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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beltz v. State (12/18/2009) sp-6441
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JACK L. BELTZ, | ) |
| ) Supreme Court No. S- 12775 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-9496 | |
| v. | ) Superior Court No. 3PA-05-1069 CR |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6441 December 18, 2009 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: A. Lee Petersen, Petersen
Professional Corp., Willow, for Petitioner.
Terisia K. Chleborad, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
WINFREE, Justice, dissenting.
I. INTRODUCTION
I. The question presented here is whether police officers
violated Jack Beltzs right to be free from unreasonable searches
and seizures when, without a warrant, they seized and searched
garbage he had set out on public property for collection. The
superior court held that they did and suppressed the evidentiary
fruits of the search. The court of appeals reversed, holding
that the search did not violate the federal and state
constitutions. Beltz appeals. He argues primarily that the
court of appeals incorrectly applied the current standard for
analyzing garbage searches under the Alaska Constitution, and
argues alternatively that we should adopt a more protective
standard. We affirm the result reached by the court of appeals.
We hold that, under the Alaska Constitution, some expectation of
privacy in garbage set out for routine collection on or adjacent
to a public street (or a public area) is objectively reasonable,
but that in this case the police officers reasonable suspicion
that Beltz was manufacturing methamphetamine was sufficient to
justify their warrantless seizure and search of his garbage.
II. FACTS AND PROCEEDINGS
In October 2004 employees of a Carrs grocery store in
Wasilla reported to police that an adult male had purchased
numerous quantities of items commonly used to make
methamphetamine. The police obtained receipts for thirteen boxes
of matches and three boxes of Sudafed that had been purchased
using a Carrs Club card registered to Jack Beltzs father. The
police recognized the employees description of the buyer as that
of Jack Beltz, and, according to the police log and affidavits,
on or about October 21 two of the three grocery store employees
identified Jack Beltz from a photo lineup.
At around two a.m. on October 21, 2004, police officers
drove to the single-family home where Jack Beltz lived with his
father.1 A driveway approximately thirty or more feet long ran
from the street to the home. At the street end of the driveway,
there were two lidded garbage cans inside a wheeled cart with
three wooden sides; a bungee cord secured the fourth side. Beltz
had set the containers out, apparently at around ten or eleven
that evening, so they could be emptied by trash collectors early
the next morning. The parties disputed whether this garbage was
on the Beltzes property or on public property; the superior court
found by a preponderance of the evidence that it was on public
property, but recognized that the location likely appeared to be
part of the Beltzes private property.
The officers removed one or two garbage bags that were
in or around the cans. The officers left the area, taking the
seized bags with them, when they saw lights turn off inside the
house. After the officers left, Beltz put a new bag of garbage
in a now-empty can. He later testified that he had seen someone
take his garbage bags that night. When the police examined the
contents of the bags they found evidence of methamphetamine
manufacturing.2
The officers returned at around seven-thirty a.m.,
having arranged for one officer to ride along with the regular
garbage collector to pick up the rest of Beltzs trash and keep it
separate from other peoples trash. The police took this garbage
back to their office and found in it additional household items
commonly used to manufacture methamphetamine. Over the next
several weeks officers worked with the trash collectors in the
same way to take additional garbage from Beltzs house, but found
no additional methamphetamine-related items.
Apparently based in part on evidence from the October
21 garbage search, officers obtained a warrant to search Beltzs
home in December 2004. No incriminating evidence was found in
the home, but Beltz made several incriminating statements in an
interview conducted during the search. According to an officers
summary of the interview, Beltz admitted that: he had purchased
items that he knew would be used to manufacture methamphetamine;
he bought the items for three people who paid him to do so, and
once allowed one of them to cook methamphetamine at his house;
when that person left the house, Beltz cleaned up and put
everything in the trash; and he cut off all association with
those three people after seeing someone take his garbage in
October.
In May 2005 a grand jury indicted Beltz on three counts
of second-degree misconduct involving a controlled substance and
one count of fourth-degree misconduct involving a controlled
substance.3 Beltz moved to suppress all evidence obtained as a
result of the garbage search. The superior court held an
evidentiary hearing at which Beltz, his father, and several
police officers testified. At the conclusion of the hearing the
court granted the motion to suppress. The state filed a petition
for review with the court of appeals, which reversed the superior
courts decision.4
Beltz filed a petition for hearing with this court,
arguing that the removal and examination of his garbage was an
unreasonable search and seizure in violation of the Fourth
Amendment of the United States Constitution and article I,
section 14 of the Alaska Constitution. After hearing oral
argument, we requested supplemental briefs on whether we should
adopt a reasonable suspicion standard for warrantless garbage
searches, and whether reasonable suspicion supported the search
in this case. Both Beltz and the state argue in their
supplemental briefs against adopting a reasonable suspicion
standard; the parties disagree about whether the police had
reasonable suspicion to conduct this search.
III. STANDARD OF REVIEW
Whether a defendant had a subjective expectation of
privacy is a question of fact, and we review the superior courts
finding on the issue for clear error.5 A finding of fact is
clearly erroneous if a review of the record leaves us with a
definite and firm conviction that a mistake has been made.6
Whether the subjective expectation of privacy was objectively
reasonable is a question of law that we review de novo.7
Whether to adopt a new constitutional standard is a
question of law.8 We review constitutional questions de novo,
adopting the rule that is most persuasive in light of precedent,
reason, and policy.9
IV. DISCUSSION
A. Did the Search of Beltzs Garbage Violate His Federal
Constitutional Right To Be Free from Unreasonable Searches and
Seizures?
A. Beltz appears to argue that the search of his garbage
violated his right to be free from unreasonable searches and
seizures under the Fourth Amendment of the United States
Constitution.10 But in a factually similar case the United States
Supreme Court held to the contrary. In California v. Greenwood
the Court held that police did not need a warrant to search
garbage the defendants had placed on the curb or street in front
of their house for routine garbage collection.11 The Court based
its analysis on Justice Harlans concurring opinion in Katz v.
United States,12 and reasoned that the Fourth Amendments warrant
requirement would apply only if the defendant had a subjective
expectation of privacy in the garbage and if society accepted
that expectation as objectively reasonable.13 The Court concluded
that any subjective expectation of privacy the defendants had in
garbage left for collection in an area accessible to the public
or at the side of a public street was not reasonable.14
The superior court found that Beltz placed his garbage
on public property at the end of his driveway near the street so
it could be picked up by garbage collectors. Greenwood controls
Beltzs federal constitutional claim. The search and seizure of
Beltzs garbage did not violate the Fourth Amendment.
B. Did the Search of Beltzs Garbage Violate His Alaska
Constitutional Right To Be Free from Unreasonable Searches and
Seizures?
