Rehnquist Court: California v. Greenwood
Your Garbage is Not Private
US Supreme Court
CALIFORNIA v. GREENWOOD, 486 U.S. 35 (1988)
486 U.S. 35
CALIFORNIA v. GREENWOOD ET AL.
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT
No. 86-684.
Argued January 11, 1988
Decided May 16, 1988
Acting on information indicating that respondent Greenwood might be engaged in narcotics
trafficking, police twice obtained from his regular trash collector garbage bags left
on the curb in front of his house. On the basis of items in the bags which were indicative
of narcotics use, the police obtained warrants to search the house, discovered controlled
substances during the searches, and arrested respondents on felony narcotics charges.
Finding that probable cause to search the house would not have existed without the
evidence obtained from the trash searches, the State Superior Court dismissed the
charges under People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262, which held that warrantless
trash searches violate the Fourth Amendment and the California Constitution. Although
noting a post-Krivda state constitutional amendment eliminating the exclusionary rule
for evidence seized in violation of state, but not federal, law, the State Court of
Appeal affirmed on the ground that Krivda was based on federal, as well as state,
law.
Held:
1. The Fourth Amendment does not prohibit the warrantless search and seizure of garbage
left for collection outside the curtilage of a home. Pp. 39-44.
(a) Since respondents voluntarily left their trash for collection in an area particularly
suited for public inspection, their claimed expectation of privacy in the inculpatory
items they discarded was not objectively reasonable. It is common knowledge that plastic
garbage bags left along a public street are readily accessible to animals, children,
scavengers, snoops, and other members of the public. Moreover, respondents placed
their refuse at the curb for the express purpose of conveying it to a third party,
the trash collector, who might himself have sorted through it or permitted others,
such as the police, to do so. 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. Pp. 39-43.
(b) Greenwood's alternative argument that his expectation of privacy in his garbage
should be deemed reasonable as a matter of federal constitutional law because the
warrantless search and seizure of his garbage was impermissible as a matter of California
law under Krivda, [486 U.S. 35, 36] which he contends survived the state constitutional
amendment, is without merit. The reasonableness of a search for Fourth Amendment purposes
does not depend upon privacy concepts embodied in the law of the particular State
in which the search occurred; rather, it turns upon the understanding of society as
a whole that certain areas deserve the most scrupulous protection from government
invasion. There is no such understanding with respect to garbage left for collection
at the side of a public street. Pp. 43-44.
2. Also without merit is Greenwood's contention that the California constitutional
amendment violates the Due Process Clause of the Fourteenth Amendment. Just as this
Court's Fourth Amendment exclusionary rule decisions have not required suppression
where the benefits of deterring minor police misconduct were overbalanced by the societal
costs of exclusion, California was not foreclosed by the Due Process Clause from concluding
that the benefits of excluding relevant evidence of criminal activity do not outweigh
the costs when the police conduct at issue does not violate federal law. Pp. 44-45.
182 Cal. App. 3d 729, 227 Cal. Rptr. 539, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN,
STEVENS, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion,
in which MARSHALL, J., joined, post, p. 45. KENNEDY, J., took no part in the consideration
or decision of the case.
Michael J. Pear argued the cause for petitioner. With him on the briefs were Cecil
Hicks and Michael R. Capizzi.
Michael Ian Garey, by appointment of the Court, 484 U.S. 808 , argued the cause for
respondents and filed a brief for respondent Greenwood. Richard L. Schwartzberg filed
a brief for respondent Van Houten. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the State of
California et al. by John K. Van de Kamp, Attorney General of California, Steve White,
Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General,
Ronald E. Niver and Laurence K. Sullivan, Supervising Deputy Attorneys General, and
by the Attorneys General for their respective States as follows: Robert Butterworth
of Florida, Warren Price III of Hawaii, Linley E. Pearson of Indiana, David L. Armstrong
of Kentucky, Hubert H. Humphrey III of Minnesota, LeRoy S. Zimmerman of Pennsylvania,
Travis Medlock of South Carolina, W. J. Michael Cody of Tennessee, Kenneth O. Eikenberry
of Washington, Donald J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming; and
for Americans for Effective [486 U.S. 35, 37] Law Enforcement, Inc., et al. by Fred
E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, Courtney A. Evans, Daniel
B. Hales, and Jack E. Yelverton. [486 U.S. 35, 37]
JUSTICE WHITE delivered the opinion of the Court.
The issue here is whether the Fourth Amendment prohibits the warrantless search and
seizure of garbage left for collection outside the curtilage of a home. We conclude,
in accordance with the vast majority of lower courts that have addressed the issue,
that it does not.
I
In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department
received information indicating that respondent Greenwood might be engaged in narcotics
trafficking. Stracner learned that a criminal suspect had informed a federal drug
enforcement agent in February 1984 that a truck filled with illegal drugs was en route
to the Laguna Beach address at which Greenwood resided. In addition, a neighbor complained
of heavy vehicular traffic late at night in front of Greenwood's single-family home.
The neighbor reported that the vehicles remained at Greenwood's house for only a few
minutes.
