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State v. Hempele

Decided: July 17, 1990.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CONRAD P. HEMPELE AND SHARON HEMPELE, DEFENDANTS-RESPONDENTS. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. JAMES J. PASANEN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division (State of New Jersey v. Hempele). On certification to the Superior Court, Appellate Division (State of New Jersey v. Pasanen), whose opinion is reported at 229 N.J. Super. 553 (1989).

For affirmance, reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and Stein. Concurring in part; dissenting in part -- Justice O'Hern. Dissenting -- Justice Garibaldi. The opinion of the Court was delivered by Clifford, J. O'Hern, J., concurring in part and dissenting in part. Garibaldi, J., dissenting.

Clifford

The issue in these appeals, argued together, is the constitutionality of warrantless seizures and searches of garbage bags left on the curb for collection.

In State v. Hempele the trial court suppressed evidence seized under a warrant obtained after the warrantless seizure and search of defendants' garbage. In State v. Pasanen the trial court denied defendant's motion to suppress evidence obtained under similar circumstances. The Appellate Division affirmed both the suppression order in Hempele and the order denying suppression in Pasanen. We affirm the Appellate Division judgment in Hempele and reverse in Pasanen.

I

-A-

In State v. Hempele a confidential source informed the state police that defendants, Conrad D. Hempele and Sharon Hempele, were distributing illicit drugs from their home at 303 Mill Street in Belvidere. The informant claimed to have seen fifty pounds of marijuana in Conrad's bedroom.

On the basis of that information, a trooper seized the trash sitting in front of 303 Mill Street six months later. 303 Mill Street is one of about ten attached row houses, each with its own front entrance. A short stairway runs from each row house to an eight-foot-wide sidewalk abutting the street. The seized trash was next to the flight of stairs leading to 303 Mill

Street. Two weeks later the trooper again seized the garbage in front of the Hempeles' home. On both occasions the trooper removed white plastic trash bags from a plastic garbage can and took the bags to the State Police Tri-Man Unit, where, without a warrant, he opened them and analyzed their contents. He discovered traces of marijuana, cocaine, and methamphetamine in the trash.

A search warrant for defendants' home issued on the basis of the informant's tip and the evidence found in the garbage. When the subsequent search turned up controlled substances and drug paraphernalia, the Hempeles were indicted for drug offenses.

The trial court suppressed the evidence from the warrantless garbage searches because the State had not proven that the trash had been left for collection or had been seized on public property. The court therefore held that the search warrant for the house was invalid because the only other basis for it -- the information provided by the informant six months earlier -- had been stale when the warrant issued.

-B-

In State v. Pasanen the Boonton police began surveilling the home of defendant, James J. Pasanen, after learning from confidential sources that "drug activity" was taking place there. When the surveillance disclosed that people previously convicted of drug-related crimes were frequenting the house, the police started to monitor the garbage there. On seven occasions they conducted warrantless seizures and searches of gray plastic garbage bags placed near the street. The bags contained drug paraphernalia and traces of illegal drugs. After obtaining a search warrant, the police found quantities of cocaine, heroin, and marijuana in defendant's house.

Following his indictment for drug offenses, defendant challenged the warrantless garbage searches and the search warrant for the house. Denying the suppression motion, the trial

court held that defendant's privacy expectation in his trash had not been absolute. Because defendant had had only a qualified privacy expectation in his garbage, the police had needed only reasonable suspicion, rather than a warrant based on probable cause, for the search. The trial court held that the police had had "some plausible grounds for suspicion": two informants had told them that drug activity was taking place at defendant's house; people with prior drug convictions had been frequenting that address; and one informant had claimed that a resident had approached him about purchasing drugs. The trial court therefore found that the garbage searches and the ensuing search warrant had been valid. Defendant thereafter pled to one count of the indictment.

-C-

The Appellate Division reviewed these two cases together. 229 N.J. Super. 553, 555, 552 A.2d 212 (1989). After observing that the protections of the fourth amendment to the United States Constitution do not apply to garbage left for collection, the Appellate Division held that article I, paragraph 7 of the New Jersey Constitution prohibits unreasonable searches and seizures of such garbage. Determining that a person retains a qualified, but not an absolute, expectation of privacy in garbage left for collection, the Appellate Division adopted the reasonable-suspicion standard used by the trial court in Pasanen.