In 1973 we held in Smith v. State15 that a warrantless
search of garbage bags the defendant had placed in a dumpster
outside, but on the property of, her apartment building did not
violate article I, section 14 of the Alaska Constitution.16 The
state argues, and the court of appeals held, that the search of
Beltzs garbage was permissible under Smith.17 Beltz argues that
the court of appeals incorrectly applied Smith, and argues
alternatively that we should adopt a standard that is more
protective of privacy rights and the right to be free from
unreasonable searches and seizures.
As the Supreme Court was to do later in Greenwood,18 we
based our analysis in Smith on Justice Harlans concurring opinion
in Katz and adopted his proposed two-prong test for deciding
whether a warrant was required.19 The parties in the present case
disagree about the outcome under each prong of this standard:
whether the defendant had a subjective expectation of privacy,
and whether that subjective expectation was objectively
reasonable. Beltz argues that he subjectively expected his trash
to remain private,20 and that his subjective expectation was
objectively reasonable. The state argues that Beltz did not
expect his trash to remain private and that any subjective
expectation of privacy he had in his trash would have been
objectively unreasonable.
The state also argues that this case is not yet ripe
for review because the superior court did not explicitly find
that Beltz had a subjective expectation of privacy. Beltz
contends that the superior court did find that he had that
expectation, but that it did so implicitly, rather than
explicitly. He reasons that the superior court would not have
addressed the reasonableness question unless it had first
implicitly found that Beltz had a subjective expectation of
privacy.
We assume, without deciding, that the superior court
implicitly found that Beltz had a subjective expectation of
privacy, and that this implicit finding was both sufficient and
not clearly erroneous.21 We instead focus on whether any
subjective expectation of privacy Beltz had in the garbage was
objectively reasonable.
1. Was Beltzs expectation of privacy objectively reasonable?
1. The state argues that any subjective expectation of privacy
Beltz had in his garbage was not objectively reasonable under the
standard we articulated in Smith v. State.22 Beltz argues that
his expectation was reasonable under Smith and, alternatively,
that we should adopt a more rigorous standard. The superior
court and court of appeals were constrained to apply Smith. The
court of appeals reversed the superior courts holding that Beltzs
expectation of privacy was reasonable under the Smith standard.23
In Smith we adopted the two-prong analysis proposed in
Justice Harlans concurrence in Katz, and listed four factors that
could be used to determine whether a persons subjective
expectation of privacy in his trash was objectively reasonable:
(1) where the trash was located, (2) whether the dwelling was
multiple or single unit, (3) who removed the trash, and (4) where
the search of the trash took place.24 We explicitly limited our
holding in Smith to the particular facts of the case at bar.25
Beltz urges us to replace the Smith factors with the
standard Chief Justice Rabinowitz proposed in his dissent in
Smith.26 Under that standard, courts would determine whether an
expectation of privacy in garbage was objectively reasonable by
examining [the defendants] behavior . . . to determine whether or
not she intended to knowingly disclose to the public, publicly
communicate, or publicize the contents of her garbage.27 If the
answer is no, the defendant has a constitutionally protected
privacy interest, and a warrant is required to search the
garbage. The dissenting opinion would adopt that standard.28 But
carried to its logical conclusion, that standard would seem to
foreclose warrantless searches of garbage even after the garbage
bags have reached a landfill, and probably even after they have
been long buried. Those examples illustrate that application of
that standard ultimately turns on the defendants subjective
expectations, and effectively ignores the objective
reasonableness of those expectations.
The parties arguments present us with two
irreconcilable choices: either (1) requiring a warrant for
garbage searches, on a theory there is a reasonable expectation
of privacy in ones garbage after it has been set out on or
adjacent to a public street (or a public area) for collection or,
possibly, even after it has been collected, or (2) holding that
no expectation of privacy in garbage set out for collection on or
adjacent to a public street (or a public area) is reasonable, and
that police therefore do not need a warrant or any cause to
search it. Both choices fail to recognize the subtle balancing
inherent in deciding the extent to which society is willing to
recognize an expectation of privacy as reasonable. We decline to
adopt either of these approaches.
In so doing, we affirm Smiths adoption of the two-prong
Katz analysis, and note that the Smith factors, which are not the
exclusive considerations that affect whether an expectation of
privacy is reasonable, may still be relevant to searches of
garbage not set out on or adjacent to a public street or a public
area. Moreover, we acknowledge that the explicit protection of
privacy set out in article I, section 22 of the Alaska
Constitution necessarily modifies Smith and increases the
likelihood that a persons expectation of privacy in garbage can
be deemed objectively reasonable.29
Although Smith was decided in 1973, it arose in 1970
and the appellate briefs were submitted in that case before
Alaska voters amended the state constitution in August 1972 to
adopt the privacy amendment.30 In analyzing Smiths suppression
argument, our opinion addressed only article I, section 14 (the
right to be free from unreasonable searches and seizures), the
sole Alaska constitutional provision raised by the parties.31 The
explicit privacy protection now contained in our constitution
necessarily affects how the two-prong Katz analysis applies to
garbage searches: a defendants privacy interest in garbage is
entitled to greater protection than we recognized, or needed to
recognize, in Smith.
Since deciding Smith, we have recognized that [b]ecause
this right to privacy is explicit, its protections are
necessarily more robust and broader in scope than those of the
implied federal right to privacy32 and have held that where a
search is alleged to be unconstitutional, section 14s standards
for a proper search and seizure are inexorably entwined with
section 22s privacy protections.33 We have invoked the privacy
amendment in opinions: barring the state from surreptitiously
recording conversations in certain circumstances;34 prohibiting
warrantless administrative inspections of certain business
premises;35 and preventing police from opening closed luggage
during an inventory search of a vehicle.36 In each of these cases
the privacy amendment affected our analysis of search and seizure
protections, as it must here.
As the court of appeals stated in its decision below,
courts have recognized that, with the advance of technology, the
police can learn a great deal about a persons life and
associations [by searching garbage], including even obtaining DNA
for testing and for investigation.37 Based on article I, sections
14 and 22, and the highly personal information that can be
revealed by a garbage search, we hold that a person who sets out
garbage for routine collection on or adjacent to a public street
(or a public area) has some objectively reasonable expectation of
privacy in that garbage.38
2. Was the search unreasonable?
Holding that Beltz had some objectively reasonable
expectation of privacy in his garbage does not resolve the
questions before us. We must still decide whether the search was
unreasonable under the Alaska Constitution.
