PEOPLE v. SMITH

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Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory Donald SMITH, Defendant and Appellant.

Cr. 25843.

Decided: October 28, 1975

Benson Schaffer, LaMirada, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty, Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., and Shunji Asari and John R. Gorey, Deputy Attys, Gen., for plaintiff and respondent.

Gregory D. Smith appeals from a judgment of conviction for possession of marijuana (Health & Saf. Code, § 11357) and possession of marijuana for the purpose of sale (Health & Saf. Code, § 11359). He was found to have been convicted of one earlier felony. The appeal lies. (Pen.Code, § 1237, subd. (1).)

Appellant makes a number of contentions regarding police conduct and trial proceedings. Because of our disposition of the appeal and the unlikelihood of a retrial in this matter, we find it necessary to discuss only one of appellant's contentions: that evidence obtained by the police and introduced at trial against him should have been suppressed as the fruit of an unconstitutional search and seizure. We agree and reverse.

Appellant was charged by information with the above two crimes (one count each) and the conviction of one prior felony. He pleaded not guilty and denied the prior. Appellant's motion, pursuant to Penal Code section 153.5, to suppress certain contraband seized by the police at the time of his arrest was granted in part and denied in part by the court below.

FACTS

At approximately 5:00 a. m. on January 20, 1974, Glendale Police Officer Jeffrey Lord, on duty in a marked patrol car, was approached by a young man who identified himself as Derek Dolson. Dolson told Lord that he had recently left a Glendale apartment where a number of persons were engaged in smoking and preparing for sale large quantities of marijuana. Dolson further indicated that he could show Lord a certain automobile parked outside the apartment which was being used to transport the contraband and he could show Lord the contents of a shopping bag, discarded from the apartment and placed in the communal trash receptacle at the rear of the building, in which marijuana debris and certain other items of refuse would be found.

Lord transported Dolson to the vicinity of 614 East Garfield Street in Glendale where the officer observed the car described by Dolson. The two then went to the rear of an eight to ten unit apartment building and located the large trash receptacle. It was full but not overflowing and contained a number of large brown paper shopping bags. Dolson pointed out one particular bag; it was retrieved from the bin and opened. Lord at that time observed the refuse items which Dolson had indicated would be found, along with small amounts of a substance which the officer concluded from its appearance and odor was marijuana.

Officer Lord turned the shopping bag contents over to his superiors and a search warrant was issued based upon that evidence and the other information related by Dolson. The warrant authorized the search of the Dodge automobile and the premises of apartment 4 at the Garfield Street address.

Pursuant to the warrant, officers searched both the automobile and the apartment. The search of the former uncovered a quantity of marijuana; this contraband was ordered suppressed at appellant's 1538.5 hearing as the product of an unconstitutional search and seizure.1 Appellant's motion to suppress the contraband and paraphernalia found in the apartment was denied.

Dolson testified at trial that he had been a guest of appellant at the apartment from Friday, January 18, until early Sunday morning. During that time, Dolson saw appellant and others in the apartment preparing marijuana for resale by cutting it into smaller portions and packaging it in small plastic bags. Appellant, as well as Dolson, smoked marijuana at various times during the weekend. Dolson watched while one occupant of the apartment put certain garbage in a brown shopping bag, along with discarded plastic bags, blue tape and marijuana debris. The bag was later taken from the apartment; Dolson surmised that it had been put in the apartment building's communal trash bin. Dolson testified that he left the apartment after appellant falsely accused him of stealing twenty dollars.

DISCUSSION

I. THE APARTMENT HOUSE TRASH RECEPTACLE MUST BE CONSIDERED A CONSTITUTIONALLY PROTECTED AREA.2

In determining whether the protection of the Fourth Amendment of the United States Constitution and article I, section 13, of the California Constitution against unreasonable searches and seizures is to be applied to a given area or object, two questions must be asked. First, does the individual claiming protection have a reasonable expectation of privacy regarding the area or object, and second, have government officials unreasonably intruded upon that expectation of privacy? (Katz v. United States (1967) 389 U.S. 347, 350–352, 88 S.Ct. 507, 510–512, 19 L.Ed.2d 576, 581–582; People v. Bradley, 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 469 P.2d 129; People v. Edwards, 71 Cal.2d 1096, 1104, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Burrows, 13 Cal.3d 238, 243, 118 Cal.Rptr. 166, 529 P.2d 590.)

