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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beltz v. State (12/18/2009) sp-6441

Beltz v. State (12/18/2009) sp-6441

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


JACK L. BELTZ, )
) Supreme Court No. S- 12775
Petitioner, )
) Court of Appeals No. A-9496
v. ) Superior Court No. 3PA-05-1069 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6441 December 18, 2009
)
          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from   the  Superior  Court,  Third  Judicial
          District, Palmer, Beverly W. Cutler, Judge.

          Appearances:   A.   Lee  Petersen,   Petersen
          Professional  Corp., Willow, for  Petitioner.
          Terisia   K.  Chleborad,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for Respondent.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          EASTAUGH, Justice.
          WINFREE, Justice, dissenting.

I.   INTRODUCTION
          I.   The question presented here is whether police officers
violated  Jack Beltzs right to be free from unreasonable searches
and  seizures  when, without a warrant, they seized and  searched
garbage  he  had set out on public property for collection.   The
superior  court held that they did and suppressed the evidentiary
fruits  of  the  search.  The court of appeals reversed,  holding
that   the   search  did  not  violate  the  federal  and   state
constitutions.   Beltz  appeals.  He argues  primarily  that  the
court  of  appeals incorrectly applied the current  standard  for
analyzing  garbage  searches under the Alaska  Constitution,  and
argues  alternatively  that we should  adopt  a  more  protective
standard.  We affirm the result reached by the court of  appeals.
We  hold that, under the Alaska Constitution, some expectation of
privacy  in garbage set out for routine collection on or adjacent
to  a public street (or a public area) is objectively reasonable,
but  that  in this case the police officers reasonable  suspicion
that  Beltz  was manufacturing methamphetamine was sufficient  to
justify their warrantless seizure and search of his garbage.
II.  FACTS AND PROCEEDINGS
          In  October 2004 employees of a Carrs grocery store  in
Wasilla  reported  to  police that an adult  male  had  purchased
numerous   quantities   of   items   commonly   used   to    make
methamphetamine.  The police obtained receipts for thirteen boxes
of  matches  and  three boxes of Sudafed that had been  purchased
using  a  Carrs Club card registered to Jack Beltzs father.   The
police recognized the employees description of the buyer as  that
of  Jack  Beltz, and, according to the police log and affidavits,
on  or  about October 21 two of the three grocery store employees
identified Jack Beltz from a photo lineup.
          At around two a.m. on October 21, 2004, police officers
drove  to the single-family home where Jack Beltz lived with  his
father.1   A driveway approximately thirty or more feet long  ran
from  the street to the home.  At the street end of the driveway,
there  were  two lidded garbage cans inside a wheeled  cart  with
three wooden sides; a bungee cord secured the fourth side.  Beltz
had  set  the containers out, apparently at around ten or  eleven
that  evening, so they could be emptied by trash collectors early
the  next morning.  The parties disputed whether this garbage was
on the Beltzes property or on public property; the superior court
found  by  a preponderance of the evidence that it was on  public
property, but recognized that the location likely appeared to  be
part of the Beltzes private property.
          The  officers removed one or two garbage bags that were
in  or  around the cans.  The officers left the area, taking  the
seized  bags with them, when they saw lights turn off inside  the
house.   After the officers left, Beltz put a new bag of  garbage
in  a now-empty can.  He later testified that he had seen someone
take  his garbage bags that night.  When the police examined  the
contents  of  the  bags  they found evidence  of  methamphetamine
manufacturing.2
          The  officers  returned  at around  seven-thirty  a.m.,
having  arranged for one officer to ride along with  the  regular
garbage collector to pick up the rest of Beltzs trash and keep it
separate from other peoples trash.  The police took this  garbage
back  to their office and found in it additional household  items
commonly  used  to manufacture methamphetamine.   Over  the  next
several  weeks officers worked with the trash collectors  in  the
same  way to take additional garbage from Beltzs house, but found
no additional methamphetamine-related items.
          Apparently  based in part on evidence from the  October
21  garbage search, officers obtained a warrant to search  Beltzs
home  in  December 2004.  No incriminating evidence was found  in
the  home, but Beltz made several incriminating statements in  an
interview conducted during the search.  According to an  officers
summary  of the interview, Beltz admitted that: he had  purchased
items  that he knew would be used to manufacture methamphetamine;
he  bought the items for three people who paid him to do so,  and
once  allowed one of them to cook methamphetamine at  his  house;
when  that  person  left  the house, Beltz  cleaned  up  and  put
everything  in  the  trash; and he cut off all  association  with
those  three  people  after seeing someone take  his  garbage  in
October.
          In May 2005 a grand jury indicted Beltz on three counts
of  second-degree misconduct involving a controlled substance and
one  count  of  fourth-degree misconduct involving  a  controlled
substance.3  Beltz moved to suppress all evidence obtained  as  a
result  of  the  garbage  search.  The  superior  court  held  an
evidentiary  hearing  at  which Beltz, his  father,  and  several
police officers testified.  At the conclusion of the hearing  the
court granted the motion to suppress.  The state filed a petition
for review with the court of appeals, which reversed the superior
courts decision.4
          Beltz  filed  a petition for hearing with  this  court,
arguing  that the removal and examination of his garbage  was  an
unreasonable  search  and  seizure in  violation  of  the  Fourth
Amendment  of  the  United  States Constitution  and  article  I,
section  14  of  the  Alaska Constitution.   After  hearing  oral
argument,  we requested supplemental briefs on whether we  should
adopt  a  reasonable  suspicion standard for warrantless  garbage
searches,  and whether reasonable suspicion supported the  search
in   this  case.   Both  Beltz  and  the  state  argue  in  their
supplemental  briefs  against  adopting  a  reasonable  suspicion
standard;  the  parties  disagree about whether  the  police  had
reasonable suspicion to conduct this search.
III. STANDARD OF REVIEW
          Whether  a  defendant had a subjective  expectation  of
privacy is a question of fact, and we review the superior  courts
finding  on  the issue for clear error.5  A finding  of  fact  is
clearly  erroneous if a review of the record  leaves  us  with  a
definite  and  firm  conviction that a mistake  has  been  made.6
Whether  the  subjective expectation of privacy  was  objectively
reasonable is a question of law that we review de novo.7
          Whether  to  adopt a new constitutional standard  is  a
question  of law.8  We review constitutional questions  de  novo,
adopting  the rule that is most persuasive in light of precedent,
reason, and policy.9
IV.  DISCUSSION
     A.   Did  the  Search of Beltzs Garbage Violate His  Federal
          Constitutional Right To Be Free from Unreasonable Searches and
          Seizures?
          
          A.   Beltz appears to argue that the search of his garbage
violated  his  right  to be free from unreasonable  searches  and
          seizures under the Fourth Amendment of the United States
Constitution.10  But in a factually similar case the United States
Supreme  Court held to the contrary.  In California v.  Greenwood
the  Court  held  that police did not need a  warrant  to  search
garbage the defendants had placed on the curb or street in  front
of their house for routine garbage collection.11  The Court based
its  analysis on Justice Harlans concurring opinion  in  Katz  v.
United  States,12 and reasoned that the Fourth Amendments warrant
requirement  would apply only if the defendant had  a  subjective
expectation  of  privacy in the garbage and if  society  accepted
that expectation as objectively reasonable.13  The Court concluded
that any subjective expectation of privacy the defendants had  in
garbage  left for collection in an area accessible to the  public
or at the side of a public street was not reasonable.14
          The  superior court found that Beltz placed his garbage
on  public property at the end of his driveway near the street so
it  could be picked up by garbage collectors.  Greenwood controls
Beltzs  federal constitutional claim.  The search and seizure  of
Beltzs garbage did not violate the Fourth Amendment.
     B.   Did  the  Search of Beltzs Garbage Violate  His  Alaska
          Constitutional Right To Be Free from Unreasonable Searches and
          Seizures?
          
