California v. Rooney

PETITIONER:California
RESPONDENT:Rooney
LOCATION:Action Iron and Metal Company

DOCKET NO.: 85-1835
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: State appellate court

CITATION: 483 US 307 (1987)
ARGUED: Mar 25, 1987
DECIDED: Jun 23, 1987

ADVOCATES:
Arnold T. Guminski – on behalf of the Petitioner
Arthur Lewis – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – March 25, 1987 in California v. Rooney

William H. Rehnquist:

We will hear arguments next in No. 85-1835, California against Peter Rooney.

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

Arnold T. Guminski:

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

This case is here on certiorari to the California Court of Appeals for the Second Appellate District.

It involves the following salient facts.

On December 15th, 1983, Los Angeles police officers Shorb and Wyeth, suspecting that Rooney was conducting bookmaking operations at his West Hollywood apartment, went to the apartment building in question.

They entered the subterranean garage of that apartment building and approached a communal metal trash can for the apartment building, which was 8 feet long, 5 feet tall, and 4 feet wide.

Yes, Your Honor.

Thurgood Marshall:

xxx unclear in the record in this case.

What is “subterranean”?

Arnold T. Guminski:

It would be underneath the apartments themselves.

Thurgood Marshall:

You mean basement?

Arnold T. Guminski:

Pardon me?

Thurgood Marshall:

You mean basement?

Arnold T. Guminski:

Basement, yes, Your Honor.

Thurgood Marshall:

Well, why do you need subterranean?

Who owned this trash receptacle?

Arnold T. Guminski:

I do not know who is the specific owner of the trash receptacle.

It was not expressly disclosed in the record.

However–

Thurgood Marshall:

Well, couldn’t you have found out?

Couldn’t the police department have found out?

Arnold T. Guminski:

–It is possible that they could have found out, yes, Your Honor.

Thurgood Marshall:

And let us know.

Arnold T. Guminski:

It does not… that fact is not disclosed in the record.

I should like to point out, however, that the question as to who technically was the owner of this apartment building and the garage, as we shall see, is not really a critical issue, if I may continue.

The officers went to the trash bin and proceeded to search it… I use the term in its popular sense.

And halfway down they located a brown paper shopping bag which they removed.

It contain mail addressed to Mr. Rooney and evidences of bookmaking operations.

The question posed is whether Mr. Rooney’s Fourth Amendment rights were violated by this examination of the contents of this trash bag.

Arnold T. Guminski:

Our position is that it was not, and for two different grounds.

The first ground is that Mr. Rooney had abandoned the trash when it was placed in the communal trash bin of this apartment building.

That is, that trash ceased to be his or anyone’s papers and effects within the meaning of the Fourth Amendment when it was deposited in the trash bin.

Sandra Day O’Connor:

Mr. Guminski?

Arnold T. Guminski:

Yes, Justice.

Sandra Day O’Connor:

Is it true that under California law as articulated in the Krivda case, that there is a reasonable expectation of privacy in abandoned garbage in California?

Arnold T. Guminski:

I think that it can be stated, yes, Your Honor.

But I cannot say that that is an absolute statement because the California Supreme Court has not ruled on a situation such as that in the instant case.

Sandra Day O’Connor:

But the indications are that California would recognize a reasonable expectation of privacy?

Arnold T. Guminski:

Yes, Your Honor, and that was the holding in the instant case by the Court of Appeals.

Sandra Day O’Connor:

I’m curious how that interfaces then with the inquiry we would make under the Fourth Amendment about whether a particular expectation of privacy is reasonable.

Do we… do we have to look at all at California law?

Or do we ignore that and make it purely a Federal inquiry–

Arnold T. Guminski:

We submit–

Sandra Day O’Connor:

–on what’s a reasonable expectation?

Arnold T. Guminski:

–Justice O’Connor, we submit that this Court must use a Federal, national standard.

The question is whether an expectation of privacy is such that society is prepared to recognize it as reasonable, and the society in question is the nation as a whole.

