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State v. Beltz (6/8/2007) ap-2105

State v. Beltz (6/8/2007) ap-2105

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
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) Court of Appeals No. A-9496
Petitioner, ) Trial Court No. 3PA-05-01069 CR
v. )
) O P I N I O N
Respondent. )
) No. 2105 - June 8, 2007
Petition  for   Review
          from   the  Superior  Court,  Third  Judicial
          District, Palmer, Beverly W. Cutler, Judge.

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

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          This case raises the question of whether, under Article
I, Section 14 of the Alaska Constitution, which prohibits illegal
searches  and seizures, a person has a reasonable expectation  of
privacy  in garbage that is set out at the end of a driveway  for
routine  trash collection.   We conclude that the Alaska  Supreme
Courts  decision in Smith v. State1 resolves this  question,  and
that  there  is  no  reasonable expectation of  privacy  in  this
situation.    Accordingly, we reverse the suppression  order  and
remand the case for further proceedings.

          Factual and procedural background
          In October 2004, employees of the Wasilla Carrs grocery
store  reported to the Alaska State Troopers that a Native  adult
male  was  making repeated purchases of items that  are  commonly
used  to  manufacture methamphetamine, including three  boxes  of
Sudafed  and thirteen boxes of book matches.  Based on  the  fact
that  a Carrs club card belonging to Jack Beltzs father was  used
when  purchasing  these  items, and  on  the  witnesses  physical
descriptions of the buyer, police suspected that Jack  Beltz  was
the  purchaser.  Two of the Carrs employees also identified Beltz
as the purchaser from a photo lineup.
      After the Carrs employees identified Beltz as the purchaser
of   the  suspected  methamphetamine  ingredients,  Alaska  State
Trooper  Kyle  Young  drove out to Beltzs residence  in  Wasilla.
Beltz  lived in a single-family home in Wasilla with his  father.
While  driving  by  Beltzs house, Trooper Young  noticed  several
garbage  cans  at  the  end  of Beltzs driveway.   Trooper  Young
returned  to  Beltzs  residence in the  early  morning  hours  of
October  21, accompanied by Palmer Police Officer Dwayne Shelton,
an  investigator  with the Mat-Su Drug Unit.   Without  a  search
warrant,  Trooper Young and Officer Shelton took two large  black
garbage  bags  from one of the trash cans at the  end  of  Beltzs
driveway.   Before Trooper Young and Officer Shelton  could  take
the  rest  of  the garbage bags, they noticed some  lights  being
turned  on  inside  Beltzs  residence,  so  they  left  with  the
intention  of  returning later to finish the task.  When  Trooper
Young  and  Officer Shelton returned about an  hour  later,  they
observed  that someone was awake inside Beltzs residence watching
television.  Trooper Young and Officer Shelton decided  to  leave
and  return later in the morning with the local refuse collection
company in order to obtain the rest of the garbage.
          That  morning,  Officer Shelton accompanied  the  trash
collector  as  he  made  his  scheduled  weekly  trip  to  Beltzs
neighborhood.  They picked up Beltzs remaining trash.  The  trash
collector,  at  Officer  Sheltons request, deliberately  isolated
Beltzs  trash  from  the  rest of  the  trash  in  his  truck  by
segregating  it  in the front hopper of the garbage  truck.  When
Trooper  Young  and  Officer Shelton obtained  this  trash,  they
observed that between the time they had seized the original  bags
of  trash earlier that morning and the time the garbage collector
returned to take away the remaining trash, someone had filled the
trash can again with more garbage.
          Trooper  Young and Officer Shelton proceeded to examine
the  trash bags at the drug unit investigator offices.   The  two
bags contained numerous items that [would be] used in the process
to  make  meth[amphetamine], including 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.  Over the course of the next several weeks,
Trooper  Young and other investigators   working with  the  trash
collector  in  the same manner as before  took  more  trash  from
Beltzs  residence,  but  found  no  more  methamphetamine-related
           In December 2004, Trooper Young obtained a warrant  to
search  the  Beltz residence.  Trooper Young and Officer  Shelton
contacted  Beltz  at his residence; Beltz allowed  them  to  come
inside,  and  Trooper  Young conducted a non-custodial,  recorded
interview with Beltz.  Trooper Young reported that Beltz admitted
he  had purchased multiple items that he knew were being used  to
manufacture  methamphetamine.  Beltz indicated to  Trooper  Young
that other people had paid him to shop for these items. According
to  Trooper  Young, Beltz also admitted that  he  had  allowed  a
friend  to  cook  methamphetamine at his house on  one  occasion.
Beltz told Trooper Young that he threw out the items used in  the
manufacturing   process  when  the  friend  was   finished,   but
discovered that someone had removed several trash bags  from  the
trash  can after he threw the items out.  Trooper Young  reported
that  Beltz told him that he suspected the police had  taken  the
trash,  and  that it was only a matter of time before  they  were
caught.  As  a result, Beltz had ended his association  with  the
individuals involved with manufacturing  methamphetamine.
          Beltz then consented to a search of his residence,  but
the investigators did not find any evidence of methamphetamine or
methamphetamine manufacturing at the residence.
          Beltz  was  subsequently indicted on  four  charges  of
misconduct  involving  a  controlled  substance  in  the   second
degree.2     Beltz   moved   to  suppress   all   evidence   that
investigators had obtained by seizing his trash and  interviewing
him in December 2004.
          Superior  Court  Judge Beverly W.  Cutler  conducted  a
three-day evidentiary hearing on the motion to suppress.   At the
evidentiary  hearing,  Trooper  Young  testified  that  when   he
gathered  up  the  trash from Beltzs trash cans,  the  cans  were
located where the driveway met the road.  He also testified  that
the  trash cans were in a cart and that there were several  other
garbage bags on top of and around the cans, but still inside  the
cart.  (The garbage cans were apparently secured inside the  cart
with a bungee cord.)
          After considerable evidence and argument concerning the
location  of the cart, Judge Cutler concluded that the  cart  was
not on private property.  Nevertheless, she ruled that, under the
circumstances, the police had no right to conduct  a  warrantless
search  of  Beltzs  garbage.   She concluded  that  Beltz  had  a
reasonable expectation of privacy in the trash and granted Beltzs
motion  to  suppress all of the evidence that resulted  from  the
police  seizure of Beltzs trash.  The State filed a petition  for
review with this court.  We granted review and now reverse  Judge
Cutlers decision.

