Beltz v. State

221 P.3d 328, 2009 Alas. LEXIS 171, 2009 WL 4877785

• Court: Alaska Supreme Court
• Decided: December 18, 2009
• Docket: S-12775
• Status: Published

Opinions

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The question presented here is whether police officers violated Jack Beltz's 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 Beltz's 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 am., having arranged for one officer to ride along with the regular garbage collector to pick up the rest of Beltz's trash and keep it separate from other people's 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 Beltz's 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 Beltz's 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 officer's 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 onee 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 court's 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 court's 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‘s 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 Beltz's Garbage Violate His Federal Constitutional Right To Be Free from Unreasonable Searches and Seizures?

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 Harlan's concurring opinion in Katz v. United States,¹² and reasoned that the Fourth Amendment's 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. @reemnwood controls Beltz's federal constitutional claim. The search and seizure of Beltz's garbage did not violate the Fourth Amendment.

B. Did the Search of Beltz's Garbage Violate His Alaska Constitutional Right To Be Free from Unreasonable Searches and Seizures?

In 1978 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 Beltz's 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 Harlan's 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 Beltz's expectation of privacy objectively reasonable?

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 court's holding that Beltz's expectation of privacy was reasonable under the Smith standard.²³

In Smith we adopted the two-prong analysis proposed in Justice Harlan's concurrence in Katz and listed four factors that could be used to determine whether a person's 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, (8) 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 defendant's] 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 defendant's 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 one's 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 ree-ognize 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 Smith's 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 person's expectation of privacy in garbage can be deemed objectively reasonable.²⁹

Although Smith was decided in 1978, 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 Smith's 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 defendant's 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 "[blecause this right to privacy is explicit, its protections are necessarily more robust and 'broader in scope' than those of the implied federal right to privacy"³² and have held that "where a search is alleged to be unconstitutional, section 14's standards for a proper search and seizure are "inexorably entwined with section 22's privacy protections." ³³ We have invoked the privacy amendment in opinions: barring the state from surreptitiously recording conversations in certain cireumstances;³⁴ prohibiting war-rantless 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 person's life and associations [by searching garbage], including even obtaining DNA for testing and for investigation."³⁷ Based on article I, see-tions 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

We have consistently held that a warrantless search is per se unreasonable unless exigent cireumstances exist or another of the limited exceptions to the warrant requirement applies.³⁹ But a person's 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 person's 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 intermed-dling 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 society's 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 nee-essarily require the protections of a warrant before police can conduct a search, even given Alaska's 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 cireumstances, a police officer may, without a warrant, temporarily detain a person for questioning and pat down the person's 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 cireumstances 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 officer's 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 government's 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 cireumstances 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 Beltz's 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 father's 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 Beltz's purchases was sufficient to create a reasonable suspicion that he was manufacturing methamphetamine, and we agree with the state's argument that the police reasonably believed that the manufacturing would occur at Beltz's 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

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 Beltg's 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 Beltz's 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 Beltz's garbage was reasonable, and did not violate Beltz's 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 court's suppression of the evidentiary fruits of the garbage search, and REMAND for further proceedings.

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 iteras 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, Dep't of Corr., 53 P.3d 1115, 1120 (Alaska 2002).

7 . Pearce, 45 P.3d at 682.

8 . Nevers v. State, Dep't 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, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).

12 . Katz v. United States, 389 U.S. 347, 360-62, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

13 . Greenwood, 486 U.S. at 39, 108 S.Ct. 1625 ("'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 subjeciive expectation of privacy in their garbage that society accepts as objectively reasonable.") (citing Katz, 389 U.S. at 361, 88 S.Ct. 507).

14 . Id. at 41, 43-44, 108 S.Ct. 1625.

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, 108 S.Ct. 1625.

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 people's 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

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, Searos anp Seizure: A Treatise on THE Fourtu § 2.6(c), at 692-93, 696, 701-02 (4th ed.2004) (quoting extensively from Chief Justice Rabinowitz's dissent and submitting that Smith was incorrectly decided).

27 . Smith, 510 P.2d at 803 (Rabinowitz, C.J., dissenting).

28 . Op. at 339-40.

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 Rabinowitz's dissent addressed article I, section 22. Id. at 799 (Rabi-nowitz, 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 Alaska's guarantee of privacy is broader than the federal constitution's: '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 Dep't Employees Ass'n v. Municipality of Anchorage, 24 P.3d 547, 550 (Alaska 2001)).

33 . Nevers v. State, Dep't of Admin., 123 P.3d 958, 962 n. 12 (Alaska 2005) (citing Anchorage Police Dep't Employees Ass'n, 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, Dep't 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, 67 Haw. 658, 701 P.2d 1274, 1276-77 (1985); State v. A Blue in Color, 1993 Chevrolet Pickup, 328 Mont. 10, 116 P.3d 800, 806-07 (2005) (Nelson, J., concurring); 1 Wayne R. LaFave, Searce anp Seizure. A Treatise on tHE Amenoment § 2.6(c) at 692 (4th ed.2004)); see also State v. Hempele, 120 N.J. 182, 576 A.2d 793, 802-03 (1990); State v. Granville, 140 N.M. 345, 142 P.3d 933, 941 (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, Dep't 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, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (holding that there is no objectively reasonable expeciation of privacy in garbage under {federal constitution, and noting that "[it is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.").

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), aff'd, 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 people's 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, eg., 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, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).

46 . Hartman v. State, Dep't 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, Dep't 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, 88 S.Ct. 1868; State v. Myers, 601 P.2d 239, 243-44 (Alaska 1979).

50 . The dissenting opinion expresses concern that Beltz's 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. Op. at 342. 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 officer's 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 building's garbage left on or near the street for collection.

51 . We note that after the initial garbage search, the police continued to search Beltz's 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 NE.2d 356, 363-64 (Ind.2005).

53 . Id. at 363-64; see also State v. A Blue in Color, 1993 Chevrolet Pickup, 328 Mont. 10, 116 P.3d 800, 802-03, 805 (2005) (adopting Litch-field's 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 opinion's 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 constitution's 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 ("[Oifficers cannot openly rummage through a person's 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 majority's ... 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. Op. at 340-41. Because we hold that garbage left out for collection on or adjacent to a public street is subject to a warrant-less search for reasonable suspicion, it does not matter that municipal codes may vary in specifying precisely where the trash must be placed.