Litchfield v. State

Attorneys for Appellants Attorneys for Appellee
Tom A. Black Steve Carter
June E. Bules Attorney General
Plymouth, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana

________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 50S03-0408-CR-382

Patrick Litchfield and
Susan May Litchfield,
Appellants (Defendants below),

v.

State of Indiana,
Appellee (Plaintiff below).
_________________________________

Appeal from the Marshall Superior Court, No. 50D02-0208-FD-172
The Honorable Robert Burner, Senior Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 50A03-0307-
CR-270
_________________________________

March 24, 2005

Boehm, Justice.

We hold that a search of trash recovered from the place where it is
left for collection is permissible under the Indiana Constitution, but only
if the investigating officials have an articulable basis justifying
reasonable suspicion that the subjects of the search have engaged in
violations of law that might reasonably lead to evidence in the trash.

Factual and Procedural Background

Beginning in approximately 1999, the federal Drug Enforcement
Administration had been providing the Indiana State Police with information
subpoenaed from companies that advertised in High Times, a publication for
marijuana growers. In the summer of 2002, the DEA supplied a list of
Indiana addresses that had received shipments from Worm’s Way, a gardening
supply store that was among the subpoenaed advertisers. Among the
addresses was the Litchfields’ home in rural Marshall County. On July 5,
2002, and July 22, 2002, Indiana State Police troopers Daniel Ringer and
Chad Larsh went to the address where they found trash barrels in the same
general area where the collection service normally picked up the trash and
where the containers were routinely kept. The barrels were located on the
Litchfields’ property approximately fifteen to twenty-five feet from the
edge of the pavement, and approximately 175 feet from the nearest corner of
the Litchfields’ house.

On both occasions, the troopers entered onto the property and removed
several garbage bags. A search of the Litchfields’ trash revealed plant
stems, seeds, and leaves that tested positive for marijuana. The bags
seized on July 22 also contained burnt rolling papers and hemp rolling
paper packaging. Based on this evidence, Ringer prepared and obtained a
warrant to search the Litchfields’ home. Police executed the warrant on
July 24, and discovered fifty-one marijuana plants growing on the back deck
of the Litchfields’ home.

The Litchfields were charged with possession of marijuana and
maintaining a common nuisance. The trial court denied their pretrial
motion to suppress the evidence obtained from the searches of their garbage
and the subsequent search of their home. The Court of Appeals affirmed.
Litchfield v. State, 808 N.E.2d 713, 714 (Ind. Ct. App. 2004). We granted
transfer. Litchfield v. State, 2004 Ind. LEXIS 737 (Ind. 2004).

The Search of Trash

The standard of appellate review of a trial court’s ruling on a
motion to suppress is similar to other sufficiency issues. Taylor v.
State, 689 N.E.2d 699, 702 (Ind. 1997). We determine whether substantial
evidence of probative value exists to support the trial court’s ruling.
Id. We do not reweigh the evidence and consider conflicting evidence most
favorably to the trial court’s ruling. Id.

A. Fourth Amendment Doctrine

Searches of garbage are generally permissible under the Fourth
Amendment to the Federal Constitution. Since Katz v. United States, 389
U.S. 347 (1967), the reasonableness of a search under the Fourth Amendment
has turned on whether the subject of the search has an expectation of
privacy and if so whether that subjective expectation is reasonable judged
by the objective criterion of the views of society as a whole. Id. at 361
(Harlan, J., concurring). In California v. Greenwood, 486 U.S. 35, 39
(1988), the United States Supreme Court upheld the warrantless search of
the defendant’s garbage left at the curb for pickup. The Court reasoned
that because the garbage was easily accessible to the public, the defendant
did not have a reasonable expectation of its privacy. Federal courts have
also upheld the warrantless search of garbage located on a resident’s
private property, focusing on the objective reasonableness of an
expectation of privacy in the garbage rather than its location. Thus, in
United States v. Kramer, 711 F.2d 789, 797 (7th Cir. 1983), a warrantless
search of the defendant’s garbage was upheld where the garbage was located
inside a low fence enclosing the defendant’s yard. The court reasoned that
the garbage had been abandoned and exposed to the public and the officers
who seized the garbage did not threaten the peace and quiet of the
defendant’s home or interfere with his trash disposal routine. In United
States v. Hedrick, 922 F.2d 396 (7th Cir. 1991), the court sustained the
search of trash located in the defendant’s driveway eighteen feet from the
sidewalk. The court took the view that it was common knowledge that
members of the public often sort though others’ garbage. As a result, “an
expectation of privacy may be objectively unreasonable because of the
common practice of scavengers, snoops, and other members of the public in
sorting through garbage. In other words, garbage placed where it is not
only accessible to the public but likely to be viewed by the public is
‘knowingly exposed’ to the public for Fourth Amendment purposes.” Id. at
400.