          Why we conclude that the police could legally
          search Beltzs  trash without a warrant  under
          the United States Constitution

          First,  as  a  preliminary  matter,  under  the  Fourth
          Amendment to the United States Constitution, Beltz had no
reasonable expectation of privacy in his trash placed at the  end
of his driveway for collection.  In California v. Greenwood,3 the
United  States Supreme Court held that police seizure of  garbage
that  had been routinely collected is not subject to the  warrant
requirements  of  the  Fourth  Amendment  to  the  United  States
          In  Greenwood,  police  asked  the  neighborhood  trash
collector to pick up Greenwoods trash, which Greenwood  had  left
on  the curb in front of his house for routine collection.5   The
trash  collector then picked up Greenwoods trash  and  turned  it
over  to  police  investigators.  The police searched  Greenwoods
trash  bags  without a warrant.  Based on evidence  of  narcotics
trafficking they discovered in the trash, the police  obtained  a
search  warrant,  conducted  a search  of  Greenwoods  home,  and
discovered  controlled substances in the search.6  Greenwood  was
arrested.   After Greenwood posted bail, the police continued  to
receive  information  that late-night visitors  were  frequenting
Greenwoods home; thus, police again collected his garbage,  which
contained  more evidence of drug use.  Based on this evidence,  a
second  search warrant was issued, more drug evidence was  found,
and Greenwood was again arrested.7
          The United States Supreme Court reversed the California
Court   of  Appeals,  which  had  affirmed  suppression  of   the
evidence.8  Citing Justice Harlans concurrence in Katz v.  United
States,9 the Court first explained that [t]he warrantless  search
and  seizure  of  the garbage bags left at the curb  outside  the
Greenwood  house  would  violate the  Fourth  Amendment  only  if
[Greenwood]  manifested a subjective expectation  of  privacy  in
[his]  garbage  that society accepts as objectively reasonable.10
The  Court  concluded that, although Greenwood may  have  had  an
expectation that the police would not search his trash before  it
was  picked  up  and  hauled to the dump, the  Court  found  that
Greenwood could have had no reasonable expectation of privacy  in
the  inculpatory  items that [he] discarded.11  The  Court  based
this finding on the rationale 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.  ...    Moreover,
          [Greenwood] placed [his] refuse at  the  curb
          for the express purpose of conveying it to  a
          third  party, the trash collector, who  might
          himself  have  sorted  through   [Greenwoods]
          trash  or  permitted  others,  such  as   the
          police, to do so.[12]

