State v. Morris

Annotate this Case
State v. Morris  (94-299); 165 Vt 111; 680 A.2d 90

[Opinion Filed 22-Mar-1996]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 94-299

State of Vermont                              Supreme Court

                                              On Appeal from
    v.                                        District Court of Vermont,
                                              Unit No. 1, Windham Circuit

Richard Morris                                May Term, 1995


Paul F. Hudson, J.

       Jeffrey L. Amestoy, Attorney General, and Karen R. Carroll, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
  Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J.   Today, we hold that the Vermont Constitution protects
  persons from warrantless police searches into the contents of secured
  opaque trash bags left at curbside for garbage collection and disposal.  In
  our view, because persons have an objectively reasonable privacy interest
  in the contents of such containers, police must obtain a warrant before
  searching through them.  In this case, absent the evidence obtained from
  the unlawful search of defendant's trash, the warrant permitting the search
  of his house was not supported by probable cause; accordingly, we reverse
  defendant's conviction for possession of marijuana.

                                   I.

       Sometime before March 1993, a confidential informant told an officer
  of the Brattleboro Police Department that defendant was selling marijuana
  from his apartment and from the parking lot of a certain grocery store.  On
  March 1, 1993, a regularly scheduled trash collection day, two police
  officers went to the apartment building where defendant resided and seized
  the five or six opaque trash bags that had been set out for collection near
  the curb about five or six feet from

 

  the building.  From the exterior of the bags, there was no way to identify
  which tenant had deposited which bags.  All of the bags were transported to
  the police station and searched without a warrant.  Inside defendant's
  bags, which were identified through discarded pieces of mail, the police
  found marijuana seeds and stems and baggies containing flakes of marijuana.

       Based on the items found in the trash, the information supplied by the
  confidential informant, and an unidentified neighbor's report that
  defendant had received many different visitors during the past month, the
  police sought and obtained a warrant to search defendant's residence. 
  Approximately four ounces of marijuana were found, and defendant was
  charged with possession of marijuana.  Defendant moved to suppress all
  evidence seized from his apartment on the ground that the search warrant
  was defective because it was based primarily on evidence discovered during
  an illegal warrantless search of his garbage.  The district court denied
  defendant's motion to suppress, ruling that defendant had no expectation of
  privacy in his discarded garbage.

       On appeal, following his conviction based upon a conditional plea of
  no contest, defendant argues that the Vermont Constitution prohibits the
  warrantless search of opaque trash bags placed at curbside for collection
  on a regularly scheduled trash pick-up day.  In response, the State
  contends that the Vermont Constitution does not prohibit the warrantless
  search of curbside trash, and that even if it did and evidence found in
  defendant's trash bags was suppressed, the other information in the warrant
  application and affidavit is sufficient to support a finding of probable
  cause to search defendant's apartment.

                                  II.

       Our task is to discover and protect the core value of privacy embraced
  by Chapter I, Article 11 of the Vermont Constitution.(FN1)  State v. Savva,
  159 Vt. 75, 85, 616 A.2d 774, 779

 

  (1991); State v. Kirchoff, 156 Vt. 1, 6-7, 587 A.2d 988, 992 (1991). 
  Article 11 protects persons "from unreasonable, warrantless governmental
  intrusions into affairs which they choose to keep private."  State v.
  Zaccaro, 154 Vt. 83, 91, 574 A.2d 1256, 1261 (1990).  The first and
  foremost line of protection is the warrant requirement.  Requiring advance
  judicial approval before subjecting persons to police searches represents a
  balance in which an individual's privacy interest outweighs the burdens on
  law enforcement in obtaining a warrant.  Savva, 159 Vt. at 85-86, 616 A.2d 
  at 780.  Thus, absent exceptional circumstances, the government's decision
  to invade a person's privacy must be made by a neutral judicial officer
  rather than the police.  Id. at 85, 616 A.2d  at 779.

       Of course, Article 11 does not "protect areas or activities that have
  been willingly exposed to the public."  Kirchoff, 156 Vt. at 7, 587 A.2d  at
  993.  In determining whether persons have a privacy interest in any given
  area or activity, we examine both private subjective expectations and
  general social norms.  State v. Blow, 157 Vt. 513, 517-18, 602 A.2d 552,
  555 (1991).  The manifested privacy interest must be a reasonable one, but
  as we have cautioned before, constitutional rights are not limited by
  waning expectations of privacy resulting from increased governmental
  intrusion into people's lives.  See Kirchoff, 156 Vt. at 12, 587 A.2d  at
  995-96. Ultimately, the question is "`whether, if the particular form of
  surveillance practiced by the police is permitted to go unregulated by
  constitutional constraints, 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.'"  1 W. LaFave, Search and Seizure § 2.6(c), at 592
  (3d ed. 1996) (quoting A. Amsterdam, Perspectives on the Fourth Amendment,
  58 Minn. L. Rev. 349, 403 (1974)).

       Given the facts of this case, we believe that defendant manifested a
  privacy interest

 

  recognized by society, and we conclude that unconstrained government
  inspection of people's trash is not consistent with a free and open
  society.  As Justice Brennan stated in his dissent in California v.
  Greenwood, 486 U.S. 35 (1988), "Scrutiny of another's trash is contrary to
  commonly accepted notions of civilized behavior."  Id. at 45 (Brennan, J.,
  dissenting).  While at first blush there may be a tendency to accept the
  notion that a person has no reasonable privacy interest in discarded trash,
  that attraction vanishes when one contemplates the "prospect of police
  officers, without any cause whatever, opening a securely tied and opaque
  trash bag, the contents of which are hidden from public view, and then
  searching the bag to determine the activities, behavior, habits, and
  lifestyles of persons who deposited the trash in front of their home for
  disposition by a trash collector."  People v. Hillman, 834 P.2d 1271, 1278
  (Colo. 1992) (Quinn, J., dissenting).

       Because "almost every human activity ultimately manifests itself in
  waste products," it is understandable that persons would want to maintain
  privacy in the contents of their refuse. Smith v. State, 510 P.2d 793, 798
  (Alaska 1973).  An individual's trash will often reveal intimate details of
  that person's financial obligations, medical concerns, personal
  relationships, political associations, religious beliefs, and numerous
  other confidential matters.  See State v. Tanaka, 701 P.2d 1274, 1276-77
  (Haw. 1985) ("Business records, bills, correspondence, magazines, tax
  records, and other telltale refuse can reveal much about a person's
  activities, associations, and beliefs."); see also People v. Edwards, 458 P.2d 713, 718 (Cal. 1969) (half truths leading to rumor and gossip may
  readily flow from attempt to "read" contents of another's trash).  As
  Justice Brennan so cogently stated in his Greenwood dissent:

       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.  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 to

 

       protect.

