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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-9496 | |
| Petitioner, | ) Trial Court No. 3PA-05-01069 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| JACK L. BELTZ, | ) |
| ) | |
| Respondent. | ) |
| ) No. 2105 - June 8, 2007 | |
Petition for Review
from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: Terisia K. Chleborad, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg and David W. M rquez,
Attorneys General, Juneau, for the
Petitioner. A. Lee Petersen, Petersen
Professional Corp., Willow, for the
Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
This case raises the question of whether, under Article
I, Section 14 of the Alaska Constitution, which prohibits illegal
searches and seizures, a person has a reasonable expectation of
privacy in garbage that is set out at the end of a driveway for
routine trash collection. We conclude that the Alaska Supreme
Courts decision in Smith v. State1 resolves this question, and
that there is no reasonable expectation of privacy in this
situation. Accordingly, we reverse the suppression order and
remand the case for further proceedings.
Factual and procedural background
In October 2004, employees of the Wasilla Carrs grocery
store reported to the Alaska State Troopers that a Native adult
male was making repeated purchases of items that are commonly
used to manufacture methamphetamine, including three boxes of
Sudafed and thirteen boxes of book matches. Based on the fact
that a Carrs club card belonging to Jack Beltzs father was used
when purchasing these items, and on the witnesses physical
descriptions of the buyer, police suspected that Jack Beltz was
the purchaser. Two of the Carrs employees also identified Beltz
as the purchaser from a photo lineup.
After the Carrs employees identified Beltz as the purchaser
of the suspected methamphetamine ingredients, Alaska State
Trooper Kyle Young drove out to Beltzs residence in Wasilla.
Beltz lived in a single-family home in Wasilla with his father.
While driving by Beltzs house, Trooper Young noticed several
garbage cans at the end of Beltzs driveway. Trooper Young
returned to Beltzs residence in the early morning hours of
October 21, accompanied by Palmer Police Officer Dwayne Shelton,
an investigator with the Mat-Su Drug Unit. Without a search
warrant, Trooper Young and Officer Shelton took two large black
garbage bags from one of the trash cans at the end of Beltzs
driveway. Before Trooper Young and Officer Shelton could take
the rest of the garbage bags, they noticed some lights being
turned on inside Beltzs residence, so they left with the
intention of returning later to finish the task. When Trooper
Young and Officer Shelton returned about an hour later, they
observed that someone was awake inside Beltzs residence watching
television. Trooper Young and Officer Shelton decided to leave
and return later in the morning with the local refuse collection
company in order to obtain the rest of the garbage.
That morning, Officer Shelton accompanied the trash
collector as he made his scheduled weekly trip to Beltzs
neighborhood. They picked up Beltzs remaining trash. The trash
collector, at Officer Sheltons request, deliberately isolated
Beltzs trash from the rest of the trash in his truck by
segregating it in the front hopper of the garbage truck. When
Trooper Young and Officer Shelton obtained this trash, they
observed that between the time they had seized the original bags
of trash earlier that morning and the time the garbage collector
returned to take away the remaining trash, someone had filled the
trash can again with more garbage.
Trooper Young and Officer Shelton proceeded to examine
the trash bags at the drug unit investigator offices. The two
bags contained numerous items that [would be] used in the process
to make meth[amphetamine], including eleven bottles or plastic
containers with liquid or solid methamphetamine lab waste and
byproduct, one empty container of Coleman fuel, one empty acetone
can, hundreds of matchbook covers with the striker plates
removed, seven empty containers of HEET, twelve empty bottles of
cold allergy tablets, stained coffee filters, stained tubing, and
stained latex gloves. Over the course of the next several weeks,
Trooper Young and other investigators working with the trash
collector in the same manner as before took more trash from
Beltzs residence, but found no more methamphetamine-related
items.