Our Supreme Court has answered these two questions affirmatively with regard to the refuse of an individual homeowner. In People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, the high court held that the Fourth Amendment3 prohibited a warrantless search of defendant's trash conducted after defendant had set out the trash for collection, after municipal employees had deposited it in their truck, and after the truck's machinery had begun to mix defendant's trash with that of others. (Id. at pp. 366–367, 96 Cal.Rptr. 62, 486 P.2d 1262.) The defendant in Krivda was found to have an expectation of privacy regarding his garbage despite the fact that (a) it might become mingled with others' garbage in the normal course of disposal and (b) it might be examined and perhaps taken away by vagrants, children or other persons who habitually pick through items discarded by others. Notwithstanding these foreseeable exceptions to the seclusion of one's garbage, the householder who puts his or her trash in its receptacle for routine collection and disposal reasonably expects that it will not be inspected by government authorities who lack a search warrant.

Krivda did not discuss the privacy expectation of persons who use communal trash receptacles, i.e., containers holding the refuse of more than one household unit. The People argue that two decisions of this statewide court have, at least in dictum, dealt with this issue. In People v. Superior Court (Barrett), 23 Cal.App.3d 1004, 100 Cal.Rptr. 604, police officers observed one of the defendants deposit a large, opaque plastic bag in her neighbor's rather than her own trash receptacle. The officers retrieved the bag without a warrant. As an alternate basis for its refusal to suppress the contraband found in the bag,4 the Barrett court declared that the defendant's decision to use a trash can other than her own was an ‘abandonment’ and placed her beyond the scope of Krivda's privacy protection. (Id. at pp. 1009–1010, 100 Cal.Rptr. 604.)

We do not find the reasoning of Barrett persuasive in disposing of appellant's claim of Fourth Amendment protection. The defendant in Barrett only abandoned her trash because she deliberately avoided using the normal receptacle reserved for her refuse. In contrast, someone from the Garfield Street apartment disposed of the incriminating shopping bag in the manner and at the location to be expected of a tenant of the apartment house. (Cf. People v. Krivda, supra, 5 Cal.3d at 365–366, 96 Cal.Rptr. 62, 486 P.2d 1262.)

The People also rely on People v. Stewart, 34 Cal.App.3d 695, 119 Cal.Rptr. 227. The defendant in Stewart was a bookmaker who lived in an apartment and who was seen carefully placing certain papers at the bottom of a communal trash bin. These items were seized by police without a warrant. The Stewart court expressed agreement with the Attorney General that ‘[i]t may well be * * * that this case can be distinguished from Krivda solely on the basis of the fact that the apartment trash cans involved were used in common by all of the apartment house tenants.’ (Id. at p. 700, 110 Cal.Rptr. at p. 230.) The court opined that apartment dwellers have less reason to believe the contents of their refuse will remain unknown than do householders. While we agree with this proposition, we do not find that it suggests an absence of Fourth Amendment protection for users of communal trash receptacles.

Krivda itself acknowledged that privacy expectations as regards trash are subject to obvious and foreseeable limitations, including exposure to certain types of people and mixture with the trash of others. Users of the communal receptacle undoubtedly do recognize the possibility that another tenant will discover the contents of their garbage after it is placed in the container. But they have no more reason than the householder in Krivda to expect their trash to be examined by police officers.

