State v. Stevens

#23898-r-JKK

2007 SD 54

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

WAYNE R. STEVENS, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE THOMAS L. TRIMBLE
Judge

* * * *

LAWRENCE E. LONG
Attorney General

KATIE L. HANSEN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellant.

BRANDY M. RHEAD
Pennington County Public
Defender’s Office Attorneys for defendant
Rapid City, South Dakota and appellee.

* * * *

ARGUED ON MARCH 21, 2007

OPINION FILED 06/13/07
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KONENKAMP, Justice

[¶1.] Law enforcement officers in Rapid City conducted a trash pull of

defendant’s garbage over five months after obtaining information that led them to

believe he was committing a crime. After finding evidence of a controlled substance

in the trash, the officers obtained a warrant to search defendant’s home. The

search revealed more evidence, and defendant was indicted. Defendant moved to

suppress the evidence claiming that he had a protected privacy interest in his trash

and the officers did not have reasonable suspicion to search it. The circuit court

suppressed the evidence. The State appeals, and we reverse.

Background

[¶2.] In July 2004, Officer Kraig Wood received information that Wayne

Stevens (defendant) had an altercation with Troy Klug, who shortly thereafter went

missing. Officer Wood believed that this altercation was related to drugs and to

Klug’s disappearance. On July 28, 2004, Officer Wood interviewed defendant about

the altercation and his association with Klug. The officer also asked defendant

about his association with Troy Tiegen and Cynthia Kindall, who knew Klug

through their use and sale of methamphetamine. Defendant admitted to Officer

Wood that approximately two weeks earlier he and Klug had a disagreement over

$300 that Klug owed him. Defendant, however, denied any involvement in Klug’s

disappearance. He also denied knowing Kindall, but admitted to having a limited

association with Tiegen. Officer Wood did not investigate defendant any further

after the July 28 interview. The missing persons’ investigation on Klug, however,

continued.

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[¶3.] Over five months later, on January 14, 2005, Officer Wood decided to

conduct a search of defendant’s trash, which was set out by the curb for collection in

front of his residence. The officer told the city-employed garbage collector to empty

his trash hopper before picking up defendant’s trash. After defendant’s trash was

collected, the officer instructed the employee to drive a few blocks where he would

obtain it from the employee. Officer Wood took the trash to a county shop where he

and another investigator sorted through it looking for drug-related items. The

officers found an empty pen body containing a white substance, which was later

determined to be methamphetamine hydrochloride. The officers also found two

pieces of mail with defendant’s name and address, thus validating that the trash

was collected from his residence.

[¶4.] Based on the trash search and the information from the July 28

interview, Officer Wood obtained a warrant to search defendant’s home. During the

search, the officers found drug paraphernalia and methamphetamine. Defendant

was indicted for possession of a controlled substance and possession of drug

paraphernalia. He moved to suppress the evidence alleging that Officer Wood had

no reasonable suspicion to search his trash. He also claimed that because the trash

search lacked reasonable suspicion there was no probable cause to issue the search

warrant. The circuit court suppressed the evidence, concluding that (1) defendant

had a limited privacy interest in his trash, (2) the officers lacked reasonable

suspicion for the trash search, and (3) the search of defendant’s home lacked

probable cause.

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Standard of Review

[¶5.] “‘A motion to suppress for an alleged violation of a constitutionally

protected right raises a question of law, requiring de novo review.’” State v. Hess,

2004 SD 60, ¶9, 680 NW2d 314, 319 (quoting State v. Herrmann, 2002 SD 119, ¶9,

652 NW2d 725, 728 (citations omitted)); State v. Tofani, 2006 SD 63, ¶24, 719

NW2d 391, 398. Findings of fact are reviewed under the clearly erroneous

standard. Tofani, 2006 SD 63, ¶24, 719 NW2d at 398. Yet, “the application of a

legal standard to those facts” is reviewed de novo. Hess, 2004 SD 60, ¶9, 680 NW2d

at 319 (citing State v. Lamont, 2001 SD 92, ¶12, 631 NW2d 603, 607 (citation

omitted)).