Stracner sought to investigate this information by conducting a surveillance of Greenwood's
home. She observed several vehicles make brief stops at the house during the late-night
and early morning hours, and she followed a truck from the house to a residence that
had previously been under investigation as a narcotics-trafficking location.
On April 6, 1984, Stracner asked the neighborhood's regular trash collector to pick
up the plastic garbage bags that Greenwood had left on the curb in front of his house
and to turn the bags over to her without mixing their contents with garbage from other
houses. The trash collector cleaned his truck bin of other refuse, collected the garbage
bags from the street in front of Greenwood's house, and turned the bags over to Stracner.
The officer searched through the rubbish [486 U.S. 35, 38] and found items indicative
of narcotics use. She recited the information that she had gleaned from the trash
search in an affidavit in support of a warrant to search Greenwood's home.
Police officers encountered both respondents at the house later that day when they
arrived to execute the warrant. The police discovered quantities of cocaine and hashish
during their search of the house. Respondents were arrested on felony narcotics charges.
They subsequently posted bail.
The police continued to receive reports of many late-night visitors to the Greenwood
house. On May 4, Investigator Robert Rahaeuser obtained Greenwood's garbage from the
regular trash collector in the same manner as had Stracner. The garbage again contained
evidence of narcotics use.
Rahaeuser secured another search warrant for Greenwood's home based on the information
from the second trash search. The police found more narcotics and evidence of narcotics
trafficking when they executed the warrant. Greenwood was again arrested.
The Superior Court dismissed the charges against respondents on the authority of
People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262 (1971), which held that warrantless
trash searches violate the Fourth Amendment and the California Constitution. The court
found that the police would not have had probable cause to search the Greenwood home
without the evidence obtained from the trash searches.
The Court of Appeal affirmed. 182 Cal. App. 3d 729, 227 Cal. Rptr. 539 (1986). The
court noted at the outset that the fruits of warrantless trash searches could no longer
be suppressed if Krivda were based only on the California Constitution, because since
1982 the State has barred the suppression of evidence seized in violation of California
law but not federal law. See Cal. Const., Art. I, 28(d); In re Lance W., 37 Cal. 3d
873, 694 P.2d 744 (1985). But Krivda, a decision binding on the Court of Appeal, also
held that the fruits of warrantless trash searches were to be excluded under federal
[486 U.S. 35, 39] law. Hence, the Superior Court was correct in dismissing the charges
against respondents. 182 Cal. App. 3d, at 735, 227 Cal. Rptr, at 542. 1
The California Supreme Court denied the State's petition for review of the Court
of Appeal's decision. We granted certiorari, 483 U.S. 1019 , and now reverse.
II
The warrantless search and seizure of the garbage bags left at the curb outside the
Greenwood house would violate the Fourth Amendment only if respondents manifested
a subjective expectation of privacy in their garbage that society accepts as objectively
reasonable. O'Connor v. Ortega, 480 U.S. 709, 715 (1987); California v. Ciraolo, 476
U.S. 207, 211 (1986); Oliver v. United States, 466 U.S. 170, 177 (1984); Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Respondents do not disagree
with this standard.
They assert, however, that they had, and exhibited, an expectation of privacy with
respect to the trash that was searched by the police: The trash, which was placed
on the street for collection at a fixed time, was contained in opaque plastic bags,
which the garbage collector was expected to pick up, mingle with the trash of others,
and deposit at the garbage dump. The trash was only temporarily on the street, and
there was little likelihood that it would be inspected by anyone.
It may well be that respondents did not expect that the contents of their garbage
bags would become known to the police or other members of the public. An expectation
of privacy does not give rise to Fourth Amendment protection, [486 U.S. 35, 40] however,
unless society is prepared to accept that expectation as objectively reasonable.
Here, we conclude that respondents exposed their garbage to the public sufficiently
to defeat their claim to Fourth Amendment protection. It is common knowledge that
plastic garbage bags left on or at the side of a public street are readily accessible
to animals, 2 children, scavengers, 3 snoops, 4 and other members of the public. See
Krivda, supra, at 367, 486 P.2d, at 1269. Moreover, respondents placed their refuse
at the curb 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. Accordingly, having deposited their garbage "in an area particularly
suited for [486 U.S. 35, 41] public inspection and, in a manner of speaking, public
consumption, for the express purpose of having strangers take it," United States v.
Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable
expectation of privacy in the inculpatory items that they discarded.
Furthermore, as we have held, 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. Hence, "[w]hat a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection." Katz v. United
States, supra, at 351. We held in Smith v. Maryland, 442 U.S. 735 (1979), for example,
that the police did not violate the Fourth Amendment by causing a pen register to
be installed at the telephone company's offices to record the telephone numbers dialed
by a criminal suspect. An individual has no legitimate expectation of privacy in the
numbers dialed on his telephone, we reasoned, because he voluntarily conveys those
numbers to the telephone company when he uses the telephone. Again, we observed that
"a person has no legitimate expectation of privacy in information he voluntarily turns
over to third parties." Id., at 743-744.
