(dissenting). I dissent for two reasons: (1) The consented-to entry was obtained by deception, which vitiated the voluntary consent,1 and *325(2) even if there were an entry with the consent of the householder, that fact is irrelevant to the legal question of whether the householder has relinquished his right to privacy in the contents of bags of garbage upon the direct delivery of the garbage to a garbage collector for what is represented by the collector to be routine disposal in ordinary course of municipal sanitation services.
I write only on the latter issue and to discuss the simplistic, oft repeated, canard that “there is no right of privacy in garbage”; and I conclude that, under the facts here, the defendant had a reasonable expectation of privacy from state search.
If it is difficult to track the reasoning of the majority, I cannot be too critical, for the majority follows what appears to be the holding of courts generally— and the mental processes of those courts sometimes border on the irrational.
I need cite only one case to exemplify the rather cavalier disregard of constitutional rights that typifies the “reasoning” of some of the courts on which the present majority builds its case. In United States v. Shelby, 573 F.2d 971 (7th Cir. 1978), the court, after such irrelevant remarks as “garbage cans cannot be equated to a safety deposit box” (at 973), goes on to point out:
“. . . the parties have overlooked one of the most adept garbage can intruders. Even in urban areas, neighborhood raccoons capably de-lid garbage cans, dump them over and sort out their contents for all to see.” (Emphasis supplied.) (N. 3 at 974).
Shelby was a case in which sanitation workers of the City of Milwaukee were induced by the Federal Bureau of Investigation to inspect the garbage of a suspected bank thief and to turn over any objects that might incriminate the householder. Such objects were found and *326turned over to the Federal Bureau of Investigation after the trash was taken from its usual place at the edge of the suspect’s property and kept segregated from other garbage.
The court in Shelby gave as one of its reasons that, because raccoons could have opened the garbage cans and because the raccoons might have separated the garbage so that any passerby could have seen the incriminating bank wrappers, it was therefore constitutionally permissible for the police to do the same thing by using garbagemen as agents.
Whether or not the result was correct in Shelby, the bizarre analogy to the nocturnal scavenging habits of the raccoon seems inappropriate. The lesson of Shelby and similar cases seems to be that what can be accomplished by ferae naturae, raccoons or rats and not too well domesticated dogs, exonerates and immunizes police conduct of a similar nature.
How far we have strayed from what any lawyer schooled in the history of our civil liberties should consider the cutting edge — the line of demarcation between inadvertent, private, or animal action and state police action.
The principal was well stated by William Pitt when speaking to the House of Commons in 1763:
“The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! — all his force dares not cross the threshold of the ruined tenement!” (Quoted in McNamara, 2000 Famous Legal Quotations, p. 515.)
Thus, it is elementary that the fact that non-state instrumentalities, even the elements, may act free of constitutional restraints does not confer on the state any rights it would not otherwise possess. Despite the *327inappropriate analogy of the Seventh Circuit, a police officer or a police officer’s agent is not a raccoon.
Nevertheless, within the limits of their facts, cases such as Shelby are not totally unreasonable. The garbage in Shelby was set outside within reach of the public and within the reach of any errant raccoon. Thus, to give rationality to such opinions as Shelby, one must conclude that garbage was placed in a situation, either within or without the curtilage where the circumstances were such that the contents of the garbage could be opened by animals and then, literally, be scattered to the winds for all to see, including a passing police agent. Certainly, if there were evidence that garbage cans were regularly blown over by the wind, pecked at by birds, torn apart by marauding animals, and exposed to public view, it would indeed be unreasonable to conclude that there could be much expectation of privacy in the trash so disposed. But this reasoning from what speculatively could happen to expose garbage to eventual police “plain view” in hypothetical cases is almost irrelevant to the question of whether a person has a right to privacy in garbage in a particular case. While there might have been some justification, though limited, in adopting the rule— that there is no right of privacy in garbage — when the touchstone was abandonment of property rights, no such broad and sweeping dictum can persist where the right is not one of property, but a civil and human right, the right of privacy.
Shelby, despite its lack of focus on the constitutional problem of state action, does, however, acknowledge that, “Each case, however, must turn upon its own facts.” At 974. Thus, at least by reference to other cases (see page 974), it recognizes that the maxim, “no right of privacy in garbage,” is not a rule of law.
