State v. Stevens ( 1985 )

DAY, J.

This is a review of a published decision of the court of appeals, State v. Stevens, 120 Wis. 2d 334, 354 N.W.2d 762 (Ct. App. 1984) affirming in part and reversing in part a judgment of the circuit court for Milwaukee county, Honorable Ralph Adam Fine, circuit judge, convicting the defendant, David G. Stevens, of the following crimes: Possession of cocaine with intent to deliver,¹ party to the crime;² possession of

marijuana with intent to deliver;³ party to the crime; possession of cocaine;⁴ and possession of marijuana.⁵ The issues on review are:

1. Was the Defendant’s right to be protected from unreasonable searches and seizures under the fourth and fourteenth amendments to the United States Constitution⁶ and under Article I, sec. 11, of the Wisconsin Constitution,⁷ violated by the warrantless search and seizure of garbage which he allowed to be taken from his garage by the regular collector who was acting pursuant to a deputy sheriff’s request to obtain the Defendant’s garbage ?

2. Did the Defendant’s multiple convictions subject him to double jeopardy in violation of Article I, sec. 8(1)⁸ of the Wisconsin Constitution or violate the provisions of sec. 939.66, Stats. 1981-1982⁹ or sec. 939.71?¹⁰

We hold that the search and seizure of the defendant’s garbage, (the terms “garbage” and “trash” are used interchangeably in this opinion) ¹¹ under the facts of this case, did not violate his rights under the United States or Wisconsin Constitutions. We also hold that the defendant’s multiple convictions did not violate Wisconsin’s constiutional or statutory law. Therefore, we affirm in part and reverse in part the decision of the court of appeals.

The defendant, after being charged with the four offenses, entered a guilty plea to the crimes of possession of cocaine and possession of marijuana and was convicted. He was tried on the more serious offenses of possession with intent to deliver cocaine and possession with intent to deliver marijuana. On appeal the court of appeals struck down the convictions of mere possession but affirmed the conviction of possession with intent to deliver cocaine and marijuana. The defendant’s petition to this court for review was granted. This court granted review to determine whether the search of bags of garbage in trash belonging to the defendant was proper, because it was such search that brought forth the evidence on which a search warrant was issued authorizing the search of defendant’s home. It was the cocaine and marijuana in the home that led to the charges of possession with intent to deliver. It was this evidence that prompted the arrest of the defendant when he returned to his home and resulted in the additional charges of possession based on evidence found in a shoulder bag, belonging to defendant. The facts giving rise to the charges are as follows.

Deputy Sheriff David Iushewitz of the Drug Enforcement Unit of the Milwaukee County Sheriff’s office was in charge of an investigation concerning alleged drug dealing activities of the defendant at his residence in River Hills, Milwaukee county. Deputy Iushewitz was informed by the Department of Public Works for River Hills that garbage at the defendant’s residence was normally picked up every second Friday morning at about 9:00 a.m. and the next scheduled pickup was December 14, 1979.

On December 14, 1979, Iushewitz met with the garbage collector employed by the Department of Public Works and told him to go about his normal routine of picking up the garbage at the defendant’s house. After he picked up the defendant’s garbage, he was to turn it over to Iushewitz.

The usual procedure was that the defendant put bags of garbage in cans outside of his garage and in the driveway for collection. The garbage collector for the Department of Public Works would come up the driveway and collect the garbage. The garage door was not normally left open and the garbage collector did not have general access to the garage.

On December 14th, the garbage had not been placed outside the garage for collection and the garage door was locked. The garbage collector went to the door of the defendant’s house, knocked or rang the doorbell, the defendant opened the door and the collector asked if he could get the garbage. The defendant then opened the garage door, allowing the garbage collector access to the garbage. The defendant testified that he opened the garage door so the collector could do “what he wanted to do.”

The garbage collector picked up four plastic garbage bags and loaded them into the truck. After leaving the defendant’s property, the collector gave the defendant’s garbage to Iushewitz who searched the bags.

The same procedure was repeated on December 28, 1979, the next regularly scheduled pick up. Once again the garbage collector went to the defendant’s door and asked for the garbage and the defendant opened the garage door. After obtaining the garbage and leaving the defendant’s property, the collector again turned the defendant’s garbage over to Iushewitz.