Similarly, we held in California v. Ciraolo, supra, that the police were not required
by the Fourth Amendment to obtain a warrant before conducting surveillance of the
respondent's fenced backyard from a private plane flying at an altitude of 1,000 feet.
We concluded that the respondent's expectation that his yard was protected from such
surveillance was unreasonable because "[a]ny member of the public flying in this airspace
who glanced down could have seen everything that these officers observed." Id., at
213-214.
Our conclusion 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 is reinforced by the unanimous rejection of similar claims by the Federal Courts
of Appeals. See United States v. Dela Espriella, [486 U.S. 35, 42] 781 F.2d 1432,
1437 (CA9 1986); United States v. O'Bryant, 775 F.2d 1528, 1533-1534 (CA11 1985);
United States v. Michaels, 726 F.2d 1307, 1312-1313 (CA8), cert. denied, 469 U.S.
820 (1984); United States v. Kramer, 711 F.2d 789, 791-794 (CA7), cert. denied, 464
U.S. 962 (1983); United States v. Terry, 702 F.2d 299, 308-309 (CA2), cert. denied
sub nom. Williams v. United States, 461 U.S. 931 (1983); United States v. Reicherter,
supra, at 399; United States v. Vahalik, 606 F.2d 99, 100-101 (CA5 1979) (per curiam),
cert. denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025
(CA4 1978), cert. denied, 440 U.S. 959 (1979); Magda v. Benson, 536 F.2d 111, 112-113
(CA6 1976) (per curiam); United States v. Mustone, 469 F.2d 970, 972-974 (CA1 1972).
In United States v. Thornton, 241 U.S. App. D.C. 46, 56, and n. 11, 746 F.2d 39, 49,
and n. 11 (1984), the court observed that "the overwhelming weight of authority rejects
the proposition that a reasonable expectation of privacy exists with respect to trash
discarded outside the home and the curtilege [sic] thereof." In addition, of those
state appellate courts that have considered the issue, the vast majority have held
that the police may conduct warrantless searches and seizures of garbage discarded
in public areas. See Commonwealth v. Chappee, 397 Mass. 508, 512-513, 492 N. E. 2d
719, 721-722 (1986); Cooks v. State, 699 P.2d 653, 656 (Okla. Crim.), cert. denied,
474 U.S. 935 (1985); State v. Stevens, 123 Wis. 2d 303, 314-317, 367 N. W. 2d 788,
794-797, cert. denied, 474 U.S. 852 (1985); State v. Ronngren, 361 N. W. 2d 224, 228-230
(N. D. 1985); State v. Brown, 20 Ohio App. 3d 36, 37-38, 484 N. E. 2d 215, 217-218
(1984); State v. Oquist, 327 N. W. 2d 587 (Minn. 1982); People v. Whotte, 113 Mich.
App. 12, 317 N. W. 2d 266 (1982); Commonwealth v. Minton, 288 Pa. Super. 381, 391,
432 A. 2d 212, 217 (1981); State v. Schultz, 388 So.2d 1326 (Fla. App. 1980); People
v. Huddleston, 38 Ill. App. 3d 277, 347 N. E. 2d 76 (1976); Willis v. State, 518 S.
W. 2d 247, 249 (Tex. Crim. App. 1975); Smith v. State, 510 P.2d 793 (Alaska), cert.
denied, [486 U.S. 35, 43] 414 U.S. 1086 (1973); State v. Fassler, 108 Ariz. 586, 592-593,
503 P.2d 807, 813-814 (1972); Croker v. State, 477 P.2d 122, 125-126 (Wyo. 1970);
State v. Purvis, 249 Ore. 404, 411, 438 P.2d 1002, 1005 (1968). But see State v. Tanaka,
67 Haw. 658, 701 P.2d 1274 (1985); People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262
(1971). 5
III
We reject respondent Greenwood's alternative argument for affirmance: that his expectation
of privacy in his garbage should be deemed reasonable as a matter of federal constitutional
law because the warrantless search and seizure of his garbage was impermissible as
a matter of California law. He urges that the state-law right of Californians to privacy
in their garbage, announced by the California Supreme Court in Krivda, supra, survived
the subsequent state constitutional amendment eliminating the suppression remedy as
a means of enforcing that right. See In re Lance W., 37 Cal. 3d, at 886-887, 694 P.2d,
at 752-753. Hence, he argues that the Fourth Amendment should itself vindicate that
right.
Individual States may surely construe their own constitutions as imposing more stringent
constraints on police conduct than does the Federal Constitution. We have never intimated,
however, that whether or not a search is reasonable within the meaning of the Fourth
Amendment depends on the law of the particular State in which the search occurs. We
have emphasized instead that the Fourth Amendment analysis must turn on such factors
as "our societal understanding that certain areas deserve the most scrupulous protection
from government invasion." Oliver v. United States, 466 U.S., at 178 (emphasis added).
See also Rakas v. Illinois, 439 U.S. 128, 143 -144, n. 12 (1978). We have already
concluded that society as a whole possesses no such understanding [486 U.S. 35, 44]
with regard to garbage left for collection at the side of a public street. Respondent's
argument is no less than a suggestion that concepts of privacy under the laws of each
State are to determine the reach of the Fourth Amendment. We do not accept this submission.
