California v. Greenwood/Dissent Brennan

by William J. Brennan

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

Every week for two months, and at least once more a month later, the Laguna Beach police clawed through the trash that respondent Greenwood left in opaque, sealed bags on the curb outside his home. Record 113. Complete strangers minutely scrutinized their bounty, undoubtedly dredging up intimate details of Greenwood's private life and habits. The intrusions proceeded without a warrant, and no court before or since has concluded that the police acted on probable cause to believe Greenwood was engaged in any criminal activity.

Scrutiny of another's trash is contrary to commonly accepted notions of civilized behavior. I suspect, therefore, [p46] that members of our society will be shocked to learn that the Court, the ultimate guarantor of liberty, deems unreasonable our expectation that the aspects of our private lives that are concealed safely in a trash bag will not become public.

I

A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant.

United States v. Jacobsen, 466 U.S. 109, 120, n. 17 (1984) (citations omitted). Thus, as the Court observes, if Greenwood had a reasonable expectatlon that the contents of the bags that he placed on the curb would remain private, the warrantless search of those bags violated the Fourth Amendment. Ante at 39.

The Framers of the Fourth Amendment understood that "unreasonable searches" of "paper[s] and effects" — no less than "unreasonable searches" of "person[s] and houses" — infringe privacy. As early as 1878, this Court acknowledged that the contents of

[l]etters and sealed packages . . . in the mail are as fully guarded from examination and inspection . . . as if they were retained by the parties forwarding them in their own domiciles.

Ex parte Jackson, 96 U.S. 727, 733. In short, so long as a package is "closed against inspection," the Fourth Amendment protects its contents, "wherever they may be," and the police must obtain a warrant to search it just "as is required when papers are subjected to search in one's own household." Ibid. Accord, United States v. Van Leeuwen, 397 U.S. 249 (1970).

With the emergence of the reasonable-expectation-o-privacy analysis, see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U.S. 735, 740 (1979), we have reaffirmed this fundamental principle. In Robbins v. California, 453 U.S. 420 (1981), for example, Justice Stewart, writing for a plurality of four, pronounced that,

unless the container is such that its contents may be said to be in plain view, those contents are fully [p47] protected by the Fourth Amendment,

id. at 427, and soundly rejected any distinction for Fourth Amendment purposes among various opaque, sealed containers:

[E]ven if one wished to import such a distinction into the Fourth Amendment, it is difficult if not impossible to perceive any objective criteria by which that task might be accomplished. What one person may put into a suitcase, another may put into a paper bag. . . . And . . . no court, no constable, no citizen, can sensibly be asked to distinguish the relative "privacy interests" in a closed suitcase, briefcase, portfolio, duffelbag, or box.

Id. at 426-427. See also id. at 428 (expectation of privacy attaches to any container unless it "so clearly announce[s] its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer"). With only one exception, every Justice who wrote in that case eschewed any attempt to distinguish "worthy" from "unworthy" containers. ^[1]

More recently, in United States v. Ross, 456 U.S. 798 (1982), the Court, relying on the

virtually unanimous agreement [p48] in Robbins . . . that a constitutional distinction between "worthy" and "unworthy" containers would be improper,

held that a distinction among "paper bags, locked trunks, lunch buckets, and orange crates" would be inconsistent with

the central purpose of the Fourth Amendment. . . . [A] traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.

As Justice Stewart stated in Robbins, the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.

Id. at 822-823 (emphasis added; footnote and citation omitted). See also Jacobsen, 466 U.S. at 129 (opinion of WHITE, J.).

Accordingly, we have found a reasonable expectation of privacy in the contents of a 200-pound "double-locked footlocker," United States v. Chadwick, 433 U.S. 1, 11 (1977); a "comparatively small, unlocked suitcase," Arkansas v. Sanders, 442 U.S. 753, 762, n. 9 (1979); a "totebag," Robbins, 453 U.S. at 422; and "packages wrapped in green opaque plastic," ibid. See also Ross, supra, at 801, 822-823 (suggesting that a warrant would have been required to search a "‘lunchtype' brown paper bag" and a "zippered red leather pouch" had they not been found in an automobile); Jacobsen, supra, at 111, 114-115 (suggesting that a warrantless search of an "ordinary cardboard box wrapped in brown paper" would have violated the Fourth Amendment had a private party not already opened it).

Our precedent, therefore, leaves no room to doubt that, had respondents been carrying their personal effects in opaque, sealed plastic bags — identical to the ones they placed on the curb — their privacy would have been protected from warrantless police intrusion. So far as Fourth Amendment protection is concerned, opaque plastic bags are every bit as [p49] worthy as "packages wrapped in green opaque plastic" and "double-locked footlocker[s]." Cf. Robbins, supra, at 441 (REHNQUIST, J., dissenting) (objecting to Court's discovery of reasonable expectation of privacy in contents of "two plastic garbage bags").