*328But lest the precedents which the majority has elected to follow serve as a model for the rationale of this dissent, I shall attempt an analysis of why there was a reasonable expectation of privacy in the contents of the particular garbage bags delivered by the householder directly to garbage collectors for the Village of River Hills, despite the clear and unmistakable abandonment of his property rights in the trash. Katz v. United States, 389 U.S. 347 (1967), makes it clear that the fourth amendment protects the expectations of persons to privacy, whether or not under particular circumstances all separable property rights have been abandoned.
In the instant case the garbageman-police agent came within the curtilage as the result of the express action of the householder, who operated the electronic garage door control in response to the garbage collector’s request. Certainly, however, the defendant, to use the words of Katz, is entitled to no privacy in what he exposed to the garbageman even within the garage, clearly within the curtilage. But that is all he did — • expose closed bags of garbage. By the delivery to the garbageman no property rights were retained, but did that conduct constitute a relinquishment of the right of privacy against government search.
It is frequently said that, when one abandons property, that person terminates his right to privacy in the property and may not complaio about a subsequent seizure (see Mascólo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff. L. Rev. 399 (1971)).
Under the facts characterized as abandonment, the traditional view has been that the fourth amendment or its state constitutional counterpart is not even implicated — that the former owner’s rights in the property were by the abandonment simply beyond the scope of the fourth amendment. Since Katz, abandonment, *329simpliciter, cannot be the touchstone — or at least the sole determinant — of the state’s right to inspect garbage.
The majority, despite Katz, equates physical abandonment with a relinquishment of the right to privacy in the article. That this is not necessarily true is stated by the Minnesota Supreme Court in City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365 (1975).
LaFave in Search and Seizure, vol. 1, sec. 2.6, page 368, summarized the facts of City of St. Paid and quotes the language of the Minnesota court:
“[P]olice followed a suspect into a drycleaning establishment, saw him tuck something underneath the counter, retrieved the item (an eyeglass case) and found narcotics paraphernalia inside. Though the defendant had ‘discarded the eyeglass case in a location to which any member of the public had equal access,’ he contended it could not be said that he had abandoned it because ‘his intention was merely to hide the case, not to relinquish his right of ownership.’ The court did not agree:
“ ‘The distinction between abandonment in the property-law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question, as defendant correctly states, is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest. . . . In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. ... In essence, what is abandoned is not necessarily the defendant’s property, but his reasonable expectation of privacy therein.’
“Where the presence of the police is lawful and the discard occurs in a public place where the defendant cannot reasonably have any continued expectancy of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure.” (Emphasis supplied.)
*330The question posited in St. Paul that is of relevance in this case is whether the “relinquishment occurred under such circumstances which indicate he retained no justified expectation of privacy in the object.” See LaFave, supra, at 369-70. Abandonment of the property rights to a thing is not always synonymous with the relinquishment of the right of privacy to the forces of the state.
In this case, the defendant had placed his bagged garbage in his locked garage. The garbageman, having been made the cat’s-paw for the police, agreed to pick up the garbage on the regular pick-up day and then to deliver it to the police for their inspection. On December 14, 1979, the grabage had not been set outside of the garage for collection. Accordingly, with commendable zeal, zeal not demonstrated in the record to be the normal procedure, the collector went to the home, rang the door bell, and asked to get the garbage. The defendant activated the door control, which permitted the garbageman to enter the, until then, locked attached garage and to take possession of the garbage bags.
While the state at oral argument contends that the householder permitted the collector to come in and “do whatever he wanted to do with the garbage,” the majority opinion is more careful with the facts. It recognizes that the householder merely recounted at the suppression hearing that he opened the garage so the collector could do what he had just said he wanted to do, i.e., to enter and pick up the garbage.
The state would prefer, apparently, to give less than scrupulous attention to the facts and would like to find in the housholder’s post litem testimony an express authorization for the handling of the garbage at the collector’s volition. This is not an inference that reasonably can be drawn from the facts. What the householder did was to retain possession in his locked garage until there was a request for the garbage by the col*331lector and the direct transfer of possession from the householder’s shielded curtilage to the garbage collector, who was the apparent agent of the Department of Public Works but who in fact was serving the sheriff’s department of Milwaukee county in this transaction.
Thus, there is no stage in this transaction where in fact the objects in the garbage bags were in an area of public scrutiny. Even the raccoons never had a go at these garbage bags. It is clear there was a relinquishment of a possessory right — probably all of the defendant’s possessory or reversionary rights — but does this constitute a relinquishment of the right of privacy in the sense of Katz. To state the facts here accurately and then to contrast them with those cases founded on depositing garbage at the curb or in communal dumpsters furnishes the answer in the negative. There was no relinquishment of the right of privacy.