In view of the broad principle enunciated in Krivda, we are constrained to hold that communal trash receptacles are within the ambit of Fourth Amendment protection.5

II. THE OFFICER AND THE INFORMER CONDUCTED A GOVERNMENTAL SEARCH OF APPELLANT'S TRASH.

The statements of facts in the briefs of both parties to this appeal assume that the informer Dolson and Officer Lord engaged in a search of the communal receptacle followed by the further search of the brown shopping bag in which the seized evidence was located. Our reading of the relevant portions of the trial transcript confirms this assumption. There was no clear testimony that any portion of the bag's contents could be seen by either observer until the bag was opened.6 Hence there can be no application here of the ‘plain sight rule,’ which allows authorities to base probable cause to arrest or seize upon their reasonable belief that an item exposed to view from a public perspective is contraband or other evidence of a crime. (People v. Berutko, 71 Cal.2d 84, 91–92, 77 Cal.Rptr. 217, 453 P.2d 721.)

Both parties also have assumed that Dolson's role in the search does not make the Fourth Amendment inapplicable. The People have the burden of justifying the warrantless trash bin search in view of the apparent participation of a peace officer. (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; Dyas v. Superior Court, 11 Cal.3d 628, 635, 114 Cal.Rptr. 114, 522 P.2d 674.) We are inclined to hold that the People have lost the opportunity to meet this burden by failing to do so at any time during the proceedings below or in their responding brief to this court. (People v. Groves, 71 Cal.2d 1196, 1198, 80 Cal.Rptr. 745, 458 P.2d 985.) Their discussion of Krivda, Barrett and Stewart is a de facto admission that we are dealing with a police search.

We need not, however, decide this issue on the basis of waiver. Even assuming that Dolson was the primary actor during the trash search, there are two ways in which he can be considered an agent of the police for purposes of applying the Fourth Amendment to his conduct. First, Officer Lord clearly participated in the ‘planning and execution’ of Dolson's search,7 which had as its objective the enforcement of criminal laws. (Cf. Stapleton v. Superior Court, 70 Cal.2d 97, 100–102, 73 Cal.Rptr. 575, 447 P.2d 967; Raymond v. Superior Court, 19 Cal.App.3d 321, 325–326, 96 Cal.Rptr. 678; People v. Topp, 40 Cal.App.3d 372, 377–378, 114 Cal.Rptr. 856.)

Second, Officer Lord stood ‘silently by’ during Dolson's search. (Cf. Stapleton v. Superior Court, supra, 70 Cal.2d 102–103, 73 Cal.Rptr. 575, 447 P.2d 967; People v. McKinnon, 7 Cal.3d 899, 912, 103 Cal.Rptr. 897, 500 P.2d 1097, cert. denied 411 U.S. 931, 93 S.Ct. 1891, 36 L.Ed.2d 390; Miramontes v. Superior Court, 25 Cal.App.3d 877, 884, 102 Cal.Rptr. 182.) A finding of state action because of police acquiescence requires (1) that the police or other government officials have actual knowledge of the search and the opportunity to prevent it, (2) that such persons be physically present at the time of the search, and (3) that the private person making the search be without any color of authority for his conduct. (People v. McKinnon, supra, 7 Cal.3d at 913, 103 Cal.Rptr. 897, 500 P.2d 1097.) Only the third requirement need detain us in the instant case.

California courts have found no state action in searches made by persons acting under authority of law, pursuant to their pecuniary self-interest, or incident to bona fide business or proprietary concerns. (People v. McKinnon, supra, 7 Cal.3d at 913–914, 103 Cal.Rptr. 897, 500 P.2d 1097; Miramontes v. Superior Court, supra, 25 Cal.App.3d 877, 884, 102 Cal.Rptr. 182; People v. Lanthier, 5 Cal.3d 751, 757–758, 97 Cal.Rptr. 297, 488 P.2d 625; People v. Superior Court (York), 3 Cal.App.3d 648, 652–653, 83 Cal.Rptr. 732.)

