California v. Greenwood – Oral Argument – January 11, 1988

Media for California v. Greenwood

Audio Transcription for Opinion Announcement – May 16, 1988 in California v. Greenwood

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William H. Rehnquist:

We’ll hear argument next in No. 86-684, California versus Billy Greenwood and Dyanne Van Houten.

Mr. Pear, you may proceed whenever you’re ready.

Michael J. Pear:

Mr. Chief Justice and may it please the Court:

This case is here on certiorari to the California Court of Appeals, Fourth Appellate District.

In February 1984, the Laguna Beach Police Department received some tips over the telephone that the occupants of a specific residence located in the City of Laguna Beach were involved in drug trafficking.

Based on that information, on April 6, 1984 and again on May 4th, investigators of the Police Department contacted the regular municipal trash collector when the morning trash was collected at that residence.

The investigators requested of the trash collector that he go down the street, pick up the trashbags that were in front of the residents’ garage, were located in the public street in front of the garage, that that trash collector on each instance not mingle or mix the bags with other trash in his truck and that he bring those bags down the block to the investigator, which he did.

The investigator in each of these two instances returned to the Police Department with those trashbags and examined the contents.

On each occasion, items were found including drug residue and based on that, two separate search warrants were issued for that residence in Laguna Beach.

The California Court of Appeals affirmed the Trial Court’s dismissal of the drug possession for sale charges against the respondents that were based on drugs found in the house during the search warrants on the basis that the Fourth Amendment prohibits warrantless trash searches.

The State respectfully asks this Court to reverse, in accordance with an inconformity with the rulings of ten Federal Circuit Courts of Appeals, the First, the Second, the Third, the Fourth, the Fifth, the Sixth, the Seventh, the Eighth, the Ninth on a case from California, and the Eleventh, all of which have held that warrantless trash searches of discarded garbage placed in an area accessible to the public for collection is not protected by the Fourth Amendment.

Additionally, in the case before the Court, there is a factor that it was not the police who on site examined the trash but rather the trash collector at their request obtained the trash.

It is our further position, the State’s position in that circumstances that the trash collector is an agent of the police when he picks it up, but that the situation of trash voluntarily turned over to a third party, here the regulator trash collector, even where he’s an agent or acting at the request of the police bestows no reasonable or legitimate expectation of privacy on the homeowner, it is rather a case of misplaced trust.

Sandra Day O’Connor:

Mr. Pear, in response, your opponent raises now a due process argument based on the California law here and constitution giving the owner of the trash some protected liberty interest in the trash, and certainly the law in the State of California is different than that of a good many States.

Now, do we need to address that due process question?

Michael J. Pear:

I don’t believe so, Your Honor.

First, that issue has never been raised below, nor cast upon by the California Court, either the trial court or the Court of Appeals, nor was it raised in opposition to the Petition for Hearing in the California Supreme Court, which was denied.

Additionally, California’s exclusionary rule, which was adopted in 1955, is a rule of judicial creation, it’s a judicial remedy rather than a constitutional right, and I would suggest to the Court that California’s decision by Constitutional Amendment in 1982 to reduce what had become a very large increased broader protection under search and seizure to those confines of the Fourth Amendment does not rise to a Federal Constitutional issue.

Additionally, the respondent particularly Greenwood argues that this Court in deciding what a legitimate expectation of privacy is must look to the individual State law, and the State suggests that that argument should be rejected.

While clearly the State may require a higher or broader standard of protection than the Federal Constitution requires, the State in doing that would not be applying Fourth Amendment law, and I would submit that this Court would not be applying Fourth Amendment law if it took the State’s interpretation of the Fourth Amendment and found itself bound by that in concluding what the Fourth Amendment is for the entire nation.

Sandra Day O’Connor:

But that isn’t the argument as I understood it.

It’s not the entire nation, but the argument as I understood it was that a State may define the reasonable expectations of privacy of its own citizens, and the California legislature says nobody should search garbage, or something like that.

Would then could not one then make the argument that a California citizen, unlike the rest of the country, has an expectation of privacy in his garbage?

Michael J. Pear:

No.

I would respond to that, Your Honor, that the State would be free to do that but they would be interpreting their constitution in imposing a broader protection than the more–

John Paul Stevens:

Say they didn’t do it as a matter of constitutional.

Let’s say the legislature passed a statute says as a declaration of California policy, we think people ought to have a privacy interest in their garbage, and so we instruct our police officers not to search garbage.

Could the people in California develop a legitimate expectation of privacy based on such a Statute.