Later that same day, December 28, 1979, a circuit judge issued a search warrant for the search of the defendant’s River Hills residence based in part on the evidence turned up in the garbage bags. On December 29, 1979, when the defendant was not home, his house was searched. This search resulted in the seizure of cocaine, marijuana, drug paraphernalia, money and other miscellaneous objects.

Iushewitz had information that the defendant, who had been on vacation for “a couple of days,” would be returning home on December 30, 1979. When the defendant did return home on that day, the deputies arrested him on the driveway outside his home.

The defendant was advised that he would be taken downtown for booking and that it might take some time before he could make bail. Deputy Iushewitz testified as follows:

“I told him [the defendant] this was a felony charge, he should probably figure on spending a while in jail because there was no mild bail and I asked if there was anything that he wanted to bring with him down to the jail. He indicated ‘in my car,’ and pointed to a bag, a brown leather shoulder type bag.”

This bag was found in the automobile in which the defendant had just returned from his vacation. When the defendant arrived at the station, his bag was subjected to an inventory search. Approximately two grams of marijuana and approximately one gram of cocaine were found.

The defendant was charged on four different counts. Count one was possession of cocaine with intent to deliver, party to the crime. Count two was possession of marijuana with intent to deliver, party to the crime. Count three was possession of cocaine. Count four was possession of marijuana. Counts one and two were based upon the discovery of the marijuana and cocaine in the defendant’s home on December 29, 1979. Counts three and four were based upon the discovery of cocaine and marijuana in the defendant’s shoulder bag on December 30, 1979.

The defendant moved to suppress the evidence seized from his garbage and the evidence seized from his home pursuant to the warrant which was issued based, in part, upon the items discovered in the garbage. The defendant claimed that the warrantless search of his garbage was unlawful and, therefore, the issuance of the warrant was also improper. The trial court denied the motion holding that the defendant did not have a reasonable expectation of privacy in his garbage.

On September 14, 1981, the defendant entered a guilty plea to the simple possession charges. The assistant district attorney did not object to the plea as long as it was understood that the events of December 30, 1979, and not the prior discovery of drugs in the defendant’s home on December 29, 1979, formed the factual basis for the plea. The trial court accepted the plea, withholding sentencing until resolution of the charges of possession with intent to deliver.

The defendant then moved to dismiss the charges of possession with intent to deliver. He argued that jeopardy attached after he pled guilty to the charges of simple possession, that these charges were lesser-included offenses of the charges of possession with intent to deliver, and the prosecution for possession with intent to deliver after the guilty plea would violate his double jeopardy rights. In support of this motion, the defendant filed an affidavit in which he said that the marijuana and cocaine which he possessed in his shoulder bag were from the same supplies of marijuana and cocaine seized from his home on December 29, 1979. This motion was also denied.

On May 6, 1982, a jury returned guilty verdicts on both counts of possession with intent to deliver. On July 6, 1982, the defendant was sentenced.¹²

On July 24, 1984, the court of appeals filed its decision in which it affirmed in part and reversed in part the judgment of the trial court. This court accepted review to determine whether the defendant’s garbage was unlawfully searched and seized and to determine if the defendant’s double jeopardy rights under Wisconsin’s constitutional and statutory law were violated.

Because the historical facts of this case are not in dispute and because the dispute concerns the constitutional and statutory significance of those facts, this case is subject to independent appellate review. State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984).

SEARCH AND SEIZURE

The state in this case concedes that the garbage collector’s prior agreement to give the defendant’s garbage to the deputy sheriff made that collector an agent of the state for purposes of assisting in law enforcement activities. The state also agrees that a locked garage is entitled to some measure of privacy and is entitled to constitutional protection from unreasonable search and seizure. Finally, it is undisputed that the garbage collector entered the defendant’s garage and took the garbage without a search warrant.