II

Respondents deserve no less protection just because Greenwood used the bags to discard, rather than to transport, his personal effects. Their contents are not inherently any less private, and Greenwood's decision to discard them, at least in the manner in which he did, does not diminish his expectation of privacy. ^[2] [p50]

A trash bag, like any of the above-mentioned containers, "is a common repository for one's personal effects" and, even more than many of them, is "therefore . . . inevitably associated with the expectation of privacy." Sanders, supra, at 762 (citing Chadwick, supra, at 13). "[A]lmost every human activity ultimately manifests itself in waste products. . . ." Smith v. State, 510 P.2d 793, 798 (Alaska), cert. denied, 414 U.S. 1086 (1973). See California v. Rooney, 483 U.S. 307, 320-321, n. 3 (1987) (WHITE, J., dissenting) (renowned archaeologist Emil Haury once said, "[i]f you want to know what is really going on in a community, look at its garbage") (quoted by W. Rathje, Archaeological Ethnography . . . Because Sometimes It Is Better to Give Than to Receive, in Explorations in Ethnoarchaeology 49, 54 (R. Gould ed.1978)); Weberman, The Art of Garbage Analysis: You Are What You Throw Away, 76 Esquire 113 (1971) (analyzing trash of various celebrities and drawing conclusions about their private lives). A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests. It cannot be doubted that a sealed trash bag harbors telling evidence of the "intimate activity associated with the ‘sanctity of a man's home and the privacies of life,'" which the Fourth Amendment is designed [p51] to protect. Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). See also United States v. Dunn, 480 U.S. 294, 300 (1987).

The Court properly rejects the State's attempt to distinguish trash searches from other searches on the theory that trash is abandoned, and therefore not entitled to an expectation of privacy. As the author of the Court's opinion observed last Term, a defendant's

property interest [in trash] does not settle the matter for Fourth Amendment purposes, for the reach of the Fourth Amendment is not determined by state property law.

Rooney, supra, at 320 (WHITE, J., dissenting). In evaluating the reasonableness of Greenwood's expectation that his sealed trash bags would not be invaded, the Court has held that we must look to "understandings that are recognized and permitted by society." ^[3] Most of us, I believe, would be incensed to discover a meddler — whether a neighbor, a reporter, or a detective — scrutinizing our sealed trash containers to discover some detail of our personal lives. See State v. Schultz, 388 So.2d 1326, 1331 (Fla. App.1980) (Anstead, J., dissenting). That was, quite naturally, the reaction to the sole incident on which the Court bases its conclusion that "snoops" and the like defeat the expectation of privacy in trash. Ante at 40, and n. 4. When a tabloid reporter examined then-Secretary of State [p52] Henry Kissinger's trash and published his findings, Kissinger was "really revolted" by the intrusion, and his wife suffered "grave anguish." N.Y. Times, July 9, 1975, p. A1, col. 8. The public response roundly condemning the reporter demonstrates that society not only recognized those reactions as reasonable, but shared them as well. Commentators variously characterized his conduct as "a disgusting invasion of personal privacy," Flieger, Investigative Trash, U.S. News & World Report, July 28, 1975, p. 72 (editor's page); "indefensible . . . as civilized behavior," Washington Post, July 10, 1975, p. A18, col. 1 (editorial); and contrary to "the way decent people behave in relation to each other," ibid.

Beyond a generalized expectation of privacy, many municipalities, whether for reasons of privacy, sanitation, or both, reinforce confidence in the integrity of sealed trash containers by

prohibit[ing] anyone, except authorized employees of the Town . . . to rummage into, pick up, collect, move or otherwise interfere with articles or materials placed on . . . any public street for collection.

United States v. Dzialak, 441 F.2d 212, 215 (CA2 1971) (paraphrasing ordinance for town of Cheektowaga, New York). See also United States v. Vahalik, 606 F.2d 99, 100 (CA5 1979) (per curiam); Magda v. Benson, 536 F.2d 111, 112 (CA6 1976) (per curiam); People v. Rooney, 175 Cal.App.3d 634, 645, 221 Cal.Rptr. 49, 56 (1985), cert. dism'd, 483 U.S. 307 (1987); People v. Krivda, 5 Cal.3d 357, 366, 486 P.2d 1262, 1268 (1971), vacated and remanded, 409 U.S. 33 (1972); State v. Brown, 20 Ohio App.3d 36, 38, n. 3, 484 N.E.2d 215, 218, n. 3 (1984). In fact, the California Constitution, as interpreted by the State's highest court, guarantees a right of privacy in trash vis-a-vis government officials.2 See Krivda, supra, (recognizing right); In re Lance W., 37 Cal.3d 873, 886-887, 694 P.2d 744, 752-753 (1985) (later constitutional amendment abolished exclusionary remedy, but left intact the substance of the right). [p53]