Michael J. Pear:

–Under the State law, but I would submit that it would not be a legitimate expectation under the Fourth Amendment.

In that event, the State would be instructing this Court what the Fourth Amendment prohibits or does not prohibit.

Michael J. Pear:

In a situation which is not uncommon before this Court, where you have cases involving the same issue from two or three States at one time, you would end up, I would think, in the uncomfortable situation if you had a case from a State such as California.

John Paul Stevens:

Well, we say some things are obscene in California and not in other States.

We follow local community standards in some areas.

Why isn’t privacy sort of like what offends people, different views in different parts of the country.

Michael J. Pear:

I would think that community standards have been determined by this Court to be an appropriate method of dealing with area obscenity, but counsel cites no cases, and I think it would be inappropriate to say you would have a community standard of Fourth Amendment rights, or a community standard of Miranda rights, Fifth Amendment rights.

John Paul Stevens:

Well, I agree, but the question here is whether there’s a reasonable expectation of privacy, and I’m just wondering if every American citizen must have the same expectation or is it possible that there could be different expectations in different parts of the country.

That’s, as you say, it’s a new question.

I’ve never thought of it.

Michael J. Pear:

Well, taking this Court’s analysis that a reasonable expectation of privacy involves a two part analysis, now the subjective expectation of citizens might vary from community to community, it might vary among the residents of a single household.

But as to what constitutes what this Court has termed a legitimate expectation of privacy determined by either the concepts of property law or the general principles that society recognizes, I would submit that has to be a national standard.

John Paul Stevens:

Most property concepts we turn to State law to define, and what could be more legitimate than a State Statute in terms of objective reasonableness of the standard?

Michael J. Pear:

I don’t think the issue is objective reasonableness in determining under Fourth Amendment what is a legitimate expectation of privacy.

The person may subjectively entertain that belief, but I don’t believe under the Fourth Amendment that belief is reasonable.

Sandra Day O’Connor:

What if most States began to adopt a provision like California’s?

Would our view of what’s reasonable then change under the Fourth Amendment?

Michael J. Pear:

Your Honor, with regards to adopt what, a case?

Because California’s view is based on a 1971 4 to 3 case.

It’s not a statute that says your garbage is protected even though you’ve thrown it away.

Sandra Day O’Connor:

Well, the case interprets the California constitution and laws, presumably.

Michael J. Pear:

Certainly.

But if many of the States had adopted such a view or adopted such a–

Sandra Day O’Connor:

Would that then affect our view under the Fourth Amendment of what’s reasonable as an expectation?

Michael J. Pear:

–As the opinion by this Court in Rickus indicated, you don’t just look to Fourth Amendment cases to decide what Fourth Amendment is.

But I would concede that it would be suggested to the Court that society generally recognizes this type of expectation if most States entertained that view.

Conversely, in the case at bar, most states and every Federal Circuit Court of Appeal that has considered the issue have concluded quite the opposite, that there is no reasonable expectation of privacy once you have relinquished possession, control, made that unequivocal by placing it in an area accessible to the public.

Sandra Day O’Connor:

Should we apply the Katz analysis here, do you think, or should we look at it as a question of abandonment?

Michael J. Pear:

I believe those are not mutually exclusive, Your Honor.

Certainly, I think the Katz analysis is the analysis to apply.

But in looking at that, the concept of abandonment isn’t irrelevant.

The fact that in a property sense, the items are thrown away is a significant factor in deciding whether there is a legitimate expectation of privacy.

Michael J. Pear:

And I think the State contends that the Federal cases that we’ve cited to the Court, as well as the State cases, apply a Katz analysis, but in looking at the legitimacy of an expectation, look at what happens to that expectation with regards to something you’ve thrown away.

Sandra Day O’Connor:

Do you think under the Fourth Amendment we still look at abandonment as a separate sort of test or approach?

Michael J. Pear:

I think it is part of the test.

I don’t think abandonment in a property sense is the start and end of the analysis under Katz.

But I think under Katz, the property concept is something you take into consideration.

And I submit when you do that, you come to the conclusion that the Courts that have considered the issue have come to.

That is that you have abandoned a reasonable expectation of privacy in that which you have abandoned.

There’s also a suggestion in both respondent’s briefs that there is an element of harassment if the police are free without a warrant or without probable cause to conduct warrantless trash examinations.

First, I think the record in the Court below does not sustain that claim.