          In  1973 we held in Smith v. State15 that a warrantless
search  of  garbage bags the defendant had placed in  a  dumpster
outside, but on the property of, her apartment building  did  not
violate article I, section 14 of the Alaska Constitution.16   The
state  argues, and the court of appeals held, that the search  of
Beltzs garbage was permissible under Smith.17  Beltz argues  that
the  court  of  appeals  incorrectly applied  Smith,  and  argues
alternatively  that  we  should adopt a  standard  that  is  more
protective  of  privacy  rights and the right  to  be  free  from
unreasonable searches and seizures.
          As the Supreme Court was to do later in Greenwood,18 we
based our analysis in Smith on Justice Harlans concurring opinion
in  Katz  and  adopted his proposed two-prong test  for  deciding
whether a warrant was required.19  The parties in the present case
disagree  about  the outcome under each prong of  this  standard:
whether  the  defendant had a subjective expectation of  privacy,
and   whether   that  subjective  expectation   was   objectively
reasonable.  Beltz argues that he subjectively expected his trash
to  remain  private,20  and that his subjective  expectation  was
objectively  reasonable.  The state argues  that  Beltz  did  not
expect  his  trash  to  remain private and  that  any  subjective
expectation  of  privacy  he had in his  trash  would  have  been
objectively unreasonable.
          The  state also argues that this case is not  yet  ripe
for  review  because the superior court did not  explicitly  find
that  Beltz  had  a  subjective expectation  of  privacy.   Beltz
contends  that  the  superior court did find  that  he  had  that
expectation,  but  that  it  did  so  implicitly,   rather   than
explicitly.   He reasons that the superior court would  not  have
addressed  the  reasonableness  question  unless  it  had   first
implicitly  found  that  Beltz had a  subjective  expectation  of
          privacy.
          We  assume,  without deciding, that the superior  court
implicitly  found  that  Beltz had a  subjective  expectation  of
privacy,  and that this implicit finding was both sufficient  and
not  clearly  erroneous.21   We  instead  focus  on  whether  any
subjective  expectation of privacy Beltz had in the  garbage  was
objectively reasonable.
          1.   Was Beltzs expectation of privacy objectively reasonable?
          1.   The state argues that any subjective expectation of privacy
Beltz had in his garbage was not objectively reasonable under the
standard  we articulated in Smith v. State.22  Beltz argues  that
his  expectation  was reasonable under Smith and,  alternatively,
that  we  should  adopt a more rigorous standard.   The  superior
court and court of appeals were constrained to apply Smith.   The
court of appeals reversed the superior courts holding that Beltzs
expectation of privacy was reasonable under the Smith standard.23
          In  Smith we adopted the two-prong analysis proposed in
Justice Harlans concurrence in Katz, and listed four factors that
could   be   used  to  determine  whether  a  persons  subjective
expectation  of privacy in his trash was objectively  reasonable:
(1)  where  the trash was located, (2) whether the  dwelling  was
multiple or single unit, (3) who removed the trash, and (4) where
the  search of the trash took place.24  We explicitly limited our
holding in Smith to the particular facts of the case at bar.25
          Beltz  urges us to replace the Smith factors  with  the
standard  Chief  Justice Rabinowitz proposed in  his  dissent  in
Smith.26  Under that standard, courts would determine whether  an
expectation  of privacy in garbage was objectively reasonable  by
examining [the defendants] behavior . . . to determine whether or
not  she  intended to knowingly disclose to the public,  publicly
communicate, or publicize the contents of her garbage.27  If  the
answer  is  no,  the  defendant has a constitutionally  protected
privacy  interest,  and  a  warrant is  required  to  search  the
garbage.  The dissenting opinion would adopt that standard.28  But
carried  to its logical conclusion, that standard would  seem  to
foreclose warrantless searches of garbage even after the  garbage
bags  have reached a landfill, and probably even after they  have
been long buried.  Those examples illustrate that application  of
that  standard  ultimately  turns on  the  defendants  subjective
expectations,    and    effectively   ignores    the    objective
reasonableness of those expectations.
          The    parties   arguments   present   us   with    two
irreconcilable  choices:  either  (1)  requiring  a  warrant  for
garbage  searches, on a theory there is a reasonable  expectation
of  privacy  in  ones garbage after it has been  set  out  on  or
adjacent to a public street (or a public area) for collection or,
possibly,  even after it has been collected, or (2) holding  that
no expectation of privacy in garbage set out for collection on or
adjacent to a public street (or a public area) is reasonable, and
that  police  therefore do not need a warrant  or  any  cause  to
search  it.  Both choices fail to recognize the subtle  balancing
inherent  in deciding the extent to which society is  willing  to
recognize an expectation of privacy as reasonable.  We decline to
adopt either of these approaches.
          In so doing, we affirm Smiths adoption of the two-prong
Katz analysis, and note that the Smith factors, which are not the
exclusive  considerations that affect whether an  expectation  of
privacy  is  reasonable,  may still be relevant  to  searches  of
garbage not set out on or adjacent to a public street or a public
area.   Moreover, we acknowledge that the explicit protection  of
privacy  set  out  in  article  I,  section  22  of  the   Alaska
Constitution   necessarily  modifies  Smith  and  increases   the
likelihood  that a persons expectation of privacy in garbage  can
be deemed objectively reasonable.29
          Although  Smith was decided in 1973, it arose  in  1970
and  the  appellate  briefs were submitted in  that  case  before
Alaska  voters amended the state constitution in August  1972  to
adopt  the  privacy amendment.30  In analyzing Smiths suppression
argument, our opinion addressed only article I, section  14  (the
right  to  be free from unreasonable searches and seizures),  the
sole Alaska constitutional provision raised by the parties.31  The
explicit  privacy  protection now contained in  our  constitution
necessarily  affects how the two-prong Katz analysis  applies  to
garbage  searches: a defendants privacy interest  in  garbage  is
entitled  to greater protection than we recognized, or needed  to
recognize, in Smith.
          Since deciding Smith, we have recognized that [b]ecause
this   right   to  privacy  is  explicit,  its  protections   are
necessarily  more robust and broader in scope than those  of  the
implied  federal right to privacy32 and have held  that  where  a
search  is  alleged to be unconstitutional, section 14s standards
for  a  proper  search and seizure are inexorably  entwined  with
section  22s privacy protections.33  We have invoked the  privacy
amendment  in  opinions: barring the state  from  surreptitiously
recording  conversations in certain circumstances;34  prohibiting
warrantless   administrative  inspections  of  certain   business
premises;35  and  preventing police from opening  closed  luggage
during an inventory search of a vehicle.36  In each of these cases
the privacy amendment affected our analysis of search and seizure
protections, as it must here.
          As  the  court of appeals stated in its decision below,
courts have recognized that, with the advance of technology,  the
police  can  learn  a  great  deal  about  a  persons  life   and
associations [by searching garbage], including even obtaining DNA
for testing and for investigation.37  Based on article I, sections
14  and  22,  and  the highly personal information  that  can  be
revealed by a garbage search, we hold that a person who sets  out
garbage for routine collection on or adjacent to a public  street
(or a public area) has some objectively reasonable expectation of
privacy in that garbage.38
          2.   Was the search unreasonable?
          Holding  that  Beltz  had  some objectively  reasonable
expectation  of  privacy  in his garbage  does  not  resolve  the
questions before us.  We must still decide whether the search was
unreasonable under the Alaska Constitution.
               a.   The reasonable suspicion standard
                    
          a.   We have consistently held that a warrantless search is per
          se unreasonable unless exigent circumstances exist or another of
the limited exceptions to the warrant requirement applies.39  But
a  persons  expectation  of privacy in  garbage  set  out  on  or
adjacent to a public street or a public area for collection  does
not  merit  the same level of protection as a persons expectation
of privacy in, for example, his or her home or person.  It is not
objectively reasonable for a person to expect the same  level  of
privacy  in such garbage.  The owner not only intends  to  expose
the   garbage  to  routine  pickup,  but  also  risks   potential
intrusions by intermeddling humans (even garbage collectors), and
the possibility that animals, snow plows, and wind may reveal the
contents of the garbage containers.40
          As we held in State v. Myers,
          Expectations of privacy are not  all  of  the
          same intensity. . . .  Both subjectively  and
          in   societys   judgment  as   to   what   is
          reasonable, distinctions may be made  in  the
          varying   degrees  of  privacy  retained   in
          different places and objects.  When a  police
          intrusion takes place in a context  in  which
          only  a  diminished  expectation  of  privacy
          exists,  such  a  search must  be  reasonable
          within  the meaning of the Constitution,  but
          may not necessarily be subject to the warrant
          requirement.[41]
          
