dissenting:
I do not agree with the majority that the contents of the trash were abandoned.
On the morning of January 16, 1974, at 4 a.m., police officers drove to the residence of defendant, Randall Huddleston, located at 2161 Washington Road, Washington, Illinois. The officers observed a green trash bag and a box containing another green trash bag sitting beside the road on its shoulder directly in front of the defendant’s residence. Trash was placed in a similar fashion in front of each house along the road. The officers seized both bags and transported them back to the police department where one of the officers went through each item in the trash. Two prescription containers which had been issued to Margaret Clark, the victim of an alleged burglary, were discovered as well as a prescription label bearing the name of Gilbert Edwards, another victim of an alleged burglary, and two payroll deduction slips belonging to the defendant and his wife.
The contents of the trash did not become visible until examined item by item. Furthermore, the officer, who seized the trash, knew that it had been placed on the street for collection 11 hours before.
Thereafter, a warrant, based on an officer’s affidavit describing the results of the search of the trash, was issued to search the defendant’s residence. The allegations contained in the affidavit, upon which the search warrant was based, have been set forth by the majority and need not be restated here.
The items seized from the trash, as well as other items seized pursuant to the warrant, were later admitted into evidence at trial.
The majority concede that People v. Krivda (1971), 5 Cal. 3d 357, 96 Cal. Rptr. 62, 486 P.2d 1262, vacated and remanded, 409 U.S. 33, 34 L. Ed. 2d 45, 93 S. Ct. 32, aff’d on same grounds, 504 P.2d 457, 105 Cal. Rptr. 521, is contrary to the majority position, but claim that a different rule is supported by cases from other jurisdictions. I believe Krivda represents the better reasoned and more persuasive viewpoint. Though the results in the cases relied upon by the majority support the majority opinion, these cases have internal weaknesses and are not sufficiently persuasive.
The majority hold that “[w]hen defendant placed the trash at curbside for collection, he relinquished control and possession and abandoned it in the sense that he demonstrated an unequivocal intention to part with it forever.” Although I agree with the majority that the defendant “abandoned” the trash in the property law sense, the issue is whether there has been a surrender of a reasonable expectation of privacy with respect to the area searched or the property seized. When defendant placed his trash directly in front of his residence for collection, his reasonable expectation was that this trash would subsequently be disposed of and destroyed without prior inspection by law enforcement authorities. His reasonable expectation was: that it would be free from unreasonable governmental intrusion, and would not be examined by others, at least not until the trash lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere. Accordingly, I believe that the placement of the trash beside theroad for collection did not constitute an abandonment of their contents.
Since the police knew for 11 hours that the trash was on the street awaiting collection, I would hold that the search and seizure conducted here was unreasonable and violative of the defendant’s fourth amendment right.
A valid finding of abandonment would deprive the defendant of standing to assert a claim that the items of evidence were improperly seized. (Parman v. United States (D. C. Cir. 1968), 130 U.S. App. D. C. 188, 399 F.2d 559, cert. denied, 393 U.S. 858, 21 L. Ed. 2d 126, 89 S. Ct. 109.) The question for this court is whether the doctrine of abandonment properly applies to the facts of this case. This inquiry differs from that involved in evaluating the “reasonableness” of a warrantless search or seizure against which a defendant has a valid claim to fourth amendment protection. See Abel v. United States, 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683.
Because no Illinois case has- considered the- precise factual pattern presented here, it is necessary to examine various authorities from other juris dictions.
In People v. Krivda (1971), 5 Cal. 3d 357, 96 Cal. Rptr. 62, 486 P.2d 1262, vacated and remanded, 409 U.S. 33, 34 L. Ed. 2d 45, 93 S. Ct. 32, aff’d on same grounds, 105 Cal. Rptr. 521, 504 P.2d 457, the Supreme Court of California held that an individualhas areasonable expectation of privacy with respect to. the contents of hrs trash barrels. The defendant had placed the trash barrels in front of his single family residence, near the sidewalk, on public property, and adjacent to the street, for pickup by the rubbish coUector. Though the search did not involve a trespass or other invasion of defendant’s property, as in People v. Edwards (1969), 71 Cal. 2d 1096, 1104, 458 P.2d 713, 718, 80 Cal. Rptr. 633 (officers searched trash cans which were placed in the “open back yard area” behind defendant’s residence, a few feet away from the back door), the court applied the rationale of Edwards in holding that the placement of the barrels near the sidewalk for collection did not constitute an abandonment of their contents.