In December 2004, Trooper Young obtained a warrant to
search the Beltz residence. Trooper Young and Officer Shelton
contacted Beltz at his residence; Beltz allowed them to come
inside, and Trooper Young conducted a non-custodial, recorded
interview with Beltz. Trooper Young reported that Beltz admitted
he had purchased multiple items that he knew were being used to
manufacture methamphetamine. Beltz indicated to Trooper Young
that other people had paid him to shop for these items. According
to Trooper Young, Beltz also admitted that he had allowed a
friend to cook methamphetamine at his house on one occasion.
Beltz told Trooper Young that he threw out the items used in the
manufacturing process when the friend was finished, but
discovered that someone had removed several trash bags from the
trash can after he threw the items out. Trooper Young reported
that Beltz told him that he suspected the police had taken the
trash, and that it was only a matter of time before they were
caught. As a result, Beltz had ended his association with the
individuals involved with manufacturing methamphetamine.
Beltz then consented to a search of his residence, but
the investigators did not find any evidence of methamphetamine or
methamphetamine manufacturing at the residence.
Beltz was subsequently indicted on four charges of
misconduct involving a controlled substance in the second
degree.2 Beltz moved to suppress all evidence that
investigators had obtained by seizing his trash and interviewing
him in December 2004.
Superior Court Judge Beverly W. Cutler conducted a
three-day evidentiary hearing on the motion to suppress. At the
evidentiary hearing, Trooper Young testified that when he
gathered up the trash from Beltzs trash cans, the cans were
located where the driveway met the road. He also testified that
the trash cans were in a cart and that there were several other
garbage bags on top of and around the cans, but still inside the
cart. (The garbage cans were apparently secured inside the cart
with a bungee cord.)
After considerable evidence and argument concerning the
location of the cart, Judge Cutler concluded that the cart was
not on private property. Nevertheless, she ruled that, under the
circumstances, the police had no right to conduct a warrantless
search of Beltzs garbage. She concluded that Beltz had a
reasonable expectation of privacy in the trash and granted Beltzs
motion to suppress all of the evidence that resulted from the
police seizure of Beltzs trash. The State filed a petition for
review with this court. We granted review and now reverse Judge
Cutlers decision.
Why we conclude that the police could legally
search Beltzs trash without a warrant under
the United States Constitution
First, as a preliminary matter, under the Fourth
Amendment to the United States Constitution, Beltz had no
reasonable expectation of privacy in his trash placed at the end
of his driveway for collection. In California v. Greenwood,3 the
United States Supreme Court held that police seizure of garbage
that had been routinely collected is not subject to the warrant
requirements of the Fourth Amendment to the United States
Constitution.4
In Greenwood, police asked the neighborhood trash
collector to pick up Greenwoods trash, which Greenwood had left
on the curb in front of his house for routine collection.5 The
trash collector then picked up Greenwoods trash and turned it
over to police investigators. The police searched Greenwoods
trash bags without a warrant. Based on evidence of narcotics
trafficking they discovered in the trash, the police obtained a
search warrant, conducted a search of Greenwoods home, and
discovered controlled substances in the search.6 Greenwood was
arrested. After Greenwood posted bail, the police continued to
receive information that late-night visitors were frequenting
Greenwoods home; thus, police again collected his garbage, which
contained more evidence of drug use. Based on this evidence, a
second search warrant was issued, more drug evidence was found,
and Greenwood was again arrested.7
The United States Supreme Court reversed the California
Court of Appeals, which had affirmed suppression of the
evidence.8 Citing Justice Harlans concurrence in Katz v. United
States,9 the Court first explained that [t]he warrantless search
and seizure of the garbage bags left at the curb outside the
Greenwood house would violate the Fourth Amendment only if
[Greenwood] manifested a subjective expectation of privacy in
[his] garbage that society accepts as objectively reasonable.10
The Court concluded that, although Greenwood may have had an
expectation that the police would not search his trash before it
was picked up and hauled to the dump, the Court found that
Greenwood could have had no reasonable expectation of privacy in