Any expectation of privacy in garbage set out for routine street-
side  collection is diminished.  That expectation therefore  does
not  necessarily  require the protections  of  a  warrant  before
police can conduct a search, even given Alaskas explicit right to
privacy.42
          Nonetheless, this diminished privacy interest is  still
entitled to some protection against undue government intrusion.43
We  conclude that it is consistent with the privacy amendment and
the  prohibition  against unreasonable searches and  seizures  to
allow a warrantless search of garbage set out on or adjacent to a
public  street  for  routine collection only  if  police  have  a
reasonable  suspicion  that the garbage contains  evidence  of  a
serious  crime.44   Garbage sweeps, or searches  of  garbage  not
suspected  to  contain  evidence of  a  serious  crime,  are  not
permissible.
          The reasonable suspicion standard is most often applied
in  the  context of investigatory stop-and-frisks.  Under certain
circumstances,   a  police  officer  may,  without   a   warrant,
temporarily  detain a person for questioning  and  pat  down  the
persons  clothing  for the sole purpose of detecting  weapons  or
other  contraband.45   In Alaska, a police officer  may  make  an
investigatory stop if the officer has a reasonable suspicion that
imminent  public  danger exists or serious  harm  to  persons  or
property  has recently occurred. 46  An officer has a  reasonable
suspicion  if  the totality of the circumstances  indicates  that
there is a substantial possibility that conduct giving rise to  a
public danger has occurred, is occurring, or is about to occur.47
This  same  standard  applies by analogy to garbage  searches:  a
          warrantless search of garbage set out on or adjacent to a public
street for collection is permissible only if the totality of  the
circumstances  indicates that there is a substantial  possibility
that imminent public danger exists or that conduct giving rise to
serious  harm  to persons or property has recently  occurred,  is
occurring, or is about to occur.
          In   the   investigatory  stop  context,   we
          recently noted that [i]n evaluating whether a
          specific stop was legal, Alaska courts  apply
          a  balancing  test  . . . .   The  degree  of
          threat to the public safety and the imminence
          of  that  threat  (or the seriousness  of  an
          already  committed crime and the  recency  of
          the  crime)[]  must  be weighed  against  the
          strength of the officers reasonable suspicion
          and the intrusiveness of the stop.[48]
          
This  test  is an expression of the broader principle that  if  a
search  (or  seizure)  is  minimally  invasive  of  privacy,  the
reasonableness of the search is determined by balancing the  need
to search against the invasion that the search entails.49
          We  recognize that our investigatory stop jurisprudence
is not perfectly transferable to the garbage search context.  The
governments need for imminent action in garbage searches  may  be
different from that in the stop-and-frisk context.  The  temporal
urgency  associated with a garbage search may be  lower  than  in
most investigatory stop situations, in which an officer needs  to
question  a  person  who may be leaving the  scene.    Therefore,
although we choose to apply the same test, the imminence  of  the
need to investigate may entail less urgent risk to public safety,
or  less immediate need to act to stop a crime, than in the stop-
and-frisk  context.   Although  the threatened  disappearance  of
evidence  of  a  serious  crime is not  generally  enough  for  a
warrantless  search  absent  exigent circumstances  and  probable
cause,  a  garbage search is a sufficiently minimal intrusion  on
privacy  expectations to require only reasonable  suspicion  that
the  trash contains evidence of a crime causing serious  harm  to
persons or property.
          Here the record shows that police searched Beltzs trash
after  grocery store employees reported that Beltz had repeatedly
purchased   combinations  of  items  commonly   associated   with
manufacturing methamphetamine and that Beltz had used his fathers
Carrs  Club card to buy three boxes of Sudafed and thirteen boxes
of  book matches.  Beltz does not dispute that he purchased these
items.
          The  evidence  of  Beltzs purchases was  sufficient  to
create   a   reasonable  suspicion  that  he  was   manufacturing
methamphetamine, and we agree with the states argument  that  the
police reasonably believed that the manufacturing would occur  at
Beltzs home and that evidence of the manufacturing would be found
in   the  garbage.50  Manufacturing  methamphetamine  creates  an
imminent danger to the public and gives rise to serious  harm  to
persons  or  property.   As the state contends,  the  process  of
manufacturing  methamphetamine  can  harm  people  and   property
          through fire, explosion, and chemical residue.  Because the
officers  suspicion was based on evidence that is undisputed,  we
do  not  need to remand to the superior court for further factual
findings to determine whether reasonable suspicion justified this
search.51
               b.   The Litchfield requirements
          a.   In addition to requiring that a warrantless garbage search
be   based  on  reasonable  suspicion,  we  impose  two   further
limitations  introduced  by  the  Indiana  Supreme  Court  in   a
factually  similar  case, Litchfield v. State.52   The  court  in
Litchfield held that in order for a warrantless search of garbage
to  be  reasonable, the trash must be retrieved in  substantially
the same manner as the trash collector would take it and police .
. . need to ensure that they do not cause a disturbance or create
the  appearance of a police raid of the residence.53   Here,  the
police  removed the first two bags of Beltzs trash  in  much  the
same  way trash collectors would have removed them, and the later
bags were actually removed by trash collectors.  Furthermore, the
police  caused no disturbance; they searched the bags  away  from
his home instead of rummaging through them on the street.54
          Additional factors weigh in favor of holding  that  the
search   in   this  case  was  reasonable.   The   suspicion   of
methamphetamine manufacture was not a pretext for  a  search  for
evidence of an unrelated crime.  The seizure was of garbage  left
for  collection  on or adjacent to a public street  and  did  not
involve  a  police trespass into the curtilage of  Beltzs  house.
And  the  search  involved property that  Beltz  had  essentially
abandoned  and  expected to be taken by trash  collectors  within
hours.   Although  these  last two factors  may  seem  to  invoke
property   law   concepts   that   appear   irrelevant   to   the
constitutional  question presented here, we are  not  denigrating
the  right  to privacy by treating it as though it  is  merely  a
property right.55  How someone treats his property can be relevant
to  whether  he  expects privacy, to what  extent  his  right  to
privacy  was affected, and to what extent his expectation  should
be protected.56
          Based  on these considerations, we hold that the search
of  Beltzs  garbage  was reasonable, and did not  violate  Beltzs
right  to  be free from unreasonable searches and seizures  under
the Alaska Constitution.
V.   CONCLUSION
          We  AFFIRM the court of appeals decision that  reversed
the  superior courts suppression of the evidentiary fruits of the
garbage search, and REMAND for further proceedings.
WINFREE, Justice, dissenting.
     1.   Overview
          I  am  unable  to agree with the courts disposition  of
Jack Beltzs privacy claim under the Alaska Constitution.  If  our
only  choices for a rule about warrantless seizures and  searches
of  garbage  left  for collection in the normal course  were  the
federal  rule or todays new Alaska rule, I would join the  courts
decision without hesitation.  But our choices are not so limited.
Although  the rule adopted by the court lies somewhat  closer  to
the  protections  embodied in the Alaska  Constitution  than  the
federal rule, its constitutional protections are mostly illusory.
I would instead adopt the rule Chief Justice Rabinowitz advocated
in his dissent in Smith v. State.1
          As the court notes, Smith v. State was decided in 1973,
but  the  case  actually  arose in 1970.  The  parties  submitted
appellate briefs before Alaska voters adopted article I,  section
22  of  the  Alaska Constitution in 1972.2  In his  briefs  Smith
relied only on article I, section 14 of the Alaska Constitution.3
Implicitly  acknowledging that the addition  of  the  article  I,
section  22 privacy clause would change the legal landscape,  the
Smith  court:  (1) expressly limited its holding to the  specific
facts  of that case; (2) found no reason to interpret article  I,
section  14  of  the  state constitution more  broadly  than  the
federal constitution; and (3) declined to announce a general rule
sanctioning  official gathering and analysis  of  an  individuals
refuse.4   The court today aptly describes the subsequent  effect
of   article  I,  section  22  on  our  article  I,  section   14
jurisprudence,  demonstrating the wisdom of  Smiths  self-imposed
limitations.
          In  my view Smith has no precedential value and neither
controls  nor  contributes to the resolution of  cases  involving
police seizures and searches of garbage placed for collection  in
the  normal  course.5  Working with a clean slate, I would  adopt
Chief  Justice  Rabinowitzs approach in his Smith dissent,  which
expressly took into account the new article I, section 22 of  the
Alaska  Constitution:   courts  should  look  to  an  individuals
behavior   to  determine  objectively  whether  the  person   has
exhibited  a  reasonable expectation of privacy6 or  instead  has
exhibited an intent to knowingly disclose to the public, publicly
communicate,  or publicize the contents of her garbage  left  for
collection.7  If the expectation of privacy is reasonable, it  is
protected  by  sections  14 and 22 of article  I  of  the  Alaska
Constitution and may not be abrogated without a search warrant.8
          Responding directly to some of the same arguments about
diminished  expectations of privacy that the court  makes  today,
Chief Justice Rabinowitz referred to differential expectations of
privacy  and  noted that citizens might expect a few,  infrequent
invasions of their privacy interests by third persons, but  might
simultaneously  expect  their  privacy  to  remain  immune   from
governmental  intrusions.9  I agree.   Chief  Justice  Rabinowitz
asserted  that a free and open society cannot exist  without  the
right  of  the people to be immune from unreasonable interference
by  representatives  of  their  government.10   I  agree.   Chief
Justice  Rabinowitz  concluded that  a  warrantless  seizure  and
          search of household garbage left for collection falls within the
category of unreasonable interference.11  I agree.
          Today  the court correctly holds that under article  I,
sections  14 and 22 of the Alaska Constitution a person who  sets
out  garbage  for routine collection on or adjacent to  a  public
street  (or  a  public  area)  has  some  objectively  reasonable
expectation  of privacy in that garbage.12  But it is  error  for
the  court to then:  rely on technical notions about location and
abandonment of property while ignoring the practical realities of
(1)  why  garbage is placed curbside for routine  collection  and
(2)  the  communal nature of residential garbage;  apply  privacy
considerations  to things and places rather than  people;  ignore
Chief Justice Rabinowitzs concept of differential expectations of
privacy; and conclude that the objectively reasonable expectation
of   privacy  in  garbage  set  out  for  routine  collection  is
significantly  lessened because the person not  only  intends  to
expose  the  garbage to routine pickup, but also risks  potential
intrusions by intermeddling humans (even garbage collectors), and
the possibility that animals, snow plows, and wind may reveal the
contents of the garbage containers.
     2.   Practical    Realities,   Misplaced    Reliance,    and
          Differential Expectations of Privacy
          