Before I get to those items of the transcript and record which I think negate any type of harassment, it’s the State’s position that where there’s no expectation of privacy, thus an intrusion is not a Fourth Amendment implication, the fact that such an intrusion occurred more than once or twice or three times does not now collectively add up to a Fourth Amendment violation.

If there is in some future case an establishment by an individual that he has been subject to some type of harassment but not a Fourth Amendment, he has an adequate civil remedy to prevent that.

Further, I would suggest–

William H. Rehnquist:

We’ll resume there at 1:00 o’clock, Mr. Pear.

Michael J. Pear:

–Thank you.

William H. Rehnquist:

Mr. Pear, you may proceed.

Michael J. Pear:

Mr. Chief Justice, and may it please the Court:

Furthermore, in answer to the fear that the respondents express that trash searches without a warrant would result or could result in harassment, I submit to the Court that the nature of trash examination itself provides inherent in it a limitation.

The undesirability of the chore itself limits the number of times or circumstances under which police will make such an examination.

Byron R. White:

Not if they want the evidence badly enough.

It’s probably considered bad duty, isn’t it?

Michael J. Pear:

It’s certainly not a volunteered-for duty, I’d assure you.

Also, with regard to the suggestion that the record shows that there were months of monitoring of the trash, I think that’s based on a misreading of a portion of the Clerk’s transcript referred to by respondents at page 112 and page 113.

The question which confused the investigator was whether you had occasion to do this over this period of time, and I submit read in conjunction with two other areas of her testimony, it is clear that she understood the word, occasion, as could you have or did you have the opportunity, as opposed to did she in fact make such examinations.

On page 84 of the Clerk’s transcript, Investigator Strassner testified, it was only one or two weeks before April 6th that she learned when trash was collected.

Additionally, at page 122 of the Clerk’s transcript, she indicates the total number of times of surveillance at the residence before the April 6th date was three to four times, and the Affidavit that is part of the Joint Appendix starting at page 37 shows that at least two of those surveillances were late at night, early morning, when it was surveillance for the purpose of–

Thurgood Marshall:

Would it have made any difference whether it was one or 26 times?

Michael J. Pear:

–I don’t think so, Your Honor, as to the issue of Fourth Amendment.

Finally, with regard to the questions that have been asked this morning regarding looking at State law, I would invite the Court’s attention to Oregon v. Haas at page 720, the material covered by footnote 4.

If there are no further questions, I’ve concluded.

William H. Rehnquist:

Thank you, Mr. Pear.

William H. Rehnquist:

We’ll hear now from you, Mr. Garey.

Michael Ian Garey:

Mr. Chief Justice, and may it please the Court:

Preceding somewhat backwards from how I’d intended to proceed, I think I would like first if I may to answer Justice O’Connor’s question about the appropriateness of arguing the due process claim in this Court.

There are several different aspects of this which I think dictate that the issue should be addressed on its merits by this Court, not the least of which are the circumstances that were existing at the time this matter was argued in the Municipal Court, in the Superior Court and in the Court of Appeals.

In California for a period of over fifteen years, stare decisis had dictated that searches essentially identical to the one in this case were unlawful.

Much of our discussion, virtually all of our discussion revolved around concepts of stare decisis and so there was no need at those Court levels, and I repeatedly stressed that at those Court levels, there is no need to get into a detailed analysis of the State law issue.

However, that is not the same thing as to say that the State law issue was waived.

Indeed, the State law issue was raised in the Municipal Court, although tersely.

William H. Rehnquist:

What do you conceive to be the State law issue, Mr. Garey?

Michael Ian Garey:

All right.

The State law issue, and I’ll perhaps get into this a little deeper on the merits in a moment, but the State law issue itself is Article I, Section 13 of the California Constitution provides for protection against unreasonable searches and seizures.

Article I, Section 1 provides for a right of privacy which is described as inalienable.

William H. Rehnquist:

And then the search and seizure provision of the California Constitution was interpreted in the State Supreme Court Krivda opinion, was it not?

Michael Ian Garey:

That is correct.

And that’s exactly what I mean by the State law issue.

William H. Rehnquist:

But we have determined, have we not, that the decision rested at least partially on Federal grounds?

Michael Ian Garey:

Oh, yes.

Yes.

The argument centered, and I think this is abundantly clear from the transcript, the argument in the Municipal Court centered around the fact that Krivda in its second opinion on remand had decided that the original decision was based on both State and Federal grounds.

And I repeatedly emphasized that at the Municipal Court level.

William H. Rehnquist:

And therefore be reviewable here under Michigan v. Long, would it not?

