State v. Boland

800 P.2d 1112, 115 Wash. 2d 571, 1990 Wash. LEXIS 162

• Court: Washington Supreme Court
• Decided: November 15, 1990
• Docket: 56666-6
• Status: Published

Opinions

Dolliver, J.

Sometime in September 1986, both the office of the Prosecuting Attorney for Jefferson County and the Port Townsend City Police Department received anonymous letters alleging defendant Bradley Boland was distributing legend drugs. Legend drugs are drugs of which federal law prohibits distribution without a prescription from a physician. The anonymous letter was accompanied by a brochure containing the names of Health West Products and Brad Boland. Shortly after receiving the letter, the investigating officer attempted to order legend drugs from the defendant through the mail. When defendant received the letter, he responded with a letter stating he did not understand the inquiry. The letter, however, was returned to defendant with a notation stating the addressee did not live at the address given.

In October 1986, the investigating officer applied for a search warrant (based on the letter and brochure) in order to gain access to defendant's power records for the purpose of verifying his address. The warrant was served on November 6, 1986, and defendant's address was subsequently verified.

On March 18, 1987, the police began a series of four warrantless searches of defendant's garbage hoping to locate sufficient evidence to obtain a warrant to search his residence. The other three searches occurred on March 25, April 1, and April 8. Before each of the searches, police officers would observe defendant take his trash out to the corner for collection where he would place his trash can in approximately the same location. The lid of defendant's trash container fit securely on the can, and each time defendant took the can out, he would place a heavy piece of wood on top of the lid. On each occasion, the officers returned to defendant's residence during the night, emptied the contents of the trash can into a plastic bag and transported it to the police station. Once there, the trash was made available to state and federal agents who would examine its contents for evidence of drug-related activities. On at least three of these occasions, such evidence was uncovered.

After inquiring with the Washington State Board of Pharmacy in order to verify defendant did not hold a license to dispense legend drugs, the investigating officer applied for a warrant to search defendant's home. The warrant was issued based on the evidence obtained from defendant's trash and the letter and brochure received from the informant. On April 8, 1987, the police searched defendant's house and seized a large quantity of legend drugs as well as a card of tablets and a bottle containing controlled substances. Defendant was charged with unlawful possession of legend drugs (ROW 69.41.030) and two counts of possession of a controlled substance with intent to deliver (ROW 69.50.401(1)(i) and (ii)).

Defendant filed a motion to suppress the evidence gathered during the search of his house. Defendant argued the evidence was the fruit of the warrantless search of his garbage which violated the fourth amendment to the United States Constitution and Const. art. 1, § 7. The trial court granted the motion, stating that in light of Const. art. 1, § 7,

it is clear that a law enforcement officer's examination of the contents of a garbage container placed curbside for collection is an unconstitutional intrusion into a person's private affairs, particularly when the city ordinance requires the container to be removed from the person's property and placed at the side of the street for ease of collection.

The trial court also ordered suppression of the evidence seized in defendant's home since, without the evidence taken from the garbage, no probable cause existed upon which to base the search warrant. The trial court subsequently ordered the charges against defendant be dropped.

The State appealed the trial court's ruling to the Court of Appeals, which reversed the trial court. State v. Boland, 55 Wn. App. 657, 659, 781 P.2d 490 (1989). Defendant appeals the Court of Appeals decision to this court. We reverse the Court of Appeals and affirm the trial court.

We note at the outset that the United States Supreme Court has held under the fourth amendment to the United States Constitution that no reasonable expectation of privacy exists in garbage which has been left on the curbside for collection. California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988). Consequently, our review of the privacy interest at issue in this case is limited to an examination under our state constitution. Given that the fundamental purpose of the state constitution is to govern the relationship between the people and their government rather than to govern the relationship between private parties, Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 780 P.2d 1282 (1989), it also follows that we concern ourselves only with the reasonableness of governmental intrusion into a private individual's garbage and not the reasonableness of such intrusions by private individuals.

This court has previously held that the following six nonexclusive neutral criteria must be examined in order to determine whether Const, art. 1, § 7 provides greater protection of defendant's privacy interest than its federal counterpart:

(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.