          The   Court  also   reasoned  that  the  police  cannot
reasonably  be  expected to avert their  eyes  from  evidence  of
criminal activity that could have been observed by any member  of
the  public.13   The  Court  concluded  that  a  person  has   no
legitimate  expectation of privacy in information he  voluntarily
turns  over  to  third parties,14 and [w]hat a  person  knowingly
exposes to the public, even in his own home or office, is  not  a
subject of Fourth Amendment protection.15
          The  Courts  decision in Greenwood disposes  of  Beltzs
claim  under  the  Fourth Amendment.  It is true  that  Greenwood
could be distinguished because a garbage collector, acting as  an
agent  of the police, picked up Greenwoods trash and then  turned
it  over to the police.  In Beltzs case the police seized some of
Beltzs  trash themselves.  But this does not seem to us to  be  a
constitutionally significant distinction.  We find persuasive the
Supreme Court of New Jerseys statement in State v. Hempele16 that
removal  of trash by garbage collectors who, minutes later,  turn
the  trash over to the police is no different from direct removal
of the same trash by the police themselves.17

          Why  we  conclude  the police  could  legally
          search  Beltzs trash without a warrant  under
          the Alaska Constitution

          We   now   turn  to  Beltzs  claim  under  the   Alaska
Constitution.18   Fifteen years prior to the Greenwood  decision,
the  Alaska  Supreme Court decided Smith v. State.19   The  court
held  that the police could search, without a warrant, a  tenants
trash  which  had been deposited in a dumpster that  accommodated
several  apartments.20  The dumpster was located outside  of  the
apartment building in Anchorage and the Municipality made routine
garbage  pickups  from the dumpster.21  Like  the  United  States
Supreme  Court  later did in Greenwood, the Alaska Supreme  Court
based  its  analysis  on  Justice Harlans concurring  opinion  in
Katz.22   The  court concluded that even if Smith had  an  actual
subjective  expectation of privacy, it was unable  to  hold  that
society was prepared to recognize this expectation of privacy  as
            To  reach  this conclusion, the supreme  court  first
examined  Smiths clear intent to abandon the garbage.  The  court
stated  that   the  protection of the Fourth Amendment  does  not
extend  to  abandoned property.  Using traditional  property  law
concepts, we find it difficult to avoid the conclusion  that  any
items  of  garbage placed in a recepta[c]le outside the  dwelling
... are abandoned.24
          The  supreme  court concluded that the sequence  of  an
individuals  placing  an  article in  a  receptacle,  from  which
routine municipal collections are made, and then withdrawing from
the  area  [is]  activity clearly indicative of an  intention  to
relinquish  all title, possession, or claim to property.25    The
supreme  court differentiated this situation from  one  in  which
property   ...  is  abandoned  but  ...  rests  in  a  receptacle
temporarily  maintained inside a dwelling,  which  could  not  be
searched without a warrant.26
          But  the  court  did not find the fact that  Smith  had
abandoned  the  property entirely conclusive as  to  whether  the
police  had  conducted  a reasonable search.27   After  reviewing
several  United  States Supreme Court cases,  the  supreme  court
concluded that even if Smith had abandoned the trash, the  search
would  still  be illegal if she harbored a reasonable expectation
of privacy in the dumpster.28
          The  supreme  court  applied  a  two-part  analysis  to
determine  whether Smith had a reasonable expectation of  privacy
in  the trash placed in the dumpster: first, whether Smith had an
          actual, subjective expectation of privacy in the trash, and
second,  whether  this  expectation  was  one  that  society  was
prepared to recognize as reasonable.29  After reviewing the facts
of  Smiths  case the supreme court concluded that Smith  did  not
have  a  subjective expectation of privacy in the  trash  in  the
dumpster.30  But even if she had, the court concluded  that  this
expectation was not one that society was prepared to recognize as
          In  reaching this conclusion, the court identified four
factors  relevant to the question of whether society is  prepared
to  recognize a reasonable expectation of privacy in trash:   (1)
where  the trash was located ; (2) whether the dwelling consisted
of   multiple units or a single unit; (3) who removed the  trash;
and (4) where the search of the trash took place.32   The supreme
court explained:

