State of Minnesota v. David Ford McMurray

STATE OF MINNESOTA

IN SUPREME COURT

A12-2266

Court of Appeals Wright, J.
Dissenting, Lillehaug, Page, JJ.
State of Minnesota, Took no part, Anderson, J.

Respondent,

vs.
Filed: March 11, 2015
David Ford McMurray, Office of Appellate Courts

Appellant.
________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael K. Junge, McLeod County Attorney, Elizabeth Smith, Assistant McLeod County
Attorney, Glencoe, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, Saint Paul, Minnesota, for appellant.

Cort C. Holten, Jeffrey D. Bores, Chestnut Cambronne PA, Minneapolis, Minnesota, for
amicus curiae Minnesota Police and Peace Officers Association Legal Defense Fund.

________________________

SYLLABUS

In the context of a warrantless search of garbage set out for collection in an area

accessible to the public, there is no principled basis for interpreting Article I, Section 10,

of the Minnesota Constitution to provide greater protection than the Fourth Amendment

to the United States Constitution.

Affirmed.

1
 OPINION

WRIGHT, Justice.

In this case, we consider whether there is a principled basis for interpreting

Article I, Section 10, of the Minnesota Constitution to require greater protection than the

Fourth Amendment to the United States Constitution in the context of a warrantless

search of garbage set out for collection in an area accessible to the public. Applying the

principles articulated in Kahn v. Griffin, 701 N.W.2d 815 (Minn. 2005), to the facts of

this case, we do not have a “clear and strong conviction” that there is a principled basis

for interpreting Article I, Section 10, of the Minnesota Constitution to require greater

protection than the Fourth Amendment to the United States Constitution. We therefore

affirm.

On January 25, 2012, a mandated reporter informed the Hutchinson police that

appellant David Ford McMurray’s daughter saw her mother with “a pipe believed to be

used for drugs.” Officer Erlandson, an investigator with Hutchinson Police Services and

a member of the Southwest Metro Drug Task Force, checked police records and learned

that both McMurray and his wife previously had been arrested for controlled substance

violations.

Officer Erlandson contacted the commercial truck driver who collects

McMurray’s garbage and sought the driver’s assistance in securing the garbage that

McMurray placed at the curb for collection. On February 2, 2012, Officer Erlandson

observed the driver pick up the garbage from the curb outside McMurray’s home and

immediately thereafter met the driver in a predetermined location to retrieve the

2
garbage. When Officer Erlandson searched the garbage, he found several plastic bags

containing white residue, which later tested positive as methamphetamine. The garbage

also contained drug paraphernalia and documents belonging to McMurray and his wife.

The next day, based on the information police received from the mandated

reporter and the warrantless search of McMurray’s garbage, Officer Erlandson obtained a

warrant to search McMurray’s home. Police executed the search warrant and found

McMurray with two other people in an upstairs bedroom. While searching the bedroom,

police found, inside a clothes basket, plastic bags containing a “crystal like substance”

and a letter addressed to McMurray. A laboratory test confirmed that one of the plastic

bags contained 3.3 grams of methamphetamine.

McMurray was charged with third-degree possession of a controlled substance.

Minn. Stat. § 152.023, subds. 2(a)(1), 3(b) (2014). McMurray moved to suppress the

evidence seized from his home. In support of the motion to suppress, McMurray argued

that the warrantless search of his garbage violated Article I, Section 10, of the Minnesota

Constitution, which provides, “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 person or things

to be seized.” He further argued that without the evidence found in his garbage, the

application for a warrant to search his home was not supported by probable cause, and

that the search of his home was, therefore, unconstitutional. The State urged the district

court to deny the suppression motion, citing State v. Oquist, 327 N.W.2d 587, 591

3
(Minn. 1982), in which we held “the defendant had no reasonable expectation of privacy

with respect to the contents of the plastic bags placed in or near his open garbage can”

when the contents were examined “without trespassing on the defendant’s premises.”

The district court denied the motion to suppress, concluding that Oquist was controlling.

McMurray waived his right to a jury trial and submitted his case to the district

court on stipulated facts under Minn. R. Crim. P.26.01, subd. 3. The district court found

McMurray guilty of third-degree possession of a controlled substance and imposed a

24-month sentence, which is the mandatory minimum sentence for a person previously

convicted of a felony controlled substance crime. See Minn. Stat. § 152.023, subd. 3(b).

McMurray appealed to the court of appeals, arguing among other grounds that the

district court committed reversible error by denying his motion to suppress. The court of

appeals affirmed, stating that “[f]ollowing United States Supreme Court precedent,

Minnesota courts have consistently 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.” State v.

McMurray, No. A12-2266, 2013 WL 5021206, at *2 (Minn. App. Sept. 16, 2013).

We granted McMurray’s petition for further review on the issue of whether

Article I, Section 10, of the Minnesota Constitution requires greater protection than the

Fourth Amendment to the United States Constitution in the context of a warrantless

search of garbage set out for collection in an area accessible to the public.

I.

In California v. Greenwood, 486 U.S. 35 (1988), the United States Supreme Court

concluded that an individual does not have a reasonable expectation of privacy in garbage

4
left at the curb. Id. at 39-41. Consequently, a warrantless search of such garbage does

not violate the Fourth Amendment to the United States Constitution. Id. Acknowledging