A majority of states follow federal doctrine and hold that their state
constitutions permit a warrantless search of trash that has been left out
for collection based on a lack of a reasonable expectation of privacy.[1]
As the Supreme Court of Maryland explained, “the law that has emerged since
Greenwood is essentially the same as it was before that case was decided,
although, as a general rule, it is based less on the property concept of
abandonment than on the conclusion that, by depositing the trash in a place
accessible to the public, for collection, the depositor has relinquished
any reasonable expectation of privacy.” State v. Sampson, 765 A.2d 629,
634 (Md. 2001). Some states have rejected this view and have found trash
searches violative of either the Fourth Amendment or their state
constitutions. Most states reaching this conclusion have based it,
contrary to Greenwood, on the view that a person has a reasonable
expectation of privacy in garbage placed out for collection.[2]

Recognizing that Greenwood forecloses any claim under the Fourth
Amendment, the Litchfields do not challenge the searches of their trash
under the Federal Constitution, but ask us to exclude the evidence as the
product of a search and seizure in violation of the Indiana Constitution.

B. “Reasonableness” of a Search under the Indiana Constitution

The Litchfields argue that the warrantless search of their trash was
unreasonable and therefore violated Article I, Section 11 of the Indiana
Constitution. Article I, Section 11 reads:

The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable search or seizure, 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 thing to be seized.

Although this language tracks the Fourth Amendment verbatim, Indiana has
explicitly rejected the expectation of privacy as a test of the
reasonableness of a search or seizure. The legality of a governmental
search under the Indiana Constitution turns on an evaluation of the
reasonableness of the police conduct under the totality of the
circumstances. Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994). We have
not elaborated on the methodology of evaluating reasonableness beyond the
directive in Moran to consider the “totality of the circumstances.”
Specifically, we have not explicitly addressed whether “reasonableness” is
to be evaluated from the perspective of the investigating officer (in this
case, Trooper Ringer), or the subject of the search (the Litchfields), or
both.

We believe that the totality of the circumstances requires
consideration of both the degree of intrusion into the subject’s ordinary
activities and the basis upon which the officer selected the subject of the
search or seizure. One factor that may render a search unreasonable is an
arbitrary selection of the subject. Thus, we have permitted roadblocks for
the purpose of testing for impaired drivers, but only under procedures that
assure that no individual is subject to arbitrary selection. State v.
Gerschoffer, 763 N.E.2d 960, 966 (Ind. 2002); compare Mich. Dep’t of State
Police v. Sitz, 496 U.S. 444, 455 (1990) (same under Fourth Amendment). We
have also upheld legislation requiring motorists to use seat belts, but we
have warned that stopping vehicles to inspect for violations is not
permissible without an individualized basis to suspect noncompliance.
Baldwin v. Reagan, 715 N.E.2d 332, 334 (Ind. 1999). In both cases we were
dealing with a seizure of the person, but the intrusion on the citizen was
relatively minor—a brief stop of an automobile. And in both cases the
scope of the permitted inquiry is limited, in one case to driving while
intoxicated and in the other to seat belt use. In each case we nonetheless
required either articulable individualized suspicion or a process designed
to prevent officers from indiscriminate selection of those to be searched.

Even when officers have some indication of potential criminal
activity, we have balanced it against a concern for excessive discretion in
selection of a subject. In State v. Bulington, 802 N.E.2d 435 (Ind. 2004),
officers who stopped the driver of a vehicle suspected of methamphetamine
manufacture based on purchases of packages of a known methamphetamine
precursor did not have enough facts for individualized suspicion of
criminal activity. The majority found the seizure unreasonable, concluding
that if such a stop were allowed, the police would be given too much
latitude to exercise arbitrary discretion. Id. at 440.