          One may readily arrange these factors to form
          a  continuum.  At one end of the continuum is
          trash   located   close  to  a  single-family
          dwelling,  on  the  same  property   as   the
          dwelling, and searched by police officers  at
          that   location.   We  observe,  without   so
          deciding,  that this would be a  strong  case
          for holding the expectation of privacy to  be
          reasonable.   At  the  other   end   of   the
          continuum  is trash located off the  premises
          of  a multiple-unit dwelling, and searched by
          a  person authorized to remove it.  In such a
          case  we  would  be unable to hold  that  the
          expectation of privacy was reasonable.[33]

          The  supreme court placed the dumpster at issue at  the
end of the continuum not encompassing a right to privacy because:
first, the dumpster accommodated several apartments, giving  many
people  living  in the building   [including] the  superintendent
...  occasion  to scavenge about in the collective heap;  second,
all  municipal pickups were made from this dumpster  and thus any
tenant  ...  could  be sure that periodically a  group  of  third
persons would look into the dumpster and possibly scavenge  items
therefrom; and finally, that the dumpster was located outside the
building  in the parking area ... [where] it would be  reasonable
to  expect  trash to be accidently removed from the  dumpster  by
running children, passing cars, stray dogs, or even a visitor  of
another  tenant in the building.34   Based on these factors,  the
supreme  court  held  that  Smith  could  not  have  harbored  an
objectively reasonable expectation of privacy.35
          Chief  Justice  Rabinowitz strongly dissented,  arguing
that  the warrantless search of Smiths garbage violated both  the
United States and Alaska constitutions.36  We note that Professor
LaFave  in  his treatise on search and seizure agrees with  Chief
Justice Rabinowitzs dissent.37
          Beltz  relies on a statement by the majority  in  Smith
that  there  is  a  strong case for holding  the  expectation  of
privacy  to be reasonable where the trash is located close  to  a
single-family dwelling, on the same property as the dwelling, and
searched  by  police officers at that location.38    Smith  noted
          this point, but explicitly did not reach this holding. And
although it is true that Beltz lived in a single-family home,  we
think  that his action of placing his trash in plain view at  the
end  of his driveway, where, as in Smith, it was left for routine
collection  and could easily have been scavenged or  accidentally
removed,   showed  that  Beltz  did  not  harbor   a   reasonable
expectation of privacy in the trash.39
          We  conclude that Smith requires us to hold that  Beltz
did  not  have a reasonable expectation of privacy in his  trash.
However, we recognize that, in Smith, the
supreme  court  stated that it was profoundly  committed  to  the
preservation  of  personal privacy and that it was  unwilling  to
announce  a  general  rule  sanctioning  official  gathering  and
analysis of an individuals refuse.40  Therefore the supreme court
specifically limited its holding to the particular facts  of  the
case  before  it.    Furthermore, there was a strong  dissent  in
Smith,  and  the  dissent is supported by Professor  LaFave.   In
addition, the decision in Smith is over thirty years old.   Since
that time, many courts have struggled with the issue of whether a
person   has  a  reasonable  expectation  of  privacy  in  trash.
Although  the  majority of courts follow  the  reasoning  of  the
United  States Supreme Court,41  some courts have concluded  that
society   should  recognize  that  a  person  has  a   reasonable
expectation  of privacy in trash.42   In particular, courts  have
recognized  that, with the advance of technology, the police  can
learn  a  great  deal  about  a persons  life  and  associations,
including even obtaining DNA for testing and for investigation.43
Some courts have attempted to limit the ability of the police  to
investigate a persons garbage by at least requiring the state  to
have  reasonable  suspicion as a prerequisite  to  a  warrantless
          We  certainly  recognize that allowing  the  police  to
search a persons trash without limitation raises serious concerns
that  could  threaten an individuals right to  privacy.   But  we
consider  the  Smith  case  to  be  controlling.   And  Smith  is
certainly  consistent  with the decisions of  the  United  States
Supreme Court interpreting the United States Constitution.45   We
feel  that  we  are  bound  by Smith.  Whether  Smith  should  be
modified is an issue for the Supreme Court of Alaska.

          We  accordingly conclude that, under the United  States
and Alaska Constitutions, Beltz had no reasonable expectation  of
privacy  in the trash which he had set out for routine collection
and  disposal by the trash collector.   Judge Cutler  erred  when
she  granted  Beltzs motion to suppress the evidence  the  police
obtained following the warrantless search of Beltzs trash.
          The  order of the superior court granting Beltzs motion
to suppress is REVERSED.


