State v. Boland , 55 Wash. App. 657 ( 1989 )

Petrich, J.

The State appeals the order of dismissal of criminal charges of possession of legend drugs and controlled substances against Bradley Boland based on a suppression of evidence seized by a search warrant that effectively abated prosecution of the charges. RAP 2.2(b)(1). The trial court suppressed the evidence because in its judgment the search warrant was obtained on information gathered in violation of the accused's right to privacy as guaranteed by article 1, section 7 of our State Constitution.

This case presents the issue of whether or not the police may, without legal process, search garbage left for collection outside the curtilage of a home. We hold that they may. Accordingly, we reverse.

Investigation of this case resulted from an anonymous tip that Boland was selling unprescribed legend drugs. A check with the State Board of Pharmacy showed that Boland did not possess a license to dispense legend drugs.

Police officers obtained a warrant for Boland's power records to establish the address of his residence. Next, on four nights between March 18, 1987, and April 8, 1987, police officers observed Boland's garbage can on the street right of way, about 15 feet from his property line, before the day scheduled for garbage collection. On at least one of these occasions, police observed Boland place the garbage can out for collection. The garbage can lid was tightly secured and a small log or heavy board had been placed on its top.

On these four nights, the police emptied the contents of Boland's garbage can into a second container and returned to the police station where the garbage was examined. The garbage was searched without the authority of a warrant.

Evidence obtained from Boland's garbage can and other information known to law enforcement authorities led a Jefferson County deputy prosecutor to obtain a search warrant for Boland's residence. The warrant was issued on April 8, 1987, and a search was conducted at the residence on the same day. Based on the evidence seized from the residence, the State charged Boland with one count of unlawful possession of legend drugs, RCW 69.41.030, and two counts of possession of a controlled substance with intent to deliver, RCW 69.50.401(a)(l)(i), (ii).

The trial court suppressed the evidence seized from the residence on the basis that article 1, section 7 of the Washington State Constitution prohibited the warrantless search and seizure of garbage. The trial court found that probable cause to search the residence did not exist without the information obtained from the garbage search. The charges against Boland were dismissed as a result of insufficient independent evidence on which to base the prosecution.

In California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988), the United States Supreme Court held that the fourth amendment to the United States Constitution did not prohibit the warrantless search of garbage left for collection outside the curtilage of a home. The Greenwood Court reasoned that the Fourth Amendment claim of the respondents in that case was defeated because they had exposed their garbage to the public by placing it on the curb of the street outside of their home. 486 U.S. at 40. The Court stated that garbage placed curbside for collection is suited for public inspection, noting the accessibility of the garbage to animals, children, scavengers, snoops, and other members of the public and that the respondents had placed their trash at the curb for the express purpose of conveying it to a third party. Greenwood, at 40. "[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public." Greenwood, at 41. For these reasons, the Court concluded that "society would not accept as reasonable respondents' claim to an expectation of privacy in trash left for collection in an area accessible to the public . . .". Greenwood, at 41.

Washington courts have ruled that Const. art. 1, § 7 generally provides greater protection against warrantless searches and seizures than U.S. Const. amend. 4. State v. Bell, 108 Wn.2d 193, 196, 737 P.2d 254 (1987); State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). Boland urges this court to uphold the order of the trial court on this basis by ruling that, under our state constitution, the warrantless search of his garbage was an unconstitutional intrusion into his private affairs.

In State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986), the Washington Supreme Court set forth six nonexclusive factors to consider in determining whether to resort to independent state constitutional grounds to decide a case rather than deferring to comparable provisions of the United States Constitution as interpreted by the United States Supreme Court. These factors are as follows: (1) the textual language of the state constitution; (2) significant differences in the texts of parallel provisions of the state and federal constitutions; (3) state constitutional and common law history; (4) preexisting state law; (5) structural differences between the state and federal constitutions; and (6) matters of particular state or local concern. Gunwall, 106 Wn.2d at 61-62.

After considering the six factors outlined above, the Gunwall court concluded that Const. art. 1, § 7 prohibited the police from obtaining a telephone subscriber's long distance toll records and pen register tapes without legal process. The protection extended to telephonic communication was thus broader under the state constitution than under the federal constitution, which had been interpreted by the United States Supreme Court to permit the installation of a pen register on a personal telephone line without a warrant in Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979). Because the Gunwall court analyzed the same constitutional provisions at issue in this case, much of its reasoning is applicable here.

