Opinion
No. C9-02-1222.
Filed June 10, 2003.
Appeal from the Dakota County District Court, File No. K8002740.
Mike Hatch, Attorney General, and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, (for respondent)
Robert J. Shane, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal from a conviction of felony controlled-substance offenses, appellant argues that police conducted an illegal warrantless search of his garbage and lacked probable cause to support a search warrant for his home. Because the search of appellant's garbage was not illegal and the search warrant was supported by probable cause, we affirm.
FACTS
Dakota County Deputy Sheriff Robert Hosking, also an agent for the Dakota County Drug Task force, spoke with a confidential informant (CI) in September 2000. The CI claimed personal knowledge that appellant Richard Leroy Birdsall was dealing in large amounts of methamphetamine, specifically, "pounds of meth." During the same month, Sergeant Dan Vujovich of the South St. Paul Police Department received a complaint from a first-time citizen informant that Birdsall, who lived at 408 Stanley Avenue North in South St. Paul, was dealing large amounts of methamphetamine.
Detective Larry Snaza of the South St. Paul Police Department learned that Hosking was investigating Birdsall. On September 21, 2000, he called Troje Trash Service (Troje), which served almost all of Stanley Avenue, to determine if they picked up Birdsall's garbage. At the omnibus hearing, Snaza testified that the woman he spoke with told him that their computer system was down, but after checking manually, she discovered that Birdsall was a customer of Troje and that they picked up his garbage on Friday mornings. Snaza then passed this information to Hosking.
Dianne Troje, the co-owner of Troje, testified at the omnibus hearing that she spoke with Snaza and when he called, their computer system was down, and she could not locate any records indicating that Birdsall was a Troje customer. She did testify that Snaza could have gotten the impression that Troje picked up the trash at Birdsall's address.
On September 22, 2000, Hosking searched garbage retrieved from Birdsall's property. During his testimony, Hosking explained that Birdsall's house faces Stanley Avenue and that there is an alley that runs along the side of the house. He stated that the garage was detached from the home, 10 to 15 feet off of the alley, connected to the alley by a short driveway. The garage, according to Hosking, was 20 feet from the house, and there was a patio deck on the back of the house.
Hosking testified that he observed a brown garbage container that looked like one of Troje's on a corner of Birdsall's garage the corner that faces the alley on one side and faces the back of Birdsall's house on the other. Hosking stated that he did not get close enough to the container to see if the name "Troje" was printed on it. Hosking spoke to a Troje employee who was near Birdsall's house and asked him to retrieve the garbage from Birdsall's container. On direct examination, Hosking agreed that the Troje employee went to the edge of the driveway to pick up the garbage. Hosking met the employee and searched the trash, discovering 20 plastic baggies, two of which tested positive for methamphetamine, four charred pieces of aluminum foil, suspected packing material, and a ball of aluminum foil.
Birdsall testified that on the day his garbage was seized, his garbage can was 30 feet off of the alley, beside the garage. He also stated that Troje has never collected his garbage, and that since 1996, he has disposed of it at a dump. Birdsall testified that his garbage container was brown, but did not have the words "Troje Trash" on it. He stated that he kept automobile parts and scrap materials in the container for later use.
After searching the garbage, Hosking applied for a search warrant. In the affidavit supporting the warrant, he stated that Snaza "contacted the trash company whose trash receptacle was located outside" Birdsall's residence. The search warrant was issued, and subsequently executed on September 27, 2000. More than 300 grams of methamphetamine were discovered inside Birdsall's residence.
Birdsall was charged with two counts of controlled-substance crime in the first degree, two counts of possessing or receiving stolen property, and one count of possession of drug paraphernalia. At the conclusion of the omnibus hearing, the district court denied Birdsall's motion to suppress evidence obtained from the garbage and from the search of Birdsall's home. After trial to the court, Birdsall was found guilty of the controlled-substance crimes, and the remaining counts were dismissed. This appeal resulted.
Law enforcement officers discovered a stolen motorcycle in Birdsall's garage.
DECISION
Appellant argues that the search of his garbage was a violation of his Fourth Amendment rights and that the search warrant for his home lacked probable cause. We address each of these arguments in turn.
1. Garbage Search
When we review pretrial orders on motions to suppress evidence, we independently review the facts and determine as a matter of law whether the district court erred in suppressing, or not suppressing, the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Generally, an unlawful search or seizure under the Fourth Amendment to the United States Constitution occurs when an individual's reasonable expectation of privacy is invaded. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 511 (1967). "A householder may ordinarily have some expectation of privacy in the items he places in his garbage can." State v. Oquist, 327 N.W.2d 587, 591 (Minn. 1982).