          In  Alaska  we have a system of government-run  garbage
landfills,    government-performed   garbage    collection    (or
governmental  regulation of private collectors), and  government-
imposed  rules  and  regulations about how residents  must  store
garbage  on  their  property and where they  must  place  it  for
collection.13   Some communities make the use of their  municipal
garbage  collection  services mandatory.14  Those  municipalities
not   mandating  use  of  municipal  collection  services   still
extensively regulate garbage disposal.15
          Aside  from  surreptitious video or  audio  recordings,
garbage  may provide the best evidence of what people do  in  the
privacy of their homes.16  As the court acknowledges, it  is  now
possible  to  analyze a persons garbage and learn  a  great  deal
about the persons activities and associations, even to obtain DNA
for  testing and for investigation.  Yet the government generally
controls how its citizens may store and dispose of their garbage,
and  a citizen generally has no choice but to participate in  the
governments  collection and disposal system, including  following
the   rules   about  where  to  place  garbage  for   collection.
Therefore,  to  the  extent  the court  relies  on  the  specific
location  of  garbage set out for collection to show  a  lessened
expectation   of  privacy,  that  reliance  is   misplaced    the
constitutional  right of privacy protects people,  not  places,17
and for most Alaskans the residential garbage collection place is
controlled by municipal ordinances having nothing to do with  the
individuals objective expectation of privacy.
          The courts reliance on its conception of abandonment is
similarly  misplaced.   It  is, as the court  suggests,  entirely
possible that despite comprehensive regulation of the storage and
presentation of garbage for collection, individuals are  at  some
risk  of  children  or  dogs  or snowplows  making  mischief  and
          scattering the contents of their garbage containers.  But this
neither  constitutes  abandonment nor justifies  the  governments
warrantless  seizures and searches of garbage that has  not  been
scattered by such mischief.  Chief Justice Rabinowitzs concept of
differential expectations of privacy makes abundant sense in this
context,  leading  me to conclude that todays new  rule  provides
insufficient protection to Alaska residents.
          What  is  or should be  the only relevant factor is  an
individuals  objective intent when placing containerized  garbage
in  the  required location for collection.  The key  question  is
whether  the individual intends to disclose the contents  to  the
world  at  large, or to unobtrusively dispose of the contents  in
accordance with custom or rules and regulations imposed  for  the
health and safety of the community.18
          The  court  finds fault with Chief Justice  Rabinowitzs
standard  using  a slippery slope analysis, suggesting  it  would
seem to foreclose warrantless searches of garbage even after  the
garbage bags have reached a landfill.  It would be easy to follow
the  courts convention and simply say that specific issue is  not
before  us,  but  in any event the courts concern  is  misplaced.
Chief  Justice  Rabinowitzs standard focuses  on  an  individuals
intent,  discerned by examining the individuals  behavior.   That
behavior generally involves the placement of garbage in a bag and
the  placement of that bag for collection (usually in  accordance
with  a local ordinance).  That behavior does not demonstrate  an
intent  never  to  disclose the contents  of  the  garbage.   But
neither  does it demonstrate an intent to abandon the garbage  to
any  passer-by  whether it be a child, animal, or police  officer
once  it is placed for collection.  It generally demonstrates  an
intent  that  the garbage not be disclosed except in  the  normal
course  when  it reaches its final destination and is  commingled
with  the  rest of the communitys garbage by someone specifically
tasked  with  collecting  and handling  garbage.   This  case  is
illustrative of that point:  Beltz placed his garbage in  a  bag,
placed  the  bag  in a garbage container in a garbage  cart,  and
placed  the  garbage cart near the edge of the Beltz property  so
the garbage collector could collect and dispose of the garbage in
the  normal  course.   This  behavior objectively  manifested  an
intent  that  the  garbage remain undisclosed until  the  garbage
collector disposed of it in the normal course.
     3.   Collateral Consequences
          The  courts new rule produces two noteworthy collateral
consequences  demonstrating  the  constitutional  privacy   right
announced today is mostly illusory.
          First,  despite a laudable admonition that  police  may
not  institute garbage sweeps, some garbage sweeps  are  in  fact
allowable under the new rule.  It should come as no surprise that
most  residences  have multiple occupants, each  of  whom  has  a
constitutionally  protected  right  of  privacy  in  his  or  her
garbage.   Here the court notes that Beltz lived with his  father
and  that  the garbage cart, bin, and lid belonged to  the  Beltz
household.   The  testimony at the suppression  hearing  revealed
that  the  residential property was owned by Beltzs father.   The
police  admitted that they seized and searched the  garbage  bags
          from the Beltz household without any specific information about
who:   (1) actually produced the garbage; (2) placed the  garbage
in  those bags; or (3) placed those bags of garbage in and on the
garbage bins.
          Under  todays rule the police may seize and  search  an
entire households garbage without a warrant based on a reasonable
suspicion  that  one member of the household  is  engaging  in  a
serious crime and evidence of that crime may be somewhere in  the
household  garbage.  By extension, if the police had a reasonable
suspicion  that Beltz was disposing of crime-related evidence  in
the   next-door-neighbors  garbage,  they  could  have   made   a
warrantless  seizure  and search of that garbage  as  well.   And
nothing  in  todays  rule prevents the police  from  seizing  and
searching  all  of the contents of an apartment  complex  garbage
receptacle   when  focused  on  the  conduct  of  one  individual
resident.19  These are garbage sweeps that should be allowed only
with  a  search warrant, especially considering that  nothing  in
todays  rule  appears to prevent the police  from  analyzing  the
garbage   of  people  other  than  the  target  of  the  original
investigation, compiling information about them, or charging them
with  crimes  based  on information found in their  garbage.   It
would  be  naive to believe DNA data compilations and registeries
created from police seizures and searches of garbage are  not  in
Alaskas future.
          Second, despite todays holding that an individual has a
constitutional  right of privacy in garbage left  in  the  normal
course  for routine collection, the natural corollary of allowing
garbage  sweeps is that the constitutional right is illusory  for
most of the people whose garbage will be seized and searched.  It
will be the exception, rather than the rule, when the police  can
limit their seizure and search to garbage of the individual under
suspicion for a serious crime.
          Consider,    for    example,   the   newly    announced
constitutional right of privacy as afforded to Beltzs father.
          Suppose that Beltzs father had committed some unrelated
crime,  serious  or  otherwise, and that  the  police  had  found
evidence  of  that  crime in their sweep of the  Beltz  household
garbage.   Could  the  police  have  used  that  evidence  in   a
prosecution of Beltzs father?  He had a reasonable expectation of
privacy in his garbage and the police had no suspicion about him,
let  alone an articulable and individualized reasonable suspicion
that  he  was engaging in a serious crime.  Would his article  I,
sections  14  and 22 rights mandate suppression of the  evidence?
Or  would  suppression be denied because under the rule announced
today  the  police  otherwise had legal authority  to  seize  and
search the garbage and therefore to act on the evidence that came
into plain view?20  The court finds the latter result acceptable,
comparing it to what can occur during a police search of  a  home
occupied  by  multiple  residents.  But to initially  enter  that
hypothetical  home,  the  police would  have  needed  a  warrant,
consent, or the presence of exigent circumstances, none of  which
are  necessary  for the seizure and search of the  garbage.   The
constitutional privacy right is illusory in this context.
          Here, of course, there is no indication whatsoever that
          Beltzs father was suspected of committing a crime.  The police
nonetheless  seized his garbage cans from his  garbage  cart  and
searched  his garbage, and he has no information about  what  the
police  did  with his garbage or what data about him  the  police
have  compiled  from  that garbage.  The  constitutional  privacy
right is thus equally illusory in this context.
          Consider yet another context.  After today, police  are
on  notice  of  an individuals constitutional privacy  rights  in
garbage  set  out for routine collection.  If the facts  of  this
case  took place tomorrow, given that the residence, the  garbage
cart,  and  the garbage cans all belonged to Beltzs  father,  the
seizure  and search of the contents of the garbage cans might  be
considered    a   deliberate   violation   of   Beltzs    fathers
constitutional  rights  for  the  express  purpose  of  obtaining
incriminating evidence against his son.  If so, then Beltz  might
have vicarious standing to raise the constitutional violation and
seek suppression of the incriminating evidence.21  But given  the
tenor  of todays decision, it appears more likely the court would
conclude  Beltzs fathers constitutional privacy rights  were  not
violated, further demonstrating the rather illusory nature of the
constitutional privacy right announced today.
     4.   Ironies
          Finally, I note two ironies arising from this case.
          First,  the court suggests that a search warrant  might
have  been required after the first seizures and searches of  the
Beltz  household garbage gave the police the first  incriminating
evidence  that  a crime had been committed.  If  this  is  so,  a
warrantless seizure and search of garbage is acceptable when  the
police  have  merely a reasonable suspicion that the garbage  may
contain  evidence of a serious crime, but a warrant  is  required
when  the police clearly have probable cause to believe  a  crime
has  been  committed and further evidence may  be  found  in  the
accuseds   garbage.   This  does  little  to  honor  either   the
constitutional  right  of  privacy or  the  necessity  of  search
warrants.
          Nothing  in  todays rule prevents continual warrantless
seizures  and searches of garbage regardless of what  the  police
actually  find  on any given occasion; todays  rule  is  just  an
evidence-gathering rule obviating the need for a search  warrant.
Here  the  police continued to seize and search garbage from  the
Beltz  household for several weeks even though they  had  no  new
information  from  any  source  about  additional  purchases   of
methamphetamine  material.   This and  other  long-term  targeted
garbage   seizures  and  searches  based  on  single   suspicious
incidents  appear  legitimate  under  todays  rule,  despite  the
historical  premise that warrantless searches based on reasonable
suspicion are necessary to avoid imminent public danger.22
          Second,  the  police  actually had  probable  cause  to
obtain  a  search  warrant for Beltzs residence and  his  garbage
based  on  the information provided by the store personnel,  even
before  the seizures and searches of the Beltz household garbage.
The police had ample time to obtain a search warrant in this case
but, in light of the federal rule and Smith, they chose not to do
so.   Adopting Chief Justice Rabinowitzs standard would thus  not
          have prevented the police from obtaining the evidence they sought
in this case; it would merely have ensured that they went through
proper  procedures  to  obtain it  procedures  that  reflect  our
prioritization  of individual rights.  If the police  had  lacked
time to obtain a search warrant, existing search and seizure  law
provided an exigency exception:  Exigent circumstances justifying
a  warrantless  search  or  seizure may  be  established  by  the
existence of probable cause, coupled with a compelling  need  for
official action and no time to secure a warrant. 23  Todays  rule
simply  enables  police  to sidestep the  procedural  protections
offered by the warrant requirement.
     5.   Conclusion
          When   otherwise   faced   with   the   federal   rule,
transplanting    the   reasonable   suspicion   framework    from
investigatory stops to seizures and searches of garbage left  for
collection  might at first blush seem a reasonable  and  adequate
check on police conduct.  But Chief Justice Rabinowitz again  had
the correct response over thirty-five years ago:
          In  my  judgment, it is preferable to entrust
          the  decision to invade citizens  privacy  to
          the  scrutiny  of neutral judicial  officials
          rather  than  police  officers   even  police
          officers   operating   under   great    self-
          restraint.   As  the  United  States  Supreme
          Court noted in McDonald v. United States:
          