Michael Ian Garey:

It would be reviewable here under Michigan v. Long to the extent that the Federal question is posed.

That would be correct.

William H. Rehnquist:

Well, if it’s been decided that both Federal and State grounds support Krivda, certainly the Federal question is posed, is it not?

Michael Ian Garey:

The Federal question is posed but it is not posed entirely by itself.

And I think if I may go back just a little bit and explain what I mean by that because we get into a number of problems with that.

First of all, Krivda originally was decided before Michigan v. Long.

I don’t think that anybody has seriously contended it, and if they do, I’m prepared to address it but I don’t think anybody has seriously contended that Krivda was not also decided upon independent State grounds.

Indeed, this Court seems to have recognized that fact, at least the dissent of this Court seems to have recognized that fact in California v. Rooney quite recently.

I don’t think that we need to get into an extended analysis of would the original Krivda opinion have survived a Michigan v. Long analysis.

Michael Ian Garey:

And I note that in a footnote, petitioner has sort of alluded to that problem, although not really briefed it in any detail.

So the answer to the Court’s question I believe is as simple as, yes, there is a Federal question posed in the sense that part of Krivda rested on Federal grounds.

There is an independent State ground clearly presented because Krivda in addition relied on its own independent State grounds.

William H. Rehnquist:

Did you raise this point in your Memorandum In Opposition to the Petition for Certiorari?

Michael Ian Garey:

I’m not sure, Your Honor.

William H. Rehnquist:

If you didn’t, there’s language in our Tuttle opinion which would suggest that you have waived it.

Michael Ian Garey:

Well, if I may proceed just a little bit, because–

William H. Rehnquist:

Certainly.

Michael Ian Garey:

–Thank you very much.

The State law issue and the due process argument which I make in this Court was specifically, although again very tersely raised at the Superior Court level in the argument on the Section 995 Motion.

That would be Reporter’s transcript at page 16 where I pointed out that we are specifically not waiving Article I, Section 13, and that we are relying in part on the rationale that Article I, Section 28(d) which did away with the State’s exclusionary rule, was violative of the principle in Mapp.

That is the germ of the argument that I make at this point.

It was made tersely and I will concede that it was made very tersely because the state of the law in California at the time this matter was going through the municipal Court, the Superior Court and the Court of Appeals, was stare decisis.

Either analysis you took, stare decisis came up at the same point.

As far as raising this in opposition to the petition for certiorari, a Federal question at this point seems to me to be raised on two different fronts.

There is the Federal question that is posed to this Court relating to whether or not the trashcan search as indicated in this case or as based on the facts in this case violates the Fourth Amendment in the straight Fourth Amendment issue itself in the purest sense, and that is squarely presented to this Court.

But there is another Federal question I think that is raised as well.

The problem in California is not that the search under California law was lawful, because under California law the search was unlawful.

The problem is by reason of the adoption of Article I, Section 28(d), California Courts are without power to cure or correct or remedy or deter, more appropriately, even an intentional and a willful violation of State Constitutional rights.

William H. Rehnquist:

If we were to reverse this judgment here under the 1982 Amendment, the California Constitution provision on unreasonable seizure would be interpreted the same as we interpreted ours, would it not?

Michael Ian Garey:

I’m sorry.

Could the Court repeat the question.

William H. Rehnquist:

Yes.

Supposing we were to reverse here on Fourth Amendment grounds saying that search of trash does not require a warrant.

Under your 1982 Amendment, wouldn’t that also mean that the California cognizant provision was interpreted the same way?

Michael Ian Garey:

No, actually it would not.

And I would respectfully submit the real analysis that applied in that situation is that under California law, this search in this present case would be as illegal today as it was in say 1973 or 1980, but the problem is that exactly, just exactly.

Byron R. White:

The evidence would come in anyway.

Michael Ian Garey:

The evidence would come in.

Byron R. White:

And the conviction would stand.

Michael Ian Garey:

That is also correct.

Antonin Scalia:

What about private suit, could there be a private suit against the person who conducted the search in violation of California law?

Michael Ian Garey:

You mean like a civil damage suit?

Antonin Scalia:

Yes, a civil damage suit.

Michael Ian Garey:

The problem with that is exactly I think it is addressed in Mapp originally.

Although Mapp doesn’t–

Antonin Scalia:

Oh, I understand you may not win it but the suit’s available so we wouldn’t have been making a dead letter of the California law.

Michael Ian Garey:

–But as a matter of what rule this Court ought adopt under these very historically unique circumstances and I will address–

Antonin Scalia:

But that’s California’s problem.