Analysis and Decision

[¶6.] In its appeal, the State contends that defendant had no expectation of

privacy in the trash searched, based on our holding in State v. Schwartz, 2004 SD

123, ¶17, 689 NW2d 430, 435-36. The State further asserts that the circumstances

here are analogous to those in Schwartz, in that defendant has failed to present

sufficient evidence to satisfy the two-part test for recognizing a privacy interest

deserving of constitutional protection. See id. Defendant, on the other hand, claims

that Schwartz is distinguishable because law enforcement officers here did not have

reasonable suspicion before searching his trash, and the citizens of Rapid City

would recognize a limited privacy interest in their trash.

[¶7.] In Schwartz, we examined whether a privacy interest exists in one’s

trash based on the language of the South Dakota Constitution and the United

States Constitution. 2004 SD 123, ¶¶13-16, 689 NW2d at 434-35. We recognized

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that the Fourth Amendment to the United States Constitution and Article VI,

section 11 of our constitution “prohibit unreasonable searches and seizures by

government officials.” Id. ¶11. However, to implicate these constitutional

protections, “[a]n individual must have a reasonable expectation of privacy in the

place searched or article seized. . . .” State v. Christensen, 2003 SD 64, ¶11, 663

NW2d 691, 694 (citing Katz v. United States, 389 US 347, 88 SCt 507, 19 LEd2d

576 (1976)).

[¶8.] In Schwartz, we acknowledged that the United States Supreme Court,

in California v. Greenwood, 486 US 35, 39, 108 SCt 1625, 1625, 100 LEd2d 30

(1988), declined to extend constitutional protection to trash unless people manifest

“‘a subjective expectation of privacy in their garbage that society accepts as

objectively reasonable.’” 2004 SD 123, ¶14, 689 NW2d at 434 (citation omitted). In

light of Greenwood and the language of our constitution, this Court also declined “to

adopt a blanket rule extending the constitutional protection against unreasonable

searches and seizures to trash.” Id. ¶17. We used a two-part test to determine

whether persons had a recognized privacy interest in their searched trash, similar

to the test adopted by the United States Supreme Court. Id.; see also Greenwood,

486 US at 39, 108 SCt at 1625, 100 LEd2d 30. To establish a protected privacy

interest in trash, a person (1) must have “‘exhibited an actual subjective expectation

of privacy’” and (2) society must be “‘willing to honor this expectation as being

reasonable.’” Schwartz, 2004 SD 123, ¶17, 689 NW2d at 435 (quoting Cordell v.

Weber, 2003 SD 143, ¶12, 673 NW2d 49, 53 (quoting State v. Lowther, 434 NW2d

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747, 754 (SD 1989) (citation omitted))). In Schwartz, we concluded that the

defendants failed to meet both prongs of the test and upheld the search. Id. ¶19.

[¶9.] Here, the circuit court, in ruling that defendant’s trash was deserving

of constitutional protection, interpreted certain language from Schwartz and

construed the Rapid City Ordinances related to trash collection to hold that

reasonable suspicion must exist before law enforcement officers can conduct a trash

search. The ordinances, the court declared, granted each citizen of Rapid City, “at

minimum, a limited privacy interest” in their trash, because the ordinances “not

only control how the garbage is collected, but how an individual citizen must leave

or present his or her garbage for collection[.]” Then, because in both Schwartz and

Greenwood law enforcement officers had articulable reasons for searching the

particular defendant’s trash, the circuit court held that such suspicion was required

before defendant’s trash could be searched. See 2004 SD 123, ¶19, 689 NW2d at 436

(“Agent Even had articulable reasons for focusing on the Schwartzes’ trash”); 486

US at 37, 108 SCt at 1627, 100 LEd2d 30 (before the search the investigator

received information that the defendant was engaged in narcotics trafficking). The

circuit court also found particularly persuasive the rationales in Litchfield v. State,

824 NE2d 356, 363-64 (Ind 2005) and State v. A Blue in Color, 1993 Chevrolet

Pickup (A Blue Pickup), 116 P3d 800, 805 (Mont 2005), which both held that

articulable individualized suspicion was required before a trash search.