             We  are not dealing with formalities.  The
             presence  of  a  search warrant  serves  a
             high    function.    Absent   some   grave
             emergency,   the  Fourth   Amendment   has
             interposed   a  magistrate   between   the
             citizen  and  the police.  This  was  done
             not  to  shield criminals nor to make  the
             home  a safe haven for illegal activities.
             It  was  done  so  that an objective  mind
             might  weigh  the  need  to  invade   that
             privacy in order to enforce the law.   The
             right  of  privacy was deemed too precious
             to  entrust  to  the discretion  of  those
             whose  job  is the detection of crime  and
             the arrest of criminals.[24]
             
          To   the  extent  todays  rule  affords  Alaskans   any
protection, it is better than the federal rule.  But a far better
course  would  be  to apply the rule proposed  by  Chief  Justice
Rabinowitz.   The people of Alaska deserve a rule that  jealously
protects their constitutional right of privacy, and I would adopt
a  rule  requiring police to obtain a warrant to seize and search
garbage  that  is  left for collection in the normal  course.   I
would  therefore  reverse  the court  of  appealss  decision  and
reinstate the trial courts suppression ruling.
_______________________________
     1     There  appears to be some immaterial inconsistency  in
the  chronology  of events.  Because it is apparently  undisputed
that the identification occurred shortly before the seizure,  and
that  the seizure took place at two a.m. on October 21, it  seems
unlikely that the Carrs employees identified Beltz on October 21.