I mean, at this point we’re not talking about a Federal law anymore, we’re talking about a California law.

And if that is not… we will not have voided it completely and if California thinks it needs more teeth, California can give it more teeth.

Michael Ian Garey:

–The problem is this.

In adopting Mapp, this Court, even in view of the progeny of Mapp which has laid more and more stress on the deterrence rationale, even in view of that and perhaps even more because of that, the result so long as Mapp is viewed as good law and is constitutionally compelled through the due process clause, I think the question that need be posed is that of whether or not California or any State for that matter may define a right as fundamental or as inalienable and refuse any effective remedy or any effective enforcement for it.

To say that there are civil suits possible is the same argument that was made in the interim period between Wolfe v. Colorado and Mapp v. Ohio.

To the extent that Mapp is constitutionally compelled under the due process clause, the same analogy applies here.

And it is one thing to say that it is a matter of California law, and indeed, it is a matter of California law determining the scope of the right of privacy as in California.

But the question that it does not answer and does not even address the question of can California define that right as encompassing say a search like the one in the present case and yet have no effective means, have the Court completely stripped of its ability to use a deterrent effect, the analogy for Mapp in order to enforce its own constitutional provisions.

And the answer is that if the State is in fact legitimately even in view of the Federal due process clause stripped of that ability, then what’s left?

And by the analysis in Mapp, what is left is that just as in this case, the State, the police are entitled to intentionally and deliberately and willfully violate the State Constitution and the State Supreme Court is absolutely powerless to do anything about it.

If it were not that this raises the due process clause issue, then indeed the underpinnings of Mapp itself become questionable.

This Court has historically not exercised a general supervisory power over State searches and seizures and so forth.

The rationale behind Mapp is that it was compelled by the due process clause.

That same due process clause I submit compels the conclusion that this Court use the due process clause to rule that California may not define a right as fundamental and inalienable and yet withhold the only thing that this Court has held for many many years at this point is an effect remedy or an effective deterrent.

This case is in many many ways–

Antonin Scalia:

I’m not sure I follow this argument.

Mapp involved the violation of a Federal Constitutional right.

Michael Ian Garey:

–Correct.

Antonin Scalia:

Correct.

And we said that the State courts would have to enforce that violation of a Federal Constitutional right by the exclusionary rule?

Michael Ian Garey:

Absolutely.

Antonin Scalia:

Now, you’re saying that it follows from that that the State Courts also as a Federal Constitutional matter, must enforce the violation of any State Constitutional right by the exclusionary rule, and the Federal Courts have to do the same.

Michael Ian Garey:

Essentially, yes, but with one qualifier.

Antonin Scalia:

I don’t see how the one follows from the other.

Michael Ian Garey:

Well, if I may.

First, with one qualifier, the qualifier would be limiting it to essentially fundamental rights which the State has already or will find to be fundamental substantial Constitutional rights bearing on the right of privacy.

To the extent that Justice Scalia is questioning why is it that this follows from Mapp, it is not that the holding in Mapp which is indeed as the Justice just described it directed towards violation of Fourth Amendment Federal law and the Federal right of privacy, it is not that the holding directly applies.

What I’m suggesting is the force, the dynamics behind Mapp and why it applies through the due process clause as opposed to through some non-existent supervisory power that this Court would have over the States in general applies to this situation equally.

Because if you’re saying that Mapp has to apply through the due process clause to enforce Fourth Amendment rights because that’s the only way that you can insure that the State Police in essence will respect the Fourth Amendment right, what I’m saying is that that same due process command to use an exclusionary rule applies to make the State enforce its own law.

Antonin Scalia:

It is our business to enforce the Federal law.

It’s not our business to enforce the State law.

Michael Ian Garey:

In general, perhaps not.

However, as recognized by this Court in Hewitt v. Helms and also Vitek v. Jones, there the due process clause recognizes rights that are created by Federal law and also those that are created under State law.

And the question is whether or not the State law, the State Constitutional provisions create what is utilized and I’ll use the phraseology that comes out of Vitek v. Jones, whether or not the State Constitutional provision has created a liberty interest in the citizen which the due process clause will prevent the State from arbitrarily taking away.

And that is why it applies through the due process clause in such a fashion very similarly to the way, not identically to the way but very very similarly to the way that Mapp v. Ohio compelled State obedience to the Fourth Amendment.

I think the way to underline why that is so necessary is that historical context of this very case.