  486 U.S.  at 50 (Brennan, J., dissenting) (quoting Oliver v. United States,
  466 U.S. 170, 180 (1984)).  Given the intimate details of people's lives
  that may be revealed by searching through their refuse, we conclude that
  persons have a reasonable interest in keeping private the contents of their
  sealed trash containers.  See State v. Hempele, 576 A.2d 793, 803 (N.J.
  1990) (undoubtedly, most people would be upset to see another person
  sifting through their garbage, perusing their discarded mail, reading their
  bank statements, looking at their empty pharmaceutical bottles, and
  checking receipts to see what videotapes they rent).

       Further, that privacy interest is not lost merely because people
  follow the customary practice of depositing their garbage in closed
  containers at curbside for collection and disposal. First, the placement of
  trash in closed, opaque bags manifests an intent that the contents of the
  bags not be subjected to examination by the public in general or the police
  in particular.  The State's point that opaque bags are used merely because
  they are the most common type of bag available only reinforces our point
  that most people would prefer the type of bag that will keep their trash
  private until it is commingled with other trash and loses its identity. 
  See Note, California v. Greenwood: A Proposed Compromise to the
  Exploitation of the Objective Expectation of Privacy, 38 Buff. L. Rev. 647,
  663 (1990) (nearly exclusive availability of opaque trash bags is result of
  consumers' desire for privacy).  There is a privacy interest in opaque
  trash bags just as there is in any other closed container whose contents
  are not in plain view.  See Savva, 159 Vt. at 89-90, 616 A.2d  at 782
  ("unworthy container" doctrine rejected; privacy interest exists in closed
  containers, regardless of their worth).

       Second, by placing trash bags at curbside for collection and disposal,
  one does not evince an intent to allow unregulated governmental intrusion
  into private materials that one chooses to discard.  As a practical matter,
  the regulated collection of garbage is necessary for the proper functioning
  of our complex society.  Most people today have little choice but to place
  their garbage at curbside for collection by public or private trash
  haulers.  Note, supra, at 662-63

 

  (tracing evolution of American trash collection practices).  It is often
  unreasonably burdensome or unlawful to privately burn or bury unwanted
  refuse (FN2); thus, people must necessarily rely upon governmental or
  commercial trash collection systems to achieve anonymous disposal of
  garbage. Moran v. State, 644 N.E.2d 536, 543 (Ind. 1994) (Dickson, J.,
  concurring and dissenting) (in today's society, it is no longer reasonable
  or, in many situations, lawful to burn or bury unwanted waste privately);
  Hempele, 576 A.2d  at 808 (state and municipal regulations prevent people
  from privately burning or burying their garbage).  The disposal of opaque
  garbage bags in the customary way by placing them at curbside for pickup
  cannot be the basis for concluding that the person no longer has a
  justified interest or expectation in retaining privacy in the contents of
  those bags.(FN3)

 

       Notwithstanding the possibility that their garbage will be tampered
  with by scavengers or snoops, people reasonably expect that, once their
  refuse is placed on the curb in the customary and accepted manner, it will
  be collected, taken to the landfill, and commingled with other garbage
  without being intercepted and examined by the police.  The Vermont
  Constitution does not require the residents of this state to employ
  extraordinary or unlawful means to keep government authorities from
  examining discarded private effects.(FN4)  Cf. 1 W. LaFave, supra, § 2.6(c),
  at 593 ("It would be a perversion of Katz [389 U.S. 347 (1967)] to
  interpret it as extending [Fourth Amendment] protection only to those who
  resort to extraordinary means to keep information regarding their personal
  lives out of the hands of police."); State v. DeFusco, 620 A.2d 746, 757
  (Conn. 1993) (Katz, J., dissenting) ("How many of us, as Connecticut
  residents, feel the need to shred or destroy personal information before
  discarding it in order to protect its confidentiality?").

       Persons should not be denied protection from unregulated police
  intrusion into their affairs merely because they are discarding rather than
  transporting their private effects.  Cf.  Greenwood,

 

  486 U.S.  at 49 (Brennan, J., dissenting).  Although a person placing trash
  at curbside for collection and disposal undoubtedly relinquishes a
  proprietary interest in the trash, it does not necessarily follow that the
  person intends to renounce a privacy interest in it.  See Hempele, 576 A.2d 
  at 809 (far from relinquishing their expectation in discarded items, people
  sometimes throw things out in order to maintain their privacy).  "A
  justified expectation of privacy may exist as to items which have been
  abandoned in the property law sense, just as it is true that no such
  expectation may exist on some occasions even though the property has not
  been abandoned." 1 W. LaFave, supra, § 2.6(c), at 591-92.  Thus, the
  question is not whether the person abandoned the garbage itself but rather
  whether the person relinquished an expectation of privacy in the garbage. 
  See State v. Kerr, 143 Vt. 597, 609, 470 A.2d 670, 676 (1983) (in search or
  seizure cases, abandonment relates to expectation of privacy in property
  rather than to property itself in sense of law of personal property).  Our
  focus must be on the objective reasonableness of one's privacy interest,
  not one's proprietary interest, in curbside garbage.

       This focus is consistent with our prior case law on Article 11, in
  which we have emphasized that the core value of privacy is the quintessence
  of Article 11, and that we must determine in such cases whether those
  persons searched have a reasonable expectation of privacy in the affairs or
  possessions intruded upon.  See Savva, 159 Vt. at 87-88, 616 A.2d  at 781
  (recognizing separate and higher expectation of privacy for containers used
  to transport personal possessions than for objects exposed to plain view
  within automobile's interior); Blow, 157 Vt. at 517-19, 602 A.2d  at 555-56
  (recognizing reasonable privacy interest in being free from warrantless
  electronic participant monitoring in home); State v. Brooks, 157 Vt. 490,
  493, 601 A.2d 963, 964 (1991) (refusing to recognize reasonable privacy
  interest in being free from warrantless electronic participant monitoring
  in parking lot open to public); Kirchoff, 156 Vt. at 6-7, 10, 587 A.2d  at
  992, 994 (recognizing reasonable expectation of privacy in posted open
  fields).  Indeed, in Kirchoff, we found little textual significance in the
  word "possessions" in Article 11, and instead emphasized that our task was
  not to honor mere words but to discover

 

  and protect the core value of privacy embraced by Article 11.  156 Vt. at
  4-6, 587 A.2d at 991-92; see Savva, 159 Vt. at 85, 616 A.2d  at 779.