a. The reasonable suspicion standard
a. We have consistently held that a warrantless search is per
se unreasonable unless exigent circumstances exist or another of
the limited exceptions to the warrant requirement applies.39 But
a persons expectation of privacy in garbage set out on or
adjacent to a public street or a public area for collection does
not merit the same level of protection as a persons expectation
of privacy in, for example, his or her home or person. It is not
objectively reasonable for a person to expect the same level of
privacy in such garbage. The owner not only intends to expose
the garbage to routine pickup, but also risks potential
intrusions by intermeddling humans (even garbage collectors), and
the possibility that animals, snow plows, and wind may reveal the
contents of the garbage containers.40
As we held in State v. Myers,
Expectations of privacy are not all of the
same intensity. . . . Both subjectively and
in societys judgment as to what is
reasonable, distinctions may be made in the
varying degrees of privacy retained in
different places and objects. When a police
intrusion takes place in a context in which
only a diminished expectation of privacy
exists, such a search must be reasonable
within the meaning of the Constitution, but
may not necessarily be subject to the warrant
requirement.[41]
Any expectation of privacy in garbage set out for routine street-
side collection is diminished. That expectation therefore does
not necessarily require the protections of a warrant before
police can conduct a search, even given Alaskas explicit right to
privacy.42
Nonetheless, this diminished privacy interest is still
entitled to some protection against undue government intrusion.43
We conclude that it is consistent with the privacy amendment and
the prohibition against unreasonable searches and seizures to
allow a warrantless search of garbage set out on or adjacent to a
public street for routine collection only if police have a
reasonable suspicion that the garbage contains evidence of a
serious crime.44 Garbage sweeps, or searches of garbage not
suspected to contain evidence of a serious crime, are not
permissible.
The reasonable suspicion standard is most often applied
in the context of investigatory stop-and-frisks. Under certain
circumstances, a police officer may, without a warrant,
temporarily detain a person for questioning and pat down the
persons clothing for the sole purpose of detecting weapons or
other contraband.45 In Alaska, a police officer may make an
investigatory stop if the officer has a reasonable suspicion that
imminent public danger exists or serious harm to persons or
property has recently occurred. 46 An officer has a reasonable
suspicion if the totality of the circumstances indicates that
there is a substantial possibility that conduct giving rise to a
public danger has occurred, is occurring, or is about to occur.47
This same standard applies by analogy to garbage searches: a
warrantless search of garbage set out on or adjacent to a public
street for collection is permissible only if the totality of the
circumstances indicates that there is a substantial possibility
that imminent public danger exists or that conduct giving rise to
serious harm to persons or property has recently occurred, is
occurring, or is about to occur.
In the investigatory stop context, we
recently noted that [i]n evaluating whether a
specific stop was legal, Alaska courts apply
a balancing test . . . . The degree of
threat to the public safety and the imminence
of that threat (or the seriousness of an
already committed crime and the recency of
the crime)[] must be weighed against the
strength of the officers reasonable suspicion
and the intrusiveness of the stop.[48]
This test is an expression of the broader principle that if a
search (or seizure) is minimally invasive of privacy, the
reasonableness of the search is determined by balancing the need
to search against the invasion that the search entails.49
We recognize that our investigatory stop jurisprudence
is not perfectly transferable to the garbage search context. The
governments need for imminent action in garbage searches may be
different from that in the stop-and-frisk context. The temporal
urgency associated with a garbage search may be lower than in
most investigatory stop situations, in which an officer needs to
question a person who may be leaving the scene. Therefore,
although we choose to apply the same test, the imminence of the
need to investigate may entail less urgent risk to public safety,
or less immediate need to act to stop a crime, than in the stop-
and-frisk context. Although the threatened disappearance of
evidence of a serious crime is not generally enough for a
warrantless search absent exigent circumstances and probable
cause, a garbage search is a sufficiently minimal intrusion on
privacy expectations to require only reasonable suspicion that
the trash contains evidence of a crime causing serious harm to
persons or property.
Here the record shows that police searched Beltzs trash
after grocery store employees reported that Beltz had repeatedly
purchased combinations of items commonly associated with
manufacturing methamphetamine and that Beltz had used his fathers
Carrs Club card to buy three boxes of Sudafed and thirteen boxes
of book matches. Beltz does not dispute that he purchased these
items.
The evidence of Beltzs purchases was sufficient to
create a reasonable suspicion that he was manufacturing
methamphetamine, and we agree with the states argument that the
police reasonably believed that the manufacturing would occur at
Beltzs home and that evidence of the manufacturing would be found
in the garbage.50 Manufacturing methamphetamine creates an
imminent danger to the public and gives rise to serious harm to
persons or property. As the state contends, the process of
manufacturing methamphetamine can harm people and property
through fire, explosion, and chemical residue. Because the
officers suspicion was based on evidence that is undisputed, we
do not need to remand to the superior court for further factual
findings to determine whether reasonable suspicion justified this
search.51
b. The Litchfield requirements
a. In addition to requiring that a warrantless garbage search
be based on reasonable suspicion, we impose two further
limitations introduced by the Indiana Supreme Court in a
factually similar case, Litchfield v. State.52 The court in
Litchfield held that in order for a warrantless search of garbage
to be reasonable, the trash must be retrieved in substantially
the same manner as the trash collector would take it and police .
. . need to ensure that they do not cause a disturbance or create
the appearance of a police raid of the residence.53 Here, the
police removed the first two bags of Beltzs trash in much the
same way trash collectors would have removed them, and the later
bags were actually removed by trash collectors. Furthermore, the
police caused no disturbance; they searched the bags away from
his home instead of rummaging through them on the street.54
Additional factors weigh in favor of holding that the
search in this case was reasonable. The suspicion of
methamphetamine manufacture was not a pretext for a search for
evidence of an unrelated crime. The seizure was of garbage left
for collection on or adjacent to a public street and did not
involve a police trespass into the curtilage of Beltzs house.
And the search involved property that Beltz had essentially
abandoned and expected to be taken by trash collectors within
hours. Although these last two factors may seem to invoke
property law concepts that appear irrelevant to the
constitutional question presented here, we are not denigrating
the right to privacy by treating it as though it is merely a
property right.55 How someone treats his property can be relevant
to whether he expects privacy, to what extent his right to
privacy was affected, and to what extent his expectation should
be protected.56
Based on these considerations, we hold that the search
of Beltzs garbage was reasonable, and did not violate Beltzs
right to be free from unreasonable searches and seizures under
the Alaska Constitution.
V. CONCLUSION
We AFFIRM the court of appeals decision that reversed
the superior courts suppression of the evidentiary fruits of the
garbage search, and REMAND for further proceedings.
WINFREE, Justice, dissenting.
1. Overview
I am unable to agree with the courts disposition of
Jack Beltzs privacy claim under the Alaska Constitution. If our
only choices for a rule about warrantless seizures and searches
of garbage left for collection in the normal course were the
federal rule or todays new Alaska rule, I would join the courts
decision without hesitation. But our choices are not so limited.
Although the rule adopted by the court lies somewhat closer to
the protections embodied in the Alaska Constitution than the
federal rule, its constitutional protections are mostly illusory.