The Appellate Division found that the police had had a reasonable basis for searching Pasanen's garbage because two "reliable informants" had told them about "drug dealing." 229 N.J. Super. at 562, 552 A.2d 212. Therefore the trial court in Pasanen had been correct in upholding the searches and denying the suppression motion.

Although disagreeing with the reasoning of the trial court in Hempele, the Appellate Division nevertheless affirmed the suppression order in that case. It held that the questions of whether the trash had been left for collection and whether the

trash had been left on public property were not controlling. Instead, after finding that the defendants had retained a qualified privacy expectation, the Appellate Division determined that because of the "patent staleness" of the information that had motivated the searches, the police had not had reasonable suspicion. Id. at 564, 552 A.2d 212. The searches had therefore violated the New Jersey Constitution. Because the validity of the warrant for the house depended on the fruits of the illegal garbage searches, the items seized during the house search were to be suppressed as well.

We granted the State's motion for leave to appeal in Hempele, 117 N.J. 50, 563 A.2d 818 (1989), and Pasanen's petition for certification, 117 N.J. 46, 563 A.2d 816 (1989).

II

We consider first whether the garbage searches in these two cases violated the United States Constitution.

-A-

In California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988), the United States Supreme Court held that the fourth amendment does not prohibit unreasonable searches and seizures of garbage left for collection in an area accessible to the public. In that case a police investigator learned that a truck carrying illegal drugs was en route to Billy Greenwood's home. A neighbor also complained about the heavy late-night traffic in front of Greenwood's residence. According to the neighbor, the vehicles would remain at Greenwood's house for only a few minutes. The investigator observed the traffic patterns for herself and followed a truck from Greenwood's place to a house targeted in a previous narcotics investigation.

The officer later asked the neighborhood's regular garbage collector to give her the trash bags that Greenwood had left on his curb. During a warrantless search of the bags, the investigator found items indicative of drug use. She then obtained a

search warrant for the house. The subsequent search turned up quantities of cocaine and hashish. The police arrested Greenwood and Dyanne Van Houten on narcotics charges.

While free on bail, Greenwood continued to receive many late-night visitors at his house. Another warrantless garbage search conducted in the same manner as the first turned up additional evidence of drug use. After securing a second search warrant, the police discovered more narcotics in Greenwood's house. They arrested Greenwood again. Greenwood and Van Houten challenged the constitutionality of the warrantless garbage searches.

The Supreme Court held that the warrantless searches of Greenwood's garbage "would violate the Fourth Amendment only if respondents [had] manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable." California v. Greenwood, supra, 486 U.S. at 39, 108 S. Ct. at 1628, 100 L. Ed. 2d at 36. Ruling that a privacy expectation in garbage is not reasonable, the Court rejected the defendants' argument.

The Court decided that people lose any reasonable expectation of privacy in their trash by leaving it in bags alongside the street, because such garbage is vulnerable to an unscrupulous person or scavenging animal. Furthermore, garbage is placed on the curb for the specific purpose of having a third party remove it. The defendants should have realized that the trash collector might look through the garbage or allow another person to do so. The Court added that the fourth amendment does not protect what a person knowingly exposes to the public because "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." Id. at 41, 108 S. Ct. at 1629, 100 L. Ed. 2d at 37.

Having decided that an expectation of privacy in trash left for collection in an area accessible to the public is unreasonable, the Court found it unnecessary to determine whether the defendants

had manifested a subjective expectation of privacy. The warrantless garbage searches did not violate the fourth amendment.

-B-

The facts in Greenwood are almost identical to those here. The primary difference is that in Hempele and Pasanen the police themselves removed the garbage from the curb, whereas in Greenwood a trash collector gave the garbage to the police. That distinction has no fourth-amendment significance. The Supreme Court did not rely on the fact that the police in Greenwood had not removed the garbage themselves; the trash collector there acted as an agent of the police when he took the trash. We agree with the State 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." See also People v. Pinnix, 174 Mich.App. 445, 448, 436 N.W. 2d 692, 694 (no "meaningful" distinction between Greenwood and the case at bar, in which "the police, and not a trash collector acting for the police, removed the garbage from the curbside"), appeal denied, 433 Mich. 893 (1989).

Counsel for the Hempeles belabor a second factual difference between Greenwood and Hempele: whereas Greenwood left his trash on public property, the Hempeles' bags may have been technically within their curtilage. The Hempeles argue that Greenwood therefore requires the suppression of the garbage-search evidence. According to counsel, a warrantless garbage search is valid under Greenwood only if (1) the garbage was placed outside the defendant's curtilage, and (2) the garbage was set out for collection.

