DEREK KEITH JOHNSON v. COMMONWEALTH OF KENTUCKY

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Court of Appeals of Kentucky.

DEREK KEITH JOHNSON v. COMMONWEALTH OF KENTUCKY

NO. 2012–CA–000738–MR

-- June 28, 2013

BEFORE:  ACREE, CHIEF JUDGE;  CLAYTON AND MOORE, JUDGES. BRIEF FOR APPELLANT:  Jerry L. Wright Lexington, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

AFFIRMING

Derek Keith Johnson appeals from a Fayette Circuit Court judgment sentencing him to serve one year, probated for four years, on a charge of trafficking in marijuana.   Johnson entered a plea of guilty to the charge conditioned on his right to appeal the trial court's denial of his motion to suppress evidence gathered from his garbage can by narcotics detectives and subsequently used by them to obtain a search warrant.

Johnson was charged after the Lexington police recovered marijuana, scales, baggies, a marijuana pipe and approximately $1300 in cash from a search of his residence.   The search was made pursuant to a warrant that the police were able to secure after they found incriminating evidence in Johnson's garbage cans, which had been left out for collection.   This type of search is known as a “trash pull.”   Johnson filed a motion to suppress the evidence found in his home, arguing that the trash pulls which served as the justification for the search warrant were illegal because they violated Lexington–Fayette Urban County Government (LFUCG) Ordinance, No. 82–2011, Chapter 16, Article II, Section 16–15(f) which states:

It shall be unlawful for any person, other than refuse collectors in the division of solid waste and a person duly licensed to collect, haul, convey or transport any of the waste materials herein mentioned, to interfere in any manner with the receptacles:  containing any such waste materials, or to remove any such receptacle from the location where placed by the owner thereof, or to remove any of the contents of such receptacles.

The ordinance was subsequently amended to add the following sentence:  “Peace officers in the execution of their official duties are exempt from this section.”

The trial court denied his motion to suppress on the grounds that there is no reasonable expectation of privacy in one's curbside trash and that the exclusionary rule was inapplicable to remedy the violation of a local ordinance.

Johnson entered a plea of guilty conditioned on his right to appeal the denial of his motion to suppress.   This appeal followed.

The exclusionary rule applies only to evidence obtained in violation of a constitutional right.  Brock v. Commonwealth, 947 S.W.2d 24, 29 (Ky.1997).

Johnson acknowledges that the United States Supreme Court has held that there is no reasonable expectation of privacy for one's curbside trash, and hence a warrantless search of such trash does not violate the Fourth Amendment.   California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 1627, 100 L.Ed.2d 30 (1988).   Instead, Johnson argues that the LFUCG ordinance represents an attempt by the Commonwealth, through one of its subdivisions, to provide a higher level of protection for its citizens than that afforded by the federal constitution.

It is well established that the “the states are free to afford defendants greater rights than those afforded by the federal constitution[,]” and that “[t]he Kentucky Constitution has been held to offer greater protection of the right of privacy than provided by the Federal Constitution[.]  “ Artis v. Commonwealth, 360 S.W.3d 771, 773 (Ky.App.2012) (internal citations and quotation marks omitted).   But this greater privacy protection has never been extended to searches and seizures.  Id. The Kentucky Supreme Court has consistently held “that the protections of Section 10 of the Kentucky Constitution are no greater than those of the federal Fourth Amendment.”   Dunn v. Commonwealth, 360 S.W.3d 751, 758 (Ky.2012).

Furthermore, federal courts have consistently held that anti-rummaging ordinances do not implicate the Fourth Amendment.   In a factually-similar Sixth Circuit case, the appellant argued that his right to privacy was supported by a city ordinance which prohibits unauthorized persons from rummaging through the garbage of another.   The court disagreed, stating that the ordinance was “a matter of local municipal law, not federal constitutional law.”  Magda v. Benson, 536 F.2d 111, 113 (6th Cir.1976).   Similarly, in United States v. Dzialak, 441 F.2d 212, 215 (2d Cir.1971), the Second Circuit Court of Appeals stated that the existence of a town anti-rummaging ordinance did not change the fact that the appellee had thrown away the evidence and thus there was “nothing unlawful in the Government's appropriation of such abandoned property.”

Finally, Johnson contends that LFUCG council members and local legislators, mindful of the Supreme Court rulings, nonetheless intended to offer greater constitutional protections when they drafted the ordinance and “succumbed to pressure” when the trash pulls were challenged in court by adding the peace officer exception.   This argument is purely speculative and does not warrant disregarding the well-established precedent cited in this opinion.

For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR.

MOORE, JUDGE:

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