I would instead adopt the rule Chief Justice Rabinowitz advocated
in his dissent in Smith v. State.1
As the court notes, Smith v. State was decided in 1973,
but the case actually arose in 1970. The parties submitted
appellate briefs before Alaska voters adopted article I, section
22 of the Alaska Constitution in 1972.2 In his briefs Smith
relied only on article I, section 14 of the Alaska Constitution.3
Implicitly acknowledging that the addition of the article I,
section 22 privacy clause would change the legal landscape, the
Smith court: (1) expressly limited its holding to the specific
facts of that case; (2) found no reason to interpret article I,
section 14 of the state constitution more broadly than the
federal constitution; and (3) declined to announce a general rule
sanctioning official gathering and analysis of an individuals
refuse.4 The court today aptly describes the subsequent effect
of article I, section 22 on our article I, section 14
jurisprudence, demonstrating the wisdom of Smiths self-imposed
limitations.
In my view Smith has no precedential value and neither
controls nor contributes to the resolution of cases involving
police seizures and searches of garbage placed for collection in
the normal course.5 Working with a clean slate, I would adopt
Chief Justice Rabinowitzs approach in his Smith dissent, which
expressly took into account the new article I, section 22 of the
Alaska Constitution: courts should look to an individuals
behavior to determine objectively whether the person has
exhibited a reasonable expectation of privacy6 or instead has
exhibited an intent to knowingly disclose to the public, publicly
communicate, or publicize the contents of her garbage left for
collection.7 If the expectation of privacy is reasonable, it is
protected by sections 14 and 22 of article I of the Alaska
Constitution and may not be abrogated without a search warrant.8
Responding directly to some of the same arguments about
diminished expectations of privacy that the court makes today,
Chief Justice Rabinowitz referred to differential expectations of
privacy and noted that citizens might expect a few, infrequent
invasions of their privacy interests by third persons, but might
simultaneously expect their privacy to remain immune from
governmental intrusions.9 I agree. Chief Justice Rabinowitz
asserted that a free and open society cannot exist without the
right of the people to be immune from unreasonable interference
by representatives of their government.10 I agree. Chief
Justice Rabinowitz concluded that a warrantless seizure and
search of household garbage left for collection falls within the
category of unreasonable interference.11 I agree.
Today the court correctly holds that under article I,
sections 14 and 22 of the Alaska Constitution a person who sets
out garbage for routine collection on or adjacent to a public
street (or a public area) has some objectively reasonable
expectation of privacy in that garbage.12 But it is error for
the court to then: rely on technical notions about location and
abandonment of property while ignoring the practical realities of
(1) why garbage is placed curbside for routine collection and
(2) the communal nature of residential garbage; apply privacy
considerations to things and places rather than people; ignore
Chief Justice Rabinowitzs concept of differential expectations of
privacy; and conclude that the objectively reasonable expectation
of privacy in garbage set out for routine collection is
significantly lessened because the person not only intends to
expose the garbage to routine pickup, but also risks potential
intrusions by intermeddling humans (even garbage collectors), and
the possibility that animals, snow plows, and wind may reveal the
contents of the garbage containers.
2. Practical Realities, Misplaced Reliance, and
Differential Expectations of Privacy
In Alaska we have a system of government-run garbage
landfills, government-performed garbage collection (or
governmental regulation of private collectors), and government-
imposed rules and regulations about how residents must store
garbage on their property and where they must place it for
collection.13 Some communities make the use of their municipal
garbage collection services mandatory.14 Those municipalities
not mandating use of municipal collection services still
extensively regulate garbage disposal.15
Aside from surreptitious video or audio recordings,
garbage may provide the best evidence of what people do in the
privacy of their homes.16 As the court acknowledges, it is now
possible to analyze a persons garbage and learn a great deal
about the persons activities and associations, even to obtain DNA
for testing and for investigation. Yet the government generally
controls how its citizens may store and dispose of their garbage,
and a citizen generally has no choice but to participate in the
governments collection and disposal system, including following
the rules about where to place garbage for collection.
Therefore, to the extent the court relies on the specific
location of garbage set out for collection to show a lessened
expectation of privacy, that reliance is misplaced the
constitutional right of privacy protects people, not places,17
and for most Alaskans the residential garbage collection place is
controlled by municipal ordinances having nothing to do with the
individuals objective expectation of privacy.
The courts reliance on its conception of abandonment is
similarly misplaced. It is, as the court suggests, entirely
possible that despite comprehensive regulation of the storage and
presentation of garbage for collection, individuals are at some
risk of children or dogs or snowplows making mischief and
scattering the contents of their garbage containers. But this
neither constitutes abandonment nor justifies the governments
warrantless seizures and searches of garbage that has not been
scattered by such mischief. Chief Justice Rabinowitzs concept of
differential expectations of privacy makes abundant sense in this
context, leading me to conclude that todays new rule provides
insufficient protection to Alaska residents.
What is or should be the only relevant factor is an
individuals objective intent when placing containerized garbage
in the required location for collection. The key question is
whether the individual intends to disclose the contents to the
world at large, or to unobtrusively dispose of the contents in
accordance with custom or rules and regulations imposed for the
health and safety of the community.18
The court finds fault with Chief Justice Rabinowitzs
standard using a slippery slope analysis, suggesting it would
seem to foreclose warrantless searches of garbage even after the
garbage bags have reached a landfill. It would be easy to follow
the courts convention and simply say that specific issue is not
before us, but in any event the courts concern is misplaced.
Chief Justice Rabinowitzs standard focuses on an individuals
intent, discerned by examining the individuals behavior. That
behavior generally involves the placement of garbage in a bag and
the placement of that bag for collection (usually in accordance
with a local ordinance). That behavior does not demonstrate an
intent never to disclose the contents of the garbage. But
neither does it demonstrate an intent to abandon the garbage to
any passer-by whether it be a child, animal, or police officer
once it is placed for collection. It generally demonstrates an
intent that the garbage not be disclosed except in the normal
course when it reaches its final destination and is commingled
with the rest of the communitys garbage by someone specifically
tasked with collecting and handling garbage. This case is
illustrative of that point: Beltz placed his garbage in a bag,
placed the bag in a garbage container in a garbage cart, and
placed the garbage cart near the edge of the Beltz property so
the garbage collector could collect and dispose of the garbage in
the normal course. This behavior objectively manifested an
intent that the garbage remain undisclosed until the garbage
collector disposed of it in the normal course.
3. Collateral Consequences
The courts new rule produces two noteworthy collateral
consequences demonstrating the constitutional privacy right
announced today is mostly illusory.
First, despite a laudable admonition that police may
not institute garbage sweeps, some garbage sweeps are in fact
allowable under the new rule. It should come as no surprise that
most residences have multiple occupants, each of whom has a
constitutionally protected right of privacy in his or her
garbage. Here the court notes that Beltz lived with his father
and that the garbage cart, bin, and lid belonged to the Beltz
household. The testimony at the suppression hearing revealed
that the residential property was owned by Beltzs father. The
police admitted that they seized and searched the garbage bags
from the Beltz household without any specific information about
who: (1) actually produced the garbage; (2) placed the garbage
in those bags; or (3) placed those bags of garbage in and on the
garbage bins.