       Nor is State v. Wood, 148 Vt. 479, 536 A.2d 902 (1987), upon which the
  dissent relies so heavily, inconsistent with our decision today.  In Wood,
  a warrantless search was challenged by a defendant residing temporarily at
  a summer camp at the time police entered the camp and seized documents and
  other evidence related to a robbery.  The trial court ruled that the
  defendant had no standing to challenge the search because he had no
  expectation of privacy in the camp grounds.  This Court reversed and
  remanded the case for further proceedings, holding that the defendant had
  standing to challenge the search under the Vermont Constitution.  Id. at
  480, 536 A.2d  at 903.  After a long discussion, we refused to adopt Rakas
  v. Illinois, 439 U.S. 128 (1978), in which the United States Supreme Court
  merged the collateral standing issue with the underlying substantive
  challenge to the search.  See Wood, 148 Vt. 484-85, 536 A.2d at 905-06;
  Rakas, 439 U.S.  at 139-40.  We rejected Rakas because, contrary to "the
  central purpose of Article Eleven," Rakas focused "the federal test away
  from judicial review of a challenged search" and curtailed "the scope of
  the protected right to be free from unlawful governmental conduct."  Wood,
  148 Vt. at 487, 536 A.2d  at 907.  We held that "a defendant need only
  assert a possessory, proprietary or participatory interest in the item
  seized or the area searched to establish standing to assert an Article
  Eleven challenge."  Id. at 489, 536 A.2d  at 908.

       Stripped of its suggestion of standing,(FN5) the dissent's principal
  argument is nothing more

 

  than the discredited abandonment theory rejected by even the Greenwood
  majority.  See United States v. Hedrick, 922 F.2d 396, 398 (7th Cir. 1991) 
  (majority in Greenwood chose not to rely on principles of abandonment); 1
  LaFave, Search and Seizure § 2.6(c), at 595 (3d ed. 1996) (Greenwood
  "should not be read as an endorsement of the broad and unsound concept that
  one's garbage is abandoned property and thus is always without Fourth
  Amendment protection"). Unlike the defendants in Wood and Kerr, however,
  defendant here is not claiming that he never possessed or owned the
  searched items.  If we assume, as we hypothesized in Kerr, that defendant
  had a possessory or ownership interest in the searched items, then the
  question is not whether defendant abandoned the property in the sense of
  the law of personal property, but rather whether he abandoned the
  reasonable expectation of privacy he had in the property.  143 Vt. at
  608-09, 470 A.2d  at 676.  This is precisely the question we address in this
  opinion.

       In addition to the abandonment theory, the State relies principally on
  the following brief rationale espoused by the Greenwood majority in holding
  that the Fourth Amendment does not constrain police from warrantless
  searches of curbside garbage:

           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,
           children, scavengers, snoops, and other members of the public.  See
           [People v. Krivda, 486 P.2d 1262, 1269 (Cal. 1971)].  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 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, 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, [389 U.S. 347, 351 (1967)].

  Greenwood, 486 U.S.  at 40-41 (footnotes omitted).

       We decline, as have the California, Hawaii, New Jersey, and Washington
  state supreme courts, to follow this abbreviated analysis.  See People v.
  Krivda, 486 P.2d 1262, 1268-69 (Cal. 1971) (disallowing warrantless search
  of curbside trash), vacated and remanded on other grounds by 409 U.S. 33,
  35 (1972); Tanaka, 701 P.2d  at 1276-77 (accord); Hempele, 576 A.2d  at
  804-07 (accord); State v. Boland, 800 P.2d 1112, 1117 (Wash. 1990)
  (accord).  Broken down into its component parts, the Greenwood analysis
  states that there is no objectively reasonable expectation of privacy in
  the contents of opaque garbage bags placed at curbside for collection
  because (1) animals, scavengers and snoops might get at them; (2) the bags
  are relinquished to third parties who may do as they please with them; and
  (3) police cannot be expected to ignore that which is exposed to the
  public.

       The primary rationale relied on by the Court is the first one --
  because dogs, raccoons, children, scavengers, and snoops may get into
  curbside trash bags, people have no reasonable expectation of privacy in
  the contents of the bags, and therefore the government is free to search
  them without reason or warrant.  We do not find this rationale persuasive. 
  What a person "seeks to preserve as private, even in an area accessible to
  the public, may be constitutionally protected." Katz v. United States, 389
  U.S 347, 351-52 (1967) (emphasis added).  The fact that leaving garbage for
  collection may entail privacy risks "hardly means that government is
  constitutionally unconstrained in adding to those risks."  Amsterdam,
  supra, at 406.  One may accept the possibility that one's garbage is
  susceptible to invasion by raccoons or other scavengers, and yet at the
  same time reasonably expect that the government will not systematically
  examine one's trash bags in the hopes of finding evidence of criminal
  conduct.  See Hempele, 576 A.2d  at 805 (there is constitutionally
  significant difference between assuming risk that scavenger or trash

 

  collector will search trash bags for objects of interest and assuming risk
  that police officer will scrutinize contents of garbage for incriminating
  materials); State v. Stanton, 490 P.2d 1274, 1279 (Or. Ct. App. 1971)
  (person may not expect privacy in backyard against children at play or
  parents looking for tardy children, yet at same time be entitled to expect
  privacy against police dragnet search of neighborhood backyards), overruled
  in part on unrelated grounds by State v. Walle, 630 P.2d 377 (Or. Ct. App.
  1981); Boland, 800 P.2d  at 1116 (while defendants may expect that children,
  scavengers, or snoops will sift through their garbage, average persons
  would find it reasonable to believe that they have privacy interest in
  being protected from warrantless governmental intrusion into their refuse);
  State v. Stevens, 367 N.W.2d 788, 800 (Wis. 1985) ("[T]he fact that
  non-state instrumentalities, even the elements, may act free of
  constitutional restraints does not confer on the state any rights it would
  not otherwise possess.").

       Thus, the mere possibility that unwelcome animals or persons might
  rummage through one's garbage bags does not negate the expectation of
  privacy in the contents of those bags any more than the possibility of a
  burglary or break-in negates an expectation of privacy in one's home or
  car, or the possibility that an operator or party-line caller will listen
  in on a telephone conversation negates an expectation of privacy in the
  contents of the conversation, or the possibility that a cleaning person or
  house guest will exceed the scope of a visit negates an expectation of
  privacy in a hotel room or home.  See Greenwood, 486 U.S.  at 54 (Brennan,
  J., dissenting); see also O'Connor v. Ortega, 480 U.S. 709, 717 (1987)
  (government employee has reasonable expectation of privacy in office, even
  though "it is in 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").  Nor should
  citizens be required to accept greater police intrusion into their private
  affairs because of the increased frequency of people scavenging through
  garbage in difficult economic times.  See Kirchoff, 156 Vt. at 12, 587 A.2d 
  at 995-96 (constitutional privacy interest does not depend on vagaries of
  temporary social patterns); DeFusco, 620 A.2d  at 758 (Katz, J., dissenting)
  (garbage-pickers should not "dictate

 

  how we as a society choose to live and what values we choose to protect").