Greenwood, McMurray concedes that the Fourth Amendment does not prohibit

warrantless searches of garbage set out for collection. Despite the fact that the language

of Article I, Section 10, of the Minnesota Constitution is substantially similar to the

language of the Fourth Amendment, 1 McMurray asks us to interpret Article I,

Section 10, to provide greater protection than the Fourth Amendment because in his view

the United States Supreme Court’s reasoning in Greenwood is not persuasive. 2 To

support his argument, McMurray relies heavily on the Greenwood dissent and the

decisions of a minority of other state courts. 3

1
We have said that Article I, Section 10, and the Fourth Amendment are “textually
identical,” State v. Carter, 697 N.W.2d 199, 209 (Minn. 2005), although there are some
differences in punctuation between the two provisions.
2
The dissent’s discussion of the reasonable articulable suspicion standard is ill
conceived for at least two reasons. First, application of this legal standard was not raised
below and, therefore, is not properly before us. It is well settled that “[a] reviewing court
must generally consider ‘only those issues that the record shows were presented and
considered by the trial court in deciding the matter before it.’ ” Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988) (quoting Thayer v. Am. Fin. Advisers, Inc.,
322 N.W.2d 599, 604 (Minn. 1982)). A party may not “obtain review by raising the
same general issue litigated below but under a different theory.” Id. at 582. Second,
neither party has advocated that we adopt the reasonable articulable suspicion standard,
which only a minority of states have adopted. Prudently, we decline to offer an opinion
on a matter that was not properly raised or litigated below.
3
In the nearly 30 years since the United States Supreme Court decided Greenwood,
most state supreme courts that have addressed the issue have followed the reasoning of
Greenwood when interpreting their state constitutions. See, e.g., Rikard v. State, 123
S.W.3d 114, 119-20 (Ark. 2003); People v. Hillman, 834 P.2d 1271, 1277-78 (Colo.
1992); State v. DeFusco, 620 A.2d 746, 751-53 (Conn. 1993); State v. Donato, 20 P.3d 5,
(Footnote continued on next page.)

5
 As a separate source of rights, the Minnesota Constitution may under certain

circumstances provide greater protection than the United States Constitution. Kahn,

701 N.W.2d at 823-24. Yet when independently interpreting the Minnesota Constitution,

we will not reject a United States Supreme Court interpretation of identical or

substantially similar language “merely because one prefers the opposite result.” Women

of the State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 30 (Minn. 1995). Our precedent

establishes that we approach the responsibility of interpreting identical or substantially

similar language with restraint. Kahn, 701 N.W.2d at 828. As we follow the general

principle of “favoring uniformity” with the United States Constitution, we decline to

“lightly reject” a United States Supreme Court interpretation of “identical or substantially

similar language.” Id. at 824. Rather, when a federal constitutional provision has the

same or substantially similar language and the United States Supreme Court has

(Footnote continued from previous page.)
10 (Idaho 2001); State v. Kimberlin, 984 P.2d 141, 145-46 (Kan. 1999); Commonwealth
v. Pratt, 555 N.E.2d 559, 567-68 (Mass. 1990); State v. Schmalz, 744 N.W.2d 734, 741-
42 (N.D. 2008); Barekman v. State, 200 P.3d 802, 806-07 (Wyo. 2009). These courts
generally have agreed with the United States Supreme Court that people knowingly
expose their garbage to the public when they set it out for collection. See, e.g., Rikard,
123 S.W.3d at 119-20; Pratt, 555 N.E.2d at 567. The rationale in these cases is that, once
garbage has been set at the curb, it is in an area accessible to the public, which defeats
any expectation of privacy that might have existed. There can be no expectation of
privacy in that which is plainly visible to the public. Hillman, 834 P.2d at 1277.
Furthermore, it is widely known that scavengers and animals often rummage through
garbage, and the fact that other people are known to look through trash placed at the curb
defeats any expectation that the police will refrain from doing so. See DeFusco,
620 A.2d at 752. Some courts also have suggested that garbage set out for collection is
abandoned, asserting that “the defendant can be said to have abandoned his privacy
interests in his garbage through the placement of his trash bags at the curb for collection.”
Pratt, 555 N.E.2d at 567; see also State v. A Blue in Color, 1993 Chevrolet Pickup,
116 P.3d 800, 804 (Mont. 2005).

6
interpreted that language, we will not construe the Minnesota Constitution as granting

greater protection for individual rights “unless there is a principled basis to do so.” Id.

(citing State v. Harris, 590 N.W.2d 90, 97-98 (Minn. 1999)).

In Kahn, we identified a nonexclusive list of factors that may be considered in

determining whether there is a principled basis for interpreting the Minnesota

Constitution to provide greater protection than the United States Constitution:

(1) the text of the state Constitution, (2) the history of the state
constitutional provision, (3) relevant state case law, (4) the text of any
counterpart in the U.S. Constitution, (5) related federal precedent and
relevant case law from other states that have addressed identical or
substantially similar constitutional language, (6) policy considerations,
including unique, distinct, or peculiar issues of state and local concern, and
(7) the applicability of the foregoing factors within the context of the
modern scheme of state jurisprudence.

Id. at 829. When the text of our state constitution is materially identical to the federal

constitution, as it is here, we have construed the Minnesota Constitution to provide

greater protection than the United States Constitution: (1) when the United States

Supreme Court “ ‘has made a sharp or radical departure from its previous decisions’ and

we ‘discern no persuasive reason to follow such a departure’ ”; (2) when the Court has

“retrenched on a Bill of Rights issue”; or (3) when the Court precedent “ ‘does not

adequately protect our citizens’ basic rights and liberties.’ ” Rew v. Bergstrom,

845 N.W.2d 764, 795 (Minn. 2014) (quoting Kahn, 701 N.W.2d at 828).

In light of the well-established principles articulated in Kahn, the issue presented

in this case is not whether the reasoning of the Supreme Court in Greenwood is

persuasive. Rather, the issue is whether we have a “clear and strong conviction” that

7
there is a “principled basis” for us to interpret Article I, Section 10, of the Minnesota

Constitution to provide greater protection from warrantless searches of garbage set out

for collection than the Fourth Amendment to the United States Constitution. We

therefore consider whether the legal issue in this case presents one of the three situations

articulated in Kahn, 701 N.W.2d at 828.

We first consider whether the United States Supreme Court’s decision in

Greenwood marked a sharp or radical departure from its Fourth Amendment precedent.

At the time of Greenwood’s appeal, the United States Supreme Court’s Fourth

Amendment precedent had established the following two principles. First, a person could

invoke the protections of the Fourth Amendment if the person had a reasonable

expectation of privacy in the area or items searched. Katz v. United States, 389 U.S. 347,

360 (1967) (Harlan, J., concurring). 4 Second, what a person knowingly exposed to the

public, even in the person’s own home or office, was not a subject of Fourth Amendment

protection. California v. Ciraolo, 476 U.S. 207, 213 (1986) (quoting Katz, 389 U.S. at

351). Applying these two principles to the facts in Greenwood, the United States

Supreme Court concluded that a warrantless search of garbage is permitted under the

Fourth Amendment because a person has no reasonable expectation of privacy in garbage

4
The United States Supreme Court recently clarified that “[t]he Katz reasonable-
expectations test ‘has been added to, not substituted for’ the traditional property-based
understanding of the Fourth Amendment.” Florida v. Jardines, ___ U.S. ___, 133 S. Ct.
1409, 1417 (2013) (quoting United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 952
(2012)). Because the police procured the garbage without trespassing on the curtilage of
McMurray’s premises, the traditional property-based understanding of the Fourth
Amendment is not at issue in this case.