[¶10.] Although we noted in Schwartz that the law enforcement officers had

articulable reasons to believe that the defendants were committing a crime, this fact

does not necessarily mean that reasonable or articulable individualized suspicion is

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required before any trash search. See 2004 SD 123, ¶19, 689 NW2d at 436. Rather,

a defendant must satisfy the two-part test identified in Schwartz before this Court

will find that there is a “sufficient privacy interest in the area searched for

constitutional protection to apply[.]” Id. ¶17. Absent satisfying these elements,

such reasonable expectation of privacy does not exist and there is no “search”

subject to constitutional scrutiny under the Fourth Amendment or the South

Dakota Constitution.

[¶11.] Even if we assume that defendant can satisfy the first prong,

establishing that he had an actual subjective expectation of privacy in his trash, the

Rapid City Ordinances do not support the contention that there exists an objective

expectation of privacy that society is willing to recognize as reasonable. While city

ordinances may, in some cases, be reflective of societal expectations of privacy, they

do not manifest such an expectation simply because they dictate how persons are to

place their trash for collection or how the trash is to be collected. 1 Nothing in these

1. Along with his motion to suppress, defendant presented four Rapid City
Ordinances for the circuit court to review. The ordinances are located in Title
8 “Health and Safety.” The first ordinance is chapter 8.36 entitled “Smoke
Abatement,” and pertains to “Restrictions on solid fuel burning devices.” The
ordinance prohibits persons from burning inappropriate fuel in any solid fuel
burning device.

The next ordinance in the same chapter pertains to “Open burning rules.”
This ordinance contains restrictions on open burning, conditions for open
burning approval, and basis for approval.

Still within Title 8, “Health and Safety,” defendant submitted chapter 8.08
entitled “Garbage and Refuse.” This ordinance addresses “Collection and
containers—Family domestic units.” It states that the “city shall be solely
responsible for all residential garbage and trash collection within new
subdivisions in the city.” Those subject to this ordinance will “be issued one
(continued . . .)
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ordinances suggests that Rapid City enacted them to protect a citizen’s interest in

garbage privacy. These ordinances were obviously enacted solely to maintain

society’s interest in sanitation.

[¶12.] Nevertheless, defendant asks that we “find at least a limited,

constitutionally protected privacy interest in trash” sitting at the curb because

other courts recognize a limited privacy interest. In particular, defendant relies on

Litchfield, 824 NE2d at 363-64 and A Blue Pickup, 116 P3d at 805. In Litchfield,

the Indiana Supreme Court interpreted its state constitution to conclude that

articulable individualized suspicion is required before a trash search. 824 NE2d at

360; 363-64. However, Indiana’s state constitutional jurisprudence is distinctly

different than South Dakota’s. More than a decade ago, Indiana abandoned the

expectation of privacy test used by the United States Supreme Court and our Court

to construe Fourth Amendment protections. See id. at 359. Thus, the Indiana

Supreme Court declared that trash searches without reasonable suspicion are

simply “unreasonable,” without dealing with the expectation of privacy question.

Id. at 363-64. And, the Montana Supreme Court, in the case of A Blue Pickup,

appended Indiana’s reasonableness test onto its own constitution, without

__________________
(. . . continued)
automated collection container from the city,” which shall be the “only”
container used. Garbage must be placed in the container, bagged and tied.
Loose garbage is not permitted and violators can be penalized. The container
must be placed “in a location suitable and readily accessible for collection by
the automated collection truck on the scheduled collection day.”

Finally, defendant submitted chapter 8.12, entitled “Litter”, which addresses
the “Violation—Penalty.” In this ordinance, “[v]iolation of any provision of
(continued . . .)

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constitutional analysis. 116 P3d at 805. It held that to “guide the conduct of police

in the future,” “articulable individualized suspicion” would be required. Id. But

here, except to note an insignificant difference in wording from its federal

counterpart, defendant has not identified anything in South Dakota’s constitution

that would require reasonable suspicion before a trash search.