       The Supreme Court's second rationale -- that garbage is turned over to
  third-party trash collectors who may do with it as they please -- is even
  less persuasive than the first rationale. As Justice Brennan pointed out in
  his dissent, "the voluntary relinquishment of possession or control over an
  effect does not necessarily amount to a relinquishment of a privacy
  expectation in 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."  Greenwood, 486 U.S.  at 55 (Brennan, J., dissenting).  In
  addition, as the New Jersey Supreme Court noted, the third-party rationale
  is predicated on three assumptions: (1) that garbage collectors have the
  right to look through closed garbage bags; (2) that garbage collectors have
  sufficient authority over the bags to consent to a police search; and (3)
  that because garbage collectors can consent to a search, the police need
  neither a warrant nor consent to search the garbage themselves.  Hempele,
  576 A.2d  at 805.  We agree with the New Jersey Supreme Court's assessment
  that the first assumption is debatable, the second is dubious, and the
  third is disturbing.  Id.  In an analogous situation, a landlord who has
  the right to enter a tenant's house to view waste does not have the
  authority to consent to a police search of the premises. Chapman v. United
  States, 365 U.S. 610, 616-17 (1961); see Stoner v. California, 376 U.S. 483, 489 (1964) (implicit consent to janitorial personnel to enter motel
  room does not amount to consent to police search of room).  Apart from
  Greenwood, the Supreme Court has never held that an intent to transfer an
  object or conversation to a third party renders any expectations of privacy
  unreasonable simply because the third party could then transfer the object
  to police. Hedrick, 922 F.2d  at 400.

       Placing opaque garbage bags at curbside for collection and disposal is
  not comparable to knowingly and voluntarily communicating information or
  selling contraband to a third party who turns out to be a police informer
  or agent.  See Zaccaro, 154 Vt. at 91, 574 A.2d  at 1261 ("Article 11 does
  not protect one who, by opening up his or her home to those who wish to
  take

 

  part in illegal activity, exposes such activity to undercover police
  officers."); cf. Brooks, 157 Vt. at 493, 601 A.2d  at 964 (Article 11 allows
  warrantless electronic monitoring of face-to-face conversation between
  suspect and police informant in public place).  Here, defendant did not
  expose the contents of his garbage to anyone, including the garbage
  collector.  Note, The Supreme Court -- Leading Cases, 102 Harv. L. Rev.
  143, 196 (1988) ("[E]xposure of concealed garbage is neither required nor
  anticipated in the case of garbage collection.").  Thus, there was no
  voluntary consent to search that served to waive defendant's constitutional
  right to be free from governmental intrusion into his private affairs.

       The Supreme Court's third rationale -- that police cannot be expected
  to avert their eyes from evidence exposed to the public -- appears to be a
  misguided attempt to bootstrap the plain view doctrine into its analysis. 
  In cases where animals or scavengers actually rummage through a person's
  trash bags and expose the contents of those bags to public view, the
  police, to be sure, need not avert their eyes.  But this principle is not
  relevant here.  The issue is not whether police must avert their eyes, but
  rather whether they can sift through curbside garbage bags whose contents
  are concealed from the public eye.

       For the above reasons, we decline to follow the Greenwood majority's
  decision allowing warrantless trash searches.  We recognize, however, that
  the privacy interest in one's trash is not equivalent, for example, to the
  privacy interest in one's home.  Accordingly, the seizure and search of
  trash need not be bounded by the same limitations that are applicable to
  the search of a dwelling.  1 W. LaFave, supra, § 2.6(c), at 603-04. 
  Although people have an interest in keeping the contents of their garbage
  bags private, they have no privacy or possessory interest in keeping the
  bags in any particular location.  As long as the contents remain private,
  it does not matter whether the trash bags are at the landfill or the police
  station.  Ordinarily, the seizure of trash bags would be permitted without
  a warrant given the exigency of the situation. Hempele, 576 A.2d  at 810-11. 
  Once the police have seized the bags, however, they cannot search them
  before obtaining a warrant based on probable cause.  Cf. Savva, 159 Vt. at
  90, 616 A.2d  at 782 (warrantless search of container found in car was not supported
  by exigent circumstances because less intrusive option -- seizure of
  container pending issuance of warrant -- was available).

       We acknowledge that today's decision limits, to some extent, tactics
  that police may use in investigating reports of criminal activity.  But
  improving the efficiency of law enforcement cannot come at the expense of
  the protection provided by Article 11 against unconstrained governmental
  intrusion into our private lives.  See id. at 92, 616 A.2d  at 783 ("Article
  11 is the balance struck between liberty for the individual (privacy and a
  sense of security) and the convenience of unchecked crime detection.").  We
  will not countenance under Article 11 a society in which authorities
  require citizens to dispose of their personal effects in a manner that is
  then deemed unworthy of protection from arbitrary governmental monitoring
  without judicial oversight.  See Greenwood, 486 U.S.  at 55-56 (Brennan, J.,
  dissenting).

       In this case, defendant exposed to public view only the exterior of
  opaque trash bags, and in doing so, he sought to dispose of his personal
  possessions in the accepted manner that normally would result in
  commingling them inextricably with the trash of others.  Nevertheless,
  without probable cause or judicial oversight, police searched through
  defendant's trash, as well as the trash of other apartment dwellers who had
  the misfortune of placing their garbage bags alongside those of someone
  suspected of having committed a crime.  Such unconstrained governmental
  intrusion into people's private lives is inconsistent with Article 11 and a
  free and open society.  Because the warrantless search of defendant's trash
  violated Article 11, the evidence obtained from that search, which was used
  to obtain a warrant to search defendant's home, must be suppressed and
  expunged from the affidavit supporting the search warrant.

       In the dissent's view, our decision is an unprincipled,
  result-oriented opinion that forgoes textual and historical analysis for
  the purpose of evading the result reached by the majority of the United
  States Supreme Court in Greenwood.  This view has no basis in law or fact. 
  We are a sovereign state, and this Court is entitled to take issue with any
  constitutional decision of the

 

  United States Supreme Court, regardless of whether our constitution
  provides the same or a different text.  Like us, the Supreme Court hands
  down its decision on paper, not stone tablets. Because the Supreme Court's
  ebbs and flows in the area of criminal constitutional law do not dictate
  our interpretation of Article 11, see Savva, 159 Vt. at 84, 616 A.2d  at
  779, we have no reason to "evade" that Court's rulings.  Today's decision
  rests on our belief that warrantless searches of trash bags set out for
  pickup and disposal offend the core value of privacy embraced by Article
  11.  That belief is informed by the language of Article 11, as interpreted
  in our case law, by the case law of other jurisdictions interpreting
  similar constitutional provisions, and by economic and sociological
  considerations that result, in part, from our experience as judges and
  human beings.  The dissent chides us for devoting too much analysis to
  debunking the rationales relied on by the Greenwood majority and for
  quoting too extensively from Justice Brennan's dissent in Greenwood, but
  whenever we have decided to take a different path from that of the Supreme
  Court, our opinions have often rested largely on an analysis of the
  rejected federal law. See, e.g., State v. Oakes, 157 Vt. 171, 175-183, 598 A.2d 119, 122-26 (1991) (analyzing and rejecting Supreme Court's good faith
  exception to exclusionary rule as set forth in United States v. Leon, 468 U.S. 897 (1984)); Kirchoff, 156 Vt. at 8-10, 587 A.2d  at 993-94 (analyzing
  and rejecting Supreme Court's "open fields" test as set forth in Oliver v.
  United States, 466 U.S. 170 (1984)); Wood, 148 Vt. at 483-87, 536 A.2d  at
  904-07 (analyzing and rejecting search-and-seizure standing test as set
  forth in Rakas).