8
set out for collection. 486 U.S. at 40-41. The Greenwood Court reasoned that it is

common knowledge that members of the public rummage through plastic garbage bags

placed at the side of a public street. Id. at 40. Furthermore, garbage is placed at the curb

with the expectation that a third-party trash collector will take it, and the trash collector

could sort through the garbage or permit others to do so. Id. The Greenwood Court

concluded that it is not reasonable to expect the contents of garbage bags placed on the

side of a public street for collection to remain private. Id. at 40-41. Therefore, garbage

bags placed at curbside for collection are outside the scope of Fourth Amendment

protections and may be searched without a warrant and without reasonable suspicion of

criminal activity.

Based on our review of the Greenwood decision, we conclude that it did not

constitute a “sharp or radical departure” from the United States Supreme Court’s previous

approach to the law. See Kahn, 701 N.W.2d at 828. Rather, it simply applied the

principles previously articulated in Katz and Ciraolo in a slightly different context.

Moreover, the analysis adopted in Greenwood was consistent with the decisions of a vast

majority of state courts, including our decision applying the Fourth Amendment in State

v. Oquist, 327 N.W.2d 587, 591 (Minn. 1982).

We next consider whether the United States Supreme Court’s decision in

Greenwood retrenched on a Bill of Rights issue. The relevant inquiry regarding

retrenchment is not whether the United States Supreme Court has retrenched on Bill of

Rights issues generally but whether it has retrenched on the specific Bill of Rights issue

9
at hand—here, protection against warrantless searches. 5 See, e.g., Rew, 845 N.W.2d at

795 (interpreting the question of retrenchment as referring only to the specific Bill of

Rights issue at hand). We conclude that the Greenwood decision did not retrench on the

protection against warrantless searches. Far from retrenching on the existing protections

against warrantless searches, the analysis adopted in Greenwood was consistent with the

decisions of a vast majority of state courts, including our decision in Oquist, 327 N.W.2d

at 591. Moreover, McMurray has not identified any court or commentator that has

described Greenwood as a “retrenchment” on the protections against warrantless

searches. 6

Finally, we consider whether the Greenwood rule permitting warrantless searches

of garbage set out for collection fails to adequately protect a basic right or liberty of the

citizens of Minnesota. See Kahn, 701 N.W.2d at 828. This inquiry requires more than a

conviction that we would have decided the issue differently in the first instance. See

State v. Wiegand, 645 N.W.2d 125, 133 n.8 (Minn. 2002) (refusing to interpret the

5
We are mindful that the United States Supreme Court’s recent decisions reflect an
expansion of, rather than a retrenchment on, the protection against warrantless searches.
See, e.g., Jones, ___ U.S. ___, 132 S. Ct. 945 (holding that attaching a GPS device to a
vehicle and using the device to monitor the vehicle’s movements on public streets is a
search within the meaning of the Fourth Amendment).
6
One commentator has argued that, since the United States Supreme Court
announced the so-called container doctrine in the 1970s, it has eroded the protections of
that doctrine by expanding the circumstances in which law enforcement may search a
closed container without a warrant. See Cynthia Lee, Package Bombs, Footlockers, and
Laptops: What the Disappearing Container Doctrine Can Tell Us About the Fourth
Amendment, 100 J. Crim. L. & Criminology 1403 (2010). The commentator, however,
does not include Greenwood in her discussion of that erosion, much less describe
Greenwood as a “retrenchment” on the protections against warrantless searches.

10
Minnesota Constitution more broadly than the United States Constitution with regard to

dog sniffs and stating that “we do not resort to the Minnesota Constitution whenever we

simply would have decided the matter differently”). Instead, our inquiry considers

whether there is a “unique, distinct, or peculiar issue[] of state and local concern” that

requires protection. Kahn, 701 N.W.2d at 829. For example, in Friedman v.

Commissioner of Public Safety, this court observed that “Minnesota has a long tradition

of assuring the right to counsel.” 473 N.W.2d 828, 831 (Minn. 1991). In light of this

tradition, inter alia, we held in Friedman that the Minnesota Constitution gives a motorist

a limited right to consult an attorney before deciding whether to submit to chemical

testing for blood alcohol. Id. at 835.

Unlike the traditional protection of the right to counsel recognized in Friedman,

Minnesota does not have a long tradition of protecting garbage set out for collection from

a warrantless search. Instead, during the last 32 years, we have repeatedly held that

garbage set out for collection is not protected by the Fourth Amendment and may be

searched without a warrant. See State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984);

Oquist, 327 N.W.2d at 591; see also State v. Krech, 403 N.W.2d 634, 636 (Minn. 1987)

(stating that garbage placed in a dumpster at a duplex was “abandoned property in which

defendant no longer had a reasonable expectation of privacy”); cf. State v. Goebel,

654 N.W.2d 700, 703-04 (Minn. App. 2002).

In sum, we conclude that Greenwood was not a sharp or radical departure from

United States Supreme Court precedent, did not retrench on a Bill of Rights issue, and

does not fail to adequately protect a unique, distinct, or peculiar issue of state and local

11
concern. We therefore conclude there is no principled basis for us to interpret Article I,

Section 10, of the Minnesota Constitution to require greater protection than the Fourth

Amendment to the United States Constitution in the context of a warrantless search of

garbage set out for collection in an area accessible to the public.

II.

The dissent would interpret Article I, Section 10, to require greater protection than

the Fourth Amendment for three reasons. First, the dissent is persuaded by the arguments

put forward by Justice Brennan in his dissent in Greenwood. Second, the dissent

contends that changes in the content of garbage and in city ordinances relating to garbage

disposal and container design have strengthened the expectation of privacy with respect

to garbage. Third, a number of other state courts have interpreted their state constitutions

to provide greater protection than the Fourth Amendment to the United States

Constitution in the context of a warrantless search of garbage set out for collection in an

area accessible to the public. For the reasons that follow, we are not persuaded by the

dissent’s analysis.

