State v. DeFusco

620 A.2d 746, 224 Conn. 627, 1993 Conn. LEXIS 38

• Court: Supreme Court of Connecticut
• Decided: February 23, 1993
• Docket: 14544
• Status: Published

Opinions

Peters, C. J.

The principal issue in this appeal is whether article first, § 7, of the Connecticut constitution¹ prohibits the police from conducting warrant-less searches and seizures of garbage placed at the curb for collection. The state charged the defendant, Paul DeFusco, by substitute information with possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a),² and the trial court accepted his conditional plea of nolo contendere.³ The defendant appealed to the Appellate Court, which affirmed the judgment of conviction. State v. DeFusco, 27 Conn. App. 248, 606 A.2d 1 (1992). We subsequently granted the defendant’s petition for certification to appeal.⁴ State v. DeFusco, 222 Conn. 910, 608 A.2d 692 (1992). We affirm.

The relevant facts are as follows. On October 12, 1990, the Hamden police department executed a search warrant for 19 Building Brook Road, the defendant’s residence. The warrant had been issued on the basis of an affidavit signed by two Hamden police officers experienced in narcotics investigations. The affidavit recited information provided by a confidential informant and described items obtained during several September, 1990 “garbage pulls” by Hamden police officers from garbage placed for collection at the curb in front of the defendant’s house.⁵ In the course of their search of the defendant’s home, the police seized narcotics, drug paraphernalia, weapons and cash. The police arrested the defendant and charged him with various narcotics offenses.

The defendant moved to suppress the evidence seized from his home during the search.⁶ He argued that the warrantless garbage pulls violated article first, § 7, of the Connecticut constitution and, therefore, that the items taken from the garbage should not have been relied on in the warrant affidavit. Without reference to the items taken from the garbage, the defendant claimed, the affidavit failed to establish probable cause. He also claimed, in the alternative, that the information contained in the affidavit was insufficient to establish probable cause even if the items obtained in the garbage pulls were properly considered. Relying on the defendant’s diminished expectation of privacy in the garbage that he had voluntarily placed curbside, the trial court determined that the garbage pulls had been constitutionally valid. The trial court concluded, therefore, that the affidavit had properly included reference to items obtained in those garbage pulls and had established probable cause. Accordingly, the trial court denied the defendant’s motion to suppress. The trial court subsequently accepted the defendant’s plea of nolo contendere, and sentenced him to an eight year term of imprisonment, execution suspended after two years and probation for three years.

. The defendant appealed his conviction to the Appellate Court; State v. DeFusco, supra, 27 Conn. App. 248; claiming that the trial court had improperly determined that (1) the garbage searches and seizures had not violated article first, § 7, of the Connecticut constitution, and (2) the affidavit, which properly included reference to the items seized in the garbage searches, had established probable cause. The Appellate Court affirmed.

In this appeal, the defendant reiterates the claims that he raised in the Appellate Court. Specifically, he argues that the Appellate Court improperly affirmed the trial court’s determinations that (1) the search and seizure of the defendant’s garbage had been permissible under article first, § 7, of the Connecticut constitution and (2) the affidavit, containing information obtained in the garbage searches, had established probable cause.

I

The defendant’s principal claim is that the Hamden police department’s warrantless searches and seizures of his garbage violated article first, § 7, of the Connecticut constitution.⁷ We disagree.

Although the United States Supreme Court has expressly held that the fourth amendment to the federal constitution⁸ does not protect against warrantless police searches and seizures of garbage placed at the curb for collection; California v. Greenwood, 486 U.S. , 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988); we may find greater protection of individual rights under our state constitution than that provided by the federal constitution. “It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . .” (Internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992). Moreover, we have held that “[i]n the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort .... In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.” (Internal quotation marks omitted.) State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990). Recognizing that our state constitution “is an instrument of progress ... is intended to stand for a great length of time and should not be interpreted too narrowly or too literally”; (internal quotation marks omitted) State v. Oquendo, supra, 649; we have concluded in several cases that the state constitution provides broader protection of individual rights than does the federal constitution. See, e.g., id., 652; State v. Marsala, supra, 171; State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988), and cases cited therein.