       Apparently, the dissent would have us analyze some unidentified
  historical and legislative materials to support our holding.  We have
  already recognized that the Vermont Constitution was adopted with little
  recorded debate, that Article 11 was not a provision unique to Vermont but
  rather was copied practically verbatim from other jurisdictions, and that
  the paucity of the historical record requires us "to look elsewhere when
  determining the breadth of those individual rights the Vermont Constitution
  was drafted to protect."  Kirchoff, 156 Vt. at 5, 587 A.2d  at 991. In
  short, we do not need a unique state source to justify our difference with
  the most recent

 

  majority opinion of the United States Supreme Court, and yet it behooves us
  to consider the reasoning of all courts that have addressed similar issues
  and fact patterns.  Points made by Justice Brennan, or other judges or
  courts deciding this issue, inform our analysis and aid in our resolution
  of the question at hand.

       The dissent contends that we have failed to follow this Court's
  admonition in State v. Jewett, 146 Vt. 221, 224-25, 500 A.2d 233, 235-36
  (1985) to refrain from issuing result-oriented opinions based on state
  constitutional law.  The discussion in Jewett referred to a law review
  article in which Justice Pollock of the New Jersey Supreme Court argued
  that state courts had to develop a rationale to explain when they would
  accept cases and rely on their own constitutions.  See S. Pollock, State
  Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L. Rev.
  707, 717 (1983).  According to Justice Pollock, as noted in Jewett, "State
  courts should not look to their constitutions only when they wish to reach
  a result different from the United States Supreme Court."  Id. (emphasis
  added).  Thus, in Justice Pollock's view, state courts of last resort
  should accept appeals on predetermined criteria and look to their own
  constitutions regardless of whether they are inclined to reach a result the
  same as, or different from, that reached by the Supreme Court.  Neither
  Jewett nor Justice Pollock suggests that this Court or any state court
  should refrain from following a different path from that taken by the
  United States Supreme Court unless the court can rely on unique state
  sources -- historical, legislative or otherwise.  Indeed, to the contrary,
  in Jewett we stated that when the state constitutional issue is squarely
  raised on appeal, we will consider all types of argument, including
  historical, textual, doctrinal, prudential, structural, and ethical
  arguments.  146 Vt. at 225, 227, 500 A.2d  at 236, 237.  In this case, we
  address whether warrantless garbage searches violate Article 11 of the
  Vermont Constitution because the issue was properly raised, briefed, and
  presented to us for argument.  Our decision is not result-oriented simply
  because it reaches a result different from the Supreme Court, any more than
  it would be result-oriented had we reached the same result as the Supreme
  Court.

 

                                  III.


       The State contends that even if the search of defendant's trash was
  illegal and the evidence found in the trash is expunged from the supporting
  affidavit, the affidavit still established probable cause for issuance of
  the warrant to search defendant's home.  We recognize that a

        search warrant is not invalid merely because it is supported in part
        by an affidavit containing unlawfully obtained information.  Where
        the affidavit includes allegations based on illegally obtained
        evidence as well as independent and lawfully obtained information,
        a valid search warrant may issue if the lawfully obtained
        information, considered by itself, is sufficient to establish probable
        cause to issue the warrant.

  State v. Moran, 141 Vt. 10, 16, 444 A.2d 879, 882 (1982) (citations
  omitted).  Further, while it is not normally the function of appellate
  review to make a de novo determination of probable cause, State v. Maguire,
  146 Vt. 49, 53, 498 A.2d 1028, 1030 (1985), in cases where we have ruled
  that some of the evidence presented in the supporting affidavit must be
  expunged, we may determine whether the remaining information contained in
  the excised affidavit established probable cause for issuance of the
  warrant.  See Moran, 141 Vt. at 16, 444 A.2d  at 882.

       Probable cause to search exists when the information set forth in the
  affidavit is such that a judicial officer would reasonably conclude that a
  crime had been committed and that evidence of the crime will be found in
  the place to be searched.  State v. Ballou, 148 Vt. 427, 433-34, 535 A.2d 1280, 1284 (1987); see State v. Towne, 158 Vt. 607, 614, 615 A.2d 484, 488
  (1992) (rejecting "more-likely-than-not" standard for probable cause to
  search; stating that probable cause more closely approximates "reasonable"
  cause).  If any of the information comes from a confidential informant,
  V.R.Cr.P. 41(c) requires that the information meet the two-prong test set
  forth in the United States Supreme Court's decisions in Aguilar v. Texas,
  378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). 
  Under that test, there must be "a substantial basis for believing the
  source of the hearsay to be credible and for believing that there is
  factual basis for the information furnished."  V.R.Cr.P. 41(c).

 

       Here, the excised affidavit stated the following information: (1) the
  confidential informant told police that defendant was selling eighth-and
  quarter-ounce bags of marijuana from his apartment and from the parking lot
  of a local grocery store; (2) the informant stated that he was present
  during some of the drug transactions and that he was familiar with
  marijuana because he had smoked it before; (3) the informant's statement
  that defendant sold marijuana in a certain grocery store parking lot was
  consistent with a different police officer's observations of suspicious
  activity by defendant and another man one night five months earlier in the
  same parking lot; and (4) an unidentified neighbor recently informed police
  that many different people had visited defendant's apartment during the
  last few weeks.

       Although the factual-basis prong is minimally satisfied by the
  informant's statement that he or she was present during some of the alleged
  drug transactions, the affidavit fails to satisfy the second prong, which
  requires the facts to show that "either the informant is inherently
  credible or that the information from the informant is reliable on this
  occasion."  Ballou, 148 Vt. at 434, 535 A.2d  at 1284.  The credibility of
  an unidentified informant is generally supported by a showing that the
  informant has provided correct information in the past, while the
  reliability of the information on a particular occasion is supported by a
  showing that the informant's tip was against penal interest or that the
  information was corroborated by police to the point where it would be
  reasonable for them to rely on it as accurate.  See 2 LaFave, supra, §
  3.3(a), at 91-95.