If the defendant voluntarily consented to the garbage collector’s activities, the need to obtain a warrant was obviated. Schneckloth v. Bustamente, 412 U.S. 218, 219 (1973). The state has the burden of proving that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

Balanced against the apparent need for consent searches¹³ is the equally important requirement of assuring the absence of coercion in obtaining such consent. Whether a consent was voluntary or the product of express or implied coercion must be determined from the totality of the circumstances. Schneckloth, 412 U.S. at 227; State v. Rodgers, 119 Wis. 2d 102, 110, 349 N.W.2d 453 (1984). In making that determination, account must be taken of subtly coercive police activities and the possibility that the person consenting was in a “vulnerable subjective state.” Schneckloth, 412 U.S. at 229.

In the instant case, the defendant claims that the consent was not voluntary because he was subjected to deceptive police practices. He claims that he was deceived as to the identity of the garbage collector as well as the purpose of the garbage collector in taking the garbage. According to the defendant, the garbage collector impliedly represented that he was an ordinary collector collecting garbage to dispose of in the usual manner when, in fact, he was an agent for the deputy sheriff intending to give the garbage to the deputy.

If there was a deception in this case it was only as to the identity of the garbage collector, and this was not sufficient to vitiate the defendant’s otherwise voluntary consent. In effect, the garbage collector was no different than an undercover agent for the state and “an entry by an undercover agent is not illegal if he entered for the ‘very purposes contemplated by the occupant.’ ” United States v. Ressler, 536 F.2d 208, 211 (7th Cir. 1976), quoting, Lewis v. United States, 385 U.S. 206, 211 (1966). In this case, the garbage collector did enter the garage for the very purpose contemplated by the defendant; that is, he entered to obtain the garbage, to remove it from the defendant’s premises, and haul it away.

The defendant claims that the garbage collector's delivery of the garbage to the deputy went beyond the purpose which the defendant contemplated when he allowed the garbage to be taken. It is apparent that the defendant contemplated routine collection and disposal of his garbage. Because we conclude there is no reasonable expectation of privacy in garbage once it has been routinely collected by garbage collectors, the risk of a police search of garbage is assumed in the routine disposal of garbage by municipal employees. Therefore, the delivery of the defendant’s garbage to the deputy sheriff was consistent with the routine disposal contemplated by the defendant. The defendant’s consent to routine disposal was sufficient to justify the search of his garbage.

Proper application of the fourth amendment to protect an individual’s interest in garbage depends on whether that individual can claim a reasonable expectation of privacy in that garbage which has been invaded by government action. To determine whether such an expectation of privacy has been invaded involves two distinct inquiries. The first is whether the individual by his conduct has exhibited an actual, subjective, expectation of privacy. The second is whether that expectation is justifiable in that it is one which society will recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740-741 (1979).

A majority of jurisdictions which have dealt with the issue refuse to recognize any expectation of privacy in garbage after it has been removed from the premises by regular collectors.¹⁴ In United States v. Biondich, 652 F.2d 743-745 (8th Cir. 1981), police officers approached the employee of the private garbage hauling service that regularly collected trash from the defendant’s home and made arrangements to meet that collector after he picked up the defendant’s garbage. On the regular collection day, the collector picked up the trash in the usual manner but kept the defendant’s trash separate in the bin of the truck. The items found in the trash by police served as a basis for a warrant to search the defendant’s home. The defendant moved to suppress the evidence found in his home claiming that the search of his garbage violated his fourth amendment rights. In Biondich, the court held:

“When a person makes arrangements with a sanitation service to have the items picked up, however, and when the items are placed in the designated place for collection and the regular collector makes the pickup in the usual manner on the scheduled collection day, the person loses his or her legitimate expectation of privacy in the items at the time they are taken off his or her premises.” Biondich, 652 F.2d at 745.

The federal circuit courts dealing with the issue have gone even further and have consistently held that once garbage is placed out in an area of public access for regular collection, there is no reasonable expectation of privacy in that garbage. United States v. Reicherter, 647 F.2d 397, 399 (3rd Cir. 1981). In United States v. Shelby, 573 F.2d 971-973 (7th Cir. 1978), cert. denied, 439 U.S. 841 (1979), sanitation workers were asked to search the defendant’s trash when they made their normal pickup of the defendant’s trash. The evidence they found served as the basis for a warrant to search the defendant’s home. In Shelby, 573 F.2d at 973, the Seventh Circuit held: “In our view the placing of trash in the garbage cans at the time and place for anticipated collection by public employees for hauling to a public dump signifies abandonment.”