State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808, 76 A.L.R.4th 517 (1986). The purpose of these factors is twofold: first, to lend assistance to counsel where briefing might be appropriately directed in cases in which independent state grounds are urged; and second, to help ensure that if the court does use independent state grounds in reaching its conclusion it will consider the six factors to the end that the decision shall be based on well founded legal reasons and not by merely substituting its own notion of justice for that of duly elected legislative bodies or the United States Supreme Court. Gunwall, at 62-63.

In Gunwall, we held that when police obtained the defendant's long distance telephone records by placing a pen register on her telephone without first obtaining a warrant, they unreasonably intruded into her private affairs under Const. art. 1, § 7. Gunwall, at 63. Since Gunwall involved comparing the same constitutional provisions as those to be examined here, we adopt its analysis of the first, second, third and fifth factors and examine only the fourth and sixth factors as they apply to this particular case.

Turning first to a consideration of preexisting state law, we note the Court of Appeals below partially based its decision to reverse the trial court on the grounds it found no preexisting state law governing privacy interests in garbage. Boland, at 662. We disagree. Defendant cites one local ordinance which requires him to place his trash cans in a location "where they will be convenient for the collector." See Port Townsend Municipal Ordinance 6.04.030. Moreover, a Seattle ordinance makes it unlawful for anyone other than the owner of the trash can, or one authorized by the owner to place objects in the can, to remove its contents "except for collection." (Italics ours.) SMC 21.36.100. Although the Court of Appeals correctly points out the Port Townsend ordinance was intended to protect the health of the general public rather than individual privacy interests in garbage, we find this irrelevant. One can reasonably infer from these ordinances that only trash collectors and not others will handle one's trash. It would be improper to require that in order to maintain a reasonable expectation of privacy in one's trash that the owner must forgo use of ordinary methods of trash collection. See Note, California v. Greenwood: Supreme Court Decides To Keep the Fourth Amendment Out of the Trash, 67 N.C.L. Rev. 1191, 1206 (1989). For purposes of our Gunwall analysis, we find the cited ordinances furnish the required support to review this case under independent state grounds.

Looking next to whether the privacy interest here is properly a matter of particular state interest or local concern, the Court of Appeals below also found this factor lacking. Boland, at 663. Again we disagree. In California v. Greenwood, supra, the Supreme Court itself recognized the individual states' freedom to determine under independent state grounds whether a privacy right in garbage is reasonable. Greenwood, at 43. In fact, several states have decided the issue under independent state grounds and have found such a privacy interest exists. See People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262, 96 Cal. Rptr. 62 (1971), vacated and remanded, 409 U.S. 33 (1972), reaffirmed, 8 Cal. 3d 623, 504 P.2d 457, 105 Cal. Rptr. 521, cert. denied, 412 U.S. 919 (1973); State v. Tanaka, 67 Hawaii 658, 701 P.2d 1274 (1985); Smith v. State, 510 P.2d 793 (Alaska 1973) (although no privacy interest in garbage was found in this case, the court did hold that under more appropriate facts, such a right could be found). Having found the six Gunwall criteria fulfilled in this case, we now resort to an analysis of the issue on independent state grounds.

Const, art. 1, § 7 provides:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Violation of a right of privacy under this provision turns on whether the State has unreasonably intruded into a person's "private affairs". State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984) (citing State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d 1199 (1980)). The difference between the right of privacy under Const. art. 1, § 7 and the Fourth Amendment has been explained as follows:

Const, art. 1, § 7 analysis encompasses those legitimate privacy expectations protected by the Fourth Amendment, but is not confined to the subjective privacy expectations of modern citizens who, due to well publicized advances in surveillance technology, are learning to expect diminished privacy in many aspects of their lives. Rather, it focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

(Citations omitted.) Myrick, at 510-11.