If this Court were to determine the question of reasonableness by a particular state, one may not be speaking of the identical standard, because the state in question might impose a much higher standard than that required by the Fourth Amendment.

Antonin Scalia:

California may in fact have a higher class of trash than other states, too.

Arnold T. Guminski:

Yes, Your Honor.

It apparently is valued that when garbage is put in it somehow emerges when taken out by a police officer with an aura of respectability.

And the two grounds that we have just stated are such that the second ground, that is, a reasonable expectation of privacy ground, is inferior or subordinate to the first ground.

Because there can be no Fourth Amendment rooted reasonable expectation of privacy with respect to items which have ceased to be papers and effects within the meaning of the Fourth Amendment.

This Court, in Oliver v. United States, confirmed the ruling in Hester than open fields are note embraced by the protection of the Fourth Amendment.

And one independent ground was that this was precluded by the explicit language of the Fourth Amendment.

And this Court proceeded to note that Katz’ standard reasonable expectation of privacy standard–

Thurgood Marshall:

You want us to extend the open fields doctrine to a basement?

Arnold T. Guminski:

–We are not speaking that it… the open fields doctrine extends to the basement, sir.

Thurgood Marshall:

Well, what are you saying?

Arnold T. Guminski:

We are saying that a basement, in the first place, is not within the curtilage or the house of Mr. Peter Rooney.

Arnold T. Guminski:

That is clear from… pardon me?

0 xxx.

Arnold T. Guminski:

Well, because the record describes this apartment building as–

Thurgood Marshall:

Does it say how many apartments are in it?

Arnold T. Guminski:

–How many…?

Thurgood Marshall:

Apartments are in the building?

Arnold T. Guminski:

It–

Thurgood Marshall:

It doesn’t say a thing about what was in that building.

Arnold T. Guminski:

–It described Mr. Rooney as being in apartment number eight, Your Honor.

Thurgood Marshall:

Well, how many apartments are in the building?

Arnold T. Guminski:

The affidavit and the search warrant itself did not state the precise number of apartments in the building.

Thurgood Marshall:

Well, by the time of trial, did you say… is there anything in the trial–

Arnold T. Guminski:

In the record it was stated before the magistrate that there were 28 units in the building.

This was not challenged in the court below.

The Court of Appeal, in its opinion, in its published opinion–

Thurgood Marshall:

–Was it in the trial record, or was it in the magistrate’s record?

Arnold T. Guminski:

–It is in the record on appeal.

Thurgood Marshall:

It’s in the record here?

Arnold T. Guminski:

Yes, Your Honor.

Thurgood Marshall:

I’ll look again.

Arnold T. Guminski:

Well, if I… if Your Honor–

Thurgood Marshall:

No, no, I’ll find it.

Arnold T. Guminski:

–Thank you, Justice Marshall.

Thurgood Marshall:

That’s what I’m here for.

Arnold T. Guminski:

It was mentioned that there were 28 units by the prosecutor.

This was not challenged by the defense counsel.

Thurgood Marshall:

0 xxx.

Arnold T. Guminski:

There was a representation by–

Thurgood Marshall:

Well, that is not testimony.

Arnold T. Guminski:

–It is not, Your Honor.

Arnold T. Guminski:

But it was a representation made by the prosecuting attorney.

It was not challenged.

It was stated in the Court of Appeals opinion without objection by respondent.

As a matter of fact, in the respondent’s brief the apartment building is described as a 28-unit apartment building.

But certainly, the–

John Paul Stevens:

Mr. Guminski, while you’re on the building, this was in a garage, was it not?

Arnold T. Guminski:

–Yes, Your Honor.

John Paul Stevens:

And do all the apartment owners have a… is that part of their… what they rented, the rented space in the garage?

Arnold T. Guminski:

This could be inferred, yes, Your Honor.

John Paul Stevens:

So that basically the garbage was still on their premises?

Arnold T. Guminski:

The garbage… the trash bin was located within the subterranean garage.