[¶13.] Defendant does not argue that we should abandon the expectation of

privacy test. He simply asks us to adopt the reasoning from the Indiana and

Montana courts. This we decline to do. Under our law, defendant has not

presented evidence to satisfy the two-part test from Schwartz to establish a privacy

interest in his trash deserving of constitutional protection. See 2004 SD 123, ¶17,

689 NW2d at 435.

[¶14.] Reversed.

[¶15.] ZINTER, Justice, concurs.

[¶16.] GILBERTSON, Chief Justice, concurs in result.

[¶17.] SABERS and MEIERHENRY, Justices, dissent.

GILBERTSON, Chief Justice (concurring in result).

[¶18.] I join in the opinion of the Court except for its declaration that a

municipality in South Dakota has the legal authority, by ordinance, to create an

__________________
(. . . continued)
this chapter may be punishable by not more than thirty days in jail or a fine
not more than one hundred dollars, or both.”

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objective expectation in the privacy of one’s trash. Under the South Dakota

Constitution, it would appear to me that the power to take such action rests solely

with the South Dakota Legislature.

[¶19.] Article IX, section 1 of the South Dakota Constitution vests plenary

power over municipal corporations with the Legislature. Both prior to and

immediately following the adoption of this provision, it was recognized that a

municipal corporation only possessed those powers expressly granted to it by the

Legislature, those powers that are fairly implied or incidental thereto and those

powers essential to the declared objects and purposes of being a municipal

corporation, “not simply convenient, but indispensable.” Treadway v. Schnauber, 1

Dak 236, 46 NW 464, 464 (1875); see also City of Sioux Falls v. Kirby, 6 SD 62, 62,

60 NW 156, 157 (1894) (citation omitted). This continues to be the law in this State.

Donovan v. City of Deadwood, 538 NW2d 790, 792 (SD 1995). “Counties, like cities,

lack inherent authority and derive their power from the legislature.” Pennington

County v. State ex rel Unified Judicial System, 2002 SD 31, ¶10, 641 NW2d 127,

131 (citing City of Marion v. Schoenwald, 2001 SD 95, ¶6, 631 NW2d 213, 216;

Welsh v. Centerville Township, 1999 SD 73, ¶10, 595 NW2d 622, 625; Donovan, 538

NW2d at 792 (citations omitted)).

[¶20.] The authority granted by the Legislature to municipalities over

garbage is contained in SDCL 9-32-10 2 and SDCL 9-32-11. 3 A review of these

2. SDCL 9-32-10 states:

(continued . . .)
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statutes shows no granting of authority to a municipality to place with its citizens

an objective expectation of privacy in one’s trash when it has been put on the curb

for city collection. To the contrary, it appears that the responsibility, and thus

control over the garbage, by mandate, is placed on the municipality once the

garbage is in the municipality’s possession. See SDCL 34A-6-1.9. 4

[¶21.] According to the South Dakota Secretary of State, there are

approximately 309 municipalities in this State. See generally 2005 South Dakota

Legislative Manual, 605-14. Thus, under the theory of the circuit court and this

Court, each of these 309 municipalities can deny, create in part or in total, some

type of objective expectation of privacy in one’s trash. Given that drugs are a state-

wide problem and the response in part is on a state-wide basis, I do not think the

__________________
(. . . continued)
Every municipality shall have power to regulate and prevent the placing of
ashes, dirt, garbage, or any offensive matter in any street or public ground or
in any body or stream of water, within the municipality.

3. SDCL 9-32-11 states:

Every municipality shall have power to collect and dispose of and regulate
the manner of handling of garbage and other waste material and for such
purpose to acquire, establish, maintain, operate, and regulate equipment and
garbage disposal plants, incinerators, and dumping grounds and to fix and
collect charges for such services, and to contract with one or more persons for
the collection and hauling of garbage and other waste material from the
municipality or districts established therein.

4. SDCL 34A-6-1.9 states:

Any nation, state, or first or second class municipality, county or political
subdivision which has solid waste generated within its boundaries disposed
of in this state shall be responsible in perpetuity for the solid waste and liable
in perpetuity for any pollution or other deleterious effect caused by it.