     1  510  P.2d 793 (Alaska 1973), cert. denied, 414 U.S. 1086,
94 S. Ct. 603, 38 L. Ed. 2d 489 (1973).

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

     3 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).

     4 Id., 486 U.S. at 43-44, 108 S. Ct. at 1630-31.

     5 Id., 486 U.S. at 37, 108 S. Ct. at 1627.

     6 Id., 486 U.S. at 37-38, 108 S. Ct. at 1627.

     7 Id., 486 U.S. at 38, 108 S. Ct. at 1627-28.

     8 Id., 486 U.S. at 38-39, 108 S. Ct. at 1628.

     9 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

     10    Greenwood,  486  U.S.  at  39,  108  S.  Ct.  at  1628
(citations omitted).

     11   Id., 486 U.S. at 40-41, 108 S. Ct. at 1628-29.

     12    Id.,  486 U.S. at 40, 108 S. Ct. at 1628-29 (footnotes
and citations omitted).

     13   Id., 486 U.S. at 41, 108 S. Ct. at 1629.

     14    Id., 486 U.S. at 41, 108 S. Ct. at 1629 (quoting Smith
v.  Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 2582,  61  L.
Ed. 2d 220 (1979)).

     15   Id. (quoting Katz, 389 U.S. at 351, 88 S. Ct. at 511).

16   576 A.2d 793 (N.J. 1990).

     17     Id.  at  798-99  (rejecting  the  argument  that  the
defendant had a reasonable expectation of privacy in garbage left
at the curb under the federal constitution in light of Greenwood,
but  concluding  that  such a right did  exist  under  the  state
constitution).  See also United States v. Webb, unpublished, 1989
WL  145383  at  *1-2 (9th Cir. 1989) (holding that  Alaska  State
Trooper  who  took two opaque sealed garbage bags  set  near  the
street  outside the defendants home without a search warrant  did
not  violate the Fourth Amendment prohibition against warrantless
searches  and seizures); Wayne R. LaFave, Search and  Seizure:  A
Treatise  on the Fourth Amendment  2.6(c) at 698 (4th  ed.  2004)
(noting  that  the  reasoning  [the  Supreme  Court  applied   in
Greenwood] supports the conclusion that the result would  be  the
same  if the police themselves had intruded into garbage bags  so
located) (footnote omitted).

     18    Art.  I,  14 (right against unreasonable searches  and
seizures) and art. I,  22 (right to privacy).

     19   510 P.2d 793.

     20   Id. at 798-99.

     21   Id.

     22    Id. at 797 (citing Katz, 389 U.S. at 361, 88 S. Ct. at
516 (Harlan, J., concurring)).

     23   Id.

     24   Id. at 795 (footnote omitted).

     25    Id.  at  796 (quoting Edward G. Mascolo, The  Role  of
Abandonment  in the Law of Search and Seizure: An Application  of
Misdirected Emphasis, 20 Buff. L. Rev. 399, 401 (1970)) (footnote

     26   Id. at 795 n.7.

     27   Id. at 796.

     28   Id. at 796-97.

29   Id. at 797.

     30   Id.

     31   Id.

     32   Id. at 797-98.

     33   Id.

     34   Id. at 798.

     35   Id. (footnote omitted).

     36   Id. at 799 (Rabinowitz, C.J., dissenting).

     37    1  LaFave,  Search and Seizure,  2.6(c)  at  692,  701
(quoting extensively from Chief Justice Rabinowitzs dissent).