Counsel distort Greenwood. Although that case did involve garbage placed for collection outside the curtilage, the Supreme Court never suggested that those two circumstances were determinative. Nowhere did the Court indicate that the defendants'

privacy expectation would have been more reasonable had their garbage technically been on their side of the property line. To quote the Court: "Our conclusion [is] that society would not accept as reasonable respondents' claim to an expectation of privacy in trash left for collection in an area accessible to the public * * *." California v. Greenwood, supra, 486 U.S. at 41, 108 S. Ct. at 1629, 100 L. Ed. 2d at 37 (emphasis added).

The privacy expectation is the same whether the garbage is left outside or just inside the property line. As the Appellate Division noted, "[w]hile the distinction between garbage placed for storage and garbage placed for collection might be significant * * * in some cases, it is meaningless here where the container searched was located in an unenclosed area no more than eight feet from the curb." 229 N.J. Super. at 564, 552 A.2d 212.

Under Greenwood the issue is whether the garbage was left at a location "accessible to the public." State v. Trahan, 229 Neb. 683, 689, 428 N.W. 2d 619, 623 (no reasonable expectation of privacy in garbage placed for collection four feet from defendant's trailer), cert. denied, 488 U.S. 995, 109 S. Ct. 561, 102 L. Ed. 2d 586 (1988); see also United States v. Kramer, 711 F.2d 789 (7th Cir.) (fourth amendment did not prohibit warrantless removal of trash bags located within fence in front of defendant's home), cert. denied, 464 U.S. 962, 104 S. Ct. 397, 78 L. Ed. 2d 339 (1983). But see United States v. Certain Real Property, 719 F. Supp. 1396, 1406 (E.D.Mich.1989), in which the seized garbage was " not 'in an area particularly suited for public inspection,'" where a police officer, posing as a garbage collector, drove a scooter down the driveway and removed a closed garbage bag from behind the house (quoting California v. Greenwood, supra, 486 U.S. at 40-41, 108 S. Ct. at 1629, 100 L. Ed. 2d at 37). The Hempeles left their garbage at a location accessible to the public. They cannot escape the force of Greenwood.

The garbage searches in both cases were valid under the fourth amendment.

III

We now determine whether the New Jersey Constitution protects curbside garbage from unreasonable searches and seizures. Despite the similarity between the text of article I, paragraph 7 of the New Jersey Constitution and the text of the fourth amendment, we have found on several occasions that the former "affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment." State v. Novembrino, 105 N.J. 95, 145, 519 A.2d 820 (1987) (unlike fourth amendment, article I, paragraph 7 does not provide for good-faith exception to the exclusionary rule); see State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (New Jersey Constitution protects privacy interest in phone-toll billing records even though federal constitution does not); State v. Alston, 88 N.J. 211, 440 A.2d 1311 (1981) (criteria for standing to challenge validity of searches and seizures are more liberal under article I, paragraph 7 than under fourth amendment); State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975) (State faces heavier burden to show validity of non-custodial consent to a search under New Jersey Constitution than under United States Constitution); cf. State v. Tanaka, 67 Haw. 658, 701 P. 2d 1274 (1985) (Hawaii Constitution prohibits warrantless garbage searches); People v. Krivda, 5 Cal. 3d 357, 486 P. 2d 1262, 96 Cal.Rptr. 62 (1971) (garbage left outside curtilage is constitutionally protected), vacated, 409 U.S. 33, 93 S. Ct. 32, 34 L. Ed. 2d 45 (1972) (remanded for determination of whether state or federal constitution was basis for holding), on remand, 8 Cal. 3d 623, 504 P. 2d 457, 105 Cal.Rptr. 521 (reincorporating original holding, based on both California Constitution and United States Constitution), cert. denied, 412 U.S. 919, 93 S. Ct. 2734, 37 L. Ed. 2d 145 (1973).

In interpreting the New Jersey Constitution, we look for direction to the United States Supreme Court, whose opinions can provide "valuable sources of wisdom for us." State v. Hunt, supra, 91 N.J. at 355, 450 A.2d 952 (Pashman, J., concurring). But although that Court may be a polestar that guides us as we navigate the New Jersey Constitution, we bear ultimate responsibility for the safe passage of our ship. Our eyes must not be so fixed on that star that we risk the welfare of our passengers on the shoals of constitutional doctrine. In interpreting the New Jersey Constitution, we must look in front of us as well as above us.

