Volume 151, No. 114
Let's play Word Association. If I say "
Fourth
Amendment," what would you say?
My guess is that there is a good chance you would say "privacy." The U.S. Supreme Court has often suggested that this is the touchstone of basic
Fourth
Amendment values.
Yet privacy may not be all that it is cracked up to be. While privacy in the
Fourth
Amendment context may always be a necessary consideration, it is often not sufficient to reflect all values that need to be considered.
A case in point, oddly enough, is the
Fourth
Amendment's relationship to garbage.
The U.S. Supreme Court faced this issue in
California v. Greenwood, 486 U.S. 35 (1988). The defendant in
Greenwood placed his garbage in opaque bags and left them for pick up in front of his house. The police, based on a hunch not amounting to probable cause, asked the trash collector to turn the Greenwood household's garbage bags over to them so they could search for drug paraphernalia. When the police found drug paraphernalia in the garbage, they obtained a search warrant for the Greenwood home. When the search uncovered contraband drugs, Greenwood was charged with possession. He filed a motion to suppress, contending that the police searched his garbage bags without either a warrant or probable cause, and that consequently all fruits of this search must be suppressed.
The court began its analysis by citing
Katz v. U.S., 389 U.S. 347 (1967), for the proposition that a "search" can occur only if an individual possesses an expectation of privacy over the items and/or area being examined by the police.
This is a two-pronged inquiry. First, the individual must subjectively have such an expectation. Second, his expectation of privacy must be one that
society is willing to recognize as reasonable.
Katz, at 361 (Harlan, J., concurring). If the individual cannot establish both prongs, then the police activity will not be characterized as a search, and consequently, the
Fourth
Amendment has no applicability.
The court then applied the
Katz test to Greenwood. It held that even assuming Greenwood had a subjective expectation concerning the privacy of the contents of his garbage, this was not an expectation that society was prepared to find reasonable. The court noted that a person who sets out his garbage must recognize that it is "readily accessible to animals, children, scavengers, snoops and other members of the public." At 40. Thus, the examination of the contents by the police was not a search under the
Fourth
Amendment and thus did not have to be accompanied by either a warrant or probable cause.
Yet there is something facile about this analysis. Should the behavior of a 3- year-old or a raccoon also serve to define the proper parameters of police conduct? Illinois courts do not seem troubled by this (see, e.g.,
People v. Electronic Plating Co., 291 Ill.App.3d 328 (1st Dist. 1997)). However, a recent case from the Indiana Supreme Court,
Litchfield v. State, 824 N.E.2d 356 (2005), offers a refreshing alternative to the Greenwood analysis.
Litchfield, like
Greenwood, deals with police searching through trash bags without either a warrant or probable cause. The Indiana Supreme Court conceded that this was proper under the
Fourth
Amendment analysis of
Greenwood.
The court found, however, that the Indiana Constitution's search and seizure provision provided a greater level of protection.
The court first noted that it disagreed with
Greenwood's analysis that, as long as there was no reasonable expectation of privacy as to the garbage, any and all police activity was a fortiori proper. Instead, the court held that under the Indiana Constitution the lack of a reasonable expectation of privacy constituted only one factor in a "totality of circumstances" test. This test takes into account not only the degree of intrusion into a person's ordinary activities but also the basis upon which the police targeted that person.
A court needs to balance: "(1) the degree of concern, suspicion or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities; and (3) the extent of law enforcement needs." At 360-361.
The Indiana Supreme Court conceded that when a person leaves his trash out for collection, he has effectively ceded all ownership rights in it. But, unlike the U.S. Supreme Court, the Indiana Supreme Court did not agree that assuming the risk that a raccoon can claw through your garbage is the same as assuming the risk that a police officer can do the same.
Litchfield laconically observes, "Hoosiers are not entirely comfortable with the idea of police officers casually rummaging through trash left at curbside." Thus,
Litchfield limits police power to search through garbage. It holds
that police may not search garbage at random; rather, they must justify any search by establishing "articulable individualized suspicion," meaning the same level of suspicion needed for a
Terry stop. (See
Terry v. Ohio, 392 U.S. 1 (1968).)
Thus, unlike the U.S. Supreme Court, the Indiana Supreme Court believes that it is reasonable for citizens to expect the police to operate differently from raccoons. The U.S. Supreme Court sees the
Katz privacy test as one size fits all: does a person have a "reasonable expectation of privacy" as to the thing or area at issue?
Litchfield, however, refuses to apply the test in the abstract. Rather, it specifically asks whether a person has a "reasonable expectation of privacy" with regards to police interference.
Litchfield points out a broader problem with analysis based solely on privacy. "Privacy" focuses too narrowly on the individual's relationship to the thing or area being examined. But
Litchfield holds that to determine whether a search is reasonable, a court must consider the conduct of the police in addition to the individual's expectation of privacy.
The Illinois Supreme Court used Litchfield-style analysis in
People v. Caballes, 207 Ill.2d 504 (2003). The issue was whether the mere fact of a traffic stop for speeding allowed the police to use a drug-sniffing dog on the car. The court conceded that the dog-sniff was not a search per se because the only information the sniff could reveal was whether or not the car possibly
contained contraband drugs. Since a person had no reasonable expectation of privacy as to the possession of contraband, the dog sniff was not a search.
U.S. v. Place, 462 U.S. 696 (1983).
Yet the
Caballes court took a much broader look at the police activity. Analogizing a traffic stop to a
Terry stop, the court considered whether the police decision to use the dog was reasonably related in scope to the circumstances that justified the stop in the first place. The court concluded that the canine sniff was performed without any "specific and articulable facts" to suggest drug activity. Therefore -- despite the fact that the dog sniff may not have been a search per se -- the court found that the use of the dog "unjustifiably enlarge[ed] the scope of a routine traffic stop into a drug investigation." At 510. Thus, the court suppressed the drugs found in the car.
Similar to the Indiana Supreme Court's analysis in
Litchfield, the Illinois Supreme Court in
Caballes focused broadly on the entire police course of conduct, rather than simply looking at the individual's expectation of privacy.
So what happened? The U.S. Supreme Court reversed. Ignoring the Illinois Supreme Court's nuanced analysis, the U.S. Supreme Court simplistically focused only on whether the dog sniff itself was a search. Reaffirming
Place, it found that the drugs were properly seized under the
Fourth
Amendment.
Illinois v. Caballes, 125 S.Ct. 834 (2005). (Interestingly, Justices Ruth Bader Ginsburg and David H. Souter in dissent largely adopted the Illinois Supreme Court's
sophisticated view that the police activity, taken as a whole, was unconstitutional. At 843.)
As
Litchfield and
Caballes illustrate, the problem with solely considering privacy is that it deflects attention from the wider inquiry into the reasonableness of police conduct as a whole. In these cases, the analyses of both the Indiana and Illinois Supreme Court deserve to be adopted.