the inculpatory items that [he] discarded.11 The Court based
this finding on the rationale that
[i]t 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,
[Greenwood] placed [his] refuse at the curb
for the express purpose of conveying it to a
third party, the trash collector, who might
himself have sorted through [Greenwoods]
trash or permitted others, such as the
police, to do so.[12]
The Court also reasoned that 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.13 The Court concluded that a person has no
legitimate expectation of privacy in information he voluntarily
turns over to third parties,14 and [w]hat a person knowingly
exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.15
The Courts decision in Greenwood disposes of Beltzs
claim under the Fourth Amendment. It is true that Greenwood
could be distinguished because a garbage collector, acting as an
agent of the police, picked up Greenwoods trash and then turned
it over to the police. In Beltzs case the police seized some of
Beltzs trash themselves. But this does not seem to us to be a
constitutionally significant distinction. We find persuasive the
Supreme Court of New Jerseys statement in State v. Hempele16 that
removal of trash by garbage collectors who, minutes later, turn
the trash over to the police is no different from direct removal
of the same trash by the police themselves.17
Why we conclude the police could legally
search Beltzs trash without a warrant under
the Alaska Constitution
We now turn to Beltzs claim under the Alaska
Constitution.18 Fifteen years prior to the Greenwood decision,
the Alaska Supreme Court decided Smith v. State.19 The court
held that the police could search, without a warrant, a tenants
trash which had been deposited in a dumpster that accommodated
several apartments.20 The dumpster was located outside of the
apartment building in Anchorage and the Municipality made routine
garbage pickups from the dumpster.21 Like the United States
Supreme Court later did in Greenwood, the Alaska Supreme Court
based its analysis on Justice Harlans concurring opinion in
Katz.22 The court concluded that even if Smith had an actual
subjective expectation of privacy, it was unable to hold that
society was prepared to recognize this expectation of privacy as
reasonable.23
To reach this conclusion, the supreme court first
examined Smiths clear intent to abandon the garbage. The court
stated that the protection of the Fourth Amendment does not
extend to abandoned property. Using traditional property law
concepts, we find it difficult to avoid the conclusion that any
items of garbage placed in a recepta[c]le outside the dwelling
... are abandoned.24
The supreme court concluded that the sequence of an
individuals placing an article in a receptacle, from which
routine municipal collections are made, and then withdrawing from
the area [is] activity clearly indicative of an intention to
relinquish all title, possession, or claim to property.25 The
supreme court differentiated this situation from one in which
property ... is abandoned but ... rests in a receptacle
temporarily maintained inside a dwelling, which could not be
searched without a warrant.26
But the court did not find the fact that Smith had
abandoned the property entirely conclusive as to whether the
police had conducted a reasonable search.27 After reviewing
several United States Supreme Court cases, the supreme court
concluded that even if Smith had abandoned the trash, the search
would still be illegal if she harbored a reasonable expectation
of privacy in the dumpster.28
The supreme court applied a two-part analysis to
determine whether Smith had a reasonable expectation of privacy
in the trash placed in the dumpster: first, whether Smith had an
actual, subjective expectation of privacy in the trash, and
second, whether this expectation was one that society was
prepared to recognize as reasonable.29 After reviewing the facts
of Smiths case the supreme court concluded that Smith did not
have a subjective expectation of privacy in the trash in the
dumpster.30 But even if she had, the court concluded that this
expectation was not one that society was prepared to recognize as
reasonable.31
In reaching this conclusion, the court identified four
factors relevant to the question of whether society is prepared
to recognize a reasonable expectation of privacy in trash: (1)
where the trash was located ; (2) whether the dwelling consisted
of multiple units or a single unit; (3) who removed the trash;
and (4) where the search of the trash took place.32 The supreme
court explained:
One may readily arrange these factors to form
a continuum. At one end of the continuum is
trash located close to a single-family
dwelling, on the same property as the
dwelling, and searched by police officers at
that location. We observe, without so