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Legislature intended for law enforcement to research each municipality’s

ordinances on garbage before commencing a trash inspection for illegal drugs. The

Legislature did not intend trash to be objectively protected from search by law

enforcement in Pierre while potentially not so protected across the bridge in Ft.

Pierre.

[¶22.] California v. Greenwood, 486 US 35, 108 SCt 1625, 100 LEd2d 30

(1988) and State v. Schwartz, 2004 SD 123, 689 NW2d 430 set the constitutional

parameters for police inspection of a person’s garbage placed on the curb for

collection. In South Dakota, the Legislature has not authorized municipalities to

intercede.

[¶23.] For the above reasons, I respectfully concur in result.

SABERS, Justice (dissenting).

[¶24.] Consistent with my rationale expressed in State v. Schwartz, I dissent.

2004 SD 123, ¶¶58-69, 689 NW2d 430, 445-449 (Sabers, J., dissenting). Specifically,

a person has an expectation of privacy in his garbage that society recognizes as

reasonable. That is why people place their garbage in closed, opaque garbage bags

inside closed garbage cans to be hauled to the dump, and not messed with. This is

especially so where city ordinances direct how and where garbage will be placed for

disposal and the police have no reasonable suspicion or probable cause.

[¶25.] People have an expectation of privacy in their garbage that society

recognizes as reasonable. The ordinances required Stevens to leave the garbage

container “in a location suitable and readily accessible for collection by the

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automated collection truck on the scheduled collection day.” Rapid City Ordinance

8.08, Garbage and Refuse. The garbage was collected by an “automated collection

truck” not a person, leading one to believe no one would even touch his garbage

before it was commingled at the city landfill.

[¶26.] There is no way, short of hauling the garbage yourself, that one can

protect his or her garbage from potential search by the police. 5 In theory, Stevens

could have stood on the curb with his garbage to prevent anyone from looking into it

and waited until the automated collection truck picked it up. However, even in this

scenario, his garbage would still have been susceptible to the search as the police

were waiting to get the garbage after pickup.

[¶27.] At oral argument, the author of the plurality opinion stated, “I think

we can all assume that each one of us might be offended personally [by someone

going through our trash].” If each one of us has an expectation of privacy in their

garbage, then logically society would recognize that right as reasonable. After all,

society consists of individuals. By placing our garbage next to the curb we may be

saying, “we do not want this anymore,” but we are not saying, “we do not care who

sees it or goes through it.” Sometimes our garbage contains very private materials;

materials that we do not want people to see and we expect these matters will

remain private. See Schwartz, 2004 SD 123, ¶59, 689 NW2d at 445 (Sabers, J.,

5. It is not clear that hauling one’s garbage is even an option. The ordinance
says “the city shall be solely responsible for all residential garbage and trash
collection.” Participation appears to be mandatory. At any rate, as argued in
Schwartz, the city garbage collector is the agent of the homeowner, and the
homeowner has a reasonable expectation of privacy to have the garbage
hauled to the dump. 2004 SD 123, ¶67, 689 NW2d at 448.

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dissenting) (“Information that may be gleaned from a household’s waste is so deeply

personal that an average South Dakotan would be mortified to know that their local

police or sheriff’s department was examining its contents.”). Things such as

prescription labels, credit card statements, saving and checking account balances,

letters, the food we eat, the things we read, and so on. Many details of our lives can

be gleaned from the contents of our garbage. Surely, society recognizes that it is

reasonable to have an expectation of privacy in the details of our lives discoverable

in garbage.

[¶28.] Professor Anthony Amsterdam’s 6 definition of reasonable expectation

of privacy has been adopted by several courts. He explains:

The ultimate question, plainly, is a value judgment. It is
whether, if the particular form of surveillance practiced
by the police is permitted to go unregulated by
constitutional restraints, the amount of privacy and
freedom remaining to citizens would be diminished to a
compass inconsistent with the aims of a free and open
society.