       The State argues that the information was reliable because (1) the
  confidential informant made statements against penal interest -- that he
  had smoked marijuana and had been present during some drug transactions;
  (2) the police corroborated the informant's claim that defendant sold drugs
  in a certain grocery store parking lot; and (3) a second informant, the
  neighbor, provided information that tended to corroborate the first
  informant's claim that defendant was selling drugs from his apartment. 
  None of these facts, either independently or together, satisfies the
  reliability prong of Rule 41.  First, the informant's statements that he
  had smoked marijuana

 

  at some point in the past and that he had been present during drug
  transactions are hardly admissions against penal interest.  Acknowledgments
  that merely create a suspicion of the informant's involvement in criminal
  activity, such as that the informant was present during a drug transaction,
  will not suffice as admissions against penal interest.  Id. § 3.3(c), at
  134-35. Moreover, admissions against penal interest imply that police could
  elect to use the statements to prosecute the informant; because one can be
  prosecuted only for possession or deliverance of marijuana, a statement of
  past use cannot, in and of itself, result in prosecution.  Cf. Ballou, 148
  Vt. at 435 n.3, 535 A.2d  at 1284 n.3 (informants' statements that they had
  purchased drugs from defendant were admissions against penal interest that
  had some bearing, but not controlling weight, regarding informants'
  reliability).

       Second, the officer's retrospective corroboration of the information
  was minimal and stale. The fact that defendant and another man had remained
  in the named grocery store parking lot for a few minutes one night five
  months earlier can hardly support a warrant to search defendant's
  apartment.  This is true even considering the unidentified neighbor's
  report that defendant had had many visitors at his apartment during the
  previous month.  The affidavit failed to demonstrate the reliability of the
  neighbor's information, and even if it were reliable, the information
  provided by both informants does not establish probable cause that
  defendant was selling drugs from his apartment.  Accordingly, the evidence
  seized during the search of defendant's apartment must be suppressed.

       Reversed and remanded.


                                 FOR THE COURT:



                                 __________________________________________
                                 Associate Justice



  ---------------------------------------------------------------------------
                                  Footnotes


FN1.  Chapter I, Article 11 of the Vermont Constitution provides:

       That the people have a right to hold themselves, their houses, papers,
  and possessions, free from search or seizure; and therefore warrants,
  without oath or affirmation first made, affording sufficient foundation for
  them, and whereby by any officer or messenger may be commanded or required
  to search suspected places, or to seize any person or persons, his, her or
  their property, not particularly described, are contrary to that right, and
  ought not to be granted.

FN2.  In Vermont, both state air quality and solid waste regulations
  restrict residents' options for disposal of trash.  7 Code of Vermont
  Rules, Agency of Natural Resources, Air Pollution Control Division 5-201(1)
  (no person shall engage in open burning except in conformity with 5-202)
  and 5-202(7)(d) (permit may be obtained for open burning of combustible
  materials for which there is no other feasible method of disposal); id.,
  Solid Waste, 6-302(a) (prohibiting open burning of solid waste except
  untreated wood) and 6-302(c) (prohibiting disposal of solid waste outside
  certified facility).  The Town of Brattleboro makes it unlawful for persons
  to dispose of solid waste on private property without the owner's consent
  or on their own property except in a receptacle designated for collection
  and disposal by curbside pickup.  See Town of Brattleboro, Ordinance
  Regulating the Collection and Disposal of Solid Waste (April 20, 1993),
  Article VII, (1) and (2).  The Town of Brattleboro also prohibits the
  burning of any solid waste by open fire or incineration, except for the
  open burning of natural wood by permit.  Id. Article IX.


FN3.  The dissent states that persons who want to keep their discarded
  papers private may either move to a residence where garbage can be placed
  outside within the curtilage or take the papers to the dump and dispose of
  them themselves.  The first suggested option makes the incredible
  assumption that all persons could afford a single-family home with
  sufficient curtilage to protect their privacy interests.  Like the majority
  in California v. Greenwood, 486 U.S. 35 (1988), the dissent assumes that
  the reasonableness of one's expectation of privacy decreases as the garbage
  is placed farther from the curtilage of the home, or as the number of
  residents using a communal receptacle increases.  Under this reasoning,
  persons living in single-family dwellings have a higher expectation of
  privacy in garbage left next to the house for pickup than do apartment
  dwellers leaving trash in a communal curbside receptacle because their
  refuse is in a location less accessible to scavengers and snoops.  See
  United States v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991) (proper focus
  under Greenwood is whether garbage was readily accessible to public);
  People v. Whotte, 317 N.W.2d 266, 268 (Mich. Ct. App. 1982) (at one end of
  continuum is trash located close to single-family dwelling, and at other
  end of continuum is trash located off premises of multiple-unit dwelling). 
  While most probably there is a greater risk that the garbage bags of those
  using curbside service, particularly apartment dwellers using communal
  receptacles, will be disturbed by unwanted meddlers, this is hardly a sound
  reason for concluding, in effect, that the police have carte blanche to
  subject to detailed scrutiny anyone's trash that has been conveniently
  placed in such a location for pickup.  Many people live in apartments
  because they cannot afford to own their own homes.  Making the protection
  of Article 11 contingent on factors that hinge on a person's financial
  status is unacceptable.  "[A] resident's expectation that the police will
  not be scavenging through his or her garbage . . . remains the same,
  whether the dweller resides in a split-level ranch home in the suburbs or
  in a crowded tenement in the inner city."  Smith v. State, 510 P.2d 793,
  805 (Alaska 1973) (Rabinowitz, J., dissenting); see People v. Smith, 125 Cal. Rptr. 192, 197 (Ct. App. 1975) (while users of communal receptacles
  undoubtedly recognize that other tenants might discover contents of their
  garbage, they have no more reason than single-family residents to expect
  their trash to be examined by police officers), vacated by 553 P.2d 557
  (Cal. 1976).

       The dissent's second suggested option also ignores the difficulties
  that the elderly or infirm might have in making a trip to the dump to
  discard private papers.  Further, assuming that such an option is possible
  in all communities in this state, a fact not contained in the record or
  otherwise known to us, the people of this state should not have to take
  extraordinary measures to assure that authorities will be prevented from
  searching through private papers and effects that they choose to discard in
  the normal and customary manner of our modern society.


FN4.  Under Greenwood and its progeny, even shredding papers will not
  ensure protection from the government's reach.  See United States v. Scott,
  975 F.2d 927, 930 (1st Cir. 1992) (no privacy interest in shredded
  documents placed in trash).