For most of our country's history, the primary source of protection of individual rights has been state constitutions, not the federal Bill of Rights. See Abrahamson, "Reincarnation of State Courts," 56 Sw.L.J. 951 (1981). The genius of federalism is that the fundamental rights of citizens are protected not only by the United States Constitution but also by the laws of each of the states. The system may be untidy on occasion, but that untidiness invests it with "a vibrant diversity." Pollock, "Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts," 63 Tex.L.Rev. 977, 979 (1985). "As tempting as it may be to harmonize results under the state and federal constitutions, federalism contemplated that state courts may grant greater protection to individual rights if they choose." Id. at 980.

When the United States Constitution affords our citizens less protection than does the New Jersey Constitution, we have not merely the authority to give full effect to the State protection, we have the duty to do so. Every judicial officer in New Jersey takes an oath to "support the Constitution of this State * * *." N.J.S.A. 41:2A-6. Bound to fulfill our covenant with the people of New Jersey, we must "respectfully part company" with the Supreme Court when we find that it has provided our citizens with "inadequate protection against unreasonable searches and seizures * * *." State v. Alston, supra, 88 N.J.

at 226, 440 A.2d 1311. In so doing, we manifest no disrespect for the nation's highest court but merely honor our "obligation to uphold [our] own constitution." State v. Lund, 119 N.J. 35, 38, 573 A.2d 1376 (1990) (Pollock, J., concurring).

Cognizant of the diversity of laws, customs, and mores within its jurisdiction, the United States Supreme Court is necessarily "hesitant to impose on a national level far-reaching constitutional rules binding on each and every state." State v. Hunt, supra, 91 N.J. at 358, 450 A.2d 952 (Pashman, J., concurring). That Court establishes no more than the floor of constitutional protection. State v. Gilmore, 103 N.J. 508, 524, 511 A.2d 1150 (1986). The Supreme Court must be especially cautious in fourth-amendment cases. When determining whether a search warrant is necessary in a specific circumstance, the Court must take note of the disparity in warrant-application procedures among the several states, and must consider whether a warrant requirement in that situation might overload the procedure in any one state. In contrast, we are fortunate to have in New Jersey a procedure that allows for the speedy and reliable issuance of search warrants based on probable cause. See State v. Novembrino, supra, 105 N.J. at 150-52, 156, 519 A.2d 820. A warrant requirement is not so great a burden in New Jersey as it might be in other states.

The Supreme Court itself has implied that garbage searches are an appropriate issue on which state courts may rise above "the lowest common denominator," State v. Lund, supra, 119 N.J. at 38, 573 A.2d 1376 (Pollock, J., concurring). In holding that the fourth amendment does not protect garbage, the Court suggested that "[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution." California v. Greenwood, supra, 486 U.S. at 43, 108 S. Ct. at 1630, 100 L. Ed. 2d at 39.

Before embarking on our analysis of the New Jersey Constitution, we emphasize that "[t]he federal cases that we cite in

support of our interpretation of the New Jersey Constitution 'are being used only for the purpose of guidance, and do not themselves compel the result that [this Court] has reached.'" State v. Bruzzese, 94 N.J. 210, 217 n. 3, 463 A.2d 320 (1983) (quoting Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 3476, 77 L. Ed. 2d 1201, 1214 (1983)), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

IV

In determining whether the warrantless search of defendants' garbage violated article I, paragraph 7 of the New Jersey Constitution, we apply a slightly different test from the one used in California v. Greenwood, supra, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30. In that case the Supreme Court turned to the two-pronged inquiry first enunciated by Justice Harlan in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Under that analysis the determination of fourth-amendment protections rests on "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Id. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d at 588 (Harlan, J., concurring).

We decline to follow that test because a defendant's "actual (subjective) expectation of privacy" does not determine the New Jersey Constitution's restraints on the State's power to search and seize. Justice Harlan himself apparently reached a similar conclusion when he later wrote that the analysis under Katz "must, in my view, transcend the search for subjective expectations * * *." United States v. White, 401 U.S. 745, 786, 91 S. Ct. 1122, 1143, 28 L. Ed. 2d 453, 478 (1971) (Harlan, J., dissenting). The Supreme Court has admitted the irrelevance of subjectivity in extreme cases:

For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee

from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances * * * those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was.