That is not to deny that isolated intrusions into opaque, sealed trash containers occur. When, acting on their own, "animals, children, scavengers, snoops, [or] other members of the public," ante at 40 (footnotes omitted), actually rummage through a bag of trash and expose its contents to plain view,

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,

ante at 41. That much follows from cases like Jacobsen, 466 U.S. at 117, 120, n. 17 (emphasis added), which held that police may constitutionally inspect a package whose "integrity" a private carrier has already "compromised," because

[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated,

and California v. Ciraolo, 476 U.S. 207, 213-214 (1986) (emphasis added), which held that the Fourth Amendment does not prohibit police from observing what "[a]ny member of the public flying in this airspace who glanced down could have seen."

Had Greenwood flaunted his intimate activity by strewing his trash all over the curb for all to see, or had some nongovernmental intruder invaded his privacy and done the same, I could accept the Court's conclusion that an expectation of privacy would have been unreasonable. Similarly, had police searching the city dump run across incriminating evidence that, despite commingling with the trash of others, still retained its identity as Greenwood's, we would have a different case. But all that Greenwood "exposed . . . to the public," ante at 40, were the exteriors of several opaque, sealed containers. Until the bags were opened by police, they hid their contents from the public's view every bit as much as did Chadwick's double-locked footlocker and Robbins' green plastic wrapping. Faithful application of the warrant requirement does not require police to "avert their eyes from evidence of criminal activity that could have been observed by any member of the public." Rather, it only requires them [p54] to adhere to norms of privacy that members of the public plainly acknowledge.

The mere possibility that unwelcome meddlers might open and rummage through the containers does not negate the expectation of privacy in their contents any more than the possibility of a burglary negates an expectation of privacy in the home; or the possibility of a private intrusion negates an expectation of privacy in an unopened package; or the possibility that an operator will listen in on a telephone conversation negates an expectation of privacy in the words spoken on the telephone. "What a person . . . seeks to preserve as private, even in an area aceessible to the public, may be constitutionally protected." Katz, 389 U.S. at 351-352. We have therefore repeatedly rejected attempts to justify a State's invasion of privacy on the ground that the privacy is not absolute. See Chapman v. United States, 365 U.S. 610, 616-617 (1961) (search of a house invaded tenant's Fourth Amendment rights even though landlord had authority to enter house for some purposes); Stoner v. California, 376 U.S. 483, 487-490 (1964) (implicit consent to janitorial personnel to enter motel room does not amount to consent to police search of room); O'Connor v. Ortega, 480 U.S. 709, 717 (1987) (a government employee has a reasonable expectation of privacy in his office, even though "it is the nature of government offices that others — such as fellow employees, supervisors, consensual visitors, and the general public — may have frequent access to an individual's office"). As JUSTICE SCALIA aptly put it, the Fourth Amendment protects "privacy . . . not solitude." O'Connor, supra, at 730 (opinion concurring in judgment).

Nor is it dispositive that

respondents placed their refuse at the curb for the express purpose of conveying it to a third party, . . . who might himself have sorted through respondents' trash or permitted others, such as the police, to do so.

Ante at 40. In the first place, Greenwood can hardly be faulted for leaving trash on his curb when a county ordinance [p55] commanded him to do so, Orange County Code § 4-3-45(a) (1986) (must "remov[e] from the premises at least once each week" all "solid waste created, produced or accumulated in or about [his] dwelling house"), and prohibited him from disposing of it in any other way, see Orange County Code § 3-3-85 (1988) (burning trash is unlawful). Unlike in other circumstances where privacy is compromised, Greenwood could not "avoid exposing personal belongings . . . by simply leaving them at home." O'Connor, supra, at 725. More importantly, even the voluntary relinquishment of possession or control over an effect does not necessarily amount to a relinquishment of a privacy expectation in it. Were it otherwise, a letter or package would lose all Fourth Amendment protection when placed in a mailbox or other depository with the "express purpose" of entrusting it to the postal officer or a private carrier; those bailees are just as likely as trash collectors (and certainly have greater incentive) to "sor[t] through" the personal effects entrusted to them, "or permi[t] others, such as police to do so." Yet it has been clear for at least 110 years that the possibility of such an intrusion does not justify a warrantless search by police in the first instance. See Ex parte Jackson, 96 U.S. 727 (1878); United States v. Van Leeuwen, 397 U.S. 249 (1970); United States v. Jacobsen, 466 U.S. 109 (1984). ^[4]

III

In holding that the warrantless search of Greenwood's trash was consistent with the Fourth Amendment, the Court paints a grim picture of our society. It depicts a society in which local authorities may command their citizens to dispose of their personal effects in the manner least protective of the [p56] "sanctity of [the] home and the privacies of life," Boyd v. United States, 116 U.S. at 630, and then monitor them arbitrarily and without judicial oversight — a society that is not prepared to recognize as reasonable an individual's expectation of privacy in the most private of personal effects sealed in an opaque container and disposed of in a manner designed to commingle it imminently and inextricably with the trash of others. Ante at 39. The American society with which I am familiar "chooses to dwell in reasonable security and freedom from surveillance," Johnson v. United States, 333 U.S. 10, 14 (1948), and is more dedicated to individual liberty and more sensitive to intrusions on the sanctity of the home than the Court is willing to acknowledge.