Our explanation of reasonableness in other contexts has focused on
both the degree of intrusion or indignity visited upon the citizen and the
constraints on the detaining officer. Random searches have been sustained
in at least one circumstance. In Linke v. Northwestern Sch. Corp., 763
N.E.2d 972, 985 (Ind. 2002), random drug testing of middle and high school
students was held to be reasonable under Article I, Section 11. Although
those tested were limited to students who drove to school or participated
in athletics or a number of other activities, the majority did not rely on
that restriction in sustaining the policy. Rather, the majority observed
that a court should “weigh the nature of the privacy interest upon which
the search intrudes, the character of the intrusion that is complained of,
and the nature and immediacy of the governmental concern to determine
whether the Policy is reasonable under the totality of these
circumstances.” Id. at 979 (citing Veronia Sch. Dist. 47j v. Acton, 515
U.S. 646, 660 (1995)). This explicitly added to the calculus the factor of
the severity of the law enforcement need in addition to the degree of the
intrusion. However, the degree of intrusion may render a search
unreasonable, even where law enforcement needs are obviously present. In
Edwards v. State, 759 N.E.2d 626, 630 (Ind. 2001), we focused entirely on
the degree of intrusion on the citizen and lack of individualized
suspicion: “to the extent a warrantless strip search of a misdemeanor
arrestee is conducted on the basis of jail security, the indignity and
personal invasion necessarily accompanying a strip search is simply not
reasonable without the reasonable suspicion that weapons or contraband may
be introduced into the jail.”

Finally, if a violation of law is established, not merely suspected, a
seizure has been upheld, even if the violation is quite minor. Thus, in
Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001), we found “nothing
unreasonable in permitting an officer, who may have knowledge or suspicion
of unrelated criminal activity by the motorist, to nevertheless respond to
an observed traffic violation.” The Court held that it was “not
unreasonable for a motorist who commits a traffic law violation to be
subject to accountability” even if the officer was motivated by “furthering
an unrelated criminal investigation.” Id.

In sum, although we recognize there may well be other relevant
considerations under the circumstances, we have explained reasonableness of
a search or seizure as turning on a balance of: 1) the degree of concern,
suspicion, or knowledge that a violation has occurred, 2) the degree of
intrusion the method of the search or seizure imposes on the citizen’s
ordinary activities, and 3) the extent of law enforcement needs.

C. Searches of Trash

This Court first addressed the legality of trash searches under
Article I, Section 11 in Moran v. State, where the totality of the
circumstances test was also first articulated. In that case, the Indiana
State Police initially identified Andrew Holland and Dominick Moran based
on their purchases at a hydroponic equipment store operated by ISP for the
purpose of identifying potential marijuana growers. Further investigation
revealed excessive energy consumption at Holland’s home, and unusual warm
areas were observed through thermal imaging surveillance. Id. at 537-38.
At about 5:00 a.m. on a day scheduled for trash pickup, two ISP officers
drove to Holland’s house where they found several trashcans about one foot
from the street in front of the house, near the mailbox. Id. at 538. The
officers emptied the cans into the back of their truck and a subsequent
search revealed marijuana clippings. Id. Based in part on this evidence,
officers obtained a warrant to search the house and found both marijuana
cuttings and several growing plants. Id. Holland and Moran were then
charged with possession of marijuana. Id. They moved to suppress all
evidence and testimony related to the warrantless search of the trash and
the house based on their contention that the search of the garbage violated
Article I, Section 11.

The majority in Moran explained: “Because we read this section of our
constitution as having in its first clause a primary and overarching
mandate for protections from unreasonable searches and seizures, the
reasonableness of the official behavior must always be the focus of our
state constitutional analysis.” Id. at 539. The Court held that this
reasonableness is to be determined based on a totality of the
circumstances. Id. at 541. The Court concluded that the search was
reasonable, explaining that “one who places trash bags for collection
intends for them to be taken up, and is pleased when that occurs,” and that
the officers conducted themselves in a similar manner to trash collectors
and did not cause a disturbance. Id. The majority also noted, however,
that “Hoosiers are not entirely comfortable with the idea of police
officers casually rummaging through trash left at curbside.” Id. The
Moran dissent argued that the search of Moran’s trash was not reasonable
and concluded that because a person’s trash may reveal intimate details of
the person’s life and because it is unreasonable to dispose of one’s trash
anonymously, trash ought to be protected under Article I, Section 11.

Since Moran, the Court of Appeals has grappled with several cases
arising from searches of trash. In Lovell v. State, 813 N.E.2d 393 (Ind.
Ct. App. 2004), trans. denied, police officers went to Lovell’s home where
they smelled a strong odor of ether. Id. at 395. There was no response
when they knocked on the door, so they parked in a nearby parking lot and
observed the residence. Id. After four people left the home, the officers
retrieved three garbage bags that had been placed by the mailbox. Id. A
search of the bags revealed evidence of the manufacture and use of
methamphetamine. Id. The officers then obtained a warrant, searched
Lovell’s automobile and home, and found additional evidence. Id. at 396.
Lovell was charged with dealing in methamphetamine and possession of
chemical reagents or precursors with intent to manufacture. Id. at 397.
She moved to suppress the evidence found in the trash bags and the evidence
found pursuant to the resulting search warrant. Id. The trial court
denied her motion and the Court of Appeals affirmed, reasoning that the
search was reasonable under the totality of the circumstances. Id. at 398.
The court pointed out many other houses had garbage bags next to their
mailboxes and apparently Lovell’s and the others’ bags had been placed out
for trash pickup. Id. The court also noted that the officers seized the
garbage in the same way that garbage collectors would and did not trespass
onto the Lovell’s property. Id.