deciding, that this would be a strong case
for holding the expectation of privacy to be
reasonable. At the other end of the
continuum is trash located off the premises
of a multiple-unit dwelling, and searched by
a person authorized to remove it. In such a
case we would be unable to hold that the
expectation of privacy was reasonable.[33]
The supreme court placed the dumpster at issue at the
end of the continuum not encompassing a right to privacy because:
first, the dumpster accommodated several apartments, giving many
people living in the building [including] the superintendent
... occasion to scavenge about in the collective heap; second,
all municipal pickups were made from this dumpster and thus any
tenant ... could be sure that periodically a group of third
persons would look into the dumpster and possibly scavenge items
therefrom; and finally, that the dumpster was located outside the
building in the parking area ... [where] it would be reasonable
to expect trash to be accidently removed from the dumpster by
running children, passing cars, stray dogs, or even a visitor of
another tenant in the building.34 Based on these factors, the
supreme court held that Smith could not have harbored an
objectively reasonable expectation of privacy.35
Chief Justice Rabinowitz strongly dissented, arguing
that the warrantless search of Smiths garbage violated both the
United States and Alaska constitutions.36 We note that Professor
LaFave in his treatise on search and seizure agrees with Chief
Justice Rabinowitzs dissent.37
Beltz relies on a statement by the majority in Smith
that there is a strong case for holding the expectation of
privacy to be reasonable where the trash is located close to a
single-family dwelling, on the same property as the dwelling, and
searched by police officers at that location.38 Smith noted
this point, but explicitly did not reach this holding. And
although it is true that Beltz lived in a single-family home, we
think that his action of placing his trash in plain view at the
end of his driveway, where, as in Smith, it was left for routine
collection and could easily have been scavenged or accidentally
removed, showed that Beltz did not harbor a reasonable
expectation of privacy in the trash.39
We conclude that Smith requires us to hold that Beltz
did not have a reasonable expectation of privacy in his trash.
However, we recognize that, in Smith, the
supreme court stated that it was profoundly committed to the
preservation of personal privacy and that it was unwilling to
announce a general rule sanctioning official gathering and
analysis of an individuals refuse.40 Therefore the supreme court
specifically limited its holding to the particular facts of the
case before it. Furthermore, there was a strong dissent in
Smith, and the dissent is supported by Professor LaFave. In
addition, the decision in Smith is over thirty years old. Since
that time, many courts have struggled with the issue of whether a
person has a reasonable expectation of privacy in trash.
Although the majority of courts follow the reasoning of the
United States Supreme Court,41 some courts have concluded that
society should recognize that a person has a reasonable
expectation of privacy in trash.42 In particular, courts have
recognized that, with the advance of technology, the police can
learn a great deal about a persons life and associations,
including even obtaining DNA for testing and for investigation.43
Some courts have attempted to limit the ability of the police to
investigate a persons garbage by at least requiring the state to
have reasonable suspicion as a prerequisite to a warrantless
search.44
We certainly recognize that allowing the police to
search a persons trash without limitation raises serious concerns
that could threaten an individuals right to privacy. But we
consider the Smith case to be controlling. And Smith is
certainly consistent with the decisions of the United States
Supreme Court interpreting the United States Constitution.45 We
feel that we are bound by Smith. Whether Smith should be
modified is an issue for the Supreme Court of Alaska.
Conclusion
We accordingly conclude that, under the United States
and Alaska Constitutions, Beltz had no reasonable expectation of
privacy in the trash which he had set out for routine collection
and disposal by the trash collector. Judge Cutler erred when
she granted Beltzs motion to suppress the evidence the police
obtained following the warrantless search of Beltzs trash.
The order of the superior court granting Beltzs motion
to suppress is REVERSED.
_______________________________
1 510 P.2d 793 (Alaska 1973), cert. denied, 414 U.S. 1086,
94 S. Ct. 603, 38 L. Ed. 2d 489 (1973).
2 AS 11.71.020(a)(2)(A), (a)(3), (a)(4)(A), and (a)(5).
3 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).