In this case, we must decide whether article first, § 7, of the Connecticut constitution affords greater protection than does federal law against warrantless searches of garbage placed at the curb for collection. For present purposes, we assume that our determination of whether garbage placed at the curb for collection falls within the protection of article first, § 7, is governed by the two-part standard that is used under the federal constitution and many other states’ constitutions: (1) has the owner or custodian of the garbage manifested a subjective expectation of privacy with respect to it?; and (2) is that expectation one that society would consider reasonable? Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); see, e.g., Californian. Greenwood, supra, 39; Commonwealth v. Pratt, 407 Mass. 647, 660, 555 N.E.2d 559 (1990); but see State v. Hempele, 120 N.J. 182, 198, 576 A.2d 793 (1990). Although we have never addressed the proper standard for determining the applicability of article first, § 7, neither party contests the appropriateness of using the Katz test in this case. Rather, the parties’ primary disagreement concerns the second part of the standard, namely, whether an expectation of privacy in garbage placed at the curb for collection is one that Connecticut citizens would recognize as reasonable.⁹

Because the focus of our inquiry, therefore, is the objective reasonableness of a person’s expectation of privacy in garbage placed curbside for collection,¹⁰ it is useful, at the outset, to identify several other issues, addressed by the parties, that are unnecessary to our decision. First, whether the defendant effected a property law abandonment of his garbage by placing it at the curb for collection is not determinative of the defendant’s state constitutional claim. As we have recently held, property law abandonment and constitutional abandonment are independent concepts. See State v. Mooney, 218 Conn. 85, 106-107, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).¹¹

Second, our respect for the sanctity of the home is not a factor in the circumstances of this case because article first, § 7, covers not only a person’s home but also his “papers” and “possessions.” Whether or not the garbage was located on the defendant’s property when searched; see footnote 5, supra; therefore, is not dispositive of the constitutional protection afforded by § 7. Accordingly, the state’s citation to several of our previous cases in which we emphasized that § 7 affords the highest protection against state invasion into the home; e.g., State v. Geisler, 222 Conn. 672, 687-90, 610 A.2d 1225 (1992); is unavailing insofar as the language of § 7 dispels the notion that § 7 protects only the home.

Third, our decision does not rely on the textual difference between the fourth amendment and article first, § 7. At oral argument before this court, the state argued that, because the fourth amendment protects, inter alia, “effects,” whereas § 7 protects, inter alia, the narrower category of “possessions,” the state constitution cannot be interpreted to provide more protection than does the federal constitution. Because this particular issue was neither briefed by the parties nor raised below, we decline to determine in this case the significance of the use of different words by the two provisions.

Finally, our decision in this case does not rely on the arguable lack of a historical foundation for the claim that article first, § 7, was intended to protect against warrantless searches of garbage placed at the curb for collection. Although we have, on occasion, employed a historical analysis of state constitutional provisions to aid in our determination of their content; see, e.g., Stater. Oquendo, supra, 650-52 (“seizure” under article first, §§ 7 and 9); State v. Barton, 219 Conn. 529, 538 n.4, 594 A.2d 917 (1991) (“probable cause” under article first, § 7); see also, e.g., State v. Miller, 29 Conn. App. 207, 217-19, 614 A.2d 1229, cert. granted, 224 Conn. 914, 915, 614 A.2d 170 (1992) (warrant requirement under article first, § 7); the arguments of both the defendant and the state emphasized the discussion of what Connecticut citizens would consider reasonable in the present day. Indeed, the reasonable expectation of privacy analysis is peculiarly focused on current conditions and requires a factual inquiry into all the relevant circumstances of the search. See State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). In this case, therefore, we confine our inquiry to contemporary considerations without reliance on the historical circumstances surrounding the adoption of article first, § 7.

We now address the primary issue on which the defendant’s state constitutional argument turns: whether the defendant’s expectation of privacy in garbage placed at the curb for collection was objectively reasonable under the circumstances. Because we conclude that such an expectation was not reasonable, we are persuaded that article first, § 7, did not prohibit the garbage pulls conducted by the Hamden police.