IV
Greenwood finally urges as an additional ground for affirmance that the California
constitutional amendment eliminating the exclusionary rule for evidence seized in
violation of state but not federal law violates the Due Process Clause of the Fourteenth
Amendment. In his view, having recognized a state-law right to be free from warrantless
searches of garbage, California may not under the Due Process Clause deprive its citizens
of what he describes as "the only effective deterrent" to violations of this right.
Greenwood concedes that no direct support for his position can be found in the decisions
of this Court. He relies instead on cases holding that individuals are entitled to
certain procedural protections before they can be deprived of a liberty or property
interest created by state law. See Hewitt v. Helms, 459 U.S. 460 (1983); Vitek v.
Jones, 445 U.S. 480 (1980).
We see no merit in Greenwood's position. California could amend its Constitution
to negate the holding in Krivda that state law forbids warrantless searches of trash.
We are convinced that the State may likewise eliminate the exclusionary rule as a
remedy for violations of that right. At the federal level, we have not required that
evidence obtained in violation of the Fourth Amendment be suppressed in all circumstances.
See, e. g., United States v. Leon, 468 U.S. 897 (1984); United States v. Janis, 428
U.S. 433 (1976); United States v. Calandra, 414 U.S. 338 (1974). Rather, our decisions
concerning the scope of the Fourth Amendment exclusionary rule have balanced the benefits
of deterring police misconduct against the costs of excluding reliable evidence of
criminal activity. See Leon, 468 U.S., at 908 -913. We [486 U.S. 35, 45] have declined
to apply the exclusionary rule indiscriminately "when law enforcement officers have
acted in objective good faith or their transgressions have been minor," because "the
magnitude of the benefit conferred on . . . guilty defendants [in such circumstances]
offends basic concepts of the criminal justice system." Id., at 908 (citing Stone
v. Powell, 428 U.S. 465, 490 (1976)).
The States are not foreclosed by the Due Process Clause from using a similar balancing
approach to delineate the scope of their own exclusionary rules. Hence, the people
of California could permissibly conclude that the benefits of excluding relevant evidence
of criminal activity do not outweigh the costs when the police conduct at issue does
not violate federal law.
V
The judgment of the California Court of Appeal is therefore reversed, and this case
is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of this case.
Footnotes
[ Footnote 1 ] The Court of Appeal also held that respondent Van Houten had standing
to seek the suppression of evidence discovered during the April 4 search of Greenwood's
home. 182 Cal. App. 3d, at 735, 227 Cal. Rptr., at 542-543.
[ Footnote 2 ] For example, State v. Ronngren, 361 N. W. 2d 224 (N. D. 1985), involved
the search of a garbage bag that a dog, acting "at the behest of no one," id., at
228, had dragged from the defendants' yard into the yard of a neighbor. The neighbor
deposited the bag in his own trash can, which he later permitted the police to search.
The North Dakota Supreme Court held that the search of the garbage bag did not violate
the defendants' Fourth Amendment rights.
[ Footnote 3 ] It is not only the homeless of the Nation's cities who make use of
others' refuse. For example, a nationally syndicated consumer columnist has suggested
that apartment dwellers obtain cents-off coupons by "mak[ing] friends with the fellow
who handles the trash" in their buildings, and has recounted the tale of "the `Rich
lady' from Westmont who once a week puts on rubber gloves and hip boots and wades
into the town garbage dump looking for labels and other proofs of purchase" needed
to obtain manufacturers' refunds. M. Sloane, "The Supermarket Shopper's" 1980 Guide
to Coupons and Refunds 74, 161 (1980).
[ Footnote 4 ] Even the refuse of prominent Americans has not been invulnerable.
In 1975, for example, a reporter for a weekly tabloid seized five bags of garbage
from the sidewalk outside the home of Secretary of State Henry Kissinger. Washington
Post, July 9, 1975, p. A1, col. 8. A newspaper editorial criticizing this journalistic
"trash-picking" observed that "[e]vidently . . . `everybody does it.'" Washington
Post, July 10, 1975, p. A18, col. 1. We of course do not, as the dissent implies,
"bas[e] [our] conclusion" that individuals have no reasonable expectation of privacy
in their garbage on this "sole incident." Post, at 51.
[ Footnote 5 ] Given that the dissenters are among the tiny minority of judges whose
views are contrary to ours, we are distinctly unimpressed with the dissent's prediction
that "society will be shocked to learn" of today's decision. Post, at 46.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Every week for two months, and at least once more a month later, the Laguna Beach
police clawed through the trash that respondent Greenwood left in opaque, sealed bags
on the curb outside his home. Record 113. Complete strangers minutely scrutinized
their bounty, undoubtedly dredging up intimate details of Greenwood's private life
and habits. The intrusions proceeded without a warrant, and no court before or since
has concluded that the police acted on probable cause to believe Greenwood was engaged
in any criminal activity.