We do not have such a situation here. The informer Dolson was without any suggestion of right or authority in his search of the trash bin while in Officer Lord's presence. Our conclusions might be different if Dolson had been a tenant in the building or had come upon the marijuana debris while searching in the trash for an item he inadvertently threw away while a guest in the apartment. Instead, Dolson's initial knowledge of the contraband was gained from his voluntary participation in the illegal acts of the other persons in the apartment; thereafter, his sole purpose and design was to ensure the apprehension involvement in the ‘total enterprise’ proof his former friends, including appellant.

Because of the passive and active police posed by Dolson (People v. Fierro, 236 Cal.App.2d 344, 348, 46 Cal.Rptr. 132), we conclude that even if he alone was the active party, he must be considered an agent of the police.

III. THE WARRANTLESS SEARCH OF THE TRASH BIN WAS WITHOUT PROBABLE CAUSE.

In People v. Dumas, supra, 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208, our Supreme Court compared trash searches to automobile searches and concluded that in certain exigent circumstances police officers can permissibly conduct a warrantless search if they have probable cause to suspect the presence of contraband or other seizable evidence. (Id. at p. 884, 109 Cal.Rptr. 304, 512 P.2d 1208.) We will assume, for the reasons cited in People v. Parker, 44 Cal.App.3d 222, 118 Cal.Rptr. 523,8 that Officer Lord could reasonably have believed that the delay involved in obtaining a search warrant for the apartment trash bin would result in the destruction or removal of the shopping bag and its contents. Thus we need only inquire whether the officer had probable cause to suspect the presence of marijuana at the time he was led to the bin and observed the bag which Dolson pointed out.

A. Dolson's Status as an Informer.

Aguilar v. Texas (1964) 378 U.S. 108, 114–115, 84 S.Ct. 1509, 1513–1514, 12 L.Ed.2d 723, 728–729, established the now famous two-prong test used to determine whether information provided by an informer is sufficient to constitute probable cause. First, the informer's statement to police must be factual, detailed and the result of his or her personal knowledge. Dolson's elaborate description of the happenings at the Garfield Street apartment, which he claimed to have witnessed, satisfies this prong of the Aguilar test.

The second prong, that the informer demonstrate his or her reliability, provides the difficulty in the present case. The paid informer demonstrates his or her reliability by past tips to police which have proved their accuracy by leading to convictions or, at least, to arrests. Additionally, informer reliability has been shown by substantial independent corroboration by authorities of at least part of the information given to them. (Draper v. United States (1959) 358 U.S. 307, 312–313, 79 S.Ct. 329, 332–333, 3 L.Ed.2d 327, 331–332.)

The judicial requirement of detailed corroboration is, however, reduced when information comes from ‘citizen informers.’ Often such persons are simply the victims of the crimes about which they provided information. (People v. Lewis, 240 Cal.App.2d 546, 551, 49 Cal.Rptr. 579; People v. Griffin, 250 Cal.App.2d 545, 550–551, 58 Cal.Rptr. 707.) Citizen informers also can be innocent eyewitnesses to crimes who are motivated to inform by good citizenship rather than by the vindictiveness or police favor sought by traditional informers. (People v. Hill, 12 Cal.3d 731, 757–758, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Paris, 48 Cal.App.3d 766, 772–773, 122 Cal.Rptr. 272, 276–277.) Although recent decisions have pointed out that there must be some corroboration even of citizen informers (People v. Herdan, 42 Cal.App.3d 300, 305–306, 116 Cal.Rptr. 641; Krauss v. Superior Court, 5 Cal.3d 418, 421–422, 96 Cal.Rptr. 455, 487 P.2d 1023), our Supreme Court in People v. Hill, supra, 12 Cal.3d at page 761, 117 Cal.Rptr. 393, 528 P.2d 1, announced that the statements of such informers are ‘presumptively reliable’ for purposes of finding probable cause.

