State v. Schwartz

2004 SD 123, 689 N.W.2d 430, 2004 S.D. LEXIS 193

• Court: South Dakota Supreme Court
• Decided: November 10, 2004
• Docket: None
• Status: Published

Opinions

GILBERTSON, Chief Justice.

[¶ 1.] A circuit court found Rick and Connie Schwartz guilty of possession of methamphetamine and sentenced each to serve two years in the South Dakota State Penitentiary, with Connie’s sentence suspended on various conditions. Both now appeal and raise the same substantive issues. First, the Sehwartzes argue that the South Dakota Constitution prohibited the warrantless search and seizure of their trash. They also believe that the evidence used to support the issuance of a warrant to search their persons and residence was insufficient to establish probable cause. Finally, the Sehwartzes contend that their statements made to law enforcement subsequent to the search of their home should be suppressed as fruit of an illegal search. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In January 2003, a man by the name of Steve Prunty contacted the Drug Enforcement Administration and provided information concerning the use and distribution of illegal drugs by several individuals in Brookings, South Dakota. This information was then passed along to South Dakota law enforcement authorities. Shortly thereafter, on January 30, 2003, Agent Jason Even of the Division of Criminal Enforcement met with Prunty. During the meeting, Prunty related that his ex-wife was abusing methamphetamine and that she had confided in him about various people in the Brookings area who were using and selling methamphetamine and marijuana. Agent Even recognized the names of several of the individuals through other on-going drug investigations. In particular, Prunty mentioned that his ex-wife obtained methamphetamine from Rick and Connie Schwartz.

[¶ 3.] At the conclusion of the meeting, Prunty showed Agent Even where the Sehwartzes resided in Brookings. Based upon his meeting with Prunty, Agent Even decided to conduct two searches of the Sehwartzes’ trash. On February 4, 2003, Agent Even removed a trash can from a curb in front of the Sehwartzes’ residence. A dark green City of Brookings trash can had been placed on the boulevard next to the curb for collection by the City of Brookings trash service. The trash contained literature addressed to Connie Schwartz. Along with approximately twenty-two pieces of tin foil with black burn marks on them, Agent Even found one yellow pen tube with apparent white powder residue inside and a small portion of a green, leafy substance. In Agent Even’s experience, people involved in methamphetamine use commonly utilize tin foil as a means of smoking the drug, while pen tubes are used as a means to snort illegal drugs or to inhale fumes after methamphetamine is burned off tin foil. A field test identified the green, leafy substance as marijuana.

[¶ 4.] One week later on February 11, 2003, Agent Even conducted a second trash pull of the Schwartzes’ garbage. This search yielded miscellaneous literature including a note pad addressed to “Rick,” and approximately twenty-eight pieces of tin foil with black burn marks on them.

[¶ 5.] On February 12, 2003, Agent Even obtained a search warrant in order to search the Schwartzes’ home and their persons. In support of issuing the search warrant, Agent Even detailed his meeting with Prunty and the results of the two trash pulls conducted on the Schwartzes’ garbage. The next day, Agent Even and several other officers served the warrant on the Schwartzes and conducted a search of their residence. During the search, the officers found a white powder substance and razor blade on top of the Schwartzes’ dresser. A search of Connie’s purse revealed a snort tube and additional amounts of a white powder substance. The officers also obtained urine samples from the Schwartzes. Subsequent tests identified the white powder substance as methamphetamine. Both Rick’s and Connie’s urine samples tested positive for methamphetamine as well.

[¶ 6.] The next morning after the search, the Schwartzes voluntarily agreed to participate in an interview in Agent Even’s office. During the course of the interview, the Schwartzes made several incriminating statements regarding the use of methamphetamine, and they admitted to possession of the methamphetamine found in the search of their residence.

[¶ 7.] On February 28, 2003, a Brook-ings County grand jury indicted the Schwartzes individually for possession of methamphetamine and marijuana. Before trial, the Schwartzes filed motions to suppress the State’s evidence. They argued that evidence found during the trash pulls was obtained illegally without a search warrant, and they asserted that any evidence found in their residence was obtained through an invalid search warrant based on less than probable cause. The trial court denied these motions. After a trial before the court on June 11, 2003, the Schwartzes were found guilty of possession of methamphetamine in violation of SDCL 22-42-5. The trial judge sentenced both Rick and Connie to serve two years in the South Dakota State Penitentiary. Connie’s sentence was suspended on several conditions.

[¶ 8.] The Schwartzes now appeal and raise the following issues:

1. Whether the warrantless search and seizure of the Schwartzes’ trash violated the prohibition against unreasonable searches and seizures found in Article VI, Section 11 of the South Dakota Constitution.