In his Greenwood dissent, Justice Brennan argued that all Americans retain a

reasonable expectation of privacy in garbage set out for collection because “[a] single bag

of trash testifies eloquently to the eating, reading and recreational habits of the person

who produced it.” 486 U.S. at 50 (Brennan, J., dissenting). He equated a search of trash

with a search of a bedroom or desk drawers because it “can relate intimate details about

sexual practices, health, and personal hygiene” as well as a person’s “financial and

12
professional status, political affiliations and inclinations, private thoughts, personal

relationships, and romantic interests.” Id. Justice Brennan also emphasized:

[M]any municipalities, whether for reasons of privacy, sanitation, or both,
reinforce confidence on 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.’

Id. at 52 (alteration in original) (quoting United States v. Dzialak, 441 F.2d 212, 215 (2d

Cir. 1971)). He further emphasized that many “county ordinance[s] command[]” that a

person set his or her garbage out on the curb, and therefore the act of placing garbage on

the curb does not “amount to a relinquishment of a privacy expectation in it.” Id. at 54-

55.

The dissent’s analysis mirrors Justice Brennan’s analysis. For example, the

dissent contends that “[h]ousehold waste contains a great deal of personal information

that most of us expect will remain private.” Infra at D-4. The dissent also contends that

municipal ordinances that prohibit the scavenging of recyclable materials and regulate the

collection of garbage support the reasonableness of an expectation that household

garbage will remain private from unwarranted inspection by the government. Infra at

D-8 to D-9. In effect, the dissent contends that Article I, Section 10, of the Minnesota

Constitution should be interpreted to require greater protection than the Fourth

Amendment because it finds the arguments of the dissent in Greenwood to be persuasive.

However, under the well-established principles articulated in Kahn, we do not construe

the Minnesota Constitution to provide greater protection “merely because we want to

bring about a different result.” Kahn, 701 N.W.2d at 824.

13
 The dissent next argues that today’s garbage is “not your grandfather’s garbage”

because “[v]astly more household waste is being recycled” and garbage “may now

contain digital material such as disks, chips, and flash drives.” Infra at D-5 to D-6.

Because the introduction of digital media has been accompanied by corresponding

changes in the way we dispose of sensitive items and information, 7 we are unpersuaded

by the dissent’s argument. If, as the dissent contends, the nature of household waste has

changed, as well as the “dented metal garbage cans” that were once set out at the curb,

infra at D-8, so too have Minnesotans’ disposal habits. A misplaced bank statement, an

improperly discarded hard drive, or poor judgment when interacting with others via

social media leaves an individual vulnerable to consequences ranging from

embarrassment to identity theft and fraud. We do not minimize that certain negative

consequences have arisen from technological developments, but we also consider the

practical reality when determining whether changed circumstances justify a change in the

law. Minnesotans are well aware of potential threats to their privacy and security and

have prudently altered their conduct in response.

Finally, the dissent cites to a handful of state supreme courts, each relying on its

state constitution, that have concluded that people have a reasonable expectation of

7
There are many resources available to individuals that explain how to protect their
privacy. See, e.g., Office of Minnesota Attorney General Lori Swanson, Guarding
Your Privacy (2013), available at http://www.ag.state.mn.us/brochures/pubGuarding
YourPrivacy.pdf; Consumer Information: How to Keep Your Personal Information
Secure, Fed. Trade Commission (July 2012), http://www.consumer.ftc.gov/articles/0272-
how-keep-your-personal-information-secure.

14
privacy in the garbage they set out for collection. See, e.g., State v. Goss, 834 A.2d 316

(N.H. 2003); State v. Hempele, 576 A.2d 793 (N.J. 1990); State v. Morris, 680 A.2d 90

(Vt. 1996). But the courts of New Hampshire, New Jersey, and Vermont have not, as we

have, determined that they will depart from Fourth Amendment precedent only in the

limited situations that are not present here. See Kahn, 701 N.W.2d at 825 (“Generally,

we do not independently apply our state constitution absent language, concerns, and

traditions unique to Minnesota.”) To the contrary, the Morris court emphasized its

freedom to depart from Supreme Court precedent: “We are a sovereign state, and this

Court is entitled to take issue with any constitutional decision of the United States

Supreme Court, regardless of whether our constitution provides the same or a different

text.” Morris, 680 A.2d at 101 (emphasis added). Because the courts in Goss, Hempele,

and Morris were not constrained by the principles articulated in Kahn, 701 N.W.2d at

824, the dissent’s reliance on those cases is misplaced.

III.

Having concluded there is no principled basis to interpret Article I, Section 10, of

the Minnesota Constitution to afford greater protection against warrantless searches of

garbage set out for collection than the Fourth Amendment to the United States

Constitution, we review the search of McMurray’s garbage in accordance with

Greenwood, 486 U.S. 35, and Oquist, 327 N.W.2d 587. Under Greenwood and Oquist, a

person has no reasonable expectation of privacy in garbage set out for collection on the

side of a public street because such garbage is readily accessible to scavengers and other

members of the public. Here, McMurray left the garbage at the curb outside his home

15
with the expectation that the garbage collector would take it. Any member of the public

could have accessed McMurray’s garbage without trespassing on his property, and police

do not need a warrant to search items that are exposed to the public. 8 Because a police

officer could have taken the garbage from the curb directly, it was lawful for Officer

Erlandson to obtain McMurray’s garbage from the garbage collector. The warrantless

search of McMurray’s garbage, therefore, was reasonable under both the Fourth

Amendment to the United States Constitution and Article I, Section 10, of the Minnesota

Constitution. Because we conclude that the search of McMurray’s garbage was

reasonable under the state and federal constitutions, the search warrant for McMurray’s

residence that police subsequently obtained based on evidence found in the garbage was

valid. Therefore, the district court properly denied McMurray’s motion to suppress

evidence collected during the search of his residence.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.