I dissent.

Notes

1. . See 453 U.S. at 436 (BLACKMUN, J., dissenting); id. at 437 (REHNQUIST, J., dissenting); id. at 444 (STEVENS, J., dissenting). But see id. at 433-434 (Powell, J., concurring in judgment) (rejecting position that all containers, even "the most trivial," like "a cigar box or a Dixie cup," are entitled to the same Fourth Amendment protection). Cf. New York v. Belton, 453 U.S. 454, 460-461, n. 4 (1981) (defining "container," for purposes of search incident to a lawful custodial arrest, as "any object capable of holding another object," including "luggage, boxes, bags, clothing, and the like").
2. . Both to support its position that society recognizes no reasonable privacy interest in sealed, opaque trash bags and to refute the prediction that "society will be shocked to learn" of that conclusion, supra, at 46, the Court relies heavily upon a collection of lower court cases finding no Fourth Amendment bar to trash searches. But the authority that leads the Court to be "distinctly unimpressed" with our position, ante at 43, n. 5, is itself impressively undistinguished. Of 11 Federal Court of Appeals cases cited by the Court, at least 2 are factually or legally distinguishable, see United States v. O'Bryant, 775 F.2d 1528, 1533-1534 (CA11 1985) (police may search an apparently valuable briefcase "discarded next to an overflowing trash bin on a busy city street"); United States v. Thornton, 241 U.S.App.D.C. 46, 56, 746 F.2d 39, 49 (1984) (reasonable federal agents could believe in good faith that a trash search is legal), and 7 rely entirely or almost entirely on an abandonment theory that, as noted infra at 51, the Court has discredited, see United States v. Dela Espriella, 781 F.2d 1432, 1437 (CA9 1986) ("The question, then, becomes whether placing garbage for collection constitutes abandonment of property"); United States v. Terry, 702 F.2d 299, 308-309 (CA2) ("[T]he circumstances in this case clearly evidence abandonment by Williams of his trash"), cert. denied sub nom. Williams v. United States, 461 U.S. 931 (1983); United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981) ("[T]he placing of trash in garbage cans at a time and place for anticipated collection by public employees for hauling to a public dump signifies abandonment"); United States v. Vahalik, 606 F.2d 99, 100-101 (CA5 1979) (per curiam) ("[T]he act of placing garbage for collection is an act of abandonment which terminates any fourth amendment protection"), cert. denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025 (CA4 1978) ("The act of placing [garbage] for collection is an act of abandonment and what happens to it thereafter is not within the protection of the fourth amendment"), cert. denied, 440 U.S. 959 (1979); Magda v. Benson, 536 F.2d 111, 112 (CA6 1976) (per curiam) ("[F]ederal case law . . . holds that garbage . . . is abandoned and no longer protected by the Fourth Amendment"); United States v. Mustone, 469 F.2d 970, 972 (CA1 1972) (when defendant "deposited the bags on the sidewalk, he abandoned them"). A reading of the Court's collection of state court cases reveals an equally unimpressive pattern.
3. . Rakas v. Illinois, 439 U.S. 128, 143-144, n. 12 (1978). See ante at 43 ("[T]he Fourth Amendment analysis must turn on such factors as ‘our societal understanding that certain areas deserve the most scrupulous protection from government invasion'") (quoting Oliver v. United States, 466 U.S. 170, 178 (1984)); Robbins v. California, 453 U.S. 420, 428 (1981) (plurality opinion) ("Expectations of privacy are established by general social norms"); Dow Chemical Co. v. United States, 476 U.S. 227, 248 (1986) (opinion of Powell, J.); Bush & Bly, Expectation of Privacy Analysis and Warrantless Trash Reconnaissance after Katz v. United States, 23 Ariz.L.Rev. 283, 293 (1981) ("[S]ocial custom . . . serves as the most basic foundation of a great many legitimate privacy expectations") (citation omitted).
4. . To be sure, statutes criminalizing interference with the mails might reinforce the expectation of privacy in mail, see, e.g., 18 U.S.C. §§ 1701-1705, 1708, but the expectation of privacy in no way depends on statutory protection. In fact, none of the cases cited in the text even mention such statutes in finding Fourth Amendment protection in materials handed over to public or private carriers for delivery.