Even where courts are concerned only with a “seizure” from a private home at a spot near the curtilage, they seem obsessed with the cant, “there is no right of privacy in garbage,” because, they repetitively reason, if the public or animals can examine the garbage, then why not the police. Certainly, because of the facts in the instant case, the rationale of those cases is not appropriate. Moreover, no case has been called to our attention holding there is a relinquishment of the right of privacy where there has been a direct transfer from a locked curtilage, entered only after a consent given for a limited purpose.
This case, therefore, appears to be unique, because it was a direct transfer for a specific purpose. It has general implications, however, for if, under the circumstances here, there is a reasonable expectation in the privacy of the delivered garbage, future decisionmakers will have to give a little more attention to the actual facts instead of mouthing outworn and discredited maxims such as, “there is no right to assert a fourth amend*332ment right in respect to abandoned property” or “there is no right of privacy in garbage.” Thus, under Katz, the placing of garbage at a curb for pick-up is not a willy-nilly relinquishment of all the depositor’s rights. It is a procedure authorized in this case by the municipality for the express purpose of disposal by the proper sanitary authorities. Garbage so placed is not “abandoned” to the vagaries or whims of the world. It is put there for an express purpose — the disposition of garbage in a way to avoid the eyesore accumulations of trash and to maintain sanitary and healthful methods of waste disposal.
People v. Edwards, 71 Cal. 2d 1096, 80 Cal. Rptr. 633, 458 P.2d 713 (1969), is a case employing the appropriate Katz analysis. In Edwards, the garbage was placed in the open backyard. Its holding that the search of the cans in the yard was unlawful goes beyond what we are required to decide here, or, in the instant case, the garbage was delivered on the curtilage premises directly to the proper authorities for disposal. There is not even an intimation in the facts of this case that the circumstances encouraged or contemplated anything but prompt disposal in the due course of garbage collection. Yet the language of Edwards is significant because it states why ordinary law-abiding citizens ought not to countenance the government rummaging in the waste products of household life:
“In the light of the combined facts and circumstances it appears that defendants exhibited an expectation of privacy, and we believe that expectation was reasonable under the circumstances of the case. 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 *333and gossip may readily flow from an attempt to ‘read’ the contents of another’s trash.” Edwards, at 1104.
Edwards sensibly recognizes that the average person has a right of privacy in the garbage emanating from the household. This is because “abandonment” is only for a specific purpose. While, in the instant case as in Edwards, the householder parted with his household exuvia with the intention of doing so forever, that is not the whole story, nor does the conclusion that such was his intention have much to do with the right of privacy against state encroachments.
As Professor LaFave points out, at 377, citing United States v. Kahan, 350 F. Supp. 784 (S.D. N.Y. 1972), Katz made it clear that “ ‘the question is not whether there has been abandonment in the property law sense, . . . but rather whether there has been abandonment of a reasonable expectation of privacy as to the area searched or the property seized.’ ”
It is difficult to believe that anyone would seriously contend that there is not a reasonable expectation of privacy in garbage against the prying eyes of government except in circumstances where the plain view doctrine could come into play.
Almost all the intimate details of one’s personal life may be revealed by what is placed in the trash, including personal matters which would cover the gamut from how one’s alimentary canal functions to the brand or quantity of liquor consumed in the household. Even the most intimate aspects of a person’s relations with others may be revealed. Certainly, the publications one reads, the bills one receives, the financial obligations one has, and the names of persons who have written are likely to be revealed. Whether one is the recipient of public relief or of social security and a multitude of other matters that are of personal concern are likely to be revealed to “Big Brother” if there is — and under no circumstances *334can there be — no right of privacy in trash or garbage against government intrusions.