“We can readily ascribe many reasons why residents would not want their castaway clothing, letters, medicine bottles or other telltale refuse and trash to be examined by neighbors or others, at least not until the trash has lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere. Half truths leading to rumor and gossip may readily flow from an attempt to ‘read’ the contents of another’s trash.”
Accord, Everhart v. State (1975), 274 Md. 459, 337 A.2d 100; Ball v. State (1973), 57 Wis.2d 653, 205 N.W.2d 353 (articles found in trash barrel at rear of defendant’s house were not abandoned merely because defendant had attempted to burn them; court also relied on curtilage test). Contra, State v. Fassler (1972), 108 Ariz. 586, 503 P.2d 807; State v. Purvis (1968), 249 Ore. 404, 438 P.2d 1002 (police recruited two hotel maids to enable them to inspect waste or trash taken from defendant’s hotel room); Croker v. State (Wyo. 1970), 477 P.2d 122 (police asked garbage collectors not to dump defendant’s garbage into truck, but to turn it over to them).
In the instant case, the items seized from the trash were in two plastic bags, and were not visible without emptying or searching through the bags’ contents. In fact, the significance of these items was not ascertained until after the police had transported both trash bags to the police station. Under these circumstances, I believe the defendant had a reasonable expectation that his trash “would not be rummaged through and picked over by police officers acting without a search warrant.” People v. Krivda (1971), 5 Cal. 3d 357, 96 Cal. Rptr. 62, 486 P.2d 1262, vacated and remanded, 409 U.S. 33, 34 L. Ed. 2d 45, 93 S. Ct. 32, aff'd on same grounds, 504 P.2d 457, 105 Cal. Rptr. 521.
A distinction is made in some cases between the trash barrels used by single-family dwellings, as in Krivda, and the trash barrels used by multiunit apartment buildings. For example, in Willis v. State (Tex. Crim. App. 1975), 518 S.W.2d 247, the court distinguished Krivda and rejected a claim of abandonment. The disputed item was taken by the police from a steel drum used by all the tenants in the apartment building including the defendant. Apparently, once an individual’s trash loses its “identity and meaning by becoming part of a large conglomeration of trash,” that individual no longer has a reasonable expectation of privacy with respect to that trash. (See United States v. Minker (3d Cir. 1962), 312 F.2d 632, cert. denied, 372 U.S. 953, 9 L. Ed. 2d 978, 83 S. Ct. 952 (defendant’s interest held insubstantial since it was confined to the right to use the trash in common with three other tenants and the building superintendent).) Without expressing my view on this distinction, I believe that both Willis and Minker provide further support for the rationale of Krivda.
Another line of authority, urged by the People, and stemming from the decision in United States v. Dzialak (2d Cir. 1971), 441 F.2d 212, cert. denied, 404 U.S. 883, 30 L. Ed. 2d 165, 92 S. Ct. 218, seems in direct conflict with Krivda. (See, e.g., United States v. Mustone (1st Cir. 1972), 469 F.2d 970 (seizure of trash left on sidewalk “several doors away” from storefront office leased by defendant); Willis v. State (Tex. Crim. App. 1975), 518 S.W.2d 247. ) In Dzialak, the issue was whether a seizure of items from a pile of trash in front of the defendant’s house by a Railway Express agent violated the defendant’s fourth amendment rights. The trash had been left between the sidewalk and the street in front of defendant’s home. Although the court concluded that defendant had abandoned the property, in fact there was no fourth amendment search, since the search was made by a private investigator, a Railway Express Agency employee. It is well established that evidence obtained as a result of a wrongful search by a private individual may be admitted into evidence against the victim of the search, if that search was not in any way instigated or participated in by government agents. Annot., 36 A.L.R. 3d 553 (1971).
