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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and Hornby,* District Judge.
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Mark W. Pearlstein, Assistant United States Attorney, with
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whom Wayne A. Budd, United States Attorney, was on brief for
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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,
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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,
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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.
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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
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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.
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II
We start out with the obvious proposition that what we
are dealing with here is trash. More important is the fact that
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at the time the challenged evidence came into the hands of the
authorites, it was public trash. That is, irrespective of
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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
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collection in a public place does not offend societal values.
Id. Therefore, appellee should have been forwarned that he did
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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:
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[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.
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Id. at 40-41 (emphasis supplied); see also United States v. Dunn,
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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.
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denied, 111 S. Ct. 2813 (1991) (placing trash bags within barrels
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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.
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Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (warrantless search of
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garbage within the curtilage of the home permissible because the
garbage was readily accessible to the public); United States v.
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Hedrick, 922 F.2d 396 (7th Cir. 1991) (garbage within the
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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
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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
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refers to discarding inculpatory items, leads us to a different
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conclusion. Greenwood, at 40-41. To "discard" is to "abandon,
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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,
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supra; United States v. Oliver, 466 U.S. 170, 177 (1984) (no
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expectation of privacy in open fields and thus Fourth Amendment
inapplicable); United States v. Fahey, 769 F.2d 829, 838 (1st
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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,
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488 U.S. 445, 449-51 (warrantless surveillance by helicopter of
partially covered greenhouse, valid); California v. Ciraolo, 476
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U.S. 207, 212-15 (1986) (warrantless aerial surveillance of yard
enclosed by 10 foot fence, valid); Dow Chemical Co. v. United
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States, 476 U.S. 227, 239 (1986) (taking aerial photographs of a
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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
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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
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(8th Cir. 1991). For the reasons stated, and, we believe,
following the strictures of Greenwood, such dangers are not found
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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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Document Info
Docket Number： 91-2289
Filed Date： 9/22/1992
Precedential Status： Precedential
Modified Date： 9/21/2015