Is this expectation of privacy in garbage “unreasonable”? As has been well stated by one commentator, LaFave, supra, at 378, the real question is whether the expectation of privacy asserted in respect to a particular transaction is one that society would recognize as not likely to be infringed upon by the state. It is a societal concern with the reasonableness of state conduct that is the key to the citizen’s expectation of privacy. It must be remembered that it is the state that is constrained by the fourth amendment, not the general public, hungry animals, or mischief makers. LaFave points out at 378:
“Under Katz, for the expectation of privacy to receive Fourth Amendment protection, it must be one ‘that society is prepared to recognize as “reasonable.” ’ This means that the ultimate question put by Katz 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.’ Surely the type of police surveillance employed in Edwards should not go unregulated, for a society in which all ‘our citizens’ trash cans could be made the subject of police inspection’ for evidence of the more intimate aspects of their personal life upon nothing more than a whim is not ‘free and open.’ ”
It is beyond argument that the extent to which police surveillance may go is a matter of policy depending upon a court’s concept of a free and open society, which is not to be trammeled by the unrestrained forces of the police. That policy must be determined by constitutional concepts of civil liberty and not by medieval notions of property law.
It seems hardly debatable that government should not, under the facts of this case, have the option to go *335through a person’s trash without first demonstrating probable cause. It is true, of course, that no constitutional issue would arise if a private person rummaging through garbage saw some suspect material and brought it to the attention of the police, who used that information to secure a warrant, but this is merely to restate the obvious, the fourth amendment and the state constitutional counterpart restrict only official action. The fact that animals and parties other than the state may forage through a citizen’s garbage with constitutional impunity does not give leave for the government to do so. The state has admitted that the garbage collector was the agent of the police; hence, here there was state action. It is irrelevant that others are free to revel in the defendant’s garbage, like Templeton, the Rat.2 We are concerned only with activity of the sheriff’s department in making an unlawful search of the defendant’s garbage in violation of what is a reasonable expectation of a citizen that the government will not abuse its privilege as a garbage collector or dupe others to act as its agent to invade the constitutionally protected right of privacy.
Chief Justice Jay Rabinowitz eloquently dissented from the majority’s opinion in Smith v. State, 510 P.2d 793 (Alaska 1973), on grounds similar to those stated *336here. It should be noted, however, that even the majority in Smith acknowledged a right of privacy in one’s garbage, but found none in the circumstances of that case, where the garbage was placed in a dumpster with that of a number of other persons. The Smith majority opinion stands for the proposition that there is a right of privacy in garbage. The majority in Smith, however, equates the placing of garbage in a communal garbage dumpster to an act exposing it to a “plain view.” It emphasizes that, under the circumstances, the right of privacy is minimal because:
“[I]t would be reasonable to expect trash to be accidentally removed from the dumpster by running children, passing cars, stray dogs, or even a visitor of another tenant in the building.” At 798.
Again, we point out the circumstances of nongovernmental action envisaged by the majority in Smith are totally irrelevant here and they were irrelevant in Smith. What is significant, however, in Smith is that the right of privacy in garbage was recognized. The question in the majority’s view was whether that right was so attenuated in the circumstances there as to constitute no expectation at all. Smith, both in its majority and dissent stands four-square for the right of privacy in one’s garbage. There are no facts in the present case which are similar to the ones in Smith upon which the majority in the instant case could base its conclusion that the right of privacy was dissipated.
In Smith the majority typified its case as a close one. In the instant case, once one gets beyond the trite characterization of “abandonment” and the cliche of “no right of privacy in garbage” derived from ancient property law, it is clear that the present case is not even close.
It is reasonable for the householder to expect that, when garbage is delivered directly to the authorized *337collector, it will be absolutely free of the prying eyes of the state’s police. It is unreasonable under these circumstances for the state, without proof of probable cause, at the whim of its officers and without the intervention of a neutral magistrate, to inspect the trash of Wisconsin citizens.
I also believe that even the ordinary curbside pick-up embraces the expectation of privacy from the police and certainly the “raccoon” mentality evinced by some courts cannot plausibly be relied upon when the delivery is directly to the municipality’s authorized agent. It is conceded that the garbage bags were opaque and no knowledge of their contents could be gained from external inspection. There was a reasonable expectation that there could not be a “plain view” of the contents from external scrutiny.
Here we need not go into the analysis of whether the police could do indirectly (by the garbageman) what they could not do directly; It is acknowledged that the garbageman was the agent of the police, and to the extent the fourth amendment applies, it applies against the state and all of its agents. True, the garbageman was involved in a dual persona — that as a garbage collector and also as an agent of the police. Some cases would indicate that, once the garbage transfers to the collector, it is in the public domain and subject to examination by a police officer as a member of the general public.