4 Id., 486 U.S. at 43-44, 108 S. Ct. at 1630-31.
5 Id., 486 U.S. at 37, 108 S. Ct. at 1627.
6 Id., 486 U.S. at 37-38, 108 S. Ct. at 1627.
7 Id., 486 U.S. at 38, 108 S. Ct. at 1627-28.
8 Id., 486 U.S. at 38-39, 108 S. Ct. at 1628.
9 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
10 Greenwood, 486 U.S. at 39, 108 S. Ct. at 1628
(citations omitted).
11 Id., 486 U.S. at 40-41, 108 S. Ct. at 1628-29.
12 Id., 486 U.S. at 40, 108 S. Ct. at 1628-29 (footnotes
and citations omitted).
13 Id., 486 U.S. at 41, 108 S. Ct. at 1629.
14 Id., 486 U.S. at 41, 108 S. Ct. at 1629 (quoting Smith
v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 2582, 61 L.
Ed. 2d 220 (1979)).
15 Id. (quoting Katz, 389 U.S. at 351, 88 S. Ct. at 511).
16 576 A.2d 793 (N.J. 1990).
17 Id. at 798-99 (rejecting the argument that the
defendant had a reasonable expectation of privacy in garbage left
at the curb under the federal constitution in light of Greenwood,
but concluding that such a right did exist under the state
constitution). See also United States v. Webb, unpublished, 1989
WL 145383 at *1-2 (9th Cir. 1989) (holding that Alaska State
Trooper who took two opaque sealed garbage bags set near the
street outside the defendants home without a search warrant did
not violate the Fourth Amendment prohibition against warrantless
searches and seizures); Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment 2.6(c) at 698 (4th ed. 2004)
(noting that the reasoning [the Supreme Court applied in
Greenwood] supports the conclusion that the result would be the
same if the police themselves had intruded into garbage bags so
located) (footnote omitted).
18 Art. I, 14 (right against unreasonable searches and
seizures) and art. I, 22 (right to privacy).
19 510 P.2d 793.
20 Id. at 798-99.
21 Id.
22 Id. at 797 (citing Katz, 389 U.S. at 361, 88 S. Ct. at
516 (Harlan, J., concurring)).
23 Id.
24 Id. at 795 (footnote omitted).
25 Id. at 796 (quoting Edward G. Mascolo, The Role of
Abandonment in the Law of Search and Seizure: An Application of
Misdirected Emphasis, 20 Buff. L. Rev. 399, 401 (1970)) (footnote
omitted).
26 Id. at 795 n.7.
27 Id. at 796.
28 Id. at 796-97.
29 Id. at 797.
30 Id.
31 Id.
32 Id. at 797-98.
33 Id.
34 Id. at 798.
35 Id. (footnote omitted).
36 Id. at 799 (Rabinowitz, C.J., dissenting).
37 1 LaFave, Search and Seizure, 2.6(c) at 692, 701
(quoting extensively from Chief Justice Rabinowitzs dissent).
38 Smith, 510 P.2d at 798.
39 Id.
40 Id. at 795.
41 See Walls v. State, 536 So. 2d 137, 139 (Ala. Cr. App.
1988); Rikard v. State, 123 S.W.3d 114, 119 (Ark. 2003); State v.
Fassler, 503 P.2d 807, 813-14 (Ariz. 1972); People v. Hillman,
834 P.2d 1271, 1277 (Colo. 1992); State v. DeFusco, 620 A.2d 746,
751 (Conn. 1993); State v. Fisher, 591 So. 2d 1049, 1051 (Fla.
Dist. App. 1991); Perkins v. State, 398 S.E.2d 702, 704 (Ga. App.
1990); State v. Donato, 20 P.3d 5, 10 (Idaho 2001); People v.
Collins, 478 N.E.2d 267, 279 (Ill. 1985), revd on other grounds
by Bracy v. Gramly, 520 U.S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d
97 (1997); State v. Henderson, 435 N.W.2d 394, 396 (Iowa App.