The first and second Gunwall factors direct this court to examine the language of the state constitutional provision and its differences from the parallel federal constitutional provision. Const. art. 1, § 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The Fourth Amendment states as follows:

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 language of the Fourth Amendment has been interpreted as requiring a search warrant only if the defendant possessed a "reasonable expectation of privacy" in the place or thing searched. Myrick, 102 Wn.2d at 510 (quoting Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)). Conversely, under Const. art. 1, § 7, the "relevant inquiry for determining when a search has occurred is whether the State unreasonably intruded into the defendant's 'private affairs.'" Myrick, 102 Wn.2d at 510.

Const. art. 1, § 7 analysis encompasses those legitimate privacy expectations protected by the Fourth Amendment, but is not confined to the subjective privacy expectations of modern citizens who, due to well publicized advances in surveillance technology, are learning to expect diminished privacy in many aspects of their lives. Rather, it focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

(Citations omitted.) Myrick, 102 Wn.2d at 510-11. Gunwall recognized that the difference in language between the provisions allows a more expansive interpretation of Const. art. 1, § 7; 106 Wn.2d at 65. The Gunwall court also observed that the third factor, state constitutional and common law history, supports an independent reading of the state provision.

The fourth Gunwall factor directs the court to examine preexisting state law which can "help to define the scope of a constitutional right later established." 106 Wn.2d at 62. In Gunwall, the court found a long history of statutory protection of telephonic and other electronic communication that lent strong support for an independent reading of the state constitution. We are unaware of similar authority preexisting the ratification of Const. art. 1, § 7 that would indicate a history of protecting a privacy interest in garbage.¹

Gunwall also advises the court to examine differences in the structure between the state and federal constitutions. The Gunwall court observed that the federal constitution is a

grant of limited power authorizing the federal government to exercise only those constitutionally enumerated powers expressly delegated to it by the states, whereas our state constitution imposes limitations on the otherwise plenary power of the state to do anything not expressly forbidden by the state constitution or federal law.

106 Wn.2d at 66. This consideration also supports an independent reading of the state constitution.

The sixth Gunwall factor examines whether the matter is of particular state or local interest or whether there is a need for national uniformity. The existence of long-standing legislative protection of telephonic communication was persuasive in Gunwall, where the court concluded that state policy considerations outweighed the need for national uniformity regarding the availability of telephone records. As discussed under criterion four, however, we have not observed a similar intent in state and local legislation to protect the privacy of garbage. While state and local regulation of garbage collection indicates that garbage is largely of local concern, the local nature of garbage does not weigh in favor of its heightened protection under the state constitution.

Our consideration of the Gunwall factors leads us to believe that the state constitution should not be construed to provide greater protection to garbage than is provided by the federal constitution as interpreted by the United States Supreme Court. We are especially cognizant of the lack of law preexisting the constitution and the lack of current regulation designed to protect a privacy interest in garbage.

The Gunwall court recognized that "[t]he opinions of the Supreme Court, while not controlling on state courts construing their own constitutions, are nevertheless important guides on the subjects which they squarely address." 106 Wn.2d at 60-61 (quoting State v. Hunt, 91 N.J. 338, 363, 450 A.2d 952 (1982) (Handler, J., concurring)). See also State v. Reece, 110 Wn.2d 766, 781, 757 P.2d 947 (1988) (construing parallel state and federal free speech provisions in an obscenity context). California v. Greenwood, supra, held that no reasonable expectation of privacy, that is, a subjective expectation that society is willing to accept as objectively reasonable, exists in garbage once it is placed outside the curtilage of a home for collection. Even though the language of Const. art. 1, § 7 may allow a more expansive interpretation in given circumstances than that given the Fourth Amendment, consideration of the Gunwall factors leads us to the conclusion that Const. art. 1, § 7 does not further restrict police examination of garbage so located.

The order of the trial court is hereby reversed, and the matter is remanded for proceedings consistent with this opinion.

Worswick, J., concurs.

1 Boland argues that local ordinances governing the collection and disposal of garbage evidences a societal expectation in the privacy of garbage. He cites Port Townsend ordinances which require close-fitting lids on garbage containers and permits for garbage collection. We note that the purpose of a lid is to "entirely prevent rats, mice or flies from reaching the contents thereof, and [to] prevent odors and gasses from escaping therefrom.¹' Port Townsend Municipal Code 6.04-.030. In our estimation, the garbage collection and disposal ordinances referred to by Boland relate to sanitation and the management of waste disposal rather than to the protection of privacy interests in garbage.