     2     The  items found in these two bags and the bags seized
later  that morning included eleven bottles or plastic containers
with liquid or solid methamphetamine lab waste and byproduct, one
empty  container of Coleman fuel, one empty acetone can, hundreds
of  matchbook covers with the striker plates removed, seven empty
containers of HEET, twelve empty bottles of cold allergy tablets,
stained coffee filters, stained tubing, and stained latex gloves.
State v. Beltz, 160 P.3d 154, 156 (Alaska App. 2007).

     3    AS 11.71.020(a)(2)(A), (a)(3), (a)(4)(A), and (a)(5).

     4    Beltz, 160 P.3d at 156.

     5    Pearce v. State, 45 P.3d 679, 682 (Alaska App. 2002).

     6     Willoya  v. State, Dept of Corr., 53 P.3d  1115,  1120
(Alaska 2002).

     7    Pearce, 45 P.3d at 682.

     8     Nevers  v.  State, Dept of Admin., 123 P.3d  958,  961
(Alaska 2005).

     9    Id. at 961.

     10     U.S. Const. amend. IV.  This amendment provides:  The
right  of  the  people  to  be secure in their  persons,  houses,
papers,  and effects, against unreasonable searches and seizures,
shall  not  be  violated, and no Warrants shall issue,  but  upon
probable   cause,   supported  by  Oath   or   affirmation,   and
particularly describing the place to be searched, and the persons
or things to be seized.

          For  convenience we characterize the police conduct  in
this case as a search, although the police first seized the bags,
and then searched them at a different location.

     11    California v. Greenwood, 486 U.S. 35, 37, 39-41 (1988).

     12     Katz  v.  United States, 389 U.S. 347, 360-62  (1967)
(Harlan, J., concurring).

     13     Greenwood, 486 U.S. at 39 (The warrantless search and
seizure  of  the  garbage  bags left  at  the  curb  outside  the
Greenwood  house  would  violate the  Fourth  Amendment  only  if
respondents  manifested a subjective expectation  of  privacy  in
their  garbage  that society accepts as objectively  reasonable.)
(citing Katz, 389 U.S. at 361).

     14    Id. at 41, 43-44.

     15    Smith v. State, 510 P.2d 793 (Alaska 1973).

     16     Id.  at  797.  Article I, section 14  of  the  Alaska
Constitution provides:

               The right of the people to be secure  in
          their  persons,  houses and  other  property,
          papers,  and  effects,  against  unreasonable
          searches and seizures, shall not be violated.
          No  warrants  shall issue, but upon  probable
          cause, supported by oath or affirmation,  and
          particularly  describing  the  place  to   be
          searched,  and the persons or  things  to  be
          seized.
          
     17     State  v.  Beltz, 160 P.3d 154, 160-61  (Alaska  App.
2007).

     18    Greenwood, 486 U.S. at 39.

     19    Smith, 510 P.2d at 797.

     20     Beltz  lists the evidence that he argues demonstrates
that  he  had a subjective expectation of privacy:  he  testified
that  he  thought the trash was on his property, even though  the
superior court found that it was on public property; he stated in
an  affidavit that he took the garbage outside at ten  or  eleven
p.m.,  expecting  it to be outside for only a short  time  before
being picked up by the garbage collectors; he also stated in  his
affidavit that he expected the trash collectors to mix his  trash
with  other peoples garbage, which he claims would have kept  his
trash  private; and there was evidence that at least some of  the
garbage  taken by the police had been in a lidded bin inside  the
cart,  and  that  the lid, bin, and cart belonged  to  the  Beltz
household.

     21     See  Pearce v. State, 45 P.3d 679, 682  (Alaska  App.
2002).

     22    Smith, 510 P.2d at 797-98.

     23    State v. Beltz, 160 P.3d 154, 156, 159-60 (Alaska App.
2007).

     24    Smith, 510 P.2d at 797-98.

     25    Id. at 795.

     26    Id. at 801, 803 (Rabinowitz, C.J., dissenting).  One of
the  leading commentators on search and seizure law has expressed
support for the standard proposed by Chief Justice Rabinowitz.  1
Wayne  R.  LaFave, Search and Seizure: A Treatise on  the  Fourth
Amendment  2.6(c), at 692-93, 696, 701-02 (4th ed. 2004) (quoting
extensively from Chief Justice Rabinowitzs dissent and submitting
that Smith was incorrectly decided).

     27    Smith, 510 P.2d at 803 (Rabinowitz, C.J., dissenting).

     28    Slip Op. at 22, 23-24.

     29     Article  I,  section  22 of the  Alaska  Constitution
provides in relevant part: The right of the people to privacy  is
recognized and shall not be infringed.

     30    Alaska Const. art. I,  22.

     31     Smith, 510 P.2d at 794.  Unlike the majority opinion,
Chief  Justice Rabinowitzs dissent addressed article  I,  section
22.  Id. at 799 (Rabinowitz, C.J., dissenting).

     32     State v. Planned Parenthood of Alaska, 171 P.3d  577,
581  (Alaska  2007); see also Myers v. Alaska Psychiatric  Inst.,
138  P.3d 238, 245 (Alaska 2006) (We have specifically recognized
that  Alaskas  guarantee of privacy is broader than  the  federal
constitutions:  Since the citizens of Alaska, with  their  strong
emphasis  on  individual liberty, enacted  an  amendment  to  the
Alaska  Constitution expressly providing for a right  to  privacy
not  found  in  the United States Constitution, it  can  only  be
concluded  that the right is broader in scope than  that  of  the
Federal  Constitution. ) (quoting Anchorage Police Dept Employees
Assn  v.  Municipality  of Anchorage, 24 P.3d  547,  550  (Alaska
2001)).

     33    Nevers v. State, Dept of Admin., 123 P.3d 958, 962 n.12
(Alaska  2005) (citing Anchorage Police Dept Employees  Assn,  24
P.3d at 550-51).

     34     State  v. Glass, 583 P.2d 872, 878-81 (Alaska  1978),
modified on other grounds, 596 P.2d 10 (Alaska 1979).

     35     Woods & Rohde, Inc. v. State, Dept of Labor, 565 P.2d
138, 148-51 (Alaska 1977).

     36    State v. Daniel, 589 P.2d 408, 416 (Alaska 1979).

     37     State v. Beltz, 160 P.3d 154, 160 (Alaska App.  2007)
(citing  State  v.  Tanaka, 701 P.2d 1274, 1276-77  (Haw.  1985);
State  v.  A Blue in Color, 1993 Chevrolet Pickup, 116 P.3d  800,
806-07  (Mont. 2005) (Nelson, J., concurring); 1 Wayne R. LaFave,
Search  and Seizure: A Treatise on the Fourth Amendment   2.6(c),
at  692 (4th ed. 2004)); see also State v. Hempele, 576 A.2d 793,
802-03  (N.J. 1990); State v. Granville, 142 P.3d 933, 941  (N.M.
App. 2006).

     38     We  do  not  consider  here  whether  any  subjective
expectation of privacy would be objectively reasonable after  the
garbage  has  actually been collected.  We  also  do  not  decide
whether  a  greater expectation of privacy would  be  objectively
reasonable  if  trash were not set out for routine collection  or
were not left on or adjacent to a public street or a public area.

     39     Nevers  v. State, Dept of Admin., 123 P.3d  958,  962
(Alaska  2005);  see also Milton v. State, 879  P.2d  1031,  1034
(Alaska  App.  1994);  Harrison v. State,  860  P.2d  1280,  1283
(Alaska App. 1993).

     40    See California v. Greenwood, 486 U.S. 35, 40-41 (1988)
(holding  that there is no objectively reasonable expectation  of
privacy  in  garbage under federal constitution, and noting  that
[i]t is common knowledge that plastic garbage bags left on or  at
the  side  of a public street are readily accessible to  animals,
children, scavengers, snoops, and other members of the public.).

