United States v. Scott

• Court: Court of Appeals for the First Circuit
• Decided: September 22, 1992
• Docket: 91-2289
• Status: Published

Opinion

USCA1 Opinion

September 22, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
          No. 91-2289
                              UNITED STATES OF AMERICA,

                                      Appellant,

                                          v.

                                    ALAN N. SCOTT,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                         Torruella and Stahl, Circuit Judges,
                                              ______________

                             and Hornby,* District Judge.
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                                _____________________

               Mark W.  Pearlstein, Assistant United  States Attorney, with
               ___________________
          whom  Wayne A.  Budd, United  States Attorney,  was on  brief for
                ______________
          appellant.
               Charles P. McGinty, Federal Defender Office, for appellee.
               __________________

____________________

____________________

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          *  Of the District of Maine, sitting by designation.

TORRUELLA, Circuit Judge.   Constitutionally  speaking,
                               _____________

          we are concerned here with trying to determine whether there is a

          difference  between so-called  private and  public garbage.   The

          sole  issue  presented by  this  appeal  is  whether  the  Fourth

          Amendment prohibits the warrantless seizure and reconstruction of

          shredded  documents  found  in  trash bags  located  outside  the

          curtilage of appellee's house.  Otherwise  stated, we must decide

          whether   the  shredding   of   private   documents  attaches   a

          constitutionally  recognizable  privacy expectancy  which follows

          the shredded remnants, individually and  collectively, even after

          they become public garbage.   Relying on California v. Greenwood,
                                                   __________    _________

          486   U.S.  35  (1988),  the  district   court  answered  in  the

          affirmative and suppressed  the evidence.   We conclude that  the

          trial court misinterpreted Greenwood and reverse its ruling.
                                     _________

                                          I

                    Appellee was suspected by  the Internal Revenue Service

          ("IRS") of involvement in  a scheme to defraud the  United States

          through  the  filing of  false income  tax  returns.   IRS agents

          systematically seized  and combed  through garbage bags  left for

          collection in front  of appellee's house.   Their search revealed

          numerous shredded  documents reduced  to 5/32 inch  strips, which

          when   painstakingly   pieced  together   produced  incriminating

          evidence.  The agents  then used this  evidence as the basis  for

          establishing probable cause  to request various search  warrants.

          The search warrants  were issued and  executed, and the  searches

          garnered additional  evidence used to secure  appellee's 47 count

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indictment for violation of  18 U.S.C.   287.  Appellee  moved to

          suppress  the reconstructed  documents  as well  as the  evidence

          seized  pursuant to the search warrants.  Appellee argued that by

          shredding   the  documents  he   had  manifested  an  objectively

          reasonable expectation of privacy  in the shredded remnants which

          was  protected  by  the   Fourth  Amendment,  a  contention  that

          convinced the district court.

                    Both parties  to this  appeal as well  as the  district

          court rely on  the same  case as authority  for their  respective

          positions,  California v.  Greenwood, supra.   This  seminal case
                      __________     _________  _____

          decided  that   the  Fourth  Amendment  does   not  prohibit  the

          warrantless  search and  seizure of  garbage left  for collection

          outside the curtilage  of a home,  except "if respondents  [have]

          manifested a  subjective expectation of privacy  in their garbage

          that society accepts as objectively reasonable."  Id. at 39.
                                                            ___

                                          II

                    We  start out with the obvious proposition that what we

          are dealing with here is trash.   More important is the fact that
                                __

          at the  time the challenged evidence  came into the hands  of the

          authorites,  it  was public  trash.    That is,  irrespective  of
                               ______

          whether  appellee intended  to  keep secret  the contents  of the

          documents  in question by shredding  them, there can  be no doubt

          that  appellee  also  intended  to dispossess  himself  of  those

          documents once they were  shredded, and to place their  fractured

          remnants in a  public area accessible  to unknown third  parties.

          The  shredded documents were deposited  in a public  place and in

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the  control of third parties, without any limitation as to their

          use.   Trash collectors and others were  at liberty to dispose of

          the trash in  any manner they  saw fit.   They were also free  to

          rummage through  the garbage  and explore its  contents, whatever

          that might be.  Any analysis of the expectation of privacy in the

          contents  of  the  garbage  must take  into  consideration  these

          realities.  Thus, it is appropriate to call the evidence at issue

          "public"  trash because  it was  trash left  for collection  in a

          public  place  and  over  which  its  producer  had  relinquished

          possession.

