have cited numerous cases from other jurisdictions on the subject.

The reasoning of the cases holding that a person has no expectation of privacy in trash placed for collection is exemplified in People v. Huddleston, 38 Ill.App.3d 277, 347 N.E.2d 76 (1976):

When defendant placed the trash at curbside for collection, he relinquished control and possession and abandoned it in the sense that he demonstrated an unequivocal intention to part with it forever. Under these circumstances, defendant must be held to have assumed the risk that the rubbish collector may permit the police to examine the trash, as in Croker, supra, or that the police themselves may seize the trash, as in Fassler and Mustone, supra. 347 N.E.2d at 80-81.

The holding in Huddleston is apparently in line with the majority of the jurisdictions which have considered this issue. See, United States v. Vahalik, 606 F.2d 99 (5th Cir. 1979), cert. denied, 444 U.S. 108, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980); United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978), cert. denied 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979); United States v. Shelby, 573 F.2d 971 (7th Cir. 1978), cert. denied 439 U.S. 841, 99 S.Ct. 132, 58 L.Ed.2d 139 (1978); United States v. Alden, 576 F.2d 772 (8th Cir. 1978), cert. denied 439 U.S. 855, 99 S.Ct. 167, 58 L.Ed.2d 161 (1978); Magna v. Benson, 536 F.2d 111 (6th Cir. 1976) (Per Curiam); United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212 (2nd Cir. 1971), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971); United States v. Minker, 312 F.2d 632 (3rd Cir. 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963). See also, State v. Austin, 584 P.2d 853 (Utah 1978); People v. Klausing, 41 Ill.App.3d 588, 353 N.E.2d 441 (1976); Willis v. State, 518 S.W.2d 247 (Tex.Crim.App.1975); Smith v. State, 510 P.2d 793 (Alaska 1973); Croker v. State, 477 P.2d 122 (Wyo.1970).

The contrary view is illustrated in People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), reaffirmed, 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457 (1973):

The placement of one's trash barrels onto the sidewalk for collection is not, however, necessarily an abandonment of one's trash to the police or general public. To the contrary, many municipalities have enacted ordinances which restrict the right to collect and haul away trash to licensed collectors, whose activities are carefully regulated. (See e. g., Los Angeles County Ord.No. 5860, ch. IX, §§ 1611-1622, 1681-1691). Moreover, these ordinances commonly prohibit unauthorized persons from tampering with trash containers. (Id., § 1710). The provisions of these ordinances would appear to refute the view that the contents of one's trash barrels become public property when placed on the sidewalk for collection.

Aside from municipal ordinances, there may exist an additional element of expected privacy whenever one consigns his property to the trash can, to be dumped, destroyed and forgotten. As stated in Edwards, "The marijuana itself was not visible without 'rummaging' in the receptacle. So far as appears defendants alone resided at the house. In the light of the combined facts and circumstances it appears that defendants exhibited an expectation of privacy, and we believe that expectation was reasonable under the circumstances of the case. We can readily ascribe many reasons why residents would not want their castaway clothing, letters, medicine bottles or other telltale refuse and trash to be examined by neighbors or others, at least not until the trash had lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere. Half truths leading to rumor and gossip may readily flow from an attempt to 'read' the contents of another's trash." (Emphasis supplied; People v. Edwards, supra, 71 Cal.2d 1096, 1104, 80 Cal.Rptr. 633, 638, 458 P.2d 713, 718). 96 Cal.Rptr. at 68, 486 P.2d at 1268.

Although we are impressed with the argument that "half truths leading to rumor and gossip may readily flow from an attempt to 'read' the contents of another's trash", we are not persuaded by Krivda. The Fourth Amendment protects individuals from unreasonable searches or seizures by agents of the government, not from intrusion from neighbors or others. There is no dispute here that a seizure by the police did occur. Thus, we must determine whether the actions of the police were reasonable. In doing so, it is necessary to discuss abandonment, not in the sense of personal property concepts, but rather as it relates to an expectation of privacy.

As stated in Huddleston, supra,

(T)he location of the trash is a significant factor in determining whether defendant has abandoned the trash or whether defendant has a "reasonable expectation of privacy," because any analysis of that expectation is inextricably bound up in the physical location of the trash. As was stated in Patler v. Slayton, (4th Cir. 1974), 503 F.2d 472, 478:

"The maxim ... that the fourth amendment protects 'people not places' is the only limited usefulness, for in considering what people can reasonably expect to maintain as private we must inevitably speak in terms of places." Huddleston, supra, at 80.

Some locations give rise to a greater and more reasonable expectation of privacy than others. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, in Ball v. State, 57 Wis.2d 653, 205 N.W.2d 353 (1973), location (trash at the rear of defendant's property) was the court's primary concern in finding no indication that the defendant intended to relinquish control and possession. And in Everhart v. State, 274 Md. 459, 337 A.2d 100 (1975), a conviction was reversed and the case remanded for determination of the defendant's legitimate expectation of privacy in the area where the search occurred.

Abandonment of personal property is the intention to part with the property forever. While an individual may demonstrate an intention to forever part with his trash by placing it in a container at the rear of his home or in a garage or carport, he may still harbor a reasonable expectation of privacy in it in the sense that it is retrievable. We are of the view, however, that once the trash is deposited on the swale for collection it is unreasonable to expect that its security will remain inviolate until it is commingled with all...