Granting that Dolson might possibly be considered a citizen informer, we conclude that several factors nevertheless operate to rebut any presumption of his reliability spoken of in Hill. Although Dolson was not a paid informer nor had he in the past provided any information to law enforcement officials, he nevertheless more closely resembles the traditional informer than the citizen informer as regards his reliability. He was not the victim of any crime; rather he was a willing observer and participant until accused of theft by his companions. In People v . Scoma, 71 Cal.2d 332, 338, footnote 7, 78 Cal.Rptr. 491, 455 P.2d 419, the majority of the Supreme Court held that the presumption of reliability reserved for the citizen informer cases had no application where the informer was himself involved in narcotics traffic.9 (See also People v. Schulle, Cal.App., 124 Cal.Rptr. 585 (1st Dist. 1975).) Moreover, Dolson did not act from a general desire to see the laws of this state enforced but rather from a desire to wreak vengeance upon his accusers. Lastly, Dolson, a juvenile probationer, testified that he was aware of the possible benefit he might receive for his information and cooperation.

B. There was Insufficient Corroboration of Dolson's Information to Show his Reliability.

Given that the traditional standard of corroboration is here appropriate, we must conclude the police lacked probable cause to undertake the warrantless trash bin search. Officer Lord commenced the search upon the bare statement of Dolson that he would find contraband in a specified shopping bag. The mere fact that there was a brown bag in the bin cannot constitute sufficient corroboration. As the officer himself testified, the bin was full of such bags, as are most trash containers. Dolson also had pointed out a car which he claimed contained contraband. Yet Lord testified he did not even approach the car to ascertain whether any items might be within plain sight in the passenger compartment. No surveillance of the apartment was undertaken nor did the officer investigate the identity and recent whereabouts of his informer. If the finding of an automobile and a shopping bag in a predicted location constitutes independent corroboration for purposes of informer reliability and probable cause to search, then such a requirement is illusory. We are not willing to sanction the warrantless invasion of an area protected by the Fourth Amendment on so limited a showing. (Cf. People v. Scoma, supra, 71 Cal.2d at p. 339, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Legard, 12 Cal.App.3d 1006, 1010, 91 Cal.Rptr. 257; People v. Golden, 29 Cal.App.3d 211, 217, 97 Cal.Rptr. 476; People v. Galleqos, 62 Cal.2d 176, 179, 41 Cal.Rptr. 590, 397 P.2d 174; People v. West, 3 Cal.App.3d 253, 257, 83 Cal.Rptr. 223.)

The People themselves admit that the validity of the search warrant in this case depends upon the corroboration of Dolson's statements provided by the contents of the shopping bag. Since we have concluded that the bag was unconstitutionally searched and its contents unconstitutionally seized, it necessarily follows that the warrant was issued without probable cause and that all evidence obtained through use of the warrant must be suppressed.

DISPOSITION

The judgment is reversed.

I dissent.

In this case the police, acting on a tip from a personally involved citizen, proceeded to investigate the matter in company with that individual. The two went to the rear of a multiple unit apartment building and located a large trash receptacle. The informant pointed out the bag in question which was retrieved, opened and found to contain the contraband refuse previously described to the officer. Acting in part on the foregoing a search warrant was obtained.

The facts of the instant case are clearly distinguishable from People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, and others relied upon in reversing the judgment. Such cases have not unanimously or otherwise vested the lowly garbage can with the sanctity attributed to it by the majority in this case. Here there was no search as such but only a limited police investigation of a citizen's complaint. The officer simply retrieved the bag of refuse where the informant surmised it could be found. There was no indiscriminate searching or rummaging through defendant's trash bin.

I would affirm the judgment pursuant to the rationale of People v. Stewart, 34 Cal.App.3d 695, 110 Cal.Rptr. 227, and the logic of the situation.

FOOTNOTES

1.  Prior to the issuance of the warrant, appellant was observed by Glendale police as he left the apartment and drove away in the Dodge. Officers stopped the car and detained appellant for approximately 20 minutes until they received the warrant. It was this detention without warrant that occasioned the suppression of the marijuana recovered from the car.