It is, as the United States Supreme Court points out, "common knowledge" that plastic garbage bags left on or beside a public street are vulnerable to any number of invasions, whether from animals or members of the public. Therefore, the expectation of privacy in garbage adjacent to a public street is eroded.
State v. Goebel, 654 N.W.2d 700, 703-04 (Minn.App. 2002) (footnote omitted) (quoting California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 1628-29 (1988) (citation omitted)).
Minnesota courts have held that garbage left on a curb or adjacent to an alley that is seized in a routine curbside pickup does not constitute an illegal search. See, e.g., State v. Krech, 403 N.W.2d 634, 636-37 (Minn. 1987) (holding no Fourth Amendment violation where garbage left a few feet from an alley seized and searched by police); State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984) (holding police did not violate defendant's Fourth Amendment rights in seizing and searching garbage left at curb at the edge of driveway); Oquist, 327 N.W.2d at 591 (holding no Fourth Amendment violation where deputies picked up plastic garbage bags near public alley while not leaving paved portion of alley to reach the bags); Goebel, 654 N.W.2d 700, 703-04 (holding no Fourth Amendment violation where garbage left for collection on curb at end of driveway).
The right to seize and search garbage without violating Fourth Amendment protections is not unlimited, however. Minnesota caselaw places importance on whether garbage subjected to seizure and search was located within the "curtilage" of a home. A home's curtilage is protected by the Fourth Amendment if "the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Krech, 403 N.W.2d at 637 (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1140 (1987)); see also Garza v. State, 632 N.W.2d 633, 639 (Minn. 2001) ("A dwelling's curtilage is generally the area so immediately and intimately connected to the home that within it, a resident's reasonable expectation of privacy should be respected." (citation omitted)). To determine whether the Fourth Amendment protects a home's curtilage, we must examine
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
Krech, 403 N.W.2d at 636-37 (quotation omitted). Certain areas surrounding a home, however, are
impliedly open to use by the public. Thus, police may walk on the sidewalk and onto the porch of a house and knock on the door if they are conducting an investigation and want to question the owner * * * .
Id. at 637 (quoting State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975)). Further,
police do not need a warrant or even probable cause to approach a dwelling in order to conduct an investigation if they restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches).
Krech, 403 N.W.2d at 637 (emphasis added) (quotation omitted) (holding that police did not violate individual's Fourth Amendment rights by walking near the back door of duplex and seizing cardboard box and garbage bag from garbage cans).
In determining that the seizure and search of garbage here did not violate Birdsall's Fourth Amendment rights, the trial court concluded that Birdsall
had no reasonable expectation of privacy once he placed the brown trash receptacle at the corner of his garage, on a very short driveway, only some 10 to 15 feet away from the alley's edge. [Appellant's] testimony that he interspersed valuable core automobile parts and scrap materials he wished to keep with trash such as used baggies and aluminum foil in a garbage can, which he then placed near the edge of his property, is not credible.
Although Birdsall testified that the garbage container was 30 feet from the alley, the trial court credited Hosking's testimony that it was 10 to 15 feet from the alley. Because the weight and believability of witness testimony are issues for the district court, this court defers to that determination here. State v. Bias, 419 N.W.2d 480, 484-85 (Minn. 1988).
In reaching its decision, the trial court addressed the four factors set out in Dunn to determine the extent of the curtilage of a home, and concluded that Birdsall had satisfied none of those factors, and that the garbage was located outside the curtilage of Birdsall's home. The trial court reasoned as follows:
The Dunn factors are (1) the proximity of the area claimed as curtilage to the home; (2) whether the area claimed as curtilage is surrounded by an enclosure; (3) the nature of the use of the area claimed as curtilage; and (4) the steps taken, if any, by the owner to protect the area from observation. United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139 (1987).
As to the first factor, Birdsall placed his garbage can as far from the actual home as possible * * * . As to the second factor, Birdsall's garbage can was not surrounded by any fence or enclosure, or in any other way shielded from view. As to the third factor, Birdsall placed the garbage can outside — not inside his garage, rather than outside his patio, deck, or home. A garage is a place typically associated with household work or chores, not any intimate aspects of a homeowner's life. Finally, as to the fourth and final factor, Birdsall took no measures to shield his garbage can from view. Rather, Birdsall left the can at the corner of his garage, in a location where anyone walking down the alley merely had to look 10 to 15 feet toward Birdsall's garage to see the can.
While our review of caselaw persuades us that this is a close case, we cannot conclude that the trial court erred in determining that the garbage was outside the curtilage of Birdsall's home. Even if we were to assume, for the sake of further analysis, that the garbage was within the curtilage of Birdsall's home, we believe that the trial court's determination that the seizure and search of the garbage did not violate Fourth Amendment protections can be upheld on alternative grounds.