8
Some courts have rejected warrantless searches of garbage seized by police from
within the curtilage. See, e.g., Commonwealth v. Ousley, 393 S.W.3d 15, 25-26 (Ky.
2013) (distinguishing Greenwood because it did not deal with garbage within the
curtilage). And we previously have emphasized that police may not trespass to search a
person’s garbage. See Oquist, 327 N.W.2d at 591. But here, the garbage was on the
curb—not within the curtilage—and police could have accessed the garbage directly
without trespassing on McMurray’s property. The parade of overreaching investigative
activities that the dissent invites us to rely on to decide this case is not presented here.
We do not supply opinions in anticipation of unsubstantiated predictions of future law
enforcement conduct. See State v. Colsch, 284 N.W.2d 839, 842 (Minn. 1979).

16
 DISSENT

LILLEHAUG, Justice (dissenting).

Minnesotans have a reasonable expectation of privacy when they put their

household waste in opaque bags and do what the government requires: place the bags in

closed containers for collection, compaction, and conveyance to a lawful disposal site. I

respectfully disagree with the majority that the Minnesota Constitution does not require a

search warrant before law enforcement may seize and search such household waste.

I.

On Thursday, February 2, 2012, David McMurray did what most residents of his

Hutchinson neighborhood do on a Thursday: he moved his garbage container to the curb

for pick-up. Like most everyone else on that Thursday, McMurray placed opaque bags

containing household waste in a container that complied with a municipal ordinance: a

“clean, rust-resistant, water-tight, non-absorbent and washable closed container[],

approved for the purpose by the city.” Hutchinson, Minn., Code of Ordinances § 51.03

(2013). In Hutchinson, that closed container was furnished by Waste Management, the

city franchisee.

Every week the Waste Management driver would take McMurray’s bags from the

closed container at the curb, throw the bags into the truck, compact the bags with the

neighbors’ garbage, and deposit the compacted household waste in the local landfill. But

Thursday, February 2, was different. Based on a tip, a Hutchinson police officer called

the driver and arranged for McMurray’s bags to receive special treatment. The officer

directed that, rather than being thrown in the truck, compacted with the neighbors’ bags,

D-1
and taken to the landfill, McMurray’s bags be set aside for a special law enforcement

inspection.

Not surprisingly, the city’s franchisee did as told. Shortly after picking up and

segregating McMurray’s bags, Waste Management delivered them to the officer, who

took them to the police station. Opening the bags, the officer sifted through the

household waste and found evidence of illegal narcotics. The officer used that evidence

as probable cause for a warrant to search McMurray’s residence. That search led to

McMurray being charged with a third-degree controlled substance violation.

In the district court, McMurray moved to suppress the narcotics evidence on the

ground that the warrantless seizure and search of his bags was unconstitutional. The

district court denied the motion and convicted McMurray on stipulated facts. The court

of appeals affirmed the conviction. State v. McMurray, No. A12-2266, 2013 WL

5021206 (Minn. App. Sept. 16, 2013). We granted review to decide whether, under the

Minnesota Constitution, a citizen has a reasonable expectation of privacy in the contents

of bags containing household waste placed in a closed container set out at the curb for

lawful collection.

II.

McMurray acknowledges that the issue presented in this case has already been

decided under the Fourth Amendment. The U.S. Supreme Court has held that there is no

reasonable expectation of privacy in garbage placed at the curb for collection. California

v. Greenwood, 486 U.S. 35, 39-41 (1988).

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 Instead, McMurray invokes Article I, Section 10 of the Minnesota Constitution

(“Section 10”), which contains a warrant requirement almost identical to the Fourth

Amendment’s. Despite the similarity in wording, “[i]t is axiomatic that we are free to

interpret the Minnesota Constitution as affording greater protection against unreasonable

searches and seizures than the United States Constitution.” State v. Askerooth,

681 N.W.2d 353, 361 (Minn. 2004). And we have done so. See id. at 363 (search or

seizure during traffic stop must be reasonable even when a minor law has been violated).

See also State v. Davis, 732 N.W.2d 173, 181 (Minn. 2007) (dog sniff in hallway outside

apartment constitutes a search requiring a reasonable articulable suspicion of criminal

activity); State v. Carter, 697 N.W.2d 199, 212 (Minn. 2005) (dog sniff of an area outside

storage unit was an unreasonable search under Section 10 when officers lacked a

reasonable articulable suspicion of criminal activity); State v. Fort, 660 N.W.2d 415, 419

(Minn. 2003) (search of a passenger stopped for routine traffic violations exceeded the

scope of a traffic stop); In re Welfare of B.R.K., 658 N.W.2d 565, 577-78 (Minn. 2003)

(legitimate expectation of privacy under Section 10 for short-term social guests, even if

not under Fourth Amendment); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 187

(Minn. 1994) (temporary roadblocks to stop cars without objective, individualized

articulable suspicion violate Section 10); In re Welfare of E.D.J., 502 N.W.2d 779, 783

(Minn. 1993) (under Section 10, a person is “seized” when he reasonably concludes that

he is not free to leave). But we have never applied Section 10 to the question presented

today.

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 The majority is correct that we must not “lightly” interpret and apply Section 10 in

a manner different than the Fourth Amendment. The majority is also correct that we may

do so if we have a clear and strong conviction that there is a principled basis for so doing,

State v. Carter, 596 N.W.2d 654, 657 (Minn. 1999). See Kahn v. Griffin, 701 N.W.2d

815, 828 (Minn. 2005).

As the majority states, under Kahn v. Griffin, we will consider a departure from

U.S. Supreme Court precedent under any of three conditions. 701 N.W.2d at 828. In my

view, this case implicates the third condition: whether a U.S. Supreme Court holding

(here, in California v. Greenwood) adequately protects Minnesotans’ basic rights and

liberties. I have a clear and strong conviction that it does not. Our basic rights and

liberties are at risk if government can seize and search Minnesotans’ household waste

without a search warrant and, apparently, without even a reasonable articulable suspicion

of wrongdoing.

III.

Under both the U.S. Constitution and the Minnesota Constitution, warrantless

searches in circumstances in which an individual has a reasonable expectation of privacy

“are per se unreasonable . . . subject only to a few specifically established and well-

delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); In re Welfare of

D.A.G., 484 N.W.2d 787, 789 (Minn. 1992).