When the defendant placed his garbage at the curb in front of his house for collection by the garbage collector, a myriad of intruders, purposeful or errant, could legally have sorted through his garbage. For instance, garbage collectors in Connecticut have a statutory duty to assist municipal authorities in identifying recycling violators.¹² See General Statutes § 22a-220c (a). This required assistance necessarily entails the authority to inspect the contents of garbage placed for collection.¹³ Moreover, the owner or operator of a solid waste facility¹⁴ or a resources recovery facility¹⁵ has the statutory obligation to conduct periodic unannounced inspections of loads delivered to the facility to assist municipalities and the commissioner of environmental protection in assessing recycling compliance.¹⁶ See General Statutes § 22a-220c (b). It is also a matter of common knowledge that garbage placed at the curb is subject to intrusion by a variety of people, with a variety of purposes, including bottle and coupon collecting, antique hunting, food searching and snooping. See also California v. Greenwood, supra, 40. Finally, we regard it to be common knowledge among citizens of this state that dogs, raccoons, or other creatures may intrude upon and expose the contents of garbage that has been placed for collection in an accessible area.¹⁷

In light of our recognition of these potential intrusions on garbage placed at the curb for collection, the defendant’s argument for state constitutional protection against police searches of his garbage devolves into an argument that a person may harbor different expectations of privacy, all of which are reasonable, as to different classes of intruders. We cannot countenance such a rule. A person’s reasonable expectations as to a particular object cannot be compartmentalized so as to restrain the police from acting as others in society are permitted or suffered to act. We have impliedly rejected such illogical linedrawing, and our Appellate Court has expressly done so. See State v. Brown, 198 Conn. 348, 357, 503 A.2d 566 (1986); State v. Liptak, 21 Conn. App. 248, 255, 573 A.2d 323, cert. denied, 215 Conn. 809, 576 A.2d 540 (1990). Most federal and state courts agree. See, e.g., California v. Ciraolo, 476 U.S. 207, 213-14, 214 n.2, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986); State v. Henderson, 435 N.W.2d 394, 396 (Iowa 1988); State v. Trahan, 229 Neb. 683, 688-89, 428 N.W.2d 619 (1988); State v. Byrne, 149 Vt. 224, 228, 542 A.2d 276 (1988).¹⁸ A person either has an objectively reasonable expectation of privacy or does not; what is objectively reasonable cannot, logically, depend on the source of the intrusion on his or her privacy.

We conclude, therefore, that the defendant had no reasonable expectation of privacy in the garbage he placed at the curb for collection. Accordingly, its search and seizure by the police did not violate article first, § 7, of the Connecticut constitution.¹⁹

II

We now turn to the defendant’s claim that, even if the affidavit in support of the search and seizure warrant properly included reference to the items obtained during the garbage pulls, the information contained in the affidavit was not sufficiently specific or informative to establish probable cause. We are not persuaded.

The following additional facts are relevant to this claim. The affidavit stated that, on August 15, 1990, a “known and reliable” informant, whom the Hamden police had utilized numerous times in narcotics cases, had told Hamden police investigator Charles Grady that the defendant was selling one ounce quantities of cocaine from his Hamden residence. The affidavit further stated that the informant had told Grady that the defendant, a construction or carpentry foreman who supplemented his income by selling cocaine, sold approximately one half kilo of cocaine every two weeks.

According to the affidavit, the affiants obtained from the informant a description of the defendant’s vehicles, a description and name of the person from whom the defendant received his cocaine supply and a description of that person’s vehicle and town of residence. The affiants were also given information regarding the persons from whom the defendant’s supplier obtained cocaine. The affiants related that they had confirmed the information regarding both the defendant’s cars and the defendant’s supplier’s cars and residence. The affidavit further stated that the informant had told the Hamden police that the defendant had a longtime heroin addiction and used heroin daily.