2. Whether the search warrant was supported by sufficient evidence to establish probable cause.

3. Whether the Schwartzes’ statements should have been suppressed as fruit of an illegal search.

STANDARD OF REVIEW

[¶ 9.] We review motions to suppress based upon alleged constitutional violations de novo. State v. Christensen, 2003 SD 64, ¶ 7, 663 N.W.2d 691, 693-94 (citing State v. Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610). “Factual findings by the trial court are reviewed under the clear error standard of review.” Id. Application of legal standards to those findings, however, is a question of law reviewed de novo. State v. Rechtenbach, 2002 SD 96, ¶ 6, 650 N.W.2d 290, 292.

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the warrantless search and seizure of the Schwartzes’ trash violated the prohibition against unreasonable searches and seizures found in Article VI, Section 11 of the South Dakota Constitution.

[¶ 11.] The Fourth Amendment to the United States Constitution and Article VI, Section 11 of the South Dakota constitution prohibit unreasonable searches and seizures by government officials. Generally, “police officers must obtain a warrant based on probable cause issued by a judge in order to seize someone’s property.” Christensen, 2003 SD 64, ¶ 11, 663 N.W.2d at 694; see Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968). In order for the Fourth Amendment to apply, however, “[a]n individual must have a reasonable expectation of privacy in the place searched or the article seized.” Id. (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

[¶ 12.] In this case, the Schwartzes contend the constitutional protection from unreasonable searches and seizures extended to their trash permanently, including after its deposit in the landfill, and, therefore, they argue Agent Even was required to obtain a warrant before conducting the two trash pulls on their garbage. The Schwartzes argue that any evidence found pursuant to the search of their trash should have been suppressed.

[¶ 13.] The United States Supreme Court squarely addressed the question of whether the Fourth Amendment extends to trash in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). In Greenwood, a police investigator received information suggesting that the respondent, Greenwood, was involved in drug use and trafficking. The investigator proceeded to conduct a search of Greenwood’s trash, and she found items indicative of illegal drug use. After describing in an affidavit the items she found in Greenwood’s trash, the investigator obtained a warrant and searched Greenwood’s residence. The search yielded large quantities of marijuana and cocaine. A California court dismissed the charges against Greenwood on the grounds that the warrantless search of his trash violated the Fourth Amendment.

[¶ 14.] The Supreme Court reversed, concluding that the Fourth Amendment did not provide a blanket prohibition against “the warrantless search and seizure of garbage left for collection outside the curtilage of a home.” Id. at 37, 108 S.Ct. 1625. Specifically, the Greenwood Court held such a search would only violate the Fourth Amendment if “respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.” Id. at 39,108 S.Ct. 1625. Finding such an expectation lacking, the Supreme Court noted:

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. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.

Id. at 40-41, 108 S.Ct. 1625 (internal citations omitted).

[¶ 15.] Perhaps recognizing the similarity between this case and the facts in Greemvood, the Schwartzes do not attempt to argue that the trash pulls conducted by Agent Even were unreasonable according to the Fourth Amendment. Rather, they urge this Court to interpret Article VI, Section 11 of the South Dakota constitution as prohibiting the search of their trash without a warrant. At the outset, we note the language prohibiting unreasonable searches and seizures in our state constitution closely tracks the language of the Fourth Amendment.¹ The similarity in language is not by itself dis-positive, however, as this Court may interpret the South Dakota Constitution as providing greater protection to citizens of this state than is provided them under the federal Constitution as interpreted by the United States Supreme Court. State v. Opperman, 247 N.W.2d 673, 674 (S.D.1976).

[¶ 16.] The majority of state courts follow the Supreme Court’s decision in Greenwood and espouse the rationale that individuals who place their garbage for public collection do not have a reasonable expectation of privacy therein. See Kimberly J. Winbush, Annotation, Searches & Seizures: Reasonable Expectation of Privacy in Contents of Garbage or Trash Receptacle, 62 A.L.R. 5th 1 (1998); see also Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003); State v. Jones, 2002 ND 193, 653 N.W.2d 668; State v. Donato, 135 Idaho 469, 20 P.3d 5 (2001); State v. Skola, 634 N.W.2d 687 (Iowa Ct.App.2001). Those jurisdictions who have decided to part company with the Greemvood decision have generally relied upon unique language in their state constitution to extend protection to trash intended for collection. See State v. Goss, 150 N.H. 46, 834 A.2d 316 (2003); State v. Morris, 165 Vt. 111, 680 A.2d 90 (1996); State v. Boland, 115 Wash.2d 571, 800 P.2d 1112 (1990).

[¶ 17.] We agree with the majority of states and decline to adopt a blanket rule extending the constitutional protection against unreasonable searches and seizures to trash. Rather, we will employ our general two-part test to determine whether an individual has a sufficient privacy interest in the area searched for constitutional protection to apply: “(1) whether the defendant has exhibited an actual subjective expectation of privacy and (2) whether society is willing to honor this expectation as being reasonable.” Cordell v. Weber, 2003 SD 143, ¶ 12, 673 N.W.2d 49, 53 (quoting State v. Lowther, 434 N.W.2d 747, 754 (S.D.1989)). This two-part test is essentially the same as the whether “respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable” analysis utilized by the Supreme Court in Greenwood. See 486 U.S. at 39, 108 S.Ct. at 1628.