FN5.  The dissent asserts that we should be asking whether there is a
  search covered under Article 11, not whether a covered search must be
  pre-authorized by a warrant.  The dissent is impliedly arguing that we have
  overlooked a review of defendant's standing to raise the protection of
  Article 11, an issue that was not contested before either the trial court
  or this Court. Defendant's alleged lack of standing flies in the face of
  our holding in Wood and can only be based on the ground that defendant
  abandoned his trash when he placed it outside for pickup, an argument we
  reject in our discussion in the text.  See supra and infra at pp. 8-10.  If
  we were to employ Wood to make it more difficult for persons to challenge
  police intrusions into their private affairs, we would reach precisely the
  opposit result intended by Wood, which sought to broaden the ability of
  defendants to challenge police searches merely by asserting a privacy
  interest.  See State v. Wood, 148 Vt. 479, 490, 536 A.2d 902, 908 (1987)
  (test adopted here ensures that defendant with protected interest may
  challenge search intruding on that interest; "preliminary inquiry into the
  defendant's standing looks no further than to determine whether the
  protected interest exists").



  -------------------------------------------------------------------------
                                 Dissenting


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-299


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Windham Circuit

Richard Morris                                    May Term, 1995


Paul F. Hudson, J.

       Jeffrey L. Amestoy, Attorney General, and Karen R. Carroll, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
  Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       DOOLEY, J., dissenting.  There are many statements in the majority
  opinion with which I agree.  I agree that Chapter I, Article 11 of the
  Vermont Constitution normally requires advance authority for covered
  searches by way of a warrant.  I agree that expectations of privacy are not
  necessarily reduced by increasing governmental intrusion into people's
  lives.  Most of all, I agree that our decision must be guided by the facts
  of this case.

       Except for the necessity of keeping this case within the facts on
  which it is based, a point that strongly indicates the opposite result, as
  discussed below, these principles have little to do with this case.  The
  question before us is whether there is a search covered by Article 11, not
  whether a covered search must be pre-authorized by a warrant.  Indeed, I
  think it undeniable that the majority opinion ends search of trash as an
  investigative tool, because there will never be probable cause to search
  trash, and certainly not the trash of innocent neighbors who just happen to
  live in the same apartment building, without there being probable cause to
  search the home

 

  or other structure.(FN1)

       Nor is this a case of "increasing governmental intrusion" into the
  lives of ordinary citizens.  I have no doubt that examining people's waste
  has been an investigative tool of law enforcement throughout recorded
  history.

       The Court's decision in this case tells us how the majority would have
  decided California v. Greenwood, 486 U.S. 35 (1988).  It tells us virtually
  nothing about Article 11 and generally ignores our relevant precedents
  interpreting the Article, except in response to this dissent. After calling
  the Greenwood rationale "brief," the majority's analysis here is limited
  almost entirely to why the Greenwood rationale is wrong, relying mainly on
  quotes from Justice Brennan's dissent in Greenwood, as well those from
  Justices from other states, who, in majority or dissent, agree with the
  general philosophical principles articulated by the majority.

       In staking out a leadership position in state constitutional
  adjudication, Justice Hayes, speaking for the Court in State v. Jewett, 146
  Vt. 221, 225-27, 500 A.2d 233, 236-37 (1985), outlined the approaches
  available for interpretation of our constitutional provisions: (1)
  historical analysis; (2) textual analysis; (3) analysis of decisions of
  sister states with similar or identical provisions; and (4) analysis of
  economic or sociological materials.  He cautioned, however, "it would be a
  serious mistake for this Court to use its state constitution chiefly to
  evade the impact of the decisions of the United States Supreme Court.  Our
  decisions must be principled, not result-oriented."  Id. at 224, 500 A.2d 
  at 235.  The majority decision relies little on the appropriate methodology
  for constitutional adjudication and even less on our decisions construing

 

  Article 11.  It is a restated Greenwood dissent.

       Although our analysis of Article 11 has been limited, three decisions
  in which we have examined the Article require a result opposite that
  reached by the majority.  The first is State v. Wood, 148 Vt. 479, 536 A.2d 902 (1987), in which we were required to determine what interests were
  sufficient to confer standing on a criminal defendant to raise Article 11
  rights. Relying primarily on the text of Article 11, we held:

        Article Eleven itself establishes the scope of the protected right,
     and defines who may invoke its protection.  The right of the
     people "to hold themselves, their houses, papers, and possessions,
     free from search and seizure," defines a right dependent on a
     possessory interest, with equal recognition accorded to the item
     seized and the area intruded upon.  By delineating the right as a
     possessory interest, Article Eleven premises the protected right
     upon an objectively defined relationship between a person and the
     item seized or place searched, as opposed to a subjective
     evaluation of the legitimacy of the person's expectation of privacy
     in the area searched.


  Id. at 489, 536 A.2d  at 908.

       The second is State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991), in
  which we held that Article 11 applies to "open fields," as long as the
  possessor of those fields establishes indicia of privacy "such as fences,
  barriers, or `no trespassing' signs [that] reasonably indicate that
  strangers are not welcome on the land."  Id. at 10, 587 A.2d  at 994.  In
  reaching this decision, we relied upon the Wood holding that Article 11
  "`defines a right dependent on a possessory interest,'" id. at 8, 587 A.2d 
  at 993 (quoting Wood, 148 Vt. at 489, 536 A.2d at 908), and that the
  landowner had a possessory interest in the land despite its development
  state.(FN2)  We also followed closely the standard for criminal trespass,
  showing that the landowner's privacy interest was so accepted that the
  conduct of the police violated the criminal law.  See id. at 10, 587 A.2d 
  at 994.

 

       The third decision is State v. Brooks, 157 Vt. 490, 601 A.2d 963
  (1991), along with its companion decision State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991).  In Blow, we held that participant electronic monitoring
  of a conversation in the home, transmitted from the wired informant to
  police in a nearby vehicle, violated Article 11 unless authorized by a
  warrant because of the special expectations of privacy in the home and the
  fact that the speaker-homeowner had not knowingly exposed the conversation
  to the outside world.  In Brooks, we considered the same participant
  electronic monitoring where the wired informant and the defendant were in
  two adjacent vehicles in a parking lot.  We held that such monitoring was
  not regulated by Article 11:  "[W]e find that defendant, regardless of what
  he actually expected, did not enjoy a reasonable expectation of privacy in
  a public parking lot.  In that setting, conversations are subject to the
  eyes and ears of passersby."  157 Vt. at 493, 601 A.2d  at 964.

       The majority's response, as I understand it, is that the most critical
  of these precedents is about standing, and the State has not claimed that
  defendant in this case lacks standing.  This response ignores the point of
  the Wood decision, which was to make the concept of standing consistent
  with the right protected by Article 11.  Thus, the analysis is about "the
  scope of the protected right" and the holding is that the Article
  delineates "the right as a possessory interest." Wood, 148 Vt. at 489, 536 A.2d  at 908 (emphasis added).  Although the analysis appears in a standing
  case, it is squarely against the majority's reasoning in this case.

       Defendant lived in an apartment building.  He and the other tenants in
  the building put out their trash in plastic bags at curbside for Monday
  pick-up.  Five or six bags were placed outside a fence which was located
  six feet from the apartment building.