Scrutiny of another's trash is contrary to commonly accepted notions of civilized
behavior. I suspect, therefore, [486 U.S. 35, 46] that members of our society will
be shocked to learn that the Court, the ultimate guarantor of liberty, deems unreasonable
our expectation that the aspects of our private lives that are concealed safely in
a trash bag will not become public.
I
"A container which can support a reasonable expectation of privacy may not be searched,
even on probable cause, without a warrant." United States v. Jacobsen, 466 U.S. 109,
120 , n. 17 (1984) (citations omitted). Thus, as the Court observes, if Greenwood
had a reasonable expectation that the contents of the bags that he placed on the curb
would remain private, the warrantless search of those bags violated the Fourth Amendment.
Ante, at 39.
The Framers of the Fourth Amendment understood that "unreasonable searches" of "paper[s]
and effects" - no less than "unreasonable searches" of "person[s] and houses" - infringe
privacy. As early as 1878, this Court acknowledged that the contents of "[l]etters
and sealed packages . . . in the mail are as fully guarded from examination and inspection
. . . as if they were retained by the parties forwarding them in their own domiciles."
Ex parte Jackson, 96 U.S. 727, 733 . In short, so long as a package is "closed against
inspection," the Fourth Amendment protects its contents, "wherever they may be," and
the police must obtain a warrant to search it just "as is required when papers are
subjected to search in one's own household." Ibid. Accord, United States v. Van Leeuwen,
397 U.S. 249 (1970).
With the emergence of the reasonable-expectation-of-privacy analysis, see Katz v.
United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Smith v. Maryland,
442 U.S. 735, 740 (1979), we have reaffirmed this fundamental principle. In Robbins
v. California, 453 U.S. 420 (1981), for example, Justice Stewart, writing for a plurality
of four, pronounced that "unless the container is such that its contents may be said
to be in plain view, those contents are fully [486 U.S. 35, 47] protected by the Fourth
Amendment," id., at 427, and soundly rejected any distinction for Fourth Amendment
purposes among various opaque, sealed containers:
"[E]ven if one wished to import such a distinction into the Fourth Amendment, it
is difficult if not impossible to perceive any objective criteria by which that task
might be accomplished. What one person may put into a suitcase, another may put into
a paper bag. . . . And . . . no court, no constable, no citizen, can sensibly be asked
to distinguish the relative `privacy interests' in a closed suitcase, briefcase, portfolio,
duffelbag, or box." Id., at 426-427.
See also id., at 428 (expectation of privacy attaches to any container unless it
"so clearly announce[s] its contents, whether by its distinctive configuration, its
transparency, or otherwise, that its contents are obvious to an observer"). With only
one exception, every Justice who wrote in that case eschewed any attempt to distinguish
"worthy" from "unworthy" containers. 1
More recently, in United States v. Ross, 456 U.S. 798 (1982), the Court, relying
on the "virtually unanimous agreement [486 U.S. 35, 48] in Robbins . . . that a constitutional
distinction between `worthy' and `unworthy' containers would be improper," held that
a distinction among "paper bags, locked trunks, lunch buckets, and orange crates"
would be inconsistent with
"the central purpose of the Fourth Amendment. . . . [A] traveler who carries a toothbrush
and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal
right to conceal his possessions from official inspection as the sophisticated executive
with the locked attache case.
"As Justice Stewart stated in Robbins, the Fourth Amendment provides protection to
the owner of every container that conceals its contents from plain view." Id., at
822-823 (emphasis added; footnote and citation omitted).
See also Jacobsen, supra, at 129 (opinion of WHITE, J.).
Accordingly, we have found a reasonable expectation of privacy in the contents of
a 200-pound "double-locked footlocker," United States v. Chadwick, 433 U.S. 1, 11
(1977); a "comparatively small, unlocked suitcase," Arkansas v. Sanders, 442 U.S.
753, 762 , n. 9 (1979); a "totebag," Robbins, 453 U.S., at 422 ; and "packages wrapped
in green opaque plastic," ibid. See also Ross, supra, at 801, 822-823 (suggesting
that a warrant would have been required to search a "`lunch-type' brown paper bag"
and a "zippered red leather pouch" had they not been found in an automobile); Jacobsen,
supra, at 111, 114-115 (suggesting that a warrantless search of an "ordinary cardboard
box wrapped in brown paper" would have violated the Fourth Amendment had a private
party not already opened it).
Our precedent, therefore, leaves no room to doubt that had respondents been carrying
their personal effects in opaque, sealed plastic bags - identical to the ones they
placed on the curb - their privacy would have been protected from warrantless police
intrusion. So far as Fourth Amendment protection is concerned, opaque plastic bags
are every bit as [486 U.S. 35, 49] worthy as "packages wrapped in green opaque plastic"
and "double-locked footlocker[s]." Cf. Robbins, supra, at 441 (REHNQUIST, J., dissenting)
(objecting to Court's discovery of reasonable expectation of privacy in contents of
"two plastic garbage bags").