It has probably never happened, or at least to my knowledge, it has never happened in the history of this country since Mapp, that a State has developed a body of law which we will put under the general rubric of independent state grounds, that respects certain rights of privacy in its citizens, and thereafter have the State stripped of its ability to enforce that same right.

,–

If we need to see an example of why it is necessary that the due process clause be so applied, this case is exactly that case.

Because for 15 or 16 years in California, Krivda held sway.

It was stare decisis.

So much was it stare decisis that at the appellate court level, the State conceded that it was stare decisis and that the Court of Appeals had no power to rule otherwise, at least on the Fourth Amendment aspect of the stare decisis issue.

As soon as we have the advent of Article I, Section 28(d) there is what can only be described as a willful and deliberate violation of State Constitutional privilege as defined in the Krivda cases.

Can it be said that the due process clause will not protect those rights of privacy where the due process clause will in fact protect the question of whether or not for instance a mental health patient is going to be involuntarily transferred to another institution, which would be like Vitek v. Jones, for instance.

Sandra Day O’Connor:

Well, counsel, in open field searches, for example, where State law might make a trespass to come on to the open field or the premises, that hasn’t determined the Federal law on whether evidence should be suppressed in a prosecution, has it?

We haven’t enforced the State trespass laws?

Michael Ian Garey:

Well, that is correct.

On the other hand, it has never come to pass as far as I know.

And the argument I make now indeed is a novel one, and I could not find a case where anybody had raised precisely the issue that is raised here.

And I think that’s not because it is not a valid argument.

It’s because historically it has never occurred, the circumstance that we have here.

Michael Ian Garey:

And yes it is indeed true that this Court has made certain rulings on the question of open fields which are inconsistent with the rulings in California, both prior and subsequent to this Court’s holding, I might add.

The rule that I would suggest now would in fact operate I think and there is a concern on this subject, but it would in fact operate in such a way that if California as a matter of interpreting Article I, Section 13 and Article I, Section 1 says that an open field search is more restricted than this Court in its holdings has indicated then should this Court, should this Court impose on California the necessity of utilizing the exclusionary rule.

I think the answer to that really comes from turning the question only slightly, and I mean very slightly.

And the question is should this Court allow any State to define a right privacy as being inalienable or fundamental and be able to effectively take it away by not enforcing it, and by allowing its state officers to deliberately violate the State Constitution.

Sandra Day O’Connor:

Why isn’t that up to the State of California?

Michael Ian Garey:

Because the State of California at this point is powerless, and it is powerless by reason of Article I, Section 23(d).

They’ve lost their exclusionary rule.

Because they’ve lost their exclusionary rule, they have lost the right or the ability–

William H. Rehnquist:

They lost it because the people of California took it away from them.

It’s not an accident.

Michael Ian Garey:

–I never suggested that it was an accident.

The question is does it involve due process considerations.

Byron R. White:

Your argument is that the 1982 amendment is unconstitutional?

Michael Ian Garey:

As applied to this case, yes.

Not in general.

Byron R. White:

Or all cases like it?

Michael Ian Garey:

All cases sufficiently like it where somebody couldn’t come up with a good distinction, yes.

There are a lot of different parts to Article I, Section 28(d).

One of the arguments that was initially made to Article I, Section 28(d) is that it violated the single subject rule.

How aware the voters were of this specific provision and how it would work is a matter of some speculation.

Certainly some of the literature surrounding Proposition 8 before it was passed would have put people on notice.

On the other hand, it was designated the Victims’ Bill of Rights and it was not exactly designated, redefinition of Constitutional–

William H. Rehnquist:

How aware do you think the voters of the United States were of the contents of the Fourteenth Amendment when they ratified it?

Michael Ian Garey:

–Probably relatively little.

William H. Rehnquist:

So what does your argument bear on?

Michael Ian Garey:

It is only an answer to the question of the people of the State altered the rule.

William H. Rehnquist:

Well, they did.

Michael Ian Garey:

They did, and the net effect–

William H. Rehnquist:

You answer the question when you say, yes.

Michael Ian Garey:

–Very well, then the answer is, yes, but the question then still remains is can any State, whether through its electorate, through its legislature or through its executive branch take away a right that the State has granted.

Byron R. White:

And then take it away?

Michael Ian Garey:

Exactly, exactly.

And I think I can focus this point fairly simply by pointing out this: had the people of the State of California done away with completely as in repealed Article I, Section 13 and Article I, Section 1, that would probably take the argument that I am dealing with now take it away completely and make it completely inapplicable.