Moreover, the affidavit related that, during September, 1990, Hamden police officers had conducted several “garbage pulls” from garbage at the defendant’s residence. As a result of a garbage pull on September 5, 1990, Grady found two prescription bottles bearing the defendant’s name and three small glassine baggies that were the type used to package cocaine and heroin. One baggie was labeled “Bad Med.” The affidavit also stated that, as a result of a garbage pull on September 26,1990, Grady had recovered a prescription bottle bearing the defendant’s name, several short cut straws, and two glassine baggies that were the type used to package cocaine and heroin.²⁰ Finally, the affidavit stated that, in 1988, the Hamden police had received an anonymous complaint that the defendant was selling one ounce quantities of cocaine from the same residence.

Our determination of whether the affidavit established probable cause pursuant to article first, § 7, of the state constitution is governed by the “totality of the circumstances” test enunciated in State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991).²¹ See also Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). This test requires the issuing judge to make “a practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the veracity and the basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Internal quotation marks omitted.) State v. Rodriguez, 223 Conn. 127, 135, 613 A.2d 211 (1992).

“When an affidavit indicates that the police have relied on information from a confidential informant, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented.” (Internal quotation marks omitted.) State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991).

In our review of the defendant’s claim, we will uphold "the validity of [the] warrant ... [if] the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed.” (Internal quotation marks omitted.) State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992). "In a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.” State v. Johnson, supra, 565. With these principles in mind, we now consider whether there was a substantial factual basis for the issuing judge’s conclusion that the affidavit established probable cause.

A

We consider first the information provided by the informant. “Although, under [the totality of the circumstances] standard, we no longer rigidly apply the two-pronged . . . test [pursuant to State v. Kimbro, 197 Conn. 219, 496 A.2d 298 (1985)], the determination of an informant’s veracity or reliability and basis of knowledge remains highly relevant. ...” (Internal quotation marks omitted.) State v. Duntz, supra, 216-17; see also State v. Barton, supra, 552. The affidavit in this case did not expressly state the informant’s basis of knowledge.²² Moreover, there was no indication whether the informant had personally observed the defendant’s drug use and sales or had learned the information from another source. Indeed, nothing in the affidavit would have entitled the issuing judge reasonably to infer that the informant was reporting information of which he had any basis of knowledge. See also State v. Duntz, supra, 217-18. This deficiency in the informant’s basis of knowledge does not necessarily require us to disregard the informant’s information, however, because the deficiency in the informant’s basis of knowledge “may be overcome by a strong showing of the informant’s reliability.” State v. Rodriguez, supra, 141; see also Illinois v. Gates, supra, 233; State v. Duntz, supra, 218.

Accordingly, we turn to the informant’s reliability. The affiants’ assertion that the informant was reliable does not itself give the issuing judge a basis upon which to infer reliability.²³ See State v. Telesca, 199 Conn. 591, 603, 508 A.2d 1367 (1986); State v. Tulli, 14 Conn. App. 356, 358, 541 A.2d 515, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988). We note also that the informant’s association with criminal activity, evidenced by his reportedly numerous proffers of information to the police, detracts from his reliability. See State v. Telesca, supra (reliability of informant who regularly supplies information to police is suspect because he is likely to be involved in criminal activity or to associate with criminals); cf. State v. Rodriguez, supra, 141 and n.11 (police not obligated to establish reliability of citizen informants).

Despite these indicia of unreliability, the issuing judge nevertheless was entitled to determine that the informant was reliable. First, the affiants stated that the informant had been used “numerous times in the past for various narcotic[s] cases.” The issuing judge could reasonably have inferred from this statement that the informant had given trustworthy information in the past and, therefore, was reliable. Although this inference would have been better supported by an affirmative statement by the affiants that this informant’s information had, in the past, led to arrests and convictions; see, e.g., State v. Rodriguez, supra, 136 (affidavit stated that informant has “also given information in prior cases that . . . led to arrests arid convictions”) (emphasis added); we do not require affiants to invoke “formulaic phrases” in a search warrant affidavit. State v. Barton, supra, 549. In addition, the issuing judge reasonably could have concluded that the glassine baggies and short cut straws recovered during the garbage pulls corroborated the informant’s allegations that the defendant was selling one ounce quantities of cocaine from his home and was a heroin user. Such corroboration would be a proper ground on which to base an inference of reliability. State v. Rodriguez, supra, 136-37. Finally, the issuing judge could properly have inferred the informant’s reliability from the fact that “the informant was not anonymous, but known [by the police,] and therefore risked both loss of credibility with the police and possible prosecution for falsely reporting an incident under General Statutes § 53a-180 had his information proved to be fabricated.” State v. Johnson, supra, 564. Taken together, under the totality of the circumstances, this information amounted to a sufficiently strong showing of the informant’s reliability and, therefore, compensated for a lack of information regarding his basis of knowledge.²⁴