II
Respondents deserve no less protection just because Greenwood used the bags to discard
rather than to transport his personal effects. Their contents are not inherently any
less private, and Greenwood's decision to discard them, at least in the manner in
which he did, does not diminish his expectation of privacy. 2 [486 U.S. 35, 50]
A trash bag, like any of the above-mentioned containers, "is a common repository
for one's personal effects" and, even more than many of them, is "therefore . . .
inevitably associated with the expectation of privacy." Sanders, supra, at 762 (citing
Chadwick, supra, at 13). "[A]lmost every human activity ultimately manifests itself
in waste products . . . ." Smith v. State, 510 P.2d 793, 798 (Alaska), cert. denied,
414 U.S. 1086 (1973). See California v. Rooney, 483 U.S. 307, 320 -321, n. 3 (1987)
(WHITE, J., dissenting) (renowned archaeologist Emil Haury once said, "[i]f you want
to know what is really going on in a community, look at its garbage") (quoted by W.
Rathje, Archaeological Ethnography . . . Because Sometimes It Is Better to Give Than
to Receive, in Explorations in Ethnoarchaeology 49, 54 (R. Gould ed. 1978)); Weberman,
The Art of Garbage Analysis: You Are What You Throw Away, 76 Esquire 113 (1971) (analyzing
trash of various celebrities and drawing conclusions about their private lives). 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 riffling 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.
It cannot be doubted that a sealed trash bag harbors telling evidence of the "intimate
activity associated with the `sanctity of a man's home and the privacies of life,'"
which the Fourth Amendment is designed [486 U.S. 35, 51] to protect. Oliver v. United
States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630
(1886)). See also United States v. Dunn, 480 U.S. 294, 300 (1987).
The Court properly rejects the State's attempt to distinguish trash searches from
other searches on the theory that trash is abandoned and therefore not entitled to
an expectation of privacy. As the author of the Court's opinion observed last Term,
a defendant's "property interest [in trash] does not settle the matter for Fourth
Amendment purposes, for the reach of the Fourth Amendment is not determined by state
property law." Rooney, supra, at 320 (WHITE, J., dissenting). In evaluating the reasonableness
of Greenwood's expectation that his sealed trash bags would not be invaded, the Court
has held that we must look to "understandings that are recognized and permitted by
society." 3 Most of us, I believe, would be incensed to discover a meddler - whether
a neighbor, a reporter, or a detective - scrutinizing our sealed trash containers
to discover some detail of our personal lives. See State v. Schultz, 388 So.2d 1326,
1331 (Fla. App. 1980) (Anstead, J., dissenting). That was, quite naturally, the reaction
to the sole incident on which the Court bases its conclusion that "snoops" and the
like defeat the expectation of privacy in trash. Ante, at 40, and n. 4. When a tabloid
reporter examined then-Secretary of State [486 U.S. 35, 52] Henry Kissinger's trash
and published his findings, Kissinger was "really revolted" by the intrusion and his
wife suffered "grave anguish." N. Y. Times, July 9, 1975, p. A1, col. 8. The public
response roundly condemning the reporter demonstrates that society not only recognized
those reactions as reasonable, but shared them as well. Commentators variously characterized
his conduct as "a disgusting invasion of personal privacy," Flieger, Investigative
Trash, U.S. News & World Report, July 28, 1975, p. 72 (editor's page); "indefensible
. . . as civilized behavior," Washington Post, July 10, 1975, p. A18, col. 1 (editorial);
and contrary to "the way decent people behave in relation to each other," ibid.
Beyond a generalized expectation of privacy, many municipalities, whether for reasons
of privacy, sanitation, or both, reinforce confidence in the integrity of sealed trash
containers by "prohibit[ing] anyone, except authorized employees of the Town . . .,
to rummage into, pick up, collect, move or otherwise interfere with articles or materials
placed on . . . any public street for collection." United States v. Dzialak, 441 F.2d
212, 215 (CA2 1971) (paraphrasing ordinance for town of Cheektowaga, New York). See
also United States v. Vahalik, 606 F.2d 99, 100 (CA5 1979) (per curiam); Magda v.
Benson, 536 F.2d 111, 112 (CA6 1976) (per curiam); People v. Rooney, 175 Cal. App.
3d 634, 645, 221 Cal. Rptr. 49, 56 (1985), cert. dism'd, 483 U.S. 307 (1987); People
v. Krivda, 5 Cal. 3d 357, 366, 486 P.2d 1262, 1268 (1971), vacated and remanded, 409
U.S. 33 (1972); State v. Brown, 20 Ohio App. 3d 36, 38, n. 3, 484 N. E. 2d 215, 218,
n. 3 (1984). In fact, the California Constitution, as interpreted by the State's highest
court, guarantees a right of privacy in trash vis-a-vis government officials. See
Krivda, supra (recognizing right); In re Lance W., 37 Cal. 3d 873, 886-887, 694 P.2d
744, 752-753 (1985) (later constitutional amendment abolished exclusionary remedy
but left intact the substance of the right). [486 U.S. 35, 53]
That is not to deny that isolated intrusions into opaque, sealed trash containers
occur. When, acting on their own, "animals, children, scavengers, snoops, [or] other
members of the public," ante, at 40 (footnotes omitted), actually rummage through
a bag of trash and expose its contents to plain view, "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," ante, at 41. That much follows from cases like
Jacobsen, 466 U.S., at 117 , 120, n. 17 (emphasis added), which held that police may
constitutionally inspect a package whose "integrity" a private carrier has already
"compromised," because "[t]he Fourth Amendment is implicated only if the authorities
use information with respect to which the expectation of privacy has not already been
frustrated"; and California v. Ciraolo, 476 U.S. 207, 213 -214 (1986) (emphasis added),
which held that the Fourth Amendment does not prohibit police from observing what
"[a]ny member of the public flying in this airspace who glanced down could have seen."