Prior to Greenwood, we recognized “that 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) (noting that expectation but concluding that there

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was no such expectation when household waste was seized at the curb). Household

waste contains a great deal of personal information that most of us expect will remain

private. As the New Jersey Supreme Court put it, “Clues to people’s most private traits

and affairs can be found in their garbage.” State v. Hempele, 576 A.2d 793, 802 (N.J.

1990). One who examines garbage carefully can learn about the household members’

physical and mental health, sexual activities, financial status, consumer preferences,

political affiliations, and personal relationships. See id. at 802-03; see also State v.

Tanaka, 701 P.2d 1274, 1276-77 (Haw. 1985). At different times, people dispose of drug

bottles, birth control devices, sanitary products, printouts of emails, check registers,

photos, and whatever they have recently read or eaten. It is the very privacy—the

intimacy—of this personal information that makes it of great interest to others, ranging

from law enforcement officers to private investigators to neighborhood snoops. Until a

person’s garbage “ ‘ha[s] lost its identity and meaning by becoming part of a large

conglomeration of trash elsewhere,’ ” we “ ‘can readily ascribe many reasons why

residents would not want their . . . telltale refuse and trash to be examined by neighbors

or others.’ ” People v. Krivda, 486 P.2d 1262, 1268 (Cal. 1971) (emphasis omitted)

(quoting People v. Edwards, 458 P.2d 713, 718) (Cal. 1969)), vacated, 409 U.S. 33

(1972), remanded to 504 P.2d 457 (Cal. 1973) (reaffirming original decision under the

California Constitution).

Since the 1980s, when Oquist and Greenwood were decided, the nature of

household waste has changed. This is not your grandfather’s garbage. Vastly more

household waste is being recycled and the digital revolution is in full flourish. For good

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public policy reasons, government encourages and often requires citizens to segregate

and set out or deliver for recycling digital devices such as obsolete or broken servers,

routers, tablets, and cell phones. And waste disposal bags and containers may now

contain digital material such as disks, chips, and flash drives. As the U.S. Supreme Court

has recently and aptly recognized, digital devices and media, “[w]ith all they contain and

all they may reveal, . . . hold for many Americans ‘the privacies of life.’ ” Riley v.

California, ___ U.S. ___, 134 S. Ct. 2473, 2494-95 (2014) (citation omitted). This trend

will only accelerate as we enter the “internet of things” in which hundreds of billions of

objects will become digital devices. See generally Scott R. Peppet, Regulating the

Internet of Things: First Steps Toward Managing Discrimination, Privacy, Security, and

Consent, 93 Tex. L. Rev. 85, 89 (2014).

Not only has the nature of household waste changed, so has government’s ability

to analyze it. Investigative tools are much more sophisticated and their probing capacity

now extends well beyond the curtilage. For example, law enforcement now has the

ability to test—easily and economically—the DNA that can be gleaned from all manner

of waste. The biological detritus of our existence inevitably ends up in household

waste—on items such as used tissues and sanitary products, partially eaten food,

discarded contact lenses, and things that we’ve simply touched—and there is little that

people can do to avoid this, short of illegally burning or chemically treating every item.

See Hempele, 576 A.2d at 808. For most people, maintaining the privacy of their

household waste by burying it on the back forty is no longer a viable option.

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 What has not changed, and what should not change, is the long-standing

presumption that a search warrant is required to search a Minnesotan’s container. A

container is “any object capable of holding another object,” including “luggage, boxes,

bags, clothing, and the like.” New York v. Belton, 453 U.S. 454, 460-61 n.4 (1981). The

bags that hold household waste and the bins in which they must be placed are simply

forms of containers. Typically, in the absence of an exception such as exigency or search

incident to arrest, we require that the State obtain a warrant before it opens a

Minnesotan’s container. “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). “As for the contents of a container, the mere

fact that the container itself is in plain view provides no basis for a warrantless seizure

and search of it, even assuming probable cause as to the contents.” In re Welfare of

G.M., 560 N.W.2d 687, 694 (Minn. 1997) (quoting 1 Wayne R. LaFave, Search and

Seizure § 2.2(a), at 401-02 (3d ed. 1996)) (but holding that warrantless search of a closed

pouch on the suspect’s person was justified under the search incident to arrest exception).

McMurray’s opaque bags and the closed receptacle in which they were placed were

containers that should not have been seized and searched without a warrant.

But, holds the majority, based on Greenwood and our earlier Fourth Amendment

cases, a citizen’s reasonable expectation of privacy in household waste is lost when the

waste is set out for collection in an area accessible to the public. As Greenwood put it:

“It is common knowledge that plastic garbage bags left on or at the side of a public street

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are readily accessible to animals, children, scavengers, snoops, and other members of the

public,” as well as to the waste disposal company. 486 U.S. at 40 (footnotes omitted).

With all respect to the majorities in Greenwood and here, it has always struck me

as odd that, because raccoons, squirrels, and their nosy human counterparts try to get into

household waste containers and sometimes succeed, that should somehow determine the

reasonableness of our expectations of privacy. That concept is as outdated as the dented

metal garbage cans with partially open lids and visible garbage that I remember from

childhood. Not only is household waste different than it was when Greenwood was

decided, so are the bags and special containers into which the waste is placed for pickup

or recycling. Like the City of Hutchinson, many municipalities now require closed,

vermin-proof containers. 1

The golden age of human scavenging, too, has passed. While most garbage

containers set out for collection are not locked, and dumpster diving may still occur,

government now recognizes that homeowners and renters have a legitimate expectation

that the household waste they set out for disposal or recycling will not be strewn about or

diverted but will be conveyed directly for reuse, burning, or interment. Minneapolis and

Duluth, for example, prohibit turning over or upsetting the contents of any waste

1
In the words of one local ordinance, “Refuse when stored out-of-doors shall be
stored in durable, rust-resistant, nonabsorbent, watertight, rodent-proof, easily cleanable
containers with closefitting, fly-tight covers.” St. Paul, Minn., Code of Ordinances
§ 357.05(f)(2) (2014).