The problem is that they did not, and the problem is that what they did is, they left the right intact, the substantive right intact but took away any effective remedy.

And that I think creates a due process issue where it might not otherwise be.

And it is analogous to the situation where the State has no obligation whatsoever to have say parole but it does have an obligation to satisfy Federal due process in how it deals with parole.

And so I think that the analogy is very tight and it is very tight especially if one views the rationale behind Mapp v. Ohio.

John Paul Stevens:

But Mr. Garey, you’re arguing mainly from procedural due process cases, Vitek v. Jones.

I don’t suppose you’re arguing that the homeowner is entitled to a hearing before the garbage is searched are you?

Michael Ian Garey:

No.

John Paul Stevens:

No.

Michael Ian Garey:

I’m not.

However,–

Antonin Scalia:

Why not.

Wouldn’t that satisfy me you’re just talking about the due process clause here, and why wouldn’t that be enough?

Michael Ian Garey:

–Well, I think as a practical matter, a hearing before the garbage is searched, is that the question?

All right, I think that would defeat the purpose of any search whatsoever, and I might indicate too, that it is not our suggestion and it is not my argument, either as a matter of Fourth Amendment law or as a matter of State law, that a trash search is illegal in every case.

It is illegal when there is no probable cause and there is no warrant or there is no exigent circumstance excusing the use of a warrant.

In this case the people eschewed at the trial court level any theory that they were going on probable cause or exigent circumstances, and so the question is squarely presented.

John Paul Stevens:

May I ask you, are there some California cases that say that the trash search is all right provided, sort of like an automobile search, you have to have probable cause for it even though you don’t have a warrant.

Michael Ian Garey:

There is suggestion, and it’s dicta, but there is suggestion in that, and indeed, that’s a matter that the State Court can address itself to.

And I suppose that in view of the political shift in California, there’s always the question as to whether or not California will redefine the fundamental nature of privacy as it bears on cases like this one.

That is a State court function.

The due process clause I think becomes involved only to the extent that they continue to recognize the right but withhold the remedy.

And I would, if I may, on the question of whether there’s a distinction between substantive due process or procedural due process here, it is… and I realize that in cases like Vitek v. Jones, what’s really being discussed is the procedures by which the right is taken away.

But the shift in emphasis in this Court since Mapp in terms of what is the rationale for Mapp v. Ohio, and why is it necessary, it has put it in the rubric of a procedural necessity.

It is not an integral part necessarily of the Fourth Amendment but it is a procedural necessity, without it, there’s no way of enforcing the Fourth Amendment.

And so we’re talking about procedure in both senses.

We’re talking about the procedure by which the State takes away a right in the sense that it was used in Vitek v. Jones.

We were also talking about the procedure by which the State either enforces or by not enforcing takes away the right of privacy in this case, too.

Michael Ian Garey:

And if there could be any question, can there be any question of the necessity for the deterrent effect of an exclusionary rule, I think the fact that we’re here some many many years after the opinion in Krivda answers that fairly squarely.

In terms of, and I’ll return just briefly to the question that Justice O’Connor did pose, which is the raisability of this issue, as I’d indicated, essentially this argument was raised in the Superior Court without objection by the State whatsoever.

The State did not request in their brief that this Court not address the merits of this, although there’s a passing reference to the timing of the raising of this issue.

The passing reference is not entirely accurate factually as the record would indicate, if one looks at Reporter’s transcript, page 16.

The issue is also purely one of law, and it is purely one of Federal law.

And this Court clearly has the discretion under its own holding in Singleton v. Wolfe to entertain the merits of the issue.

And I would urge the Court to do so, particularly since it presents a substantial issue of Constitutional principle.

Now, if I may address briefly the question of the trash search itself, and I address it here not just a question of State law as we’ve been discussing for the last several minutes, but rather as either.

Should it be included within the concept of a reasonable expectation of privacy.

In part, the question I think can be posed why, as in why should this Court extend or apply… which I think is perhaps a better term… a reasonable expectation of privacy to opaque plastic trashbags placed out at the curbside for collection.

The issue breaks down in my mind at least to almost a why and a why not, and it is almost the latter aspect of it which seems to be the most important, or at least it’s the most revealing.

On the primary question of why, it is fairly clear, and I think even the dissent in Rooney recognized that many people put all sorts of things that reveal their lifestyle that are secrets that are private in their trash.

If you lay it out on the sidewalk not in an opaque bag so that anybody passing by can see it, I suppose there’s no reasonable expectation of privacy.