The Supreme Court has held that "[a]n expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable." Greenwood, 486 U.S. at 39-40, 108 S.Ct. at 1628. The Greenwood court found that the expectation of privacy in garbage was not objectively reasonable because the garbage had been left "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." Id. at 40-41, 108 S.Ct. at 1629 (quotation omitted).
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.
Id. at 40, 108 S.Ct. at 1628-29 (footnotes omitted) (citation omitted).
In this case, it is uncontested that the Troje employee went only to the edge of the driveway to pick up the garbage. Birdsall did not dispute that the garbage container was adjacent to the driveway. The trial court found that the container was visible to a person walking down the alley. Although we recognize that the container was not on the curb, its proximity to the driveway and its exposure to the alley diminished any reasonable expectation of privacy Birdsall may have had.
Birdsall also argues that under the Greenwood analysis, his reasonable expectation of privacy was violated because he did not intend to have his garbage collected, and because he did not have a regular garbage collection service. We disagree, and conclude that Birdsall's intentions regarding pickup of garbage do not rise to the level of requiring that his expectation of privacy be found to be objectively reasonable. Further, the Greenwood decision makes clear that not only garbage collectors are relevant to the expectation of privacy; animals, children, scavengers, snoops, and other members of the public are relevant also.
Exposure to the public should not be diminished by the fact that the public may in fact be trespassing upon the property of a defendant. As noted by the court in Oquist, "the constitutionality of the reconnaissance of garbage may no longer be tested merely by the application of traditional property law concepts of abandonment and trespass." 327 N.W.2d at 589-90.
In concluding, as did the trial court, that Birdsall had no reasonable expectation of privacy in this garbage, we find federal caselaw, while not binding, nonetheless persuasive. In United States v. Shanks, 97 F.3d 977 (7th Cir. 1996), a case with facts strikingly similar to those here, the court stated:
Even assuming that the garbage containers were within the curtilage of Shanks' home, Shanks cannot show that the district court's additional finding (that he did not hold a reasonable expectation of privacy in the garbage) is clearly erroneous. Indeed, the mere intonation of curtilage does not end the inquiry.
Id. at 979 (internal citation omitted).
We conclude, as did the Shanks court, that the additional determination of the trial court here regarding Birdsall's expectation of privacy was not clearly erroneous.
2. Search Warrant
This court reviews the district court's determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed. State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999). "Substantial basis" in this context means a "fair probability," given the totality of the circumstances, "that contraband or evidence of a crime will be found in a particular place." State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted). Marginal or doubtful cases should be resolved by the preference for warrants. State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).
We have already determined that the seizure and search of Birdsall's garbage was valid. Arguably the evidence obtained from that seizure and search is, in itself, sufficient to sustain the validity of the search warrant. See State v. Papadakis, 643 N.W.2d 349, 356 (Minn.App. 2002) (stating that "trash can search provided an independent and substantial basis for the district court's probable cause determination.") Nonetheless, we address Birdsall's argument that the affidavit did not provide adequate information to assess the credibility of the CI and the first-time citizen informant.
When a CI's tip is a basis for probable cause, the informant's veracity and the basis of his or her knowledge are considerations under the totality-of-the-circumstances test. State v. Ward, 580 N.W.2d 67, 71 (Minn.App. 1998). The reliability of an informant may be demonstrated by showing that (1) the informant has a track record of giving reliable information; (2) the circumstances in the particular case suggest strongly that the informant's information is reliable; or (3) the details of the informant's tip "have been sufficiently corroborated so that it is clear the informant is telling the truth on this occasion." State v. Siegfried, 274 N.W.2d 113, 114-15 (Minn. 1978). The informant's identity and reliability may be established by corroboration of "even minor details" that lend credence to the supplied information. Ward, 580 N.W.2d at 71 (citation omitted). Corroboration is clearly present here as a result of the garbage search.
The credibility of a "so-called first-time citizen informer" who has not been involved in the criminal underworld is generally presumed. Siegfried, 274 N.W.2d at 115 (citation omitted). We recognize that for this presumption to apply, "the affidavit must specifically aver that the informant is not involved in criminal activity." Ward, 580 N.W.2d at 71 (citing Seigfried, 274 N.W.2d at 115). That averment was not made in this case. However, simply because the informant does not qualify as a citizen informant "does not mean that the informant was an informant of doubtful reliability from the criminal subculture." McCloskey, 453 N.W.2d at 703.
The garbage search in this case provided law enforcement officers with information that the informants were telling the truth and with evidence that drug activity was taking place in Birdsall's house. Under the totality-of-the-circumstances test, when the informants' tips are combined with the garbage search, there was adequate probable cause to support the search warrant. Ward, 580 N.W.2d at 71.