The reasoning behind the majority view that there is no reasonable expectation of privacy in garbage after it has been removed from the premises by municipal garbage collectors is persuasive both under the fourth amendment and under the identical language of Article I, sec. 11 of the Wisconsin Constitution.¹⁵ This reasoning is also consistent with the prior decisions of this court. In Ball v. State, 57 Wis. 2d 653, 656, 205 N.W.2d 353 (1973), two officers went behind the defendant’s home without the defendant’s consent and without a search warrant and searched a barrel used for burning trash. This court held that the search violated the defendant’s fourth amendment rights. In so doing, however, this court said:

“While it might be contended that because defendant ‘attempted’ to burn the evidence, he thereby ‘intended’ to ‘abandon’ it, it would, nevertheless, seem that the decision to abandon the property under the facts of this case was a revocable decision which would not be made irrevocable until defendant either vacated the premises or in some way placed the barrel or its contents in ‘public view’ outside his expectation of privacy. . . .

“In the case at bar, the defendant had his ‘barrel’ in the back of his house on what would appear to be the curtilage of his house and hidden from the view of people passing by. There was no evidence that this was the type of container emptied by garbage men on a regular basis, or, for that matter, at all. In view of these facts and the above authorities, we are satisfied that the trash barrel was within defendant’s expectation of privacy and the search of it was unlawful.” Ball, 57 Wis. 2d at 662, 664.

The Ball decision recognizes that as trash moves farther from the home and closer to the public, the disposer’s reasonable expectation of privacy diminishes. This is so for a number of reasons. First, the disposer’s control over the trash diminishes with that movement to the point of total relinquishment at the time regular collectors remove it from his property. Under the terms used in Ball, the decision to abandon has become irrevocable. When this occurs and control is relinquished to strangers, it is inconceivable that the disposer had an actual expectation of privacy in light of his demonstrated intent to totally disassociate himself from the garbage both as to control and as to concern.

Even if the disposer had an actual expectation of privacy, “[i]n the real world to so view the status of one’s discarded trash is totally unrealistic, unreasonable, and in complete disregard of the mechanics of its disposal.” Shelby, 573 F.2d at 973. The contents of garbage bags or “cans could not reasonably be expected by defendant to be secure, nor entitled to respectful, confidential and careful handling on the way to the dump. Trash generally is not so highly regarded.” Shelby, 573 F.2d at 973.

Second, as trash moves farther from the home, societal concern over the invasion of the privacy of the home by a search of garbage is diminished. Bush and Bly, Expectation of Privacy Analysis and Warrantless Trash Reconnaissance after Katz v. United States, 23 Ariz. L. Rev. 283, 315 (1981). In Ball, this court thought it significant that the garbage searched was in the “curtilage” of the home. Ball, 57 Wis. 2d at 664. Once garbage has been removed from the premises with the consent of the owner as in the instance case, that concern is absent.

In this case, the defendant contemplated routine removal and disposal of his garbage when he consented to the removal of it from the garage by the municipal garbage collector. By consenting to this removal, the defendant placed himself in essentially the same position as one who sets out his garbage for routine collection and has that garbage removed. Because there is no reasonable expectation of privacy in garbage that is removed by municipal garbage collectors in routine collection, the defendant had no reasonable expectation of privacy in garbage which was removed by the municipal collector pursuant to his consent. Therefore, the search of the defendant’s garbage did not violate his rights under either the United States Constitution or the Wisconsin Constitution. The trial court properly denied the defendant’s motion to suppress evidence seized from the defendant’s garbage and evidence seized pursuant to the search warrant which was issued based in part upon evidence obtained from the garbage search.

DOUBLE JEOPARDY

The defendant contends that the double jeopardy proscriptions of both the United States and Wisconsin Constitutions were violated when he was convicted and sentenced for the felonies of possession of cocaine and marijuana with intent to deliver. He argues that because he was previously convicted, on his guilty plea, of the misdemeanor counts of possession of cocaine and marijuana, and because the drugs seized from his home on December 29th and seized from his leather shoulder bag on December 30th were from the same original supply, he was subjected to multiple prosecutions and multiple sentences for a single offense.