Under todays rule the police may seize and search an
entire households garbage without a warrant based on a reasonable
suspicion that one member of the household is engaging in a
serious crime and evidence of that crime may be somewhere in the
household garbage. By extension, if the police had a reasonable
suspicion that Beltz was disposing of crime-related evidence in
the next-door-neighbors garbage, they could have made a
warrantless seizure and search of that garbage as well. And
nothing in todays rule prevents the police from seizing and
searching all of the contents of an apartment complex garbage
receptacle when focused on the conduct of one individual
resident.19 These are garbage sweeps that should be allowed only
with a search warrant, especially considering that nothing in
todays rule appears to prevent the police from analyzing the
garbage of people other than the target of the original
investigation, compiling information about them, or charging them
with crimes based on information found in their garbage. It
would be naive to believe DNA data compilations and registeries
created from police seizures and searches of garbage are not in
Alaskas future.
Second, despite todays holding that an individual has a
constitutional right of privacy in garbage left in the normal
course for routine collection, the natural corollary of allowing
garbage sweeps is that the constitutional right is illusory for
most of the people whose garbage will be seized and searched. It
will be the exception, rather than the rule, when the police can
limit their seizure and search to garbage of the individual under
suspicion for a serious crime.
Consider, for example, the newly announced
constitutional right of privacy as afforded to Beltzs father.
Suppose that Beltzs father had committed some unrelated
crime, serious or otherwise, and that the police had found
evidence of that crime in their sweep of the Beltz household
garbage. Could the police have used that evidence in a
prosecution of Beltzs father? He had a reasonable expectation of
privacy in his garbage and the police had no suspicion about him,
let alone an articulable and individualized reasonable suspicion
that he was engaging in a serious crime. Would his article I,
sections 14 and 22 rights mandate suppression of the evidence?
Or would suppression be denied because under the rule announced
today the police otherwise had legal authority to seize and
search the garbage and therefore to act on the evidence that came
into plain view?20 The court finds the latter result acceptable,
comparing it to what can occur during a police search of a home
occupied by multiple residents. But to initially enter that
hypothetical home, the police would have needed a warrant,
consent, or the presence of exigent circumstances, none of which
are necessary for the seizure and search of the garbage. The
constitutional privacy right is illusory in this context.
Here, of course, there is no indication whatsoever that
Beltzs father was suspected of committing a crime. The police
nonetheless seized his garbage cans from his garbage cart and
searched his garbage, and he has no information about what the
police did with his garbage or what data about him the police
have compiled from that garbage. The constitutional privacy
right is thus equally illusory in this context.
Consider yet another context. After today, police are
on notice of an individuals constitutional privacy rights in
garbage set out for routine collection. If the facts of this
case took place tomorrow, given that the residence, the garbage
cart, and the garbage cans all belonged to Beltzs father, the
seizure and search of the contents of the garbage cans might be
considered a deliberate violation of Beltzs fathers
constitutional rights for the express purpose of obtaining
incriminating evidence against his son. If so, then Beltz might
have vicarious standing to raise the constitutional violation and
seek suppression of the incriminating evidence.21 But given the
tenor of todays decision, it appears more likely the court would
conclude Beltzs fathers constitutional privacy rights were not
violated, further demonstrating the rather illusory nature of the
constitutional privacy right announced today.
4. Ironies
Finally, I note two ironies arising from this case.
First, the court suggests that a search warrant might
have been required after the first seizures and searches of the
Beltz household garbage gave the police the first incriminating
evidence that a crime had been committed. If this is so, a
warrantless seizure and search of garbage is acceptable when the
police have merely a reasonable suspicion that the garbage may
contain evidence of a serious crime, but a warrant is required
when the police clearly have probable cause to believe a crime
has been committed and further evidence may be found in the
accuseds garbage. This does little to honor either the
constitutional right of privacy or the necessity of search
warrants.
Nothing in todays rule prevents continual warrantless
seizures and searches of garbage regardless of what the police
actually find on any given occasion; todays rule is just an
evidence-gathering rule obviating the need for a search warrant.
Here the police continued to seize and search garbage from the
Beltz household for several weeks even though they had no new
information from any source about additional purchases of
methamphetamine material. This and other long-term targeted
garbage seizures and searches based on single suspicious
incidents appear legitimate under todays rule, despite the
historical premise that warrantless searches based on reasonable
suspicion are necessary to avoid imminent public danger.22
Second, the police actually had probable cause to
obtain a search warrant for Beltzs residence and his garbage
based on the information provided by the store personnel, even
before the seizures and searches of the Beltz household garbage.
The police had ample time to obtain a search warrant in this case
but, in light of the federal rule and Smith, they chose not to do
so. Adopting Chief Justice Rabinowitzs standard would thus not
have prevented the police from obtaining the evidence they sought
in this case; it would merely have ensured that they went through
proper procedures to obtain it procedures that reflect our
prioritization of individual rights. If the police had lacked
time to obtain a search warrant, existing search and seizure law
provided an exigency exception: Exigent circumstances justifying
a warrantless search or seizure may be established by the
existence of probable cause, coupled with a compelling need for
official action and no time to secure a warrant. 23 Todays rule
simply enables police to sidestep the procedural protections
offered by the warrant requirement.
5. Conclusion
When otherwise faced with the federal rule,
transplanting the reasonable suspicion framework from
investigatory stops to seizures and searches of garbage left for
collection might at first blush seem a reasonable and adequate
check on police conduct. But Chief Justice Rabinowitz again had
the correct response over thirty-five years ago:
In my judgment, it is preferable to entrust
the decision to invade citizens privacy to
the scrutiny of neutral judicial officials
rather than police officers even police
officers operating under great self-
restraint. As the United States Supreme
Court noted in McDonald v. United States:
We are not dealing with formalities. The
presence of a search warrant serves a
high function. Absent some grave
emergency, the Fourth Amendment has
interposed a magistrate between the
citizen and the police. This was done
not to shield criminals nor to make the
home a safe haven for illegal activities.
It was done so that an objective mind
might weigh the need to invade that
privacy in order to enforce the law. The
right of privacy was deemed too precious
to entrust to the discretion of those
whose job is the detection of crime and
the arrest of criminals.[24]
To the extent todays rule affords Alaskans any
protection, it is better than the federal rule. But a far better
course would be to apply the rule proposed by Chief Justice
Rabinowitz. The people of Alaska deserve a rule that jealously
protects their constitutional right of privacy, and I would adopt
a rule requiring police to obtain a warrant to seize and search
garbage that is left for collection in the normal course. I
would therefore reverse the court of appealss decision and
reinstate the trial courts suppression ruling.