Different considerations relative to privacy are present, as in the case of State v. Purvis (1968), 249 Ore. 404, 438 P.2d 1002, relied upon by the majority, where a hotel guest’s room is cleaned and trash is taken by maids, at the request of the police.
In Purvis, a cigarette butt, identified as containing marijuana, was found by the maids on the floor of defendant’s hotel room. The majority in Purvis conceded that the cigarette butt was not abandoned. Yet, the court held that no fourth amendment violation occurred because the maids, who in any event were privileged to be in the room, were only instructed by the police to collect items discarded by the defendant. Aside from the differences involved in considering the privacy of a hotel guest, the inconsistency in the court’s reasoning — in conceding that the defendant did not abandon the property while asserting that the maids only collected property discarded by him — casts doubt on the rationale for its holding.
The holding in Croker v. State (Wyo. 1970), 477 P.2d 122, also relied upon by the majority, should not be applied to the case at bar. Croker relied upon Purvis, a case which, as discussed above, involved dissimilar facts and an inconsistent rationale. In Croker, the police asked trash collectors not to dump defendant’s trash into their truck, but to ton it over to them. The court held that no search occurred, and that “the invasion of defendant’s privacy by the garbage collectors in the regular performance of their duties did not go beyond the defendant’s consent.”
It is difficult to understand how the conduct described in Croker was not a search, or that defendant consented to such conduct. Both Purvis and Croker demonstrate the difficulties' courts have had in distinguishing property law concepts from fourth amendment considerations. Although property concepts are not applicable in determining whether there has been a surrender of a reasonable expectation of privacy, the courts have been unable to rationalize any rule consistent with fourth amendment rights.
Finally, the majority distinguish Ball v. State (1973), 57 Wis. 2d 653, 205 N.W.2d 353, wherein the court held that articles found in a trash barrel at the rear of defendant’s house were within the curtilage of his house and hidden from the view of people passing by. Accordingly, the search was held to violate the defendant’s expectation of privacy.
The majority conclude, on the basis of Ball, that “the location of the trash is a significant factor in determining whether defendant has abandoned the trash or whether defendant has a ‘reasonable expectation of privacy,’ because any analysis of that expectation is inextricably bound up in the physical location of the trash.” This type of reasoning undermines the interest of privacy, which the fourth amendment attempts to protect, and, instead, offers to resolve this matter by the application of property law concepts such as the curtilage test (i.e., is the place a constitutionally protected area?).
The United States Supreme Court has determined that the law concerning search and seizure should not be based on the historic technicalities of the property law.
‘[I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical 0 0 0 we ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime.’ ”
Jones v. United States, 362 U.S. 257, 266-67, 4 L. Ed. 2d 697, 705-06, 80 S. Ct. 725, quoted in People v. Nunn, 55 Ill. 2d 344, 349-50, 304 N.E.2d 81, cert. denied, 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608.
Numerous cases involving claims of unconstitutional searches or seizures in open fields or grounds have stated their conclusions in terms of whether the place was a constitutionally protected area. (Hester v. United States, 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct. 445, (while being pursued by revenue officers, defendant dropped a jug of whiskey in an open field).) As to whether the ground area of the curtilage is protected by the fourth amendment, some Federal courts, relying on Hester, have held that the “grounds” or “enclosed or unenclosed * * * grounds or open fields around 000 houses” are not protected. (See, e.g., Martin v. United States (5th Cir. 1946), 155 F.2d 503 (examination of jug left on the ground under a car apparently parked by the porch of a shack belonging to one of the defendants held no violation).) Other Federal courts, however, have stated that the fourth amendment protection has never been restricted to the interior of the house, but extends to open areas immediately adjacent thereto. (See e.g., Wattenburg v. United States (9th Cir. 1968), 388 F.2d 853.) In this latter line of authorities, the approach taken in distinguishing between an immediately adjacent protected area and an unprotected open field is to determine the extent of the curtilage. “Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.” (McDowell v. United States (8th Cir. 1967), 383 F.2d 599, 603.) Other courts have defined the curtilage as including “such place as is necessary and convenient to a dwelling and is habitually used for family purposes.” United States v. Potts, (6th Cir. 1961), 297 F.2d 68.
In Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507, relied upon in People v. Nunn, 55 Ill. 2d 344, 304 N.E.2d 81, cert. denied, 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608, the United States Supreme Court conceded that, although it had occasionally described its conclusion in terms of “constitutionally protected areas,” this analysis would not necessarily solve every fourth amendment problem.
“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [Citations.]” (389 U.S. 347, 351-52, 19 L. Ed. 2d 576, 582, 88 S. Ct. 507.)
The Court reiterated this view in Terry v. Ohio, 392 U.S. 1, 9, 20 L. Ed. 2d 889, 899, 88 S. Ct. 1868, when it stated, “wherever an individual may harbor a reasonable ‘expectation of privacy,’ [citation] he is entitled to be free from unreasonable governmental intrusion.” See also People v. Nunn, 55 Ill. 2d 344, 304 N.E.2d 81, cert. denied, 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608.
After Katz, the scope of the “open field” doctrine of Hester and the “curtilage” test is still not entirely clear. (Compare United States v. Capps (9th Cir. 1970), 435 F.2d 637, with Wattenburg v. United States (9th Cir. 1968), 388 F.2d 853.) Nevertheless, even if the curtilage test were applied in the instant appeal, I would be inclined to hold that the trash bags, placed directly in front of defendant’s residence for collection, were protected by the fourth amendment, since they served as an adjunct to the domestic economy. Cf. People v. Edwards, (1969), 71 Cal. 2d 1096, 458 P.2d 713, 80 Cal. Rptr. 633.
Applying Katz to the case at bar, the theory underlying the abandonment principle is that a person who abandons property no longer has a reasonable expectation of privacy from governmental intrusion into the area, or from governmental appropriation of the property, which was abandoned. (See United States v. Cox (7th Cir. 1970), 428 F.2d 638, cert. denied, 400 U.S. 881, 27 L. Ed. 2d 120, 91 S. Ct. 127.) Otherwise stated, the question is not whether there has been an abandonment in the property law sense (People v. Nunn, 55 Ill. 2d 344, 304 N.E.2d 81, cert. denied, 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608), but rather whether there has been a surrender of a reasonable expectation of privacy with respect to the area searched or the property seized.
I believe the weight of authority supports the view that an individual has a reasonable expectation of privacy with respect to the contents of his trash. When defendant placed his trash directly in front of his residence for collection, he did “abandon” it in the sense that he demonstrated an unequivocal intention to part with it forever. However, his reasonable expectation was that this trash would subsequently be disposed of and destroyed without prior inspection by others. His reasonable expectation was that it would be free from unreasonable governmental intrusion, and would not be examined by others, at least not until the trash lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere. The placement of the trash beside the road for collection did not constitute an abandonment of their contents.
Since the police knew for 11 hours that the trash was on the street awaiting collection, I would hold further that the search and seizure conducted here was unreasonable and violative of the defendant’s fourth amendment right.
The items seized from the trash which were later admitted at trial should have been suppressed. Since these same items were used to establish probable cause, the search warrant should have been quashed. It is well settled that evidence derived as a result of a prior illegal search or seizure, or knowledge gained through such a search or seizure, cannot be used as a valid basis to justify the existence of probable cause in a subsequent application for a warrant. People v. Martin, 382 Ill. 192, 46 N.E.2d 997; People v. Scaramuzzo, 352 Ill. 248, 185 N.E. 578.
I believe the convictions entered in the first two cases, both of which involved fourth amendment violations, should have been reversed and remanded.
For the foregoing reasons, I respectfully dissent.