[¶ 18.] There is no showing of any subjective expectation by Schwartzes as to their claim of privacy in the trash. Neither of them testified at the suppression hearing. They fail to point to any other evidence in the record that would establish such a subjective expectation.² See State v. Wilson, 2004 SD 33, ¶27, 678 N.W.2d 176, 184 (recognizing that an individual asserting privacy interest bore the burden of showing the legitimacy of the claimed interest).

[¶ 19.] Under the facts in the record, we also conclude that the Schwartzes cannot claim an objectively reasonable expectation of privacy in the trash searched by Agent Even. The trash was discarded into a standard City of Brookings garbage receptacle. Awaiting collection by the Brookings Sanitation Department, the trash receptacle was placed on the curb of a city street, an area readily accessible to the public. In addition, the trash pulls were conducted according to the City’s normal garbage collection schedule. Agent Even had articulable reasons for focusing on the Schwartzes’ trash. This was not some police action on caprice or whim or a random check of an entire neighborhood’s garbage. We simply do not believe that society as a whole contemplated the necessary expectation of privacy under these facts to preclude the warrantless search of the Schwartzes’ trash. Accordingly, the warrantless trash pulls conducted by Agent Even were not unreasonable searches and seizures under either the Fourth Amendment or the South Dakota Constitution, and the trial court properly denied the Schwartzes’ motion to suppress the evidence found during these searches.³

[¶ 20.] 2. Whether the search warrant was supported by sufficient evidence to establish probable cause.

[¶ 21.] Next, the Schwartzes seek to challenge the sufficiency of the evidence upon which the warrant authorizing the search of their home and persons was based. According to our decision in State v. Jackson, “we review such challenges by looking at the totality of the circumstances to decide if there was at least a ‘substantial basis’ for the issuing judge’s finding of probable cause.” 2000 SD 113, ¶ 8, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983)). We will find a substantial basis for a search warrant if the issuing judge’s decision was based upon a “common sense” determination that there was “a ‘fair probability’ the evidence would be found on the persons or at the place searched.” Id. Moreover, we deem this deferential standard of review “appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Id. ¶ 9 (citing Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721, 727 (1984)).

[¶ 22.] After reviewing the evidence in this case, we believe the issuing judge could certainly have determined there was a fair probability that illegal drugs would be found at the Schwartzes’ residence. First, Agent Even’s affidavit described the discussion he had with a citizen informant, Prunty, wherein Prunty identified the Schwartzes as potential drug dealers. Second, the affidavit detailed the evidence obtained through two searches of the Schwartzes’ trash, including multiple pieces of tin foil with burn marks and a small tube containing residue of a white powder substance. Agent Even related that these materials were often an indication of drug use in his professional experience. Most importantly, Agent Even actually discovered a small amount of marijuana during the first trash pull.

[¶ 23.] Viewing the evidence in light of the totality of the circumstances in this case, we find a substantial basis for the issuing judge’s determination of probable cause. Therefore, the warrant authorizing a search of the Schwartzes’ persons and residence was valid, and the trial court acted properly in denying their motion to suppress evidence found pursuant to the search.

[¶ 24.] 3. Whether the Schwartzes’ statements should have been suppressed as fruit of an illegal search.

[¶ 25.] The Schwartzes cite to a Nebraska case, State v. Abdouch, for the proposition that any statements against their interest made to Agent Even after the search should be suppressed as “fruit of the poisonous tree.” 230 Neb. 929, 434 N.W.2d 317, 327 (1989). In other words, the Schwartzes believe their statements should be suppressed because the search itself was invalid. However, as we have already determined that the search of their residence and persons was valid and based upon probable cause, this argument must fail.

[¶ 26.] For the reasons set forth in this opinion, we affirm the judgment of the circuit court.

[¶ 27.] ZINTER, Justice, concurs with a writing. [¶ 28.] KONENKAMP, Justice, concurs in result. [¶ 29.] SABERS and MEIERHENRY, Justices, dissent.

1 . 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.

Article VI, Section 11 of the South Dakota Constitution reads:

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 warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.

2 . The only witness called by the Schwartzes was Agent Even. He did not address the subject of their subjective expectations.

3 . The argument has been raised that if this Court does not interpret its state constitution to recognize some type of privacy interest in trash, it will invite third parties to search garbage at will as the commencement of identity theft. However, the South Dakota Legislature has already addressed this concern. In 2000, it passed SDCL 22-30A-3.1 which makes it a Class 1 misdemeanor to commit the crime of identity theft. It criminalizes the actions of any person who “obtains, possesses, transfers, uses, attempts to obtain, or records identifying information not lawfully issued for that person's use.” Moreover, if the theft of the trash results in a subsequent theft by deception and is over $500, the act is a Class 4 felony. SDCL 22-30A-3 & 17.