_______________________________
1 There appears to be some immaterial inconsistency in
the chronology of events. Because it is apparently undisputed
that the identification occurred shortly before the seizure, and
that the seizure took place at two a.m. on October 21, it seems
unlikely that the Carrs employees identified Beltz on October 21.
2 The items found in these two bags and the bags seized
later that morning included 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.
State v. Beltz, 160 P.3d 154, 156 (Alaska App. 2007).
3 AS 11.71.020(a)(2)(A), (a)(3), (a)(4)(A), and (a)(5).
4 Beltz, 160 P.3d at 156.
5 Pearce v. State, 45 P.3d 679, 682 (Alaska App. 2002).
6 Willoya v. State, Dept of Corr., 53 P.3d 1115, 1120
(Alaska 2002).
7 Pearce, 45 P.3d at 682.
8 Nevers v. State, Dept of Admin., 123 P.3d 958, 961
(Alaska 2005).
9 Id. at 961.
10 U.S. Const. amend. IV. This amendment provides: The
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
For convenience we characterize the police conduct in
this case as a search, although the police first seized the bags,
and then searched them at a different location.
11 California v. Greenwood, 486 U.S. 35, 37, 39-41 (1988).
12 Katz v. United States, 389 U.S. 347, 360-62 (1967)
(Harlan, J., concurring).
13 Greenwood, 486 U.S. at 39 (The warrantless search and
seizure of the garbage bags left at the curb outside the
Greenwood house would violate the Fourth Amendment only if
respondents manifested a subjective expectation of privacy in
their garbage that society accepts as objectively reasonable.)
(citing Katz, 389 U.S. at 361).
14 Id. at 41, 43-44.
15 Smith v. State, 510 P.2d 793 (Alaska 1973).
16 Id. at 797. Article I, section 14 of the Alaska
Constitution provides:
The right of the people to be secure in
their persons, houses and other property,
papers, and effects, against unreasonable
searches and seizures, shall not be violated.
No warrants shall issue, but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be
searched, and the persons or things to be
seized.
17 State v. Beltz, 160 P.3d 154, 160-61 (Alaska App.
2007).
18 Greenwood, 486 U.S. at 39.
19 Smith, 510 P.2d at 797.
20 Beltz lists the evidence that he argues demonstrates
that he had a subjective expectation of privacy: he testified
that he thought the trash was on his property, even though the
superior court found that it was on public property; he stated in
an affidavit that he took the garbage outside at ten or eleven
p.m., expecting it to be outside for only a short time before
being picked up by the garbage collectors; he also stated in his
affidavit that he expected the trash collectors to mix his trash
with other peoples garbage, which he claims would have kept his
trash private; and there was evidence that at least some of the
garbage taken by the police had been in a lidded bin inside the
cart, and that the lid, bin, and cart belonged to the Beltz
household.
21 See Pearce v. State, 45 P.3d 679, 682 (Alaska App.
2002).
22 Smith, 510 P.2d at 797-98.
23 State v. Beltz, 160 P.3d 154, 156, 159-60 (Alaska App.
2007).
24 Smith, 510 P.2d at 797-98.
25 Id. at 795.
26 Id. at 801, 803 (Rabinowitz, C.J., dissenting). One of
the leading commentators on search and seizure law has expressed
support for the standard proposed by Chief Justice Rabinowitz. 1
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment 2.6(c), at 692-93, 696, 701-02 (4th ed. 2004) (quoting
extensively from Chief Justice Rabinowitzs dissent and submitting
that Smith was incorrectly decided).
27 Smith, 510 P.2d at 803 (Rabinowitz, C.J., dissenting).
28 Slip Op. at 22, 23-24.
29 Article I, section 22 of the Alaska Constitution
provides in relevant part: The right of the people to privacy is
recognized and shall not be infringed.
30 Alaska Const. art. I, 22.
31 Smith, 510 P.2d at 794. Unlike the majority opinion,
Chief Justice Rabinowitzs dissent addressed article I, section
22. Id. at 799 (Rabinowitz, C.J., dissenting).
32 State v. Planned Parenthood of Alaska, 171 P.3d 577,
581 (Alaska 2007); see also Myers v. Alaska Psychiatric Inst.,
138 P.3d 238, 245 (Alaska 2006) (We have specifically recognized
that Alaskas guarantee of privacy is broader than the federal
constitutions: Since the citizens of Alaska, with their strong
emphasis on individual liberty, enacted an amendment to the
Alaska Constitution expressly providing for a right to privacy
not found in the United States Constitution, it can only be
concluded that the right is broader in scope than that of the
Federal Constitution. ) (quoting Anchorage Police Dept Employees
Assn v. Municipality of Anchorage, 24 P.3d 547, 550 (Alaska
2001)).
33 Nevers v. State, Dept of Admin., 123 P.3d 958, 962 n.12
(Alaska 2005) (citing Anchorage Police Dept Employees Assn, 24
P.3d at 550-51).
34 State v. Glass, 583 P.2d 872, 878-81 (Alaska 1978),
modified on other grounds, 596 P.2d 10 (Alaska 1979).
35 Woods & Rohde, Inc. v. State, Dept of Labor, 565 P.2d
138, 148-51 (Alaska 1977).
36 State v. Daniel, 589 P.2d 408, 416 (Alaska 1979).
37 State v. Beltz, 160 P.3d 154, 160 (Alaska App. 2007)
(citing State v. Tanaka, 701 P.2d 1274, 1276-77 (Haw. 1985);
State v. A Blue in Color, 1993 Chevrolet Pickup, 116 P.3d 800,
806-07 (Mont. 2005) (Nelson, J., concurring); 1 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment 2.6(c),
at 692 (4th ed. 2004)); see also State v. Hempele, 576 A.2d 793,
802-03 (N.J. 1990); State v. Granville, 142 P.3d 933, 941 (N.M.
App. 2006).
38 We do not consider here whether any subjective
expectation of privacy would be objectively reasonable after the
garbage has actually been collected. We also do not decide
whether a greater expectation of privacy would be objectively
reasonable if trash were not set out for routine collection or
were not left on or adjacent to a public street or a public area.
39 Nevers v. State, Dept of Admin., 123 P.3d 958, 962
(Alaska 2005); see also Milton v. State, 879 P.2d 1031, 1034
(Alaska App. 1994); Harrison v. State, 860 P.2d 1280, 1283
(Alaska App. 1993).
40 See California v. Greenwood, 486 U.S. 35, 40-41 (1988)
(holding that there is no objectively reasonable expectation of
privacy in garbage under federal constitution, and noting 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.).
41 State v. Myers, 601 P.2d 239, 242 (Alaska 1979)
(internal citations omitted).