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container, 2 and most municipalities have laws against littering. Minneapolis provides

that “no persons other than those authorized by the city engineer shall remove any solid

waste [from a container], except with the consent of the owner or occupant of the

property served.” Minneapolis, Minn., Code of Ordinances § 225.590 (2014).

Saint Paul, Bloomington, Duluth, Brooklyn Park, Plymouth, Saint Cloud, Moorhead, and

other cities prohibit scavenging of recyclable materials. 3 I agree with the New Mexico

2
See Minneapolis, Minn., Code of Ordinances § 225.590 (2014) (“No person shall
turn over or upset the contents of any solid waste container without replacing the same.”);
Duluth, Minn., Legislative Code § 24-3(a) (2014) (“No person shall willfully turn over or
upset any vessel or container used for storing manure, recyclables, compost or solid
waste, thereby spilling the contents or any portion thereof on any street, highway or
public grounds or upon private property owned by another person . . . .”).
3
See St. Paul, Minn., Code of Ordinances § 357.11 (2014) (“It shall be unlawful for
any person who is not authorized by the city or county to take or collect recyclable
material set out for authorized collection programs within the city.”); Bloomington,
Minn., City Code § 10.47 (2014) (“It shall be unlawful for any person who is not
authorized by the City to remove, take for salvage or destroy any recyclable materials . . .
that have been set out for collection.”); Duluth, Minn., Legislative Code § 24-9 (2014)
(“No person shall engage in the business of collecting or removing recyclables or solid
waste within the city without first obtaining a license to do so, except that nonprofit
organizations may collect recyclables as a fund raising operation.”); Brooklyn Park,
Minn., Code of Ordinances § 98.09 (2014) (“It is unlawful for any person, except a law
enforcement officer acting in the course of official business, to scavenge or otherwise
collect refuse, recyclable materials or yard waste at the curb or from refuse containers or
from recyclable materials containers without a license therefor from the city and an
account relationship with the owner or occupant of the premises.”); Plymouth, Minn.,
City Code § 600.29, subd. 6 (2015) (“It is unlawful for any person other than the owner
or owner’s authorized employees or contractor to collect, remove, or dispose of
designated recyclables after the materials have been placed or deposited for collection.”);
St. Cloud, Minn., Code of Ordinances § 244:30, subd. 7 (2007) (“It will be unlawful and
an offense against this ordinance for any person, firm, or corporation other than the
owner, lessee, or occupant of a residential dwelling, to pick up recyclable materials for
their own use.”); Moorhead, Minn., City Code § 3-4-9(E) (2014) (“It shall be unlawful
and an offense against this section for any person, firm or corporation to pick up
(Footnote continued on next page.)

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Supreme Court, which said recently, “We consider compliance with local ordinances

governing the disposal of household garbage to support the reasonableness of an

expectation that it will remain private from unwarranted inspection by the government.”

State v. Crane, 329 P.3d 689, 696-97 (N.M. 2014) (Vigil, C.J.).

While a number of state supreme courts have followed Greenwood and held that

there is no reasonable expectation of privacy in household waste set out for collection, 4

(Footnote continued from previous page.)
separated materials for his/her own use, except the owner, lessee or occupant of a
residential dwelling may take back materials set out at that particular dwelling.”).
4
In concluding that there is no reasonable expectation of privacy in garbage set out
for collection, most of these courts focused on Greenwood’s outdated characterization of
such garbage as “readily accessible” to the public. See, e.g., Rikard v. State, 123 S.W.3d
114, 119-20 (Ark. 2003); People v. Hillman, 834 P.2d 1271, 1277-78 (Colo. 1992)
(concluding that there is not a reasonable expectation of privacy in garbage placed
adjacent to the sidewalk, which is “readily accessible” to the public); State v. DeFusco,
620 A.2d 746, 751-53 (Conn. 1993) (“When the defendant placed his garbage at the curb
in front of his house for collection by the garbage collector, a myriad of intruders,
purposeful or errant, could legally have sorted through his garbage.”); State v. Donato,
20 P.3d 5, 8-10 (Idaho 2001) (reasoning that garbage is “knowingly exposed” to the
public when set out for collection); State v. Kimberlin, 984 P.2d 141, 145-46 (Kan. 1999)
(explaining that Kansas does not generally depart from federal court interpretations of the
Fourth Amendment, and that Fourth Amendment reasonableness turns on public
accessibility to garbage); Commonwealth v. Pratt, 555 N.E.2d 559, 567-69 (Mass. 1990)
(reasoning that garbage set out for collection is exposed to the public, indicating that the
defendant abandoned his privacy interests in the garbage); State v. Schmalz, 744 N.W.2d
734, 741-43 (N.D. 2008) (relying on Greenwood’s public exposure discussion to
conclude that there is no reasonable expectation of privacy in garbage set out for
collection); Barekman v. State, 200 P.3d 802, 809-10 (Wyo. 2009) (reasoning that there
can be no reasonable expectation of privacy in garbage set out for collection given
exposure to the public, animals, and the elements).

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others have recognized such an expectation, and have required a warrant, 5 or at least a

reasonable articulable suspicion, 6 for seizure and search. Having reviewed the arguments