     41     State  v.  Myers,  601 P.2d 239,  242  (Alaska  1979)
(internal citations omitted).

     42    An argument might be made that warrantless searches of
garbage  set out on or adjacent to a public street for collection
are  permissible because the exigent circumstances  exception  to
the warrant requirement applies.  Under the exigent circumstances
exception,  a  warrantless search may be justified  by  potential
loss  of  evidence.  Finch v. State, 592 P.2d 1196, 1198  (Alaska
1979);    Ingram v. State, 703 P.2d 415, 422 (Alaska App.  1985),
affd,  719  P.2d  265  (Alaska 1986).  The evidentiary  value  of
garbage on the street awaiting collection is inherently at  risk.
Before its collection, the trash is susceptible to scavenging  by
humans  and  animals,  potentially  destroying  or  removing  any
evidence  in the trash.  After the trash is collected,  the  bags
may break open and the contents may mix with other peoples trash,
making it far harder and perhaps impossible to link evidence to a
particular defendant.

          But  we decline to base our decision on this reasoning.
Determining  whether  exigent  circumstances  exist  is  a  fact-
specific  inquiry.  City of Kodiak v. Samaniego,  83  P.3d  1077,
1084  (Alaska  2004).  It requires balancing the  nature  of  the
exigency  against the degree of intrusiveness of the  warrantless
search  or  seizure.   Ingram,  703  P.2d  at  422.   Instead  of
requiring this fact-specific balancing for every garbage  search,
we  base our decision on the diminished expectation of privacy  a
person has in his or her garbage.

     43    See, e.g., Sprague v. State, 590 P.2d 410, 417 (Alaska
1979)  (holding  that  although probationers  and  parolees  have
diminished expectations of privacy, warrantless searches of their
residences   are   only   permissible   under   certain   limited
circumstances).

     44     See  Coleman v. State, 553 P.2d 40, 46 (Alaska  1976)
(allowing  a  warrantless investigatory stop in cases  where  the
police  officer  has  reasonable suspicion that  imminent  public
danger exists or serious harm to persons or property has recently
occurred);  see  also Ebona v. State, 577 P.2d 698,  700  (Alaska
1978) (describing the Alaska rule as permitting a temporary  stop
when  the officer has a reasonable suspicion that imminent public
danger  exists,  or  serious  harm to  persons  or  property  has
recently occurred).

     45    See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 376-77
(1993);  Terry v. Ohio, 392 U.S. 1, 27 (1968); Coleman v.  State,
553 P.2d 40, 46 (Alaska 1976).

     46     Hartman  v.  State,  Dept of Admin.,  Div.  of  Motor
Vehicles, 152 P.3d 1118, 1122 (Alaska 2007) (citing Coleman,  553
P.2d at 46).

     47    Id. at 1122 (emphasis in original) (internal quotation
marks  omitted) (quoting Saltz v. State, Dept of Admin., Div.  of
Motor Vehicles, 126 P.3d 133, 136 (Alaska 2005)).

     48    State v. Miller, 207 P.3d 541, 544 (Alaska 2009).

     49     See  Coleman, 553 P.2d at 43-47; see also Terry,  392
U.S. at 21; State v. Myers, 601 P.2d 239, 243-44 (Alaska 1979).

     50     The  dissenting opinion expresses concern that Beltzs
father  may  have  been subjected to an unreasonable  search  and
seizure  because  the  police did not have  specific  information
about  who actually produced the garbage, who placed the  garbage
in  the seized bags, or who placed the garbage bags in and on the
garbage  bins.  Slip Op. at 29.  The situation here is comparable
to a police search of a home occupied by multiple residents: when
police  search  for  evidence  against  one  resident,  they  are
permitted to search common areas and to seize evidence  in  plain
view,  even  if  the  item  belongs to someone  other  than  that
resident.   See Reeves v. State, 599 P.2d 727, 739 (Alaska  1979)
(stating  that officer may seize evidence seen from  place  where
officer  was  legally  entitled to be if certain  conditions  are
met); Milton v. State, 879 P.2d 1031, 1035 (Alaska App. 1994) (In
the case of a shared residence, the probation officers search may
extend  to  all areas of the residence over which the probationer
has control, even if that control is not exclusive. This includes
common areas of the residence.).

          We   express   no  opinion  about  whether   reasonable
suspicion  as  to  one  resident of an apartment  building  would
justify a search of the entire buildings garbage left on or  near
the street for collection.

     51     We  note  that after the initial garbage search,  the
police continued to search Beltzs garbage for several weeks.   No
further  incriminating  evidence was found  in  these  subsequent
searches.   We  do not decide here what would have  happened  if,
after  the first incriminating evidence was found, police  failed
to  secure  a  warrant when they had ample time to do  so  before
conducting  later searches that produced additional incriminating
evidence.

     52     Litchfield  v.  State, 824 N.E.2d 356,  363-64  (Ind.
2005).

     53    Id. at 363-64; see also State v. A Blue in Color, 1993
Chevrolet  Pickup,  116  P.3d  800,  802-03,  805  (Mont.   2005)
(adopting   Litchfields   limitations  on   warrantless   garbage
searches).

          The courts in both Litchfield and A Blue in Color, 1993
Chevrolet  Pickup adopted a reasonable suspicion requirement  for
garbage searches, but their analyses differed from our own.   The
Indiana   Constitution  does  not  contain  an  express   privacy
protection  and  the  court  did not  apply  the  two-prong  Katz
analysis,   which  had  previously  been  rejected  in   Indiana.
Litchfield,  824 N.E.2d at 359.  The court instead evaluated  the
reasonableness   of  the  search  under  the  totality   of   the
circumstances.   Id.   Despite these  differences,  the  opinions
discussion  is  a  persuasive  and practical  resolution  of  the
dispute under the circumstances presented.

          The  Montana Supreme Court applied a Katz-like analysis
but   determined   that  there  was  no  objectively   reasonable
expectation  of  privacy  in  the  garbage,  despite  the   state
constitutions express privacy protection.  A Blue in Color,  1993
Chevrolet Pickup, 116 P.3d at 802.

     54    See A Blue in Color, 1993 Chevrolet Pickup, 116 P.3d at
805  ([O]fficers cannot openly rummage through a persons  garbage
at the curb or in the alley, to the embarrassment or indignity of
the  owner.).   In  some  cases moving an  item  to  a  different
location before searching it could make a search less, instead of
more,  reasonable.  In holding that this factor makes the  search
more  reasonable in this case we do not imply that the same would
be true in all situations.

     55     See  Smith v. State, 510 P.2d 793, 801 (Alaska  1973)
(Rabinowitz,  C.J.,  dissenting) (I find little  utility  in  the
majoritys  .  .  .  importation into the realm of  constitutional
analysis of traditional property law concepts such as abandonment
and relinquishment of title, possession or claim to property.  In
the  case  at  bar,  we are concerned with the  determination  of
constitutional rights rather than . . . property interests.).

     56     As the dissenting opinion points out, municipal codes
often  specify where trash must be set out for collection.   Slip
Op.  at  25-27.   Because  we  hold that  garbage  left  out  for
collection  on  or adjacent to a public street is  subject  to  a
warrantless search for reasonable suspicion, it does  not  matter
that  municipal codes may vary in specifying precisely where  the
trash must be placed.

1     510  P.2d  793,  799-805 (Alaska 1973)  (Rabinowitz,  C.J.,
dissenting).

     2     Article  I,  section  22  of the  Alaska  Constitution
provides in relevant part:  The right of the people to privacy is
recognized and shall not be infringed.

     3     510  P.2d at 794.  Article I, section 14 of the Alaska
Constitution provides:

          The right of the people to be secure in their
          persons,  houses and other property,  papers,
          and  effects,  against unreasonable  searches
          and  seizures,  shall not  be  violated.   No
          warrants   shall  issue,  but  upon  probable
          cause, supported by oath or affirmation,  and
          particularly  describing  the  place  to   be
          searched,  and the persons or  things  to  be
          seized.
          
     4    510 P.2d at 795.