42 An argument might be made that warrantless searches of
garbage set out on or adjacent to a public street for collection
are permissible because the exigent circumstances exception to
the warrant requirement applies. Under the exigent circumstances
exception, a warrantless search may be justified by potential
loss of evidence. Finch v. State, 592 P.2d 1196, 1198 (Alaska
1979); Ingram v. State, 703 P.2d 415, 422 (Alaska App. 1985),
affd, 719 P.2d 265 (Alaska 1986). The evidentiary value of
garbage on the street awaiting collection is inherently at risk.
Before its collection, the trash is susceptible to scavenging by
humans and animals, potentially destroying or removing any
evidence in the trash. After the trash is collected, the bags
may break open and the contents may mix with other peoples trash,
making it far harder and perhaps impossible to link evidence to a
particular defendant.
But we decline to base our decision on this reasoning.
Determining whether exigent circumstances exist is a fact-
specific inquiry. City of Kodiak v. Samaniego, 83 P.3d 1077,
1084 (Alaska 2004). It requires balancing the nature of the
exigency against the degree of intrusiveness of the warrantless
search or seizure. Ingram, 703 P.2d at 422. Instead of
requiring this fact-specific balancing for every garbage search,
we base our decision on the diminished expectation of privacy a
person has in his or her garbage.
43 See, e.g., Sprague v. State, 590 P.2d 410, 417 (Alaska
1979) (holding that although probationers and parolees have
diminished expectations of privacy, warrantless searches of their
residences are only permissible under certain limited
circumstances).
44 See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976)
(allowing a warrantless investigatory stop in cases where the
police officer has reasonable suspicion that imminent public
danger exists or serious harm to persons or property has recently
occurred); see also Ebona v. State, 577 P.2d 698, 700 (Alaska
1978) (describing the Alaska rule as permitting a temporary stop
when the officer has a reasonable suspicion that imminent public
danger exists, or serious harm to persons or property has
recently occurred).
45 See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 376-77
(1993); Terry v. Ohio, 392 U.S. 1, 27 (1968); Coleman v. State,
553 P.2d 40, 46 (Alaska 1976).
46 Hartman v. State, Dept of Admin., Div. of Motor
Vehicles, 152 P.3d 1118, 1122 (Alaska 2007) (citing Coleman, 553
P.2d at 46).
47 Id. at 1122 (emphasis in original) (internal quotation
marks omitted) (quoting Saltz v. State, Dept of Admin., Div. of
Motor Vehicles, 126 P.3d 133, 136 (Alaska 2005)).
48 State v. Miller, 207 P.3d 541, 544 (Alaska 2009).
49 See Coleman, 553 P.2d at 43-47; see also Terry, 392
U.S. at 21; State v. Myers, 601 P.2d 239, 243-44 (Alaska 1979).
50 The dissenting opinion expresses concern that Beltzs
father may have been subjected to an unreasonable search and
seizure because the police did not have specific information
about who actually produced the garbage, who placed the garbage
in the seized bags, or who placed the garbage bags in and on the
garbage bins. Slip Op. at 29. The situation here is comparable
to a police search of a home occupied by multiple residents: when
police search for evidence against one resident, they are
permitted to search common areas and to seize evidence in plain
view, even if the item belongs to someone other than that
resident. See Reeves v. State, 599 P.2d 727, 739 (Alaska 1979)
(stating that officer may seize evidence seen from place where
officer was legally entitled to be if certain conditions are
met); Milton v. State, 879 P.2d 1031, 1035 (Alaska App. 1994) (In
the case of a shared residence, the probation officers search may
extend to all areas of the residence over which the probationer
has control, even if that control is not exclusive. This includes
common areas of the residence.).
We express no opinion about whether reasonable
suspicion as to one resident of an apartment building would
justify a search of the entire buildings garbage left on or near
the street for collection.
51 We note that after the initial garbage search, the
police continued to search Beltzs garbage for several weeks. No
further incriminating evidence was found in these subsequent
searches. We do not decide here what would have happened if,
after the first incriminating evidence was found, police failed
to secure a warrant when they had ample time to do so before
conducting later searches that produced additional incriminating
evidence.
52 Litchfield v. State, 824 N.E.2d 356, 363-64 (Ind.
2005).
53 Id. at 363-64; see also State v. A Blue in Color, 1993
Chevrolet Pickup, 116 P.3d 800, 802-03, 805 (Mont. 2005)
(adopting Litchfields limitations on warrantless garbage
searches).
The courts in both Litchfield and A Blue in Color, 1993
Chevrolet Pickup adopted a reasonable suspicion requirement for
garbage searches, but their analyses differed from our own. The
Indiana Constitution does not contain an express privacy
protection and the court did not apply the two-prong Katz
analysis, which had previously been rejected in Indiana.
Litchfield, 824 N.E.2d at 359. The court instead evaluated the
reasonableness of the search under the totality of the
circumstances. Id. Despite these differences, the opinions
discussion is a persuasive and practical resolution of the
dispute under the circumstances presented.
The Montana Supreme Court applied a Katz-like analysis
but determined that there was no objectively reasonable
expectation of privacy in the garbage, despite the state
constitutions express privacy protection. A Blue in Color, 1993
Chevrolet Pickup, 116 P.3d at 802.
54 See A Blue in Color, 1993 Chevrolet Pickup, 116 P.3d at
805 ([O]fficers cannot openly rummage through a persons garbage
at the curb or in the alley, to the embarrassment or indignity of
the owner.). In some cases moving an item to a different
location before searching it could make a search less, instead of
more, reasonable. In holding that this factor makes the search
more reasonable in this case we do not imply that the same would
be true in all situations.
55 See Smith v. State, 510 P.2d 793, 801 (Alaska 1973)
(Rabinowitz, C.J., dissenting) (I find little utility in the
majoritys . . . importation into the realm of constitutional
analysis of traditional property law concepts such as abandonment
and relinquishment of title, possession or claim to property. In
the case at bar, we are concerned with the determination of
constitutional rights rather than . . . property interests.).
56 As the dissenting opinion points out, municipal codes
often specify where trash must be set out for collection. Slip
Op. at 25-27. Because we hold that garbage left out for
collection on or adjacent to a public street is subject to a
warrantless search for reasonable suspicion, it does not matter
that municipal codes may vary in specifying precisely where the
trash must be placed.
1 510 P.2d 793, 799-805 (Alaska 1973) (Rabinowitz, C.J.,
dissenting).
2 Article I, section 22 of the Alaska Constitution
provides in relevant part: The right of the people to privacy is
recognized and shall not be infringed.
3 510 P.2d at 794. Article I, section 14 of the Alaska
Constitution provides:
The right of the people to be secure in their
persons, houses and other property, papers,
and effects, against unreasonable searches
and seizures, shall not be violated. No
warrants shall issue, but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be
searched, and the persons or things to be
seized.
4 510 P.2d at 795.
5 I refer to normal course as the routine placement of
household garbage, in closed bags or boxes or inside garbage
cans, at curbside for collection, usually in accordance with
local ordinances.