B

Second, we consider the information contained in the affidavit that derived from the garbage pulls, which we have held were valid under article first, § 7, of the Connecticut constitution. The relevant items gathered from the defendant’s garbage were five glassine baggies and several short cut straws, which the affiants, who were experienced narcotics investigators, identified as drug paraphernalia. It was reasonable for the issuing judge to conclude, in light of the information provided, that the baggies and straws were, in fact, indicia of drug activity.

C

We have defined probable cause as a “fair probability that contraband or evidence of a crime will be found in a particular place.” (Internal quotation marks omitted.) State v. Rodriguez, supra, 135. In light of the information provided by the informant, which the issuing judge could reasonably have credited as reliable, and the items gathered by police investigation, which the issuing judge could reasonably have concluded were indicia of drug activity, we hold that the issuing judge had a substantial factual basis upon which to conclude that probable cause existed.

The judgment is affirmed.

In this opinion Callahan and Norcott, Js., concurred.

1 Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

2 General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

3 The defendant’s plea of nolo contendere was conditioned on his right to appeal the trial court’s denial of his motion to suppress. See General Statutes § 54-94a; Practice Book § 4003.

4 Our order on the defendant’s petition for certification to appeal; State v. DeFusco, 222 Conn. 910, 608 A.2d 692 (1992); granted the petition limited to the following issues:

“1. Does article first, § 7, of the Connecticut constitution protect garbage left for collection at the curbside of a residence?

“2. If the answer to the first question is ‘no,’ was the search warrant in this case supported by probable cause?”

5 The trial court described the defendant’s placement of the garbage as “at the side of the street” and “at the curb.” The Appellate Court, on the other hand, phrased the issue before it as whether garbage “left for collection outside the curtilage of a residence, but adjacent thereto” enjoys protection under article first, § 7, of the Connecticut constitution. State v. DeFusco, 27 Conn. App. 248, 255, 606 A.2d 1 (1992). Because neither party has raised an issue regarding the precise location of the garbage when it was searched and seized by the police, it is not necessary to resolve that question of fact here. We decline to delve into the possible factual scenarios that are outside the scope of the certified question and that may arise in future cases, such as garbage left for collection inside a closed garage; see State v. Stevens, 123 Wis. 2d 303, 314, 367 N.W.2d 788 (1985); and garbage placed for collection in a container in an indoor garbage room of an apartment building. See Smith v. State, 510 P.2d 793, 797 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (1973). For purposes of this decision, we refer to the location of the defendant’s garbage as “at the curb” or “curbside” because the certified question and both parties’ briefs use one or both of these neutral descriptions.

6 The defendant also filed a motion to dismiss that raised, inter alia, the same claims. The trial court never specifically acted on that motion.

7 The defendant argues that, if he were to prevail on this claim, the subsequent search of the defendant’s home and the seizure of evidence would be rendered illegal because the affidavit, stricken of the improper information, was insufficient to establish probable cause. Neither party has contested the conclusion reached by the trial court, and affirmed by the Appellate Court, that, without reference to those items, the warrant affidavit would not have established probable cause. State v. DeFusco, 27 Conn. App. 248, 253, 606 A.2d 1 (1992).

8 The fourth amendment to the United States constitution 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.”

The fourth amendment was made applicable to the states through the fourteenth amendment’s due process clause. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949). The fourth amendment’s prohibition against the use of illegally obtained evidence was made applicable to the states through the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655-56, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961).