Had Greenwood flaunted his intimate activity by strewing his trash all over the curb
for all to see, or had some nongovernmental intruder invaded his privacy and done
the same, I could accept the Court's conclusion that an expectation of privacy would
have been unreasonable. Similarly, had police searching the city dump run across incriminating
evidence that, despite commingling with the trash of others, still retained its identity
as Greenwood's, we would have a different case. But all that Greenwood "exposed .
. . to the public," ante, at 40, were the exteriors of several opaque, sealed containers.
Until the bags were opened by police, they hid their contents from the public's view
every bit as much as did Chadwick's double-locked footlocker and Robbins' green, plastic
wrapping. Faithful application of the warrant requirement does not require police
to "avert their eyes from evidence of criminal activity that could have been observed
by any member of the public." Rather, it only requires them [486 U.S. 35, 54] to adhere
to norms of privacy that members of the public plainly acknowledge.
The mere possibility that unwelcome meddlers might open and rummage through the containers
does not negate the expectation of privacy in their contents any more than the possibility
of a burglary negates an expectation of privacy in the home; or the possibility of
a private intrusion negates an expectation of privacy in an unopened package; or the
possibility that an operator will listen in on a telephone conversation negates an
expectation of privacy in the words spoken on the telephone. "What a person . . .
seeks to preserve as private, even in an area accessible to the public, may be constitutionally
protected." Katz, 389 U.S., at 351 -352. We have therefore repeatedly rejected attempts
to justify a State's invasion of privacy on the ground that the privacy is not absolute.
See Chapman v. United States, 365 U.S. 610, 616 -617 (1961) (search of a house invaded
tenant's Fourth Amendment rights even though landlord had authority to enter house
for some purposes); Stoner v. California, 376 U.S. 483, 487 -490 (1964) (implicit
consent to janitorial personnel to enter motel room does not amount to consent to
police search of room); O'Connor v. Ortega, 480 U.S. 709, 717 (1987) (a government
employee has a reasonable expectation of privacy in his office, even though "it is
the nature of government offices that others - such as fellow employees, supervisors,
consensual visitors, and the general public - may have frequent access to an individual's
office"). As JUSTICE SCALIA aptly put it, the Fourth Amendment protects "privacy .
. . not solitude." O'Connor, supra, at 730 (opinion concurring in judgment).
Nor is it dispositive that "respondents placed their refuse at the curb for the express
purpose of conveying it to a third party, . . . who might himself have sorted through
respondents' trash or permitted others, such as the police, to do so." Ante, at 40.
In the first place, Greenwood can hardly be faulted for leaving trash on his curb
when a county ordinance [486 U.S. 35, 55] commanded him to do so, Orange County Code
4-3-45(a) (1986) (must "remov[e] from the premises at least once each week" all "solid
waste created, produced or accumulated in or about [his] dwelling house"), and prohibited
him from disposing of it in any other way, see Orange County Code 3-3-85 (1988) (burning
trash is unlawful). Unlike in other circumstances where privacy is compromised, Greenwood
could not "avoid exposing personal belongings . . . by simply leaving them at home."
O'Connor, supra, at 725. More importantly, even the voluntary relinquishment of possession
or control over an effect does not necessarily amount to a relinquishment of a privacy
expectation in it. Were it otherwise, a letter or package would lose all Fourth Amendment
protection when placed in a mailbox or other depository with the "express purpose"
of entrusting it to the postal officer or a private carrier; those bailees are just
as likely as trash collectors (and certainly have greater incentive) to "sor[t] through"
the personal effects entrusted to them, "or permi[t] others, such as police to do
so." Yet, it has been clear for at least 110 years that the possibility of such an
intrusion does not justify a warrantless search by police in the first instance. See
Ex parte Jackson, 96 U.S. 727 (1878); United States v. Van Leeuwen, 397 U.S. 249 (1970);
United States v. Jacobsen, supra. 4
III
In holding that the warrantless search of Greenwood's trash was consistent with the
Fourth Amendment, the Court paints a grim picture of our society. It depicts a society
in which local authorities may command their citizens to dispose of their personal
effects in the manner least protective of the [486 U.S. 35, 56] "sanctity of [the]
home and the privacies of life," Boyd v. United States, 116 U.S., at 630 , and then
monitor them arbitrarily and without judicial oversight - a society that is not prepared
to recognize as reasonable an individual's expectation of privacy in the most private
of personal effects sealed in an opaque container and disposed of in a manner designed
to commingle it imminently and inextricably with the trash of others. Ante, at 39.