We have held in the past that certain governmental intrusion does constitute a violation of an individual's private affairs under Const. art. 1, § 7. See State v. Simpson, 95 Wn.2d 170, 194, 622 P.2d 1199 (1980) (privacy interest found in jail property box which could not be searched without probable cause); State v. Houser, 95 Wn.2d 143, 156, 622 P.2d 1218 (1980) (absent manifest necessity, police officers barred from searching the locked trunk of an impounded vehicle in the course of an inventory search); State v. Stroud, 106 Wn.2d 144, 153, 720 P.2d 436 (1986) (reasonable expectation of privacy exists in a locked container located in a vehicle); Seattle v. Mesiani, 110 Wn.2d 454, 458, 755 P.2d 775 (1988) (stopping all vehicles at mandatory checkpoints to check whether drivers were intoxicated constituted an unreasonable intrusion into a person's private affairs).

We find under the facts of this case that defendant Boland's private affairs were unreasonably intruded upon by law enforcement officers when they removed the garbage from his trash can and transported it to the police station in order to make it available to state and federal narcotics agents. Boland's trash was in his can and sitting on the curb in expectation that it would be picked up by a licensed garbage collector. This leads us to the conclusion that it falls squarely within the contemplated meaning of a "private affair". While it may be true an expectation that children, scavengers, or snoops will not sift through one's garbage is unreasonable, average persons would find it reasonable to believe the garbage they place in their trash cans will be protected from warrantless governmental intrusion. In the words of the Hawaii Supreme Court:

People reasonably believe that police will not indiscriminately rummage through their trash bags to discover their personal effects. Business records, bills, correspondence, magazines, tax records, and other telltale refuse can reveal much about a person's activities, associations, and beliefs.

State v. Tanaka, supra at 662.

Of course, we recognize the usual exceptions to the warrant requirement, such as plain view and exigency, also apply to garbage cans. However, we note in this case that the prosecutor conceded at oral argument that no attempt to secure a warrant to search Boland's garbage was ever made.

In support of its argument against finding a privacy interest in defendant's garbage, the State urges us to adopt State v. Fassler, 108 Ariz. 586, 503 P.2d 807 (1972), wherein the Arizona Supreme Court held a search of trash cans left in an alleyway did not violate the defendant's Fourth Amendment rights. Fassler, at 592-93. Although Ariz. Const. art. 2, § 8 contains the same privacy language as Const. art. 1, § 7, the Arizona Supreme Court in Fassler based its holding on the Fourth Amendment rather than independent state grounds. For this reason, we decline to follow that case.

In State v. Hempele, 576 N.J. 182, 576 A.2d 793 (1990), the New Jersey Supreme Court held that while California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988) clearly established no Fourth Amendment protection for garbage left on the curbside for collection, article 1, section 7 of the New Jersey Constitution, which has been interpreted as providing broader protection than its federal counterpart, does prohibit such searches. Hempele, at 195. Hempele involved two consolidated cases wherein police officers received information indicating the defendants were carrying on drug activities in their homes. Hempele, at 188. The officers conducted warrantless searches of the defendants' garbage in both cases and found evidence of drug activity. Hempele, at 189. The officers then secured search warrants for the defendants' homes based on the informants' tips and the evidence seized from the garbage. Hempele, at 189.

While there is an identical result in Hempele and this case, we note one important doctrinal difference. In the dissent in Hempele, Justice Garibaldi attacks the majority opinion on federalism grounds and argues that the test established under federal precedent more appropriately comports with the reasonable expectation of privacy that most New Jersey citizens have in their garbage than the test developed by the majority. Hempele, at 229 (Garibaldi, J., dissenting). This argument has some merit in that the language of the Fourth Amendment and article 1, section 7 of the New Jersey Constitution are identical. The same argument, however, does not apply when comparing Washington's constitution and the Fourth Amendment. Under Const. art. 1, § 7, the focus is whether the "private affairs" of an individual have been unreasonably violated rather than whether a person's expectation of privacy is reasonable.