5
The California, Hawaii, New Hampshire, New Jersey, New Mexico, and Vermont
Supreme Courts have all interpreted their state constitutions to require a warrant for
searches of garbage set out for collection on the basis that there is a reasonable
expectation of privacy in such garbage. See Krivda, 486 P.2d 1262, 1268-69 (Cal. 1971)
(holding that defendants who set out their garbage for collection had “a reasonable
expectation that their trash would not be rummaged through and picked over by police
officers acting without a search warrant”); State v. Tanaka, 701 P.2d 1274, 1276-77
(Haw. 1985) (cited with approval post-Greenwood by the Supreme Court of Hawai’i in
State v. Lopez, 896 P.2d 889, 901 (Haw. 1995)); State v. Goss, 834 A.2d 316, 319-20
(N.H. 2003); State v. Hempele, 576 A.2d 793, 810, 814 (N.J. 1990); State v. Crane,
329 P.3d 689, 696 (N.M. 2014) (adopting the New Mexico Court of Appeals’ holding in
State v. Granville, 142 P.3d 933, 943 (N.M. Ct. App. 2006), that “[a]llowing the State to
conduct a warrantless search of refuse set out for collection when an individual is
required by law to dispose of his refuse in a specific place, time, and manner is
inconsistent with the privacy protections provided by Article II, section 10”); State v.
Morris, 680 A.2d 90, 99-100 (Vt. 1996). The Washington Supreme Court has similarly
determined that a warrant is required to search garbage set out for collection, although the
relevant provision of Washington’s constitution focuses on whether the “private affairs”
of an individual have been unreasonably violated instead of whether a person’s
expectation of privacy is reasonable. State v. Boland, 800 P.2d 1112, 1116-17 (Wash.
1990). Nevertheless, the Washington Supreme Court cited as persuasive the Hawai’i and
New Jersey Supreme Courts’ discussions in Tanaka and Hempele of a reasonable
expectation of privacy in garbage.
6
In Litchfield v. State, the Indiana Supreme Court rejected the defendant’s
contention that police seizure of trash set out for collection is per se unreasonable but also
concluded that “it is not reasonable for law enforcement to search indiscriminately
through people’s trash.” 824 N.E.2d 356, 363 (Ind. 2005). The court reasoned that
“[a]llowing random searches, or searches of those individuals whom the officers hope to
find in possession of incriminating evidence gives excessive discretion to engage in
fishing expeditions.” Id. at 364. Instead, the court determined that “a requirement of
articulable individualized suspicion, essentially the same as is required for a ‘Terry stop’
of an automobile, imposes the appropriate balance between the privacy interests of
citizens and the needs of law enforcement.” Id. The Montana Supreme Court has
adopted Litchfield’s approach of requiring reasonable articulable suspicion for a search of
garbage set out for collection, largely on the basis that the abandonment of garbage at the
curbside is frequently compelled by government regulations. State v. A Blue in Color,
(Footnote continued on next page.)

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set forth in these cases, I have a definite and firm conviction that the better view is that a

warrant is required.

IV.

The majority holds that, under the Minnesota Constitution, Minnesotans have no

expectation of privacy in household waste at the curb, that the officer’s seizure and

search was “lawful,” and that, essentially, household privacy ends at the sidewalks. Yet,

while the question of whether at least a reasonable articulable suspicion is required for

the seizure of household waste was fully briefed by the parties, the majority opinion

“[p]rudently” decides not to answer that question. I would like to think that the question

remains open, but the issue before us is the constitutional standard for the seizure and

search of household waste. Rather than declaring the search “lawful,” the majority

should have made clear that a warrantless seizure and search is not lawful without at least

a reasonable articulable suspicion.

The diversion and inspection of household waste is more intrusive than

investigative activities we have held require a reasonable articulable suspicion, such as

dog sniffs in apartment hallways or outside storage units. See State v. Davis, 732 N.W.2d

173, 181 (Minn. 2007); State v. Carter, 697 N.W.2d 199, 211-12 (Minn. 2005). In

Carter, we highlighted “the capability of the [storage] unit, like a residence, to store a

(Footnote continued from previous page.)
1993 Chevrolet Pickup, 116 P.3d 800, 805 (Mont. 2005). The Alaska Supreme Court has
also adopted the reasonable suspicion standard for searches of garbage set out for
collection, Beltz v. State, 221 P.3d 328, 337 (Alaska 2009), recognizing that while there is
a diminished expectation of privacy in such garbage, “this diminished privacy interest is
still entitled to some protection against undue government intrusion,” id. at 336.

D-12
significant amount of personal items and be the site of personal activity.” State v.

Eichers, 853 N.W.2d 114, 126 (Minn. 2014) (citing Carter, 697 N.W.2d at 210-11). By

contrast, we determined in Eichers that “[a] mailed package does not give rise to the

same concerns regarding personal activity, and the number of personal items a package

can contain is significantly lower.” Id. In effect, “[a] residence or storage unit is a

window into a person’s life in a way that a mailed package is not.” Id.

Household waste from a residence is far more analogous to the odors from a

hallway or storage unit than to those from a mailed package, as household waste is a

window into “people’s most private traits” and activities. State v. Hempele, 576 A.2d

793, 802 (N.J. 1990). And people have less choice about what they must put out for

waste disposal than what they put in a storage unit or in a mailed package.

If Minnesotans’ household privacy ends at their sidewalks, there would be nothing

unconstitutional about a government program to seize and perform a forensic inspection

of the waste from every Minnesota household, all without the barest suspicion. Nor

would it be unconstitutional for government agencies to scan and copy the data on all

digital devices Minnesotans turn in for recycling. Of course, I am not aware that any

such programs are contemplated. But, in an age in which government can surreptitiously

gather almost every call and email, 7 it is not in the realm of fantasy to expect that, soon,

7
Government has a tendency to gather massive amounts of detailed information on
citizens. In the 1970s, the U.S. Senate Select Committee known as the Church
Committee learned that, for over 20 years, the CIA, with the cooperation of the U.S.
Postal Service, illegally opened mail, collecting information on 1.5 million
Americans. For 28 years, the NSA intercepted every overseas telegram sent or received
(Footnote continued on next page.)

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government agencies will have the motivation and the technology to do so. This case

would have been a good opportunity to make clear that, in the absence of reasonable

articulable suspicion, government does not have a green light to broaden and deepen its

efforts to acquire our most intimate information.

V.

In this case we should have said, as the United States Supreme Court said about

cellphone searches: “Our answer to the question of what police must do before searching

[Minnesotans’ household waste is] simple—get a warrant.” See Riley, ___ U.S. at ___,

134 S. Ct. at 2495.

For all of these reasons, I respectfully dissent.

PAGE, Justice (dissenting).

I join in the dissent of Justice Lillehaug.

(Footnote continued from previous page.)
by an American citizen. One million Americans without a court conviction had FBI
files. Walter F. Mondale, et al., National Security and the Constitution: A Conversation
Between Walter F. Mondale and Robert A. Stein, 98 Minn. L. Rev. 2011, 2015-16
(2014). In recent years, government has undertaken extensive programs to collect
information on telephone calls, internet communications, financial transactions, and
citizens’ locations. Advanced, inexpensive tracking and monitoring devices are now
readily available to state and local law enforcement.

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