1988); State v. Kimberlin, 984 P.2d 141, 146 (Kan. 1999); State
v. Strickland, 683 So. 2d 218, 228-29 (La. 1996); State v.
Sampson, 765 A.2d 629, 636 (Md. 2001); Commonwealth v. Pratt, 555
N.E.2d 559, 567 (Mass. 1990); People v. Pinnix, 436 N.W.2d 692,
694 (Mich. App. 1989); State v. Texel, 433 N.W.2d 541, 543 (Neb.
1989); State v. Hauser, 464 S.E.2d 443, 447 (N.C. 1995); State v.
Rydberg, 519 N.W.2d 306, 310 (N.D. 1994); State v. Brown, 484
N.E.2d 215, 217-18 (Oh. App. 1984); Cooks v. State, 699 P.2d 653,
656 (Okla. Crim. App. 1985); State v. Briggs, 756 A.2d 731, 743
(R.I. 2000); State v. Schwartz, 689 N.W.2d 430, 436 (S.D. 2004);
Levario v. State, 964 S.W.2d 290, 296 (Tex. App. 1997); State v.
Jackson, 937 P.2d 545, 550 (Utah App. 1997); State v. Stevens,
367 N.W.2d 788, 796-97 (Wis. 1985); Croker v. State, 477 P.2d
122, 125 (Wyo. 1970).
42 See People v. Krivda, 486 P.2d 1262, 1268-69 (Cal.
1971), vacated and remanded, 409 U.S. 33, 93 S. Ct. 32, 34 L. Ed.
2d 45 (1972), reaffd, 504 P.2d 457 (Cal. 1973), cert. denied, 412
U.S. 919, 93 S. Ct. 2734, 37 L. Ed. 2d 145 (1973); State v.
Tanaka, 701 P.2d 1274, 1276-77 (Haw. 1985); State v. Goss, 834
A.2d 316, 319 (N.H. 2003); State v. Hempele, 576 A.2d 793, 810
(N.J. 1990); State v. Granville, 142 P.3d 933, 942 (N.M. App.
2006), cert. granted,143 P.3d 185 (N.M. 2006); State v. Morris,
680 A.2d 90, 94-95 (Vt. 1996); State v. Boland, 800 P.2d 1112,
1117 (Wash. 1990). See also State v. Rhodes, 565 S.E.2d 266,
270-71 (N.C. App. 2002) (differentiating Hauser, 464 S.E.2d at
447, which upheld search of trash in backyard that was a
designated spot for trash collection, and holding that
warrantless police search of trash bags located immediately
beside the steps that led to the side-entry door of defendants
house and not intended for immediate municipal refuse collection
violated Fourth Amendment protection).
43 See, e.g., Tanaka, 701 P.2d at 1276-77; Hempele, 576
A.2d at 802-03; Granville, 142 P.3d at 941. See also State v. A
Blue in Color, 1993 Chevrolet Pickup, 116 P.3d 800, 806-07 (Mont.
2005) (Nelson, J., concurring); 1 LaFave, Search and Seizure,
2.6(c) at 692.
44 See Litchfield v. State, 824 N.E.2d 356, 363-64 (Ind.
2005) (holding that a warrantless search of garbage is reasonable
if there is articulable individualized suspicion that garbage
will contain evidence of criminal activity and garbage is
retrieved in substantially the same manner as the trash collector
would take it); A Blue in Color, 1993 Chevrolet Pickup, 116 P.3d
at 804-05 (adopting Litchfield rule as a matter of state
constitutional law).
45 See 1 LaFave, Search and Seizure, 2.6(c) at 696-97
(noting that in light of California v. Greenwood ... the Supreme
Court would agree with the result [of the Alaska Supreme Courts
decision] in Smith. ... In reaching [its holding that Greenwood
had no reasonable expectation of privacy in his trash], the Court
recognized both (i) that bags left on or at the side of a public
street are readily accessible to ... members of the public; and
(ii) that the defendant had put out his garbage 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) (citations
omitted).
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