6 Smith, 510 P.2d at 801 (Rabinowitz, C.J., dissenting)
(quoting People v. Edwards, 458 P.2d 713, 715 (Cal. 1969)).
7 Id. at 803.
8 Id.
9 Id. Chief Justice Rabinowitz gave the example of a
telephone caller on a party line who might reasonably expect
others on the party line to overhear conversations but still
would not expect the government to conduct full-scale warrantless
taps of telephone conversations. Id. That example seems quaint
today, but the same might now be said of mobile phone users:
they understand that when they talk in public areas others will
overhear at least one end of their conversations. Mobile phone
users may therefore have a diminished expectation of privacy, but
they do not expect the government to conduct full-scale
warrantless interceptions of their conversations. Similarly,
those who access the internet recognize the possibility that
hackers may successfully penetrate their computers and obtain
personal information; despite this diminished expectation of
privacy, those individuals do not expect the government to do the
same without a search warrant. Chief Justice Rabinowitz also
noted that a hotel guest may reasonably expect a maid to enter
his room to clean up, but absent unusual circumstances he should
not be held to expect that a hotel clerk will lead the police on
a search of his room. Id. (quoting People v. Krivda, 486 P.2d
1262, 1269 (Cal. 1971) (internal quotations marks and citations
omitted)). Similarly, just because a person has a cleaning
service come into the home, there is no expectation that the
police will search the home without a warrant.
10 Id. at 799.
11 Id. at 800, 804-05.
12 I interpret on or adjacent to a public street (or a
public area) to be essentially the same as curbside and assume
any difference is immaterial in light of the condition that the
garbage be set out for routine collection.
13 For example, in Seward those who use their own garbage
containers must place them for collection abutting a dedicated
public right-of-way, but those who use the citys garbage
containers may place them for collection upon the public right-of-
way. Seward Mun. Code 14.05.025(b). In Sitka individuals must
place garbage receptacles for collection in convenient locations
designated by the director of public works. Sitka Mun. Code
15.06.015. Anchorage Municipal Ordinances differentiate between
residents whose houses abut alleys and those who live in areas
without alleys; the former are required to leave containers in
the alley, but the latter are required merely to leave
receptacles at the street. Anchorage Mun. Code 26.70.050(D)-(E).
In both Wrangell and Cordova individuals must leave garbage
containers for collection in plain view in an accessible
location at the ground level or on an open platform or open porch
not more than four feet above the adjacent roadway and so placed
that they may be reached from the ground by the collector.
Wrangell Mun. Code 15.18.040(A); Cordova Mun. Code 08.12.110.
The Kodiak Island Borough requires that [i]tems to be collected .
. . be placed within five feet of the route of the collection
vehicle and shall be placed loose on the ground unless the
property owner installs racks for the placement of garbage
containers, in which case they may not be placed or located on
the traveled right-of-way. Kodiak Island Borough Mun. Code
08.25.080. In Kenai containers may not be placed within the
traversed right-of-way of a street or alley but may be placed off
the traveled portion of the right-of-way if necessary for
expeditious collection. Kenai Mun. Code 09.10.030. Fairbanksans
must place their garbage containers at curbside or at the edge of
the alley but not within the street or alley right-of-way.
Fairbanks Mun. Code 66-68.
14 See, e.g., Anchorage Mun. Code 26.70.030; Cordova Mun.
Code 8.12.130(A); Fairbanks Mun. Code 66-2; Kodiak Island Borough
Code 08.25.030; Palmer Mun. Code 08.20.010; Sitka Mun. Code
09.08.025(A); Valdez Mun. Code 08.08.040(c); Wrangell Mun. Code
15.18.070(A).
15 See, e.g., Dillingham Mun. Code 08.04.030 - 08.04.110
(governing size of garbage containers, structure of garbage
containers, vehicles used to transport waste, placement of
containers, requirements for landlords, frequency of disposal,
and fees for use of the citys solid waste disposal facility).
16 The court has zealously guarded Alaskans personal
privacy in their homes. See, e.g., Ravin v. State, 537 P.2d 494,
503-04 (Alaska 1975) (discussing constitutional right of privacy
in the home).
17 Smith, 510 P.2d at 800 (Rabinowitz, C.J., dissenting).
18 An example of the former may be when a person places
uncovered or un-containerized items in open display at curbside,
perhaps for people to take for re-use, in which case no search
warrant would be required to seize and search the items left in
plain view. Here a police officer testified that nothing
incriminating was in plain view before the garbage was seized and
searched.
19 The court makes light of this concern, again
emphasizing the supposed narrowness of its decision by stating it
does not decide whether reasonable suspicion as to one resident
of an apartment building would justify a search of the entire
buildings garbage left on or near the street for collection. But
the courts decision is subject to the same slippery slope
analysis it applies to Chief Justice Rabinowitzs privacy
standard. If the police can seize and search an entire
households garbage left at curbside based on a reasonable
suspicion about one person in the household, what distinction
prevents the police from seizing and searching all of the garbage
placed in the street in front of a duplex or small apartment
building based on a reasonable suspicion about one resident? And
because the court has not repudiated Smith, what part of todays
decision suggests any limitation on seizing and searching garbage
from a larger apartment complex receptacle on the apartment
grounds based on reasonable suspicion about one resident?
Carried to its logical conclusion, the courts new standard may
allow the seizure and search of all residential garbage on a
street or in a neighborhood based on the reasonable suspicion
that a specific individual is engaging in a serious crime
somewhere along the street or in the neighborhood and that
evidence can be found somewhere in the garbage.
20 See, e.g., Newhall v. State, 843 P.2d 1254, 1257
(Alaska App. 1992) (describing three basic requirements for a
valid plain view seizure of evidence: (1) the initial intrusion
which afforded the view must have been lawful; (2) the discovery
of the evidence must have been inadvertent; and (3) the
incriminating nature of the evidence must have been immediately
apparent (quoting Reeves v. State, 599 P.2d 727, 738 (Alaska
1979))).
21 See Waring v. State, 670 P.2d 357, 360-63 (Alaska 1983)
(defendant has vicarious standing to assert deliberate violation
of co-defendants Fourth Amendment rights); Fraiman v. State, Dept
of Admin., Div. of Motor Vehicles, 49 P.3d 241, 245 n.18 (Alaska
2002) (noting that vicarious standing under Waring appears to
apply to the deliberate violation of any third-partys
constitutional rights, not just those of a co-defendant).
22 I acknowledge the dangers involved in methamphetamine
production. Yet the conduct of the police in this case precludes
any suggestion that they believed Beltzs conduct created imminent
public danger.
23 Ingram v. State, 703 P.2d 415, 422 (Alaska App. 1985)
(quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).
24 Smith, 510 P.2d at 800 (quoting McDonald v. United
States, 335 U.S. 451, 455-56 (1948)) (internal citations
omitted).
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