The court of appeals agreed with the defendant’s contention and ordered the case remanded, the misdemeanor sentences vacated and the misdemeanor counts dismissed. The court of appeals relied on the reasoning of the United States Supreme Court decision in Ohio v. Johnson, 52 U.S. LW, 4748 (U.S. June 12, 1984). Stevens, 120 Wis. 2d at 343. We disagree. Because we conclude that the offenses in this case were different in fact, it is not , necessary to determine the applicability of Ohio v. Johnson under the Wisconsin Constitution.

[S]

For offenses to be the same within the meaning of the double jeopardy provision, they must be the same in both law and fact. Anderson v. State, 211 Wis. 78, 87, 265 N.W. 210 (1936). They must comprise the same act and crime.

“It is generally accurate to say that there may be a conviction for more than one offense only where (a) each is based upon different conduct, or (b) if based on the same conduct, each offense requires proof of a fact not required by the other.” F. Remington and A. Joseph, Charging, Convicting and Sentencing the Multiple Criminal Offender, 1961 Wis. L. Rev. 528, 545.

Because a lesser included offense requires no proof beyond that which is required for conviction of the greater offense, “[t]he greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Brown v. Ohio, 432 U.S. 161, 168 (1977). Wisconsin also provides protection against conviction of both a greater and lesser-included crime in sec. 939.66, Stats. Possession of a controlled substance and possession of a controlled substance with intent to deliver may be considered the same since the former requires no proof beyond that which is required for the latter. Section 161.41 (1m) and (3), Stats. 1981-1982.

In the instant case, we conclude that although the lesser-included offense of possession and the greater offense of possession with the intent to deliver are the same in law, for purposes of double jeopardy, they are not the same in fact. Under Wisconsin law, offenses which are the same in law are different in fact if those offenses are either separated in time or are significantly different in nature. State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980).

We do not agree with the defendant’s contention that the offenses were the same in fact because they involved drugs from the same supply. It would place an unbearable burden on the State to require that each time an individual was convicted of drug possession, the individual’s remaining supply of that drug must be discovered and confiscated. If the state failed to discover that remaining supply prior to the conviction, the accused would be free to possess the remaining supply without fear of additional prosecution. Any clever drug enthusiast who could adequately hide a ton of cocaine, would allow himself to be convicted for possession of a minimal amount of that supply. Then, after satisfying the relatively minor penalty, he could continue to possess the remainder of the ton of cocaine without fear of prosecution. Such a result would be unreasonable.

In this case, we conclude that the offenses were not the same in fact because they were separated by a significant period of time. The simple possession charges related only to the defendant’s conduct on December 30, 1979. The charges for possession with intent to deliver related to the possession of drugs on December 29, 1979. It was the defendant’s continued possession of drugs on December 30th, after his possession of the larger quantity of drugs had been terminated by police confiscation that formed the basis of the simple possession charges.

It is true, as the defendant points out that “[t]he Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown v. Ohio, 432 U.S. at 169. The defendant, however, incorrectly claims that the interval between the possessions was artificial because it was created by the state. It was the action of the defendant himself that created this interval. The defendant separated out the smaller portion to take along on his vacation. It was also the defendant who continued his possession of these drugs on December 30th after the state had lawfully terminated his illegal possession of the larger supply on December 29th. The state was responsible for terminating the defendant’s possession of the larger amount, but the defendant was responsible for continuing his possession of the smaller amount on December 30th.

Because the offenses on December 29th and December 30th were different in fact, convicting the defendant on all four counts did not violate the double jeopardy provisions of the United States or Wisconsin Constitutions, nor did it violate the prohibition against conviction for lesser-included offenses under sec. 939.66, Stats, or the limitation on the number of convictions under sec. 939.71.

By the Court. — The decision of the court of appeals is reversed only as to the dismissal of the misdemeanor possession charges. The convictions and sentences on the misdemeanor charges of possession are reinstated. The remainder of the court of appeals decision affirming defendant’s conviction of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver is affirmed.