The American society with which I am familiar "chooses to dwell in reasonable security
and freedom from surveillance," Johnson v. United States, 333 U.S. 10, 14 (1948),
and is more dedicated to individual liberty and more sensitive to intrusions on the
sanctity of the home than the Court is willing to acknowledge.
I dissent.
[ Footnote 1 ] See 453 U.S., at 436 (BLACKMUN, J., dissenting); id., at 437 (REHNQUIST,
J., dissenting); id., at 444 (STEVENS, J., dissenting). But see id., at 433-434 (Powell,
J., concurring in judgment) (rejecting position that all containers, even "the most
trivial," like "a cigarbox or a Dixie cup," are entitled to the same Fourth Amendment
protection). Cf. New York v. Belton, 453 U.S. 454, 460 -461, n. 4 (1981) (defining
"container," for purposes of search incident to a lawful custodial arrest, as "any
object capable of holding another object," including "luggage, boxes, bags, clothing,
and the like"). In addition to finding that Robbins had a reasonable expectation of
privacy in his duffelbag and plastic-wrapped packages, the Court also held that the
automobile exception to the warrant requirement, see Carroll v. United States, 267
U.S. 132, 153 (1925), did not apply to packages found in an automobile. The Court
overruled the latter determination in United States v. Ross, 456 U.S. 798 (1982),
but reaffirmed that where, as here, the automobile exception is inapplicable, police
may not conduct a warrantless search of any container that conceals its contents.
[ Footnote 2 ] Both to support its position that society recognizes no reasonable
privacy interest in sealed, opaque trash bags and to refute the prediction that "society
will be shocked to learn" of that conclusion, supra, at 46, the Court relies heavily
upon a collection of lower court cases finding no Fourth Amendment bar to trash searches.
But the authority that leads the Court to be "distinctly unimpressed" with our position,
ante, at 43, n. 5, is itself impressively undistinguished. Of 11 Federal Court of
Appeals cases cited by the Court, at least 2 are factually or legally distinguishable,
see United States v. O'Bryant, 775 F.2d 1528, 1533-1534 (CA11 1985) (police may search
an apparently valuable briefcase "discarded next to an overflowing trash bin on a
busy city street"); United States v. Thornton, 241 U.S. App. D.C. 46, 56, 746 F.2d
39, 49 (1984) (reasonable federal agents could believe in good faith that a trash
search is legal), and 7 rely entirely or almost entirely on an abandonment theory
that, as noted infra, at 51, the Court has discredited, see United States v. Dela
Espriella, 781 F.2d 1432, 1437 (CA9 1986) ("The question, then, becomes whether placing
garbage for collection constitutes abandonment of property"); United States v. Terry,
702 F.2d 299, 308-309 (CA2) ("[T]he circumstances in this case clearly evidence abandonment
by Williams of his trash"), cert. denied sub nom. Williams v. United States, 461 U.S.
931 (1983); United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981) ("[T]he placing
of trash in garbage cans at a time and place for anticipated collection by public
employees for hauling to a public dump signifies abandonment"); United States v. Vahalik,
606 F.2d 99, 100-101 (CA5 1979) (per curiam) ("[T]he act of placing garbage for collection
is an act of abandonment which terminates any fourth amendment protection"), cert.
denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025 (CA4 1978)
("The act of placing [486 U.S. 35, 50] [garbage] for collection is an act of abandonment
and what happens to it thereafter is not within the protection of the fourth amendment"),
cert. denied, 440 U.S. 959 (1979); Magda v. Benson, 536 F.2d 111, 112 (CA6 1976) (per
curiam) ("[F]ederal case law . . . holds that garbage . . . is abandoned and no longer
protected by the Fourth Amendment"); United States v. Mustone, 469 F.2d 970, 972 (CA1
1972) (when defendant "deposited the bags on the sidewalk he abandoned them"). A reading
of the Court's collection of state-court cases reveals an equally unimpressive pattern.
[ Footnote 3 ] Rakas v. Illinois, 439 U.S. 128, 143 -144, n. 12 (1978). See ante,
at 43 ("[T]he 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 (1984)); Robbins v.
California, 453 U.S. 420, 428 (1981) (plurality opinion) ("Expectations of privacy
are established by general social norms"); Dow Chemical Co. v. United States, 476
U.S. 227, 248 (1986) (opinion of Powell, J.); Bush & Bly, Expectation of Privacy Analysis
and Warrantless Trash Reconnaissance after Katz v. United States, 23 Ariz. L. Rev.
283, 293 (1981) ("[S]ocial custom . . . serves as the most basic foundation of a great
many legitimate privacy expectations") (citation omitted).
[ Footnote 4 ] To be sure, statutes criminalizing interference with the mails might
reinforce the expectation of privacy in mail, see, e. g., 18 U.S.C. 1701-1705, 1708,
but the expectation of privacy in no way depends on statutory protection. In fact,
none of the cases cited in the text even mention such statutes in finding Fourth Amendment
protection in materials handed over to public or private carriers for delivery. [486
U.S. 35, 57]