In State v. Stamper, 788 N.E.2d 862, 863 (Ind. Ct. App. 2003) trans.
denied, Stamper placed a garbage bag at the bottom of a garbage pile on his
property an undetermined distance from the end of his driveway. A “No
Trespassing” sign was posted on the property near the garbage pile. Police
went onto the property and retrieved the bag. A search of the bag revealed
evidence of marijuana use. The Stamper court held the search unreasonable
based on the police entry onto Stamper’s property. Id. at 866 n.2. The
court explained, “If we were to hold otherwise, police could search
everyone’s opaque garbage bags on their property without reason and thereby
learn of their activities, associations, and beliefs.” Id. at 867 (citing
State v. Tanaka, 701 P.2d 1274, 1276 (Haw. 1985)).

The Court of Appeals in this case acknowledged Stamper, but disagreed
with a test of reasonableness based on whether the trash is on public or
private property. Litchfield v. State, 808 N.E.2d 713, 716 (Ind. Ct. App.
2004). The Litchfields urge us to adopt the reasoning in Stamper that
whether police commit a trespass when searching a person’s garbage is the
decisive factor in determining the reasonableness of the search. They
argue that we should hold that because Ringer entered their property to
retrieve their garbage, the search of that garbage was unreasonable. The
State argues that the Stamper court improperly applied Moran by affording
too much weight to the fact that the police trespassed on Stamper’s
property. The State urges that whether or not police trespassed on a
person’s property is only one factor in the “totality of circumstances”
Moran directs that whether the police enter unto the subject’s property be
considered in evaluating the reasonableness of a search. We think that the
reasonableness of officer conduct in searching a citizen’s trash does not
turn on whether or not the police entered onto the citizen’s property.
Property lines are wholly irrelevant to the degree of suspicion of a
violation or the need for enforcement and largely irrelevant to the degree
of intrusion inflicted by the search or seizure. Moreover, the precise
boundaries of a piece of real estate are not always apparent to one viewing
the property, and various easements may well complicate the effort to
identify whether trash barrels are fair game.

We also disagree with the view that searches of trash are per se
unreasonable. Some states have invalidated all official searches of
garbage. Most of them acknowledged, as stated in Greenwood, that a person
may expect that his or her garbage “is readily accessible to animals,
children, scavengers, snoops, and other members of the public.” They
reasoned explicitly or implicitly that people may nevertheless hold a
different expectation as to access by police. State v. Hempele, 576 A.2d
793, 805 (N.J. 1990); see also People v. Krivda 486 P.2d 1262, 1268 (Cal.
1972) (“defendants had a reasonable expectation that their trash would not
be rummaged through and picked over by police officers acting without a
search warrant”); Tanaka, 701 P.2d at 1276-77; (“people reasonably believe
that police will not indiscriminately rummage through their trash bags to
discover their personal effects”); State v. Boland, 800 P.2d 1112, 1117
(Wash. 1990) (“while a person must reasonably expect a licensed trash
collector will remove the contents of this trash can, this expectation does
not also infer an expectation of governmental intrusion”).

We do not find the arguments for a per se rule persuasive. Seizure of
trash that is in its usual location for pickup is no intrusion at all on
the owner’s liberty or property interests. The owner wants and expects the
trash to go away, and who removes it is normally a matter of indifference.
If the trash is located in the place where it is normally picked up, the
trash collection agency, whether public or private, is invited onto the
property to the extent necessary to gather and empty the trash. Police
officers can perform the same acts with no greater intrusion. It is not
the intrusion, but rather the concern for unwarranted official snooping
that makes the identity and purpose of the collector significant. But even
that consideration is more formal than substantive. At the point the trash
is removed by the authorized collector it is presumably fair game. See
Mast v. State, 809 N.E.2d 415, 417 (Ind. Ct. App. 2004). Prohibiting
officers from examining trash before it is collected thus imposes burdens
on law enforcement by forcing officers to accompany or follow trash
collectors or work at the city dump to do what might be much more easily
accomplished but provides no real protection to the citizen. In sum,
because there is no intrusion, if properly justified by other factors, a
search of trash is reasonable.