1 Section 161.16, Stats. 1979-80:

“161.16. Schedule II. (1) The controlled substances listed in this section are included in schedule II. . . .

“(4) Coca leaves and any salt, compound, derivative or preparation óf coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.”

Section 161.41(lm) (b), Stats. 1979-80:

“161.41. Prohibited acts A — penalties, (lm) Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture or deliver, a controlled substance. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance prior to and after the alleged violation. Any person who violates the subsection with respect to: . . .

“(b) Any other controlled substance classified in schedule I, II or III, may be fined not more than $15,000 or imprisoned not more than 5 years or both; . . .”

2 Section 939.05, Stats. 1979-80:

“939.05. Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.”

3 “161.14 Schedule I. (1) The controlled substances listed in this section are included in schedule I. . . .

“(4) Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation: . . .

“(k) Marijuana; . .

“161.41. Prohibited acts A — penalties. . . . (lm) Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture or deliver, a controlled substance. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance prior to and after the alleged violation. Any person who violates the subsection with respect to: . . .

"(b) Any other controlled substance classified in schedule I, II or III, may be fined not more than $15,000 or imprisoned not more than 5 years or both.”

4 “161.41 Prohibited acts A — penalties. ... (3) It is unlawful for any person to possess a controlled substance, other than a controlled substance classified in schedule I or II which is a narcotic drug, unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter. Any person who violates the subsection is guilty of a misdemeanor, punishable under s. 939.61.”

5 See Footnote 4.

6 United States Constitution, Amendment Four:

“The right of the people to he 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.”

United States Constitution, Amendment Fourteen, sec. 1:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

7 Wisconsin Constitution, Article I, sec. 11:

“Searches and seizures: Section 11. 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 oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

8 Wisconsin Constitution, Article I, sec. 8:

“Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. [As amended Nov. 1870 and April 1981] (1) No person may be held to answer for a criminal offense without due proces of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.”

9 Section 939.66, Stats. 1981-82:

“939.66. Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. . . .”

10 Section 939.71, Stats. 1981-82:

939.71. Limitation on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.”

11 Webster’s Ninth New Collegiate Dictionary, 505 (1983), defines garbage as follows: “garbage. . .1. a: food waste: REFUSE b: unwanted or useless material 2: TRASH. . .”

12 The defendant was sentenced as follows: Count 1 (possession of cocaine with intent to deliver), three years; Count 2 (possession of marijuana with intent to deliver), two years to be served concurrently with Count 1; Count 3 (possession of cocaine), time served; Count 4 (possession of marijuana), $100.00 fine.

13 “In situations where the police have some evidence of illicit activity, but lack probable cause to arrest, or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence, [footnote omitted]. ... If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.” Schneckloth v. Bustamente, 412 U.S. at 227-228.

14 United States v. Terry, 702 F.2d 299, 309 (2nd Cir. 1983), cert. denied, 103 S.C. 2095 (1983); United States v. Vahalik, 606 F.2d 99, 101 (5th Cir. 1979), cert. denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025 (4th Cir. 1978), cert. denied, 440 U.S. 959 (1979); United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978), cert. denied, 439 U.S. 841 (1978); United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972); United States v. Dzialak, 411 F.2d 212, 215 (2nd Cir. 1971), cert. denied, 404 U.S. 883 (1971).

15 The majority view has been criticized by one court. In People v. Krivda, 486 P.2d 1262 (Cal. 1971), vacated, 409 U.S. 33 (1972), opinion reinstated, 504 P.2d 457 (1973), cert. denied, 412 U.S. 919 (1973), the California Supreme Court rejected the majority view. The court, in Krivda, held that the placement of the trash barrels on the sidewalk did not constitute an abandonment and that a reasonable expectation of privacy continues in the trash until it is commingled with other trash and has lost its identity. Krivda, 486 P.2d at 1268.

The Krivda decision has been praised by a few writers who agree with its holding. Cf. 1 W. La Fave, Search and Seizure, § 2.6(c), at 382 (1978). Still “Krivda has been interpreted narrowly in California and rejected everywhere else.” 1 Ringel, Searches and Seizures, Arrests and Confessions, sec. 8.5(a)(2), at 8-35 (2d ed. 1984).