[ Smith v. Maryland, 442 U.S. 735, 741 n. 5, 99 S. Ct. 2577, 2580 n. 5, 61 L. Ed. 2d 220, 227 n. 5 (1979).]

If people need not exhibit a subjective expectation of privacy in "extreme" cases, such a showing should be unnecessary in "ordinary" cases as well.

Moreover, the two-prong analysis entails an arbitrary distinction between facts that manifest a subjective privacy expectation and those that indicate the reasonableness of the privacy expectation. We are unaware of any reasoned discourse distinguishing which evidence goes to the first prong and which evidence goes to the second. Both prongs are dependent on objective criteria, as would be apparent in a case involving the constitutionality of a warrantless search of a purse made of clear plastic. Because an expectation of privacy in the contents of a handbag can be reasonable, State v. Hill, 115 N.J. 169, 172, 557 A.2d 322 (1989), the question would be whether the transparency of the purse affects the constitutionality of the search. One might argue that although a privacy expectation in the contents of a purse is normally reasonable, the owner here failed to "exhibit an actual (subjective) expectation of privacy" because the purse was transparent. Katz v. United States, supra, 389 U.S. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d at 588 (Harlan, J., concurring). On the other hand, one might argue that a subjective expectation of privacy in the contents of a transparent purse is not "one that society is prepared to recognize as 'reasonable.'" Ibid.

Thus the objective fact of the transparency of the purse could be evidence either of a failure to manifest a subjective privacy expectation or of the unreasonableness of that subjective privacy expectation. The decision to apply that fact to one prong rather than the other would be arbitrary. That choice, furthermore,

would probably not affect the final determination of whether the contents are constitutionally protected. We conclude, therefore, that the manifestation of a subjective privacy expectation should not be a separate requirement for protection under article I, paragraph 7. Instead, the New Jersey Constitution requires only that an expectation of privacy be reasonable.

Although the one-step test should not change the result in the vast majority of cases, in those instances in which it would, such as the extreme situations discussed in Smith v. Maryland, supra, 442 U.S. at 741 n. 5, 99 S. Ct. at 2580 n. 5, 61 L. Ed. 2d at 227 n. 5, it should correct the anomalous results dictated by the two-prong approach. The one-step test better reflects the underlying principles of search-and-seizure law. Article I, paragraph 7 does not "ask[] what we expect of government. [It] tell[s] us what we should demand of government." Amsterdam, "Perspectives On the Fourth Amendment," 58 Minn.L.Rev. 349, 384 (1974) [hereinafter Amsterdam]. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" when there can be a reasonable expectation of privacy in them. N.J. Const. of 1947 art. I, para. 7.

-A-

In determining the reasonableness of an expectation of privacy in curbside garbage left for collection, we start from the premise that "[e]xpectations of privacy are established by general social norms." Robbins v. California, 453 U.S. 420, 428, 101 S. Ct. 2841, 2847, 69 L. Ed. 2d 744, 751 (1981) (plurality opinion), overruled on other grounds, United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); see also California v. Greenwood, supra, 486 U.S. at 43, 108 S. Ct. at 1631, 100 L. Ed. 2d at 39 (fourth-amendment analysis "must turn on such factors as 'our societal understanding that certain areas deserve the most scrupulous protection from government invasion'") (quoting Oliver v. United States, 466 U.S. 170, 178,

104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214, 224 (1984)) (emphasis deleted). The "ultimate question" is whether, if garbage searches are "permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society." Amsterdam, supra, 58 Minn.L.Rev. at 403. With that question in mind, we first examine whether it is reasonable for a person to want to keep the contents of his or her garbage private.

Clues to people's most private traits and affairs can be found in their garbage. "[A]lmost every human activity ultimately manifests itself in waste products and * * * any individual may understandably wish to maintain the confidentiality of his refuse." State v. Smith, 510 P. 2d 793, 798 (Alaska) (upholding warrantless search of dumpster), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (1973). A plethora of personal information can be culled from garbage:

A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests.

[ California v. Greenwood, supra, 486 U.S. at 50, 108 S. Ct. at 1634, 100 L. Ed. 2d at 43 (Brennan, J., dissenting).]

See also State v. Tanaka, supra, 67 Haw. at 662, 701 P. 2d at 1276-77 ("[b]usiness records, bills, correspondence, magazines, tax records, and other telltale refuse can reveal much about a ...


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