     38   Smith, 510 P.2d at 798.

     39   Id.

     40   Id. at 795.

     41    See Walls v. State, 536 So. 2d 137, 139 (Ala. Cr. App.
1988); Rikard v. State, 123 S.W.3d 114, 119 (Ark. 2003); State v.
Fassler,  503 P.2d 807, 813-14 (Ariz. 1972); People  v.  Hillman,
834 P.2d 1271, 1277 (Colo. 1992); State v. DeFusco, 620 A.2d 746,
751  (Conn.  1993); State v. Fisher, 591 So. 2d 1049, 1051  (Fla.
Dist. App. 1991); Perkins v. State, 398 S.E.2d 702, 704 (Ga. App.
1990);  State  v. Donato, 20 P.3d 5, 10 (Idaho 2001);  People  v.
Collins,  478 N.E.2d 267, 279 (Ill. 1985), revd on other  grounds
by  Bracy v. Gramly, 520 U.S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d
97  (1997);  State v. Henderson, 435 N.W.2d 394, 396  (Iowa  App.
1988);  State v. Kimberlin, 984 P.2d 141, 146 (Kan. 1999);  State
v.  Strickland,  683  So. 2d 218, 228-29  (La.  1996);  State  v.
Sampson, 765 A.2d 629, 636 (Md. 2001); Commonwealth v. Pratt, 555
N.E.2d  559, 567 (Mass. 1990); People v. Pinnix, 436 N.W.2d  692,
694  (Mich. App. 1989); State v. Texel, 433 N.W.2d 541, 543 (Neb.
1989); State v. Hauser, 464 S.E.2d 443, 447 (N.C. 1995); State v.
Rydberg,  519  N.W.2d 306, 310 (N.D. 1994); State v.  Brown,  484
N.E.2d 215, 217-18 (Oh. App. 1984); Cooks v. State, 699 P.2d 653,
656  (Okla. Crim. App. 1985); State v. Briggs, 756 A.2d 731,  743
(R.I.  2000); State v. Schwartz, 689 N.W.2d 430, 436 (S.D. 2004);
Levario v. State, 964 S.W.2d 290, 296 (Tex. App. 1997); State  v.
Jackson,  937 P.2d 545, 550 (Utah App. 1997); State  v.  Stevens,
367  N.W.2d  788, 796-97 (Wis. 1985); Croker v. State,  477  P.2d
122, 125 (Wyo. 1970).

     42    See  People  v. Krivda, 486 P.2d 1262,  1268-69  (Cal.
1971), vacated and remanded, 409 U.S. 33, 93 S. Ct. 32, 34 L. Ed.
2d 45 (1972), reaffd, 504 P.2d 457 (Cal. 1973), cert. denied, 412
U.S.  919,  93  S.  Ct. 2734, 37 L. Ed. 2d 145 (1973);  State  v.
Tanaka,  701 P.2d 1274, 1276-77 (Haw. 1985); State v.  Goss,  834
A.2d  316, 319 (N.H. 2003); State v. Hempele, 576 A.2d  793,  810
(N.J.  1990);  State v. Granville, 142 P.3d 933, 942  (N.M.  App.
2006),  cert. granted,143 P.3d 185 (N.M. 2006); State v.  Morris,
680  A.2d  90, 94-95 (Vt. 1996); State v. Boland, 800 P.2d  1112,
1117  (Wash.  1990).   See also State v. Rhodes, 565 S.E.2d  266,
270-71  (N.C. App. 2002) (differentiating Hauser, 464  S.E.2d  at
447,  which  upheld  search  of trash  in  backyard  that  was  a
designated   spot   for  trash  collection,  and   holding   that
warrantless  police  search  of trash  bags  located  immediately
beside  the  steps that led to the side-entry door of  defendants
house  and not intended for immediate municipal refuse collection
violated Fourth Amendment protection).

     43    See,  e.g., Tanaka, 701 P.2d at 1276-77; Hempele,  576
A.2d at 802-03; Granville, 142 P.3d at 941.  See also State v.  A
Blue in Color, 1993 Chevrolet Pickup, 116 P.3d 800, 806-07 (Mont.
2005)  (Nelson,  J., concurring); 1 LaFave, Search  and  Seizure,
2.6(c) at 692.

     44    See Litchfield v. State, 824 N.E.2d 356, 363-64  (Ind.
2005) (holding that a warrantless search of garbage is reasonable
if  there  is  articulable individualized suspicion that  garbage
will  contain  evidence  of  criminal  activity  and  garbage  is
retrieved in substantially the same manner as the trash collector
would take it); A Blue in Color, 1993 Chevrolet Pickup, 116  P.3d
at  804-05  (adopting  Litchfield  rule  as  a  matter  of  state
constitutional law).

     45    See  1  LaFave, Search and Seizure,  2.6(c) at  696-97
(noting  that in light of California v. Greenwood ... the Supreme
Court  would agree with the result [of the Alaska Supreme  Courts
decision]  in Smith. ... In reaching [its holding that  Greenwood
had no reasonable expectation of privacy in his trash], the Court
recognized both (i) that bags left on or at the side of a  public
street  are readily accessible to ... members of the public;  and
(ii)  that the defendant had put out his garbage for the  express
purpose  of  conveying it to a third party, the trash  collector,
who  might  himself  have  sorted through  respondents  trash  or
permitted  others,  such  as the police,  to  do  so)  (citations

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