9 We decline to address the state’s briefly stated contention that the defendant did not meet the first part of the Katz test. The trial court’s and Appellate Court’s decisions were not based on this factor, and, in any case, whether the defendant possessed a subjective expectation of privacy as to the garbage is unnecessary to the resolution of this case in light of our conclusion that the defendant has not satisfied the second part of the Katz test.

10 The reasonable expectation of privacy inquiry is essentially identical to the constitutional abandonment inquiry. See State v. Mooney, 218 Conn. 85, 107, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

11 We note, however, that, if a person has abandoned an object in the property law sense, that person’s intent to discard may be relevant to the constitutional inquiry whether the person actually possessed an expectation of privacy as to that object and whether such expectation was reasonable. See State v. Mooney, 218 Conn. 85, 107, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

12 Pursuant to General Statutes § 22a-241b (c), recycling of designated items has been mandatory in Connecticut since January 1, 1991.

13 Connecticut’s regulation of garbage thus differs from New Jersey’s regulation. See State v. Hempele, 120 N.J. 182, 207, 576 A.2d 793 (1990) (“[w]e are not sure whether garbage collectors have the legal right to look through closed trash bags”).

14 General Statutes § 22a-207 (4) defines “[s]olid waste facility” as “any solid waste disposal area, volume reduction plant, transfer station, wood-burning facility or biomedical waste treatment facility.”

15 General Statutes § 22a-207 (9) defines “[rjesources recovery facility” as “a facility utilizing processes to reclaim energy from municipal solid waste.”

16 It is not the state regulation per se that persuades us that the defendant had no reasonable expectation of privacy in garbage that he placed at the curb for collection. Rather, we consider the statutes regulating garbage collection, disposal and recycling to constitute one factor reflecting the Connecticut citizenry’s attitudes and expectations regarding garbage. Those statutes are useful in our determination of whether the defendant’s state constitutional right to be free of unreasonable searches and seizures was violated, because that determination turns, in this case, on whether the defendant’s expectation of privacy in curbside garbage was one that Connecticut citizens would recognize as reasonable. We do not, as the dissent suggests, rely on the recycling statute to define the scope of the important rights guaranteed by article first, § 7, of the Connecticut constitution. We, therefore, disagree with the New Jersey Supreme Court’s view, which the dissent in this case appears to share, that “[government regulation becomes relevant only once it has been determined that constitutional protections do apply.” State v. Hempele, 120 N.J. 182, 211, 576 A.2d 793 (1990).

17 Our conclusion that the defendant had no reasonable expectation of privacy in garbage placed at the curb for collection is not undermined by the fact that the legislature has authorized municipalities to prohibit the scavenging of solid waste. General Statutes § 22a-220a (h). This authorization does not itself support the existence of a reasonable expectation of privacy. In any case, however, Hamden’s solid waste disposal ordinance prohibits only the scavenging of solid waste at the landfill, not the scavenging of solid waste placed at the curb for collection. See Hamden Town Code of Ordinances § 94.40 (H) (1990); cf. California v. Greenwood, 486 U.S. 35, 52, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) (Brennan, J., dissenting) (describing town ordinance prohibiting scavenging of any items placed for garbage collection).

18 Four state courts, however, have either explicitly or implicitly engaged in such linedrawing in the course of determining, as a matter of state constitutional law, that garbage placed at the curb for collection is protected against warrantless police searches. People v. Krivda, 5 Cal. 3d 357, 367, 486 P.2d 1262, 96 Cal. Rptr. 62 (1971) (en banc), vacated, 409 U.S. 33, 93 S. Ct. 32, 34 L. Ed. 2d 45 (1972) (remanding for determination whether holding was based on state or federal law), on remand, 8 Cal. 3d 623, 504 P.2d 457, 105 Cal. Rptr. 521 (state constitutional basis is independent ground for decision), cert. denied, 412 U.S. 919, 93 S. Ct. 2734, 37 L. Ed. 2d 145 (1973); State v. Tanaka, 67 Haw. 658, 662, 701 P.2d 1274 (1985); State v. Hempele, 120 N. J. 182, 215, 576 A.2d 793 (1990); State v. Boland, 115 Wash. 2d 571, 578, 800 P.2d 1112 (1990) (en banc).