We think, however, that it is not reasonable for law enforcement to
search indiscriminately through people’s trash. As the majority explained
in Moran, although a search of a person’s garbage may be reasonable under
specific circumstances, “Hoosiers are not entirely comfortable with the
idea of police officers casually rummaging through trash left at curbside.”
644 N.E.2d at 541. We also agree with the conclusion of the Stamper court
that police should not be permitted to enter a person’s property and search
his or her garbage “without reason.” 788 N.E.2d at 867. We think the
concern for reasonable searches of trash is best addressed by the
requirement that, in order for a search or seizure to be reasonable, trash
must be retrieved in substantially the same manner as the trash collector
would take it. If garbage has been placed out for collection at the usual
place for collection and is easily accessible to any member of the public,
in the absence of a mistake, any claim to possessory ownership has been
abandoned. The citizen expects that trash to be collected and has
effectively ceded all rights in it. See Moran 644 N.E.2d at 541. There is
therefore no material intrusion into the citizen’s ordinary activities.

As already noted, however, an important factor in evaluating a
reasonable search is appropriate restriction on arbitrary selection of
persons to be searched. We believe 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. Allowing 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. See Delaware v. Prouse, 440 U.S. 648, 663
(1979); Bulington, 802 N.E.2d at 440; Baldwin, 715 N.E.2d at 337. In
Article I, Section 11 terms, that is unreasonable. The police need not go
to the lengths elaborated in Mast v. State, 809 N.E.2d 415 (Ind. Ct. App.
2004), where police rode in the trash pickup and searched it only after it
was taken by its usual collectors. But police do need to ensure that they
do not cause a disturbance or create the appearance of a police raid of the
residence.

In this case, it is undisputed that the seized trash was left in
barrels on the property in its regular place for collection. The
Litchfields therefore abandoned it and exposed it to the public. It seems
clear that the police acted reasonably by quickly and quietly retrieving
the trash from the place it was ordinarily collected without creating undue
embarrassment or indignity. However, we cannot determine from this record
whether the information supplied by the DEA enabled the state police to be
reasonably certain that the Litchfields had responded to an advertisement
in High Times, or merely informed the police that the Litchfields had
purchased from a vendor that coincidentally had advertised in that
publication. There may be other facts bearing on whether the officers
possessed articulable individualized grounds for suspicion that the
Litchfields were involved in illegal activity. At the time of the
suppression hearing, we had not yet expressly adopted the requirement that
a search of a person’s garbage be based on reasonable suspicion. There was
no evidence presented on this issue and the trial court made no finding.
We therefore remand this case to the trial court for a finding as to
whether or not the officers possessed reasonable suspicion sufficient to
obtain and search the Litchfield’s garbage.

Conclusion

This case is remanded to the trial court for further proceedings
consistent with this opinion.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

-----------------------
[1] See, e.g., Smith v. State 510 P.2d 793, 797 (Alaska 1973); Rickard v.
State, 123 S.W.3d 114, 119 (Ark. 2003); People v. Hillman, 834 P.2d 1271,
1277 (Colo. 1992); State v. DeFusco, 620 A.2d 746, 751 (Conn. 1993);
Lirousa v. State, 408 S.E.2d 436, 437 (Ga. Ct. App. 1991); State v. McCall,
26 P.3d 1222, 1223 (Idaho 2001); State v. Hendersen, 435 N.W.2d 394, 396
(Iowa Ct. App. 1988); State v. Alexander, 981 P.2d 761, 766 (Kan. 1999);
State v. Lambertus, 482 So. 2d 812, 814 (La. Ct. App. 1986); State v.
Texel, 433 N.W.2d 541, 543 (Neb. 1989); State v. Carriere, 545 N.W.2d 773,
776 (N.D. 1996); State v. Brown, 484 N.E.2d 215, 217 (Ohio Ct. App., 1984);
Cooks v. State, 699 P.2d 653, 656 (Okla. Crim. App. 1985); Levario v.
State, 964 S.W.2d 290, 296 (Tex. App. 1997); State v. Jackson, 937 P.2d
545, 549 (Utah Ct. App. 1997); State v. Stevens, 367 N.W.2d 788, 796 (Wis.
1985); Croker v. State, 477 P.2d 122, 125 (Wyo. 1970).
[2] See State v. Tanaka, 701 P.2d 1274, 1276-77 (Haw. 1985); State v. Goss,
834 A.2d 316, 319 (N.H. 2003); State v. Rhodes, 565 S.E.2d 266, 271 (N.C.
Ct. App. 2002); State v. Morris, 680 A.2d 90, 94-95 (Vt. 1996).