2.  Although appellant did not reside in the searched apartment and apparently did not put any items in the shopping bag nor take it to the bin, the nature of his criminal convictions for possession of marijuana gives him standing to object to the search of the bin, the bag and the apartment. (Jones v. United States (1960) 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697, 705.)

3.  In a subsequent modification, 8 Cal.3d 623, 624, 105 Cal.Rptr. 521, 504 P.2d 457, cert. den. 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145, the court based its Krivda holding equally on the federal and state Constitutions. We do likewise in this opinion but for brevity's sake usually refer only to the Fourth Amendment.

4.  The Barrett court also justified the search as based upon the police officer's reasonable and correct belief that the plastic bag which he had seen defendant deposit in the neighbor's trash can contained contraband. (23 Cal.App.3d at 1009, 100 Cal.Rptr. 604.) This holding is a forerunner of the principle later refined by the Supreme Court in People v. Dumas, 9 Cal.3d 871, 884, 109 Cal.Rptr. 304, 512 P.2d 1208: the search of the receptacle in Krivda was illegal because authorities lacked probable cause to believe that contraband or other seizable evidence would be found therein. For reasons discussed later in this opinion, the Dumas exception to the need for a warrant is not available to the People in the instant case.

5.  To establish the disparate treatment of individual and communal receptacles suggested by the People and Stewart would yield anomalous results indeed. Fourth Amendment protection would be accorded to the contents of a container if it were used by only one household, but if the same container were shared by tenants in a small apartment house there would be no such protection. Many communal receptacles are constructed and so located as to be less exposed to view than the single family's assortment of trash cans. Yet the letter would be protected from police searches while the former would not. The manner and frequency of trash collection is essentially identical for communal and individual containers; most municipal ordinances governing trash storage and pick up do not distinguish between the two except for insuring adequate capacity and sanitation.The above observations suggest that a decision which so restricted the right of privacy to individual householders would deny equal protection of the laws to users of communal receptacles.

6.  Some of Lord's comments do suggest that the contents of the bag rather than merely the bag itself were visible without touching it: ‘[U]pon looking into a trash bag which was located directly on top of other trash bags in the bin, I located the chicken debris, chicken bones, wrapping from the chicken and the wrappings from the marijuana, also, the masking tape and some blue paper adhering to it with a small Baggie with what appeared to be marijuana debris in it.’ But generally Lord mentioned the above objects as they were pulled out of the bag after it had been retrieved and broken open: “Myself and the informant both reached the trash bin at the same time. He was directly in front of me. I observed him rip it open. He reached in. As he reached in, he went through the chicken and said, ‘Here is the chicken,’ or something to that effect, indicating to me this was the bag that I knew he was tearing open because there was chicken debris in here. ‘There is a piece of masking tape.’ And he took the masking tape out and handed it to me. . . .”

7.  Although Lord testified that Dolson ‘wanted me to go there to verify that what he was telling me was the truth,’ the officer also gave these indications of his own participation and direction of the search:‘Q Who actually reached in?‘A He reached in first and then I followed him. . . .‘A No. I—I believe he put his hand on it or he ripped part of the bag and then I went—I started going through it also. . . .“A . . . [Dolson] took the masking tape out and handed it to me.“At that time, I told him to step aside because I didn't want him to go through the complete bag. I looked through more of the bag and under some more of the chicken debris, I discovered a piece of blue paper.”

8.  Parker noted that materials placed in refuse containers are highly portable; that people do not take security precautions regarding their trash; and that garbage may be exposed to the elements or carried away by foragers, animal and human. (Id. at p. 230, 118 Cal.Rptr. 523.)

9.  Justice Mosk disagreed with this conclusion, stating that the Scoma informer really should be viewed as a victim of his supplier. But even Justice Mosk noted that he would find probable cause in Scoma not solely because the informer was a victim but also because of the ample circumstantial evidence related in the informer's affidavit. (Id. at p. 341, 78 Cal.Rptr. 491, 455 P.2d 419.)

COBEY, Acting Presiding Justice.

POTTER, J., concurs.