                    Greenwood recognizes that the  search of trash left for
                    _________

          collection in  a public place  does not  offend societal  values.

          Id.  Therefore, appellee  should have been forwarned that  he did
          ___

          not  have a legitimate  expectation of  privacy once  his private

          garbage  went into  a public  place because  the contents  of the

          garbage bags  would not be exempt  from public scrutiny.   As the

          Court stated in Greenwood:
                          _________

                      [H]aving  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,
                      (citation  omitted),  respondents   could
                      have  had  no  reasonable expectation  of
                      privacy  in  the  inculpatory items  that
                      they discarded.
                           _________

          Id. at 40-41 (emphasis supplied); see also United States v. Dunn,
          ___                               ________ _____________    ____

          480 U.S. 294,  304 (1987)  (erection of ranch  type fences in  an

          open field  does not create a  constitutionally protected privacy

          interest); United States v. Lamela, 942 F.2d 100 (1st Cir. 1991);
                     _____________    ______

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United States v.  Wilkinson, 926  F.2d 22, 27  (1st Cir.),  cert.
          _____________     _________                                 _____

          denied, 111 S. Ct. 2813 (1991) (placing trash bags within barrels
          ______

          inside defendant's lawn not  entitled to elevated "expectation of

          privacy"  respecting the trash).   Other circuits agree with this

          view  of the  Fourth  Amendment.   See,  e.g., United  States  v.
                                             ___   ____  ______________

          Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (warrantless search of
          _______

          garbage within the curtilage of the  home permissible because the

          garbage was readily  accessible to the public); United  States v.
                                                          ______________

          Hedrick,  922  F.2d  396  (7th Cir.  1991)  (garbage  within  the
          _______

          curtilage  of a  home  may be  searched  without a  warrant  when

          accessible to the public).

                                         III

                    In our view, a person who places trash at a  curb to be

          disposed of or destroyed  by a third person abandons  it1 because

          "[i]mplicit in  the concept of  abandonment is a  renunciation of

          any reasonable expectation of privacy in the property abandoned."

          United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972).  The
          _____________    _______

          fact  that  the abandoned  property  was  partially destroyed  by

          shredding,   although   constituting   evidence   of   appellee's

          subjective desire or hope that  the contents be unintelligible to

          third parties, does not change the fact that it is as a result of

          appellee's  own actions that the  shredded evidence was placed in

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          1   Although  appellee contends  that the Supreme  Court rejected
          abandonment as  a basis  for deciding Greenwood,  the above-cited
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          language  in the Greenwood  majority opinion,  which specifically
                           _________
          refers  to discarding inculpatory items, leads  us to a different
                     __________
          conclusion.  Greenwood, at  40-41.  To "discard" is  to "abandon,
                       _________
          relinquish, forsake."  Rodale, The Synonym Finder, p. 299 (1978).
                                         __________________

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the public domain.   Had the shredded  remnants been placed in  a

          pile on  the curb in front of the house, or even more doubtfully,

          had  an errant  breeze blown  shredded documents  from appellee's

          desk into  the street into  the open window  of a passing  police

          car, the government would  certainly have been free to  seize the

          incriminatory evidence without a warrant, and to use its contents

          without  limitation against  appellee.   United  States v.  Dunn,
                                                   ______________     ____

          supra;  United States  v. Oliver,  466 U.S.  170, 177  (1984) (no
          _____   _____________     ______

          expectation of privacy  in open fields and  thus Fourth Amendment

          inapplicable);  United States  v. Fahey, 769  F.2d 829,  838 (1st
                          _____________     _____

          Cir. 1985) (no expectation of privacy in open mines).