Croker v. State, 477 P.2d 122 (Wyo. 1970), purports to so hold. This seems far-fetched, for the real question, which Croker begs, is: What is the expectation of privacy once there has been delivery to the trashman? The trashman is an agent of the municipality. He is, in any event, an agent of the state; and his turning over trash to the police by arrangement is just as much state action as though undertaken directly by the police. Croker would have us believe that, while there may be an initial *338right to privacy in garbage on one’s own premises, once the garbageman moves the garbage to a public place, it may be plundered at will by the police or anyone else.
If there is a right to privacy in garbage — and I conclude that can be the only rational and constitutional viewpoint — it is a strange notion indeed that the garbage may be intercepted in a nonroutine way by the police and then inspected in violation of constitutional rights. The reasonable expectation of a citizen is that, once the garbage is delivered to the collector, either constructively by placing on the curb or actually as in the present case, it will be sent to the dump, incinerator, or processing plant in a routine manner and will not by connivance or deception be intercepted by police.
As LaFave points out (at 384), the garbageman who acts as a tool of the state’s police cannot be equated with the informer to whom a person communicates an incriminating fact. Here there was no communication at all by the householder by the delivery of the garbage. The obvious intent was not to communicate, but to permit the pick-up and disposal of the trash.
Because a householder is obliged to dispose of his garbage, and because he knows that the purpose of garbage collection and disposal is its destruction, it is reasonable for the householder to have an expectation of privacy in the garbage, an expectation that the garbage will be handled in the usual manner, without interception by agents of the state.
Were a scavenging animal to open garbage and strew it to the winds for the plain view examination by the police, such view would not be a search subject to the fourth amendment. That, however, is not what happened here. In fact, I doubt that it has ever happened in the context of a reported case. Rather, the theory is that, had an animal ruptured the container, the police could view its contents. Hence, the specious argument goes: *339Why not, then, let the police break into the garbage and make an inspection. Whatever reason supports such an analysis, under any circumstance, I find minimal, and it is simply not applicable here.
Delivery was directly to the garbage collector, who was the secret agent for the police. Because there was an expectation that garbage so delivered would be free from the warrantless examination by the police, and because routine disposal was reasonably contemplated, the subsequent inspection was an unreasonable search and seizure, and the evidence so obtained, which was used to secure the subsequent warrant, should be suppressed. The fruits of the second search, pursuant to the warrant, which were tainted by the prior unconstitutional intrusion, must also be suppressed.
I therefore dissent.
Justice Shirley S. Abrahamson and Justice William A. Bablitch join in this dissent.The facts impelling the nullification of the right of entry here are much more persuasive than those set forth in State v. Rodgers, 119 Wis. 2d 102, 349 N.W.2d 453 (1984); and I found those sufficient to cause me to join in the dissent from the majority view. In Rodgers, at least the householder knew that it was the police who sought entry. Here that fact was concealed. In accordance with the reasoning of the Rodgers dissent, the entry by deception should be considered involuntary. While, as a matter of precedent, I now acquiesce in the majority’s holding in Rodgers, this case, on its facts, is far removed from that case. Here the unknowing householder was subjected to a deceitful, misrepresented entry by one, purporting to be a sanitation worker, who in fact was an agent of the sheriff’s department. This case is a quantum leap beyond Rodgers in its suppression of civil liberties and the potential exposure of the public to unwarranted (literally) police surveillance.
There is some confusion, perhaps in my understanding, in the majority opinion. At the outset, the opinion appears to treat the garbageman’s entry as not merely a consented entry but as a consented search. If that were correct, then there would be no need to explore the question of abandonment or reasonable expectations of privacy, for a voluntary, knowing, consent search sets all fourth amendment concerns aside. It seems clear to me, however, that this was not a consent “search,” although for purposes of this dissent, I am willing to concede that there was a consent “entry” for the purpose of taking delivery of the package.
“Templeton, the Rat” is one of the principal characters of E. B. White’s “Charlotte’s Web.” He characterized his pleasures in life as “eating, gnawing, spying, and hiding.” At 29.
“The rat had no morals, no conscience, no scruples, no consideration, no decency, no milk of rodent kindness, no compunction, no higher feeling, no friendliness, no anything.” At 46. He reveled in garbage. After one of his forays into the garbage, he recounted his experience to the barnyard animals:
“ ‘What a night!’ he repeated, hoarsely, ‘What feasting and carousing! A real gorge! I must have eaten the remains of thirty lunches. Never have I seen such leavings, and everything well-ripened and seasoned with the passage of time and the heat of the day. Oh, it was rich, my friends, rich!’ ” At 148.