       I think it is clear from our precedents that Article 11 does not
  extend to the trash bags put out on the curb by defendant and other
  tenants.  By putting them in a public place, defendant no longer had a
  possessory interest in the trash and had no protected interest in the area
  from which it was taken.  The trash fell outside the protection of Article
  11, as we defined it in Wood and Kirchoff, irrespective of the expectation
  of privacy of defendant or Vermont society as a

 

  whole.(FN3)  Like the conversations which were subject to the eyes and ears
  of passersby in Brooks, the trash bags were subject to the hands and eyes
  of any member of the public who, without legal restriction, opened them or
  took them.(FN4)  On the facts of this case, there is no violation of Article
  11.

       Beyond its attempt to distinguish Wood, the majority appears to have
  two answers to this straightforward analysis.  First, relying on a law
  review article for the proposition that "[m]ost people today have little
  choice but to place their garbage at curbside for collection by public or
  private trash haulers," the majority asserts that citizens cannot avoid
  subjecting their trash to police scrutiny unless Article 11 restricts that
  scrutiny.  I am not surprised that the proposition comes from an article
  published in New York, one of the most population-dense of American states,
  but find it incredible that the majority would apply it to Vermont, the
  most rural of states, where most residences do not have curbs at all. 
  Although modern solid waste management may have taken some of the cultural
  charm out of the weekly trip to the "dump" in favor of large regional
  landfills and transfer stations, defendant can still exercise the
  time-honored tradition of self-disposal, ensuring his garbage is mixed in
  anonymously with that of many of his fellow citizens.  Moreover, he could
  have chosen a living arrangement, whether single-family or an apartment,
  that did not leave his garbage outside the curtilage waiting for
  pick-up.(FN5)

 

       The second answer is that defendant, although exposing the trash to
  public scrutiny, retains a reasonable expectation of privacy against police
  scrutiny.  This is the kind of selective expectation we rejected in Brooks. 
  As Chief Justice Peters of the Connecticut Supreme Court noted:

     A person's reasonable expectations as to a particular object cannot
     be compartmentalized so as to restrain the police from acting as
     others in society are permitted or suffered to act. . . .  A person
     either has an objectively reasonable expectation of privacy or does
     not; what is objectively reasonable cannot, logically, depend on the
     source of the intrusion on his or her privacy.

  State v. DeFusco, 620 A.2d 746, 752-53 (Conn. 1993).  The logical extension
  of the majority's argument is that all forms of police surveillance are
  prohibited because in a free and open society we do not want that very
  freedom to create police opportunities to snoop.  We noted in Brooks that
  use of informants is "one of the basic characteristics of a totalitarian
  state," but "has long been accepted as a necessary compromise between the
  ideals of a perfectly private society and a perfectly safe one."  157 Vt.
  at 494, 601 A.2d  at 965.   Article 11 does not cover every instance where
  Vermont society might believe that individuals should have privacy rights.
  Whether that is a "necessary compromise," as Brooks found, or the
  limitation of a constitutional provision that restricts searches and
  seizures rather than protecting broad privacy rights, we must acknowledge
  that we cannot stretch constitutional language to regulate every law
  enforcement tool.

       I strongly agree with the creation of an independent state
  constitutional jurisprudence that keeps essential decisions about protected
  liberties as much as possible within Vermont.  In State v. Wood, we
  developed an independent jurisprudence on the scope of Article 11, in large
  part to avoid the effect of a Supreme Court decision, Rakas v. Illinois,
  439 U.S. 128 (1978), with which we disagreed.  With no acknowledgement of
  the holding in Wood, except in response to

 

  this dissent, the majority has now developed a new concept of the Article,
  directly contrary to that in Wood, again to avoid the effect of a Supreme
  Court decision.  The only consistency, as the majority appears to admit, is
  that both Wood and this case are about making it easier "for persons to
  challenge police intrusions into their private affairs."

       We cannot build a principled and coherent construction of Article 11
  out of the majority opinion in every United States Supreme Court Fourth
  Amendment decision with which we agree, combined with the dissent in every
  such decision with which we disagree.  As Justice Hayes cautioned in
  Jewett, such a course is a "serious mistake" that inevitably leaves our
  jurisprudence fragmented and result-oriented.  By abandoning the decisions
  that form the cornerstones for our Article 11 jurisprudence in order to war
  with a United States Supreme Court decision it finds distasteful, the
  majority, in my judgment, is making exactly the mistake Justice Hayes
  warned against.

       I dissent.  I am authorized to state that the Chief Justice joins in
  this dissent.





                              _______________________________________
                              Associate Justice


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                                  Footnotes


       FN1.  The majority speaks on two sides of this issue, saying, on the
  one hand, that "the seizure and search of trash need not be bounded by the
  same limitations that are applicable to the search of a dwelling," and
  adding, on the other hand, that search of trash bags would require "a
  warrant based on probable cause."  The latter statement makes the former
  one illusory.

       If police must show probable cause and obtain a warrant, search of
  trash is no longer an investigatory tool.  It is available only if the
  police can show that evidence of the crime is in the trash, which
  inevitably means they can also show that evidence is likely to remain in
  the house or structure from which the trash is taken.


FN2.  I disagree with the majority's statement that Kirchoff found
  "little textual significance" to the use of the word "possessions" in
  Article 11.  The decision enforces both the wording of Article 11 and the
  underlying purpose "to give meaning to the text in light of contemporary
  experience."  156 Vt. at 6, 587 A.2d  at 992.  Thus, we found the Article
  protects possessory interests in land.  Id. at 8, 587 A.2d  at 993.

FN3.  The majority calls this "nothing more than the discredited
  abandonment argument rejected by even the Greenwood majority."  This
  comment reinforces my view that the Court is dissenting to Greenwood rather
  than analyzing the issues and applying an independent jurisprudence.  The
  "abandonment argument" was a federal argument relating to the federal
  definition of the protected interest.  Since our definition of the
  protected interest is different, or was until this decision was issued, the
  argument, whatever it was, is generally irrelevant to this decision.  In
  any event, as noted in footnote 5, infra, I do not agree that because
  garbage is "abandoned" it is beyond the protection of Article 11 in all
  instances.

FN4.  The majority puts great weight on the fact that the trash was
  placed in opaque bags. Given our interpretation of Article 11, I consider
  this fact irrelevant.


FN5.  I would consider this a different case if the police trespassed
  on the curtilage in order to obtain the garbage.  On this point, I agree
  with much of the analysis of the Alaska Supreme Court in Smith v. State,
  510 P.2d 793, 797-98 (Alaska 1973), cert denied, 414 U.S. 1086 (1973), a
  pre-Greenwood decision that held that a police examination of trash in
  circumstances similar to those present here was not regulated by the Alaska
  Constitution.