In rendering our opinion, we acknowledge that the United States Supreme Court has held to the contrary under the Fourth Amendment in Greenwood. We also recognize that the opinions of the Supreme Court, while not controlling on state courts construing their own constitutions, are nevertheless important guides on the subjects they squarely address. State v. Gunwall, supra at 60-61. However, we decline to follow federal precedent for two reasons. First, Greenwood is based in part on the fact the court felt society unwilling to accept as objectively reasonable a privacy expectation in garbage left outside the curtilage of the home for collection. As Chief Judge Alexander points out in his dissent below, this court has previously held the location of a search is indeterminative when inquiring into whether the State has unreasonably intruded into an individual's private affairs. State v. Boland, supra at 664-65 (Alexander, C.J., dissenting) (citing State v. Myrick, supra). Thus, the fact defendant placed his garbage at the curb rather them in his backyard has no bearing on whether an unreasonable intrusion into his private affairs occurred. Second, the reasoning upon which Greenwood is based conflicts directly with this court's interpretation of Const. art. 1, § 7. In explaining why society was unwilling to accept an expectation of privacy in garbage, the Supreme Court analogized to Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979), wherein the court held the Fourth Amendment did not prohibit the installation of a pen register at the telephone company for the purpose of recording telephone numbers of a criminal suspect. Smith, at 743-44. The main reason for the court's conclusion was that a person voluntarily conveys the numbers to the telephone company, thereby losing all legitimate privacy expectations in the numbers. Smith, at 743-44. However, we held to the contrary in Gunwall when we stated:

A telephone is a necessary component of modern life. It is a personal and business necessity indispensable to one's ability to effectively communicate in today's complex society. . . . The concomitant disclosure to the telephone company, for internal business purposes, of the numbers dialed by the telephone subscriber does not alter the caller's expectation of privacy and transpose it into an assumed risk of disclosure to the government.

Gunwall, at 67 (quoting People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983)).

The same description equally applies to garbage collection. The proper and regulated collection of garbage, as evidenced by ordinances such as Port Townsend's (cited above), is as necessary to the proper functioning of modern society as is the telephone company. While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion. We therefore reverse the Court of Appeals.

Since we reverse the Court of Appeals, we must address whether exclusion of the evidence seized from defendant's home was the appropriate remedy in this case. In support of its argument against suppression, the State cites State v. Bonds, 98 Wn.2d 1, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). In Bonds, we set out three primary objectives underlying the exclusionary rule:

[PJirst, and most important, to protect privacy interests of individuals against unreasonable governmental intrusions; second, to deter the police from acting unlawfully in obtaining evidence; and third, to preserve the dignity of the judiciary by refusing to consider evidence which has been obtained through illegal means.

Bonds, at 12. The State argues these objectives have not been met in this case, and that by balancing these objectives against the violation which occurred, we should find in favor of reintroducing the fruits of the search of Boland's residence against him.

However, we also stated in Bonds that:

[W]e do not intend to suggest that such a balancing should be carried out whenever the operation of the exclusionary rule is an issue. When evidence is obtained in violation of the defendant's constitutional immunity from unreasonable searches and seizures, there is no need to balance the particular circumstances and interests involved. Evidence obtained as a result of an unreasonable search or seizure must be suppressed.

(Citation omitted.) Bonds, at 11.

In State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982), we expressed the mandatory nature of the exclusionary rule in cases where a person's privacy rights under Const. art. 1, § 7 have been violated:

We think the language of our state constitutional provision constitutes a mandate that the right of privacy shall not be diminished by the judicial gloss of a selectively applied exclusionary remedy. In other words, the emphasis is on protecting personal rights rather than on curbing governmental actions. This view toward protecting individual rights as a paramount concern is reflected in a line of Washington Supreme Court cases predating Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R.2d 933 (1961), which first made the exclusionary rule applicable to the states. The important place of the right to privacy in Const. art. 1, § 7 seems to us to require that whenever the right is unreasonably violated, the remedy must follow.

(Citations and footnote omitted. Italics ours.) White, at 110.

By relying on the objectives set out in Bonds, the State misunderstands the application of the exclusionary rule in Washington. As White and Bonds make clear, violation of a constitutional immunity automatically implies exclusion of the evidence seized. For this reason, the objectives set out in Bonds are inapplicable in this case, and the trial court properly excluded the evidence seized from defendant's residence.

The State also urges us to consider abolishing the exclusionary rule in Washington. However, as we expressed in White, the exclusionary rule has existed in Washington since before the United States Supreme Court mandated its application to the states via Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R.2d 933 (1961). We decline to abolish it now.

Reversed.

Callow, C.J., and Utter, Brachtenbach, and Smith, JJ., concur.