     5     I  refer to normal course as the routine placement  of
household  garbage,  in closed bags or boxes  or  inside  garbage
cans,  at  curbside  for collection, usually in  accordance  with
local ordinances.

     6     Smith,  510 P.2d at 801 (Rabinowitz, C.J., dissenting)
(quoting People v.  Edwards, 458 P.2d 713, 715 (Cal. 1969)).

     7    Id. at 803.

     8    Id.

     9     Id.   Chief Justice Rabinowitz gave the example  of  a
telephone  caller  on  a party line who might  reasonably  expect
others  on  the  party line to overhear conversations  but  still
would not expect the government to conduct full-scale warrantless
taps  of telephone conversations.  Id.  That example seems quaint
today,  but  the  same might now be said of mobile  phone  users:
they  understand that when they talk in public areas others  will
overhear  at least one end of their conversations.  Mobile  phone
users may therefore have a diminished expectation of privacy, but
they   do   not  expect  the  government  to  conduct  full-scale
warrantless  interceptions  of their  conversations.   Similarly,
those  who  access  the internet recognize the  possibility  that
hackers  may  successfully penetrate their computers  and  obtain
personal  information;  despite this  diminished  expectation  of
privacy, those individuals do not expect the government to do the
same  without  a  search warrant.  Chief Justice Rabinowitz  also
noted  that a hotel guest may reasonably expect a maid  to  enter
his  room to clean up, but absent unusual circumstances he should
not be held to expect that a hotel clerk will lead the police  on
a  search of his room.  Id. (quoting People v.  Krivda, 486  P.2d
1262,  1269 (Cal. 1971) (internal quotations marks and  citations
omitted)).   Similarly,  just because a  person  has  a  cleaning
service  come  into  the home, there is no expectation  that  the
police will search the home without a warrant.

     10   Id. at 799.

11   Id. at 800, 804-05.

     12    I  interpret on or adjacent to a public street  (or  a
public  area) to be essentially the same as curbside  and  assume
any  difference is immaterial in light of the condition that  the
garbage be set out for routine collection.

     13    For example, in Seward those who use their own garbage
containers  must place them for collection abutting  a  dedicated
public   right-of-way,  but  those  who  use  the  citys  garbage
containers may place them for collection upon the public right-of-
way.   Seward Mun. Code 14.05.025(b).  In Sitka individuals  must
place  garbage receptacles for collection in convenient locations
designated  by  the director of public works.   Sitka  Mun.  Code
15.06.015.  Anchorage Municipal Ordinances differentiate  between
residents  whose houses abut alleys and those who live  in  areas
without  alleys; the former are required to leave  containers  in
the   alley,  but  the  latter  are  required  merely  to   leave
receptacles at the street.  Anchorage Mun. Code 26.70.050(D)-(E).
In  both  Wrangell  and Cordova individuals  must  leave  garbage
containers   for  collection  in  plain  view  in  an  accessible
location at the ground level or on an open platform or open porch
not  more than four feet above the adjacent roadway and so placed
that  they  may  be  reached from the ground  by  the  collector.
Wrangell  Mun.  Code 15.18.040(A); Cordova Mun.  Code  08.12.110.
The Kodiak Island Borough requires that [i]tems to be collected .
.  .  be  placed within five feet of the route of the  collection
vehicle  and  shall  be placed loose on the  ground   unless  the
property  owner  installs  racks for  the  placement  of  garbage
containers,  in which case they may not be placed or  located  on
the  traveled  right-of-way.  Kodiak  Island  Borough  Mun.  Code
08.25.080.   In  Kenai  containers may not be placed  within  the
traversed right-of-way of a street or alley but may be placed off
the  traveled  portion  of  the  right-of-way  if  necessary  for
expeditious collection.  Kenai Mun. Code 09.10.030.  Fairbanksans
must place their garbage containers at curbside or at the edge of
the  alley  but  not  within the street  or  alley  right-of-way.
Fairbanks Mun. Code 66-68.

     14    See, e.g., Anchorage Mun. Code 26.70.030; Cordova Mun.
Code 8.12.130(A); Fairbanks Mun. Code 66-2; Kodiak Island Borough
Code  08.25.030;  Palmer  Mun. Code 08.20.010;  Sitka  Mun.  Code
09.08.025(A); Valdez Mun. Code 08.08.040(c); Wrangell  Mun.  Code
15.18.070(A).

     15    See,  e.g., Dillingham Mun. Code 08.04.030 - 08.04.110
(governing  size  of  garbage containers,  structure  of  garbage
containers,  vehicles  used  to  transport  waste,  placement  of
containers,  requirements for landlords, frequency  of  disposal,
and fees for use of the citys solid waste disposal facility).

     16    The  court  has  zealously guarded  Alaskans  personal
privacy in their homes.  See, e.g., Ravin v. State, 537 P.2d 494,
503-04  (Alaska 1975) (discussing constitutional right of privacy
in the home).

     17   Smith, 510 P.2d at 800 (Rabinowitz, C.J., dissenting).

18    An  example  of  the  former may be when  a  person  places
uncovered  or un-containerized items in open display at curbside,
perhaps  for people to take for re-use, in which case  no  search
warrant  would be required to seize and search the items left  in
plain  view.   Here  a  police  officer  testified  that  nothing
incriminating was in plain view before the garbage was seized and
searched.

19     The   court   makes   light   of   this   concern,   again
emphasizing the supposed narrowness of its decision by stating it
does  not  decide whether reasonable suspicion as to one resident
of  an  apartment building would justify a search of  the  entire
buildings garbage left on or near the street for collection.  But
the  courts  decision  is  subject to  the  same  slippery  slope
analysis   it  applies  to  Chief  Justice  Rabinowitzs   privacy
standard.   If  the  police  can  seize  and  search  an   entire
households  garbage  left  at  curbside  based  on  a  reasonable
suspicion  about  one person in the household,  what  distinction
prevents the police from seizing and searching all of the garbage
placed  in  the  street in front of a duplex or  small  apartment
building based on a reasonable suspicion about one resident?  And
because  the court has not repudiated Smith, what part of  todays
decision suggests any limitation on seizing and searching garbage
from  a  larger  apartment complex receptacle  on  the  apartment
grounds   based  on  reasonable  suspicion  about  one  resident?
Carried  to  its logical conclusion, the courts new standard  may
allow  the  seizure and search of all residential  garbage  on  a
street  or  in  a neighborhood based on the reasonable  suspicion
that  a  specific  individual  is engaging  in  a  serious  crime
somewhere  along  the  street or in  the  neighborhood  and  that
evidence can be found somewhere in the garbage.

     20    See,  e.g.,  Newhall v. State,  843  P.2d  1254,  1257
(Alaska  App. 1992) (describing  three basic requirements  for  a
valid  plain view seizure of evidence:  (1) the initial intrusion
which  afforded the view must have been lawful; (2) the discovery
of   the  evidence  must  have  been  inadvertent;  and  (3)  the
incriminating  nature of the evidence must have been  immediately
apparent   (quoting Reeves v. State, 599 P.2d  727,  738  (Alaska
1979))).

21    See  Waring  v. State, 670 P.2d 357, 360-63  (Alaska  1983)
(defendant has vicarious standing to assert deliberate  violation
of co-defendants Fourth Amendment rights); Fraiman v. State, Dept
of  Admin., Div. of Motor Vehicles, 49 P.3d 241, 245 n.18 (Alaska
2002)  (noting  that vicarious standing under Waring  appears  to
apply   to   the   deliberate  violation  of   any   third-partys
constitutional rights, not just those of a co-defendant).

     22    I  acknowledge the dangers involved in methamphetamine
production.  Yet the conduct of the police in this case precludes
any suggestion that they believed Beltzs conduct created imminent
public danger.

     23    Ingram v. State, 703 P.2d 415, 422 (Alaska App.  1985)
(quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).

     24    Smith,  510  P.2d at 800 (quoting McDonald  v.  United
States,   335  U.S.  451,  455-56  (1948))  (internal   citations
omitted).

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