If it’s put in an opaque container, especially under the circumstances involved in this case where it is to be picked up by the trash man, it is to be put in the trash truck and within seconds, and the record here I think demonstrates that, within seconds of it being picked up by the trashman, ordinarily the mixing part of the garbage truck would mix it in with all the other trash, and it would become essentially lost forever.

Antonin Scalia:

You don’t have any dogs in California?

I don’t know, you people just don’t suffer from many of the problems that we suffer back in the east, apparently.

We used to have dogs that used to get into those things.

Michael Ian Garey:

We have dogs, and I suppose we have snoops and I suppose we have all sorts of private agencies that might interfere with somebody’s otherwise reasonable expectation of privacy.

I suppose–

Antonin Scalia:

So you’re pretty risky to leave something out on your curb in an opaque bag whether there are dogs around, anyway.

Michael Ian Garey:

–It is an interesting fact that in this case, and really in any of the cases that I’ve read about including I think it’s U.S. v. Terry where the DEA monitored somebody’s trash off and on for a period of six months that at no time did the police in this case or the DEA in that case have to fight this horde of people that were standing around the man’s trash in order to get at it.

To talk about the mere possibility that a dog may get at somebody’s trash or that the next door neighbor might come over and get at somebody’s trash it seems to me avoids what is the real question here.

What is the ordinary reasonable expectation of any normal ordinary citizen.

The fact that there might occur a private intrusion… what I mean is a non-State action intrusion into the trash, whether it’s by a dog or by a next door neighbor who wants to compile a dossier on their neighbor doesn’t really answer the question.

This Court, for instance, in Jacobsen and Walters drew a distinction between the private search and the State action type search that involves governmental intrusion.

It seems to me that there would have been no occasion for this Court to have looked into the question of the scope of the governmental search in relation to the private search if it were not for the fact that the private search is not a Fourth Amendment issue, not because it’s proper, not because it doesn’t invade the reasonable expectation of privacy as to the householder, but because it involves no State action.

And that’s exactly why if you have the fact of a private search that invades somebody’s privacy to the extent that the person’s privacy has been breached by the perhaps unreasonable but not governmental private search, the Court will recognize that breach, but only to that extent and only within that scope.

And I believe that it was Justice Scalia in your opinion in O’Connor v. Ortega where the Court defined the question of privacy not as a matter of absolute solitude but privacy.

And so if you put your trash in opaque plastic bags out for collection reasonably knowing that what’s going to happen is that it’s going to be there for a half an hour, maybe an hour, the trash guy’s going to come by, he’s going to pick it up, put it in the trash truck, and the trash truck itself will chew up all the trash and stuff it in the back with everybody else’s trash, the fact that there is some remote possibility that you don’t have 100 percent certainty that your trash will not be looked into by someone, would not seem to have a really significant impact on that reasonable expectation.

Thurgood Marshall:

Well, what happens if an ordinary citizen comes by and picks up your trash?

Thurgood Marshall:

Can you stop him?

Michael Ian Garey:

Can you stop him?

Thurgood Marshall:

Yes.

Michael Ian Garey:

It seems to me that it’s probably an invasion of your privacy.

Thurgood Marshall:

My question didn’t say privacy on any part of it.

It says could you stop him.

Michael Ian Garey:

I think that would depend on the law in the State in particular as to–

Thurgood Marshall:

Could you stop him in California?

Michael Ian Garey:

–I should think so.

Thurgood Marshall:

On what basis?

Michael Ian Garey:

On the basis that he’s violating your right of privacy.

Now, the question also, if I may, would seem to be could you stop him and how could you stop him.

William H. Rehnquist:

I think you’ve answered the question, Mr. Garey.

Your time has expired.

We’ll hear now from you, Mr. Pear, if you have any.

You have 13 minutes remaining.

Michael J. Pear:

If the Court has any questions, I’ll be glad to respond.

Otherwise, the State’s prepared to submit.

John Paul Stevens:

May I just ask one?

What is the answer to Justice Marshall’s question?

Michael J. Pear:

On whether the person could be stopped?

John Paul Stevens:

As a matter of… what’s your view as a matter of California law?

Michael J. Pear:

Would have no lawful authority to stop the person.

John Paul Stevens:

He would not have any authority so that in California law, the neighbor can go in and look through the garbage?

Michael J. Pear:

That’s correct.

In the People v. Grey case that I cited I believe in opening brief involves where the trash collector himself looks.

William H. Rehnquist:

Thank you, Mr. Pear.

The case is submitted.