Stephen E. Henderson, Learning From All Fifty States: How to Apply the Fourth

Amendment and its State Analogs to Protect Third Party Information From

Unreasonable Search, 55 Cath U L Rev 373, 420-21 (quoting Anthony G.

Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 403

(1974)). See also People v. Oates, 698 P2d 811, 816 (Colo 1985) (en banc) (adopting

Amsterdam’s formulation); State v. Hempele, 576 A2d 793, 802 (NJ 1990) (same);

State v. Nagel, 880 P2d 451, 454 (Or 1994) (en banc) (same); State v. Morris, 680

6. University Professor and Professor of Law, New York University School of
Law.

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A2d 90, 93-94 (Vt 1996) (same); 1 Wayne R. LaFave, Search and Seizure § 2.1(d)

(4thed 2004) (same). Surely our rights and freedoms as citizens are diminished by

allowing suspicionless trash searches.

[¶29.] Because Stevens had an expectation of privacy that society recognizes

as reasonable, the search of this trash violated the Fourth Amendment and the trial

court should be affirmed.

[¶30.] At the VERY LEAST, the police should have probable cause before

rummaging through someone’s garbage. Under no circumstances should they be

allowed to simply choose a neighborhood during garbage day and wander up and

down the street to see what may or may not be happening. Under the plurality

opinion, this is exactly what the police could do. The plurality opinion concludes

that it is not enough to allow trash pulls when police have articulable suspicion but

no warrant. Now, it permits trash searches where the officer has no suspicion

whatsoever. The holding of this case vitiates the Fourth Amendment’s protection

against unreasonable searches 7 and diminishes our rights “inconsistent with the

aims of a free and open society.” Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn L Rev at 403.

[¶31.] During oral argument, much was made about the fact that no

legislation had been enacted since Schwartz. That the Legislature has not yet acted

is not the point. In several cases where the United States Supreme Court has found

7. I realize that the plurality opinion concludes a trash pull is not a search
under the Fourth Amendment. However, I contend the expectation of privacy
in our garbage is one that society recognizes and does constitute a search.

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the expectation of privacy in question is not one society is willing to accept as

reasonable, Congress has overruled that decision by enacting legislation protecting

the privacy right. See Henderson, Learning From All Fifty States: How to Apply the

Fourth Amendment and its State Analogs to Protect Third Party Information From

Unreasonable Search, 55 Cath U L Rev at 374-75 (citing United States v. Miller,

425 US 435, 437, 96 SCt 1619, 48 LEd2d 71 (1976) (no expectation of privacy in

bank records); Right to Financial Privacy Act of 1978, 12 USC §§ 3401-3422 (2000),

amended by 12 USCA §§ 3401-3422 (West Supp 2005); Smith v. Maryland, 442 US

735, 745, 99 SCt 2577, 61 LEd2d 220 (1979) (no privacy in dialed phone numbers);

18 USC §§ 3121-3127 (2000 & Supp 2002) (providing statutory protection for dialed

phone numbers)). Therefore, at least in those cases, society recognized an

expectation of privacy, even where the Court said one did not exist. One day, the

Legislature may decide that the details of our private lives contained in our garbage

should remain private and there is a societal expectation of privacy in our garbage.

As indicated, that the Legislature has not yet acted does not mean society does not

recognize the expectation of privacy as reasonable.

[¶32.] The plurality opinion places substantial reliance on the United States

Supreme Court case of California v. Greenwood, which was decided in 1988.

Reasonable expectation of privacy has advanced since then. I respectfully submit

that the plurality opinion is placing itself in a position similar to those following the

United States Supreme Court cases of Dred Scott and Plessy v. Ferguson, both of

which were wrong when written. Dred Scott v. Sanford, 60 US 393, 19 Haw 393, 15

LEd 691 (1856); Plessy, 163 US 537, 16 SCt 1138, 41 LEd 256 (1896).

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[¶33.] There is an objectively reasonable expectation of privacy in our

garbage. The trial court properly suppressed the evidence and should be affirmed.

Therefore, I dissent.

[¶34.] MEIERHENRY, Justice, joins this dissent.

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