                      What we have here  is a failed attempt at  secrecy by

          reason of underestimation of police resourcefulness, not invasion

          of   constitutionally   protected   privacy.      There   is   no

          constitutional protection from police  scrutiny as to information

          received from a failed attempt at secrecy.  See Florida v. Riley,
                                                      ___ _______    _____

          488 U.S.  445, 449-51 (warrantless surveillance  by helicopter of

          partially covered greenhouse, valid); California v.  Ciraolo, 476
                                                __________     _______

          U.S. 207, 212-15 (1986)  (warrantless aerial surveillance of yard

          enclosed by 10  foot fence,  valid); Dow Chemical  Co. v.  United
                                               _________________     ______

          States,  476 U.S. 227, 239 (1986) (taking aerial photographs of a
          ______

          factory from navigable airspace, valid).

                    Appellee here  thought that  reducing the  documents to

          5/32 inch pieces made  them undecipherable.  It turned out he was

          wrong.   He is in no better  position than the citizen who merely

          tears  up a  document by  hand and discards  the pieces  into the

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sidewalk.  Can there be any doubt that the police  are allowed to

          pick up  the pieces  from the  sidewalk for  use of the  contents

          against that person?   Should the mere use of  more sophisticated

          "higher" technology  in attempting  destruction of the  pieces of

          paper  grant  higher  constitutional  protection  to  this failed

          attempt at  secrecy?  We  think not.  There  is no constitutional

          requirement that police techniques in the detection of crime must

          remain  stagnant while  those intent  on keeping  their nefarious

          activities secret  have the  benefit of  new knowledge.  A person

          who  prepares incriminatory  documents in a  secret code  [or for

          that  matter in  some obscure  foreign language],  and thereafter

          blithely discards them as  trash, relying on the premise  or hope

          that  they  will   not  be  deciphered  [or  translated]  by  the

          authorities  could well be in  for an unpleasant  surprise if his

          code is "broken" by the police  [or a translator is found for the

          abstruse language],   but he cannot  make a valid claim  that his

          subjective  expectation in keeping the contents private by use of

          the secret code [or language]  was reasonable in a constitutional

          sense.

                    In our  view, shredding garbage  and placing it  in the

          public domain subjects it to the same risks regarding privacy, as

          engaging  in a private conversation in public where it is subject

          to the possibility  that it  may be overheard  by other  persons.

          Both are failed attempts at maintaining privacy whose failure can

          only  be attributed to the  conscious acceptance by  the actor of

          obvious  risk factors.  In the case of the conversation, the risk

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is that conversation in a public area may be overheard by a third

          person.  In  the disposal of  trash, the risk  is that it  may be

          rummaged through and deciphered once it leaves the control of the

          trasher.   In both situations the expectation of privacy has been

          practically  eliminated  by  the   citizen's  own  action.    Law

          enforcement officials  are entitled to apply  human ingenuity and

          scientific advances to collect freely available evidence from the

          public domain.

                    The  mere  fact  that appellant  shredded  his  garbage

          before  he  placed it  outside  of  his home  does  not create  a

          reasonable heightened  expectation  of privacy  under the  Fourth

          Amendment.   Appellant still discarded  this garbage  in an  area

          particularly suited  for public  inspection and consumption.   At

          most, appellant's actions made it likely that  most third parties

          would  decline  to  reconstitute  the shredded  remnants  into  a

          legible whole.  The  Fourth Amendment, however, does  not protect

          appellant  when a third party  expends the effort  and expense to

          solve the jigsaw puzzle created by shredding.

                    The test  for determining legitimacy  of an expectation

          of  privacy "is  not whether  the individual  chooses to  conceal

          assertedly private activity, but instead whether the government's

          intrusion  infringes  upon  the   personal  and  societal  values

          protected by the Fourth Amendment."   California v. Ciraolo,  476
                                                __________    _______

          U.S. at 212.   The ultimate question in this respect is "whether,

          if  the particular form of  [conduct] practiced by  the police is

          permitted  to go  unregulated  by constitutional  restraints, the

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amount of  privacy and  freedom  remaining to  citizens would  be

          diminished to a compass  inconsistent with the aims of a free and

          open society."   United States  v. Henderson, 940  F.2d 320,  322
                           _____________     _________

          (8th  Cir. 1991).    For the  reasons  stated, and,  we  believe,

          following the strictures of Greenwood, such dangers are not found
                                      _________

          in the present case.

                    The decision of the district court is reversed and this

          case is remanded for action consistent with this opinion.

                    Reversed and remanded.
                    ________     ________

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