The New Jersey Supreme Court afforded such protection on the basis of its express conclusion that a person may reasonably hold a different expectation of privacy in garbage as against the police than as against others. State v. Hempele, supra, 206 (“[w]e expect officers of the State to be more knowledgeable and respectful of people’s privacy than are dogs and curious children”). The other state courts that have held that their state constitutions afford protection against warrantless police searches of curbside garbage have recognized impliedly that a person may have different expectations of privacy in garbage, all of which are reasonable, as to different people. See People v. Krivda, supra, 367 (“defendants had a reasonable expectation that their trash would not be rummaged through and picked over by police officers acting without a search warrant”); State v. Tanaka, supra, 662 (“[p]eople reasonably believe that police will not indiscriminately rummage through their trash bags to discover their personal effects”); State v. Boland, supra, 581 (“[w]hile 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”).

Despite careful consideration of each of these cases, we are persuaded that, in the circumstances of this case, article first, § 7, of the Connecticut constitution did not prohibit the search and seizure of the defendant’s garbage conducted by the Hamden police. Some of these cases involved the interpretation of unique state constitutional provisions; State v. Boland, supra, 577 (article 1, § 7 of the Washington constitution provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law”); or particular fact patterns; State v. Tanaka, supra, (police trespassed on defendants’ property to seize the garbage). Finally, the authority of the California case, People v. Krivda, supra, has' been rendered suspect by an amendment to the California constitution that limits a criminal defendant’s right to be free of unreasonable searches and seizures to the protection afforded under the federal constitution. See G. Uelmen, “The California Constitution After Proposition 115,” 3 Emerging Issues in State Constitutional Law 33, 40 (1990).

19 We are sensitive to the reality that, in our complex society, some Connecticut residents may legally generate garbage that reveals highly personal information. Medical information or products, financial documents and personal letters are among those items that we think it reasonable for Connecticut residents to wish to maintain as confidential. Cf. Maher v. Freedom of Information Commission, 192 Conn. 310, 320, 472 A.2d 321 (1984). We note, however, that the record is barren with regard to any steps taken by the defendant to secrete his garbage, such as eradicating any identifying items in the garbage that would be necessary to link the garbage to him. Indeed, at oral argument before this court, the state asserted that the significance of the prescription bottles recovered during the garbage pulls was merely their linkage of the other items to the defendant.

20 The affidavit stated that attempted garbage pulls on September 12 and 19,1990, were unsuccessful because no garbage had been placed for collection on those days.

21 We apply the standard enunciated in State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991), because, as the Appellate Court noted, the holding in Barton is retroactively applicable. State v. DeFusco, 27 Conn. App. 248, 253 n.4, 606 A.2d 1 (1992); see State v. Barton, supra, 552-53.

22 In its brief in this court, the state conceded that the affidavit did not state the informant’s basis of knowledge.

23 In its brief in this court, the state conceded that the affidavit did not state any reason for the affiants’ conclusion that the informant was reliable.

24 In light of our conclusion that the issuing judge was entitled to credit the informant’s information as reliable, we need not address the state’s contention that the inference of reliability was supported by certain other factors, such as the anonymous tip and the corroboration of information provided by the informant relating to the defendant’s address and cars. We note, however, that the facts that the anonymous tip was received approximately three years prior to the informant’s proffer of information and that its source was unknown may diminish its significance as a factor supporting the informant’s reliability. Cf. State v. Barton, 219 Conn. 529, 550-51, 594 A.2d 917 (1991). Moreover, we question whether verified information regarding such mundane facts as the defendant’s address and the model of his cars, taken by itself, may properly be found to establish the reliability of an informant. Cf. State v. Cofield, 220 Conn. 38, 47, 595 A.2d 1349 (1991).