John Paul Stevens:

Which was part of the respondent’s premises.

Arnold T. Guminski:

It was part–

John Paul Stevens:

Is the case the same as if the garbage was in his kitchen, is what I’m asking you?

Arnold T. Guminski:

–No, Your Honor, it is not, because clearly, if a trash container was in a kitchen of a person, whether or not there is a per se interest in trash, that would be the protection of the Fourth Amendment as far as the interest in one’s house would extend to one’s kitchen–

John Paul Stevens:

But what about the garage?

Arnold T. Guminski:

–and would extend to the trash container.

John Paul Stevens:

Is the garage an open public area?

Arnold T. Guminski:

This would be an area open to the… accessible to the public.

John Paul Stevens:

Accessible, but just like the living room… just like leaving the door unlocked, or is it–

Arnold T. Guminski:

I infer from… I infer that it being an open garage that it is common to all the apartment dwellers, as well as other people who might come in through the opening.

John Paul Stevens:

–The record makes it clear that people who do not live or are not guests of the apartment have free access to the garage?

Arnold T. Guminski:

It does not expressly state so.

John Paul Stevens:

Do you think that might make a difference?

Arnold T. Guminski:

It might, I do not think it could make–

John Paul Stevens:

There are some 28-unit buildings that have a common area, and they’re very careful to keep the garage doors locked, because they don’t want thieves and the like to come into the place, even though the garage is temporarily in that area.

Arnold T. Guminski:

–Your Honor, it might become relevant, although it is hard to see offhand, with respect to someone else’s interest, if there were some other person other than Peter Rooney who was involved.

But he was a tenant in this building.

It was not part of his house or–

John Paul Stevens:

But did he have… did he have a parking space in the garage?

Arnold T. Guminski:

–That can be inferred that he did.

I do not know as a matter of fact.

But it can be inferred he had only a right of access to this garage.

That does not make it part of the curtilage of his home, within the meaning of the curtilage as defined by this Court, as recently as United States versus–

John Paul Stevens:

What case do you rely on for that proposition?

xxx garage?

Arnold T. Guminski:

–I do not know, Your Honor.

Thurgood Marshall:

Where is the entrance to the garage?

I’m just talking about the things that should be in the record that are not there.

Arnold T. Guminski:

Your Honor–

Thurgood Marshall:

For all I know, the record was closed to the public.

Arnold T. Guminski:

–If it was closed to the public–

Thurgood Marshall:

I didn’t say if.

I said it could be.

Arnold T. Guminski:

–It could be closed to–

Thurgood Marshall:

Well, you’ve been could-being for the last 10 minutes.

We can’t decide cases on could be.

Arnold T. Guminski:

–Justice–

Thurgood Marshall:

Is this… where is it?

Is it near the front door or the back door or what?

Did he have a car?

You don’t know.

Arnold T. Guminski:

–This is not disclosed in the affidavit which was presented to the magistrate’s–

Thurgood Marshall:

Well, I don’t know now and you don’t know.

Arnold T. Guminski:

–However, I would submit–

Thurgood Marshall:

Was it locked or unlocked?

Arnold T. Guminski:

–It does not expressly state so.

It was described by the Court of Appeal as being accessible to the public.

I would submit, Justice Marshall, that this factor is not controlling, because the question is whether Mr. Rooney’s Fourth Amendment interests were not violated.

Thurgood Marshall:

Whether it was locked or not, the question of whether it was locked, has nothing to do with whether or not he had an expectation of privacy; is that your position?

Arnold T. Guminski:

I say… well, there certainly… we would submit it would not be, because he has no… would have no reasonable expectation of privacy as far as a common garage of an apartment building, whether… within… that would be rooted in the Fourth Amendment.

Lewis F. Powell, Jr.:

Counsel, the opinion in the Court of Appeals in California describes this container as a communal.

Does that suggest that all 28 of the apartments use the same disposal?

Arnold T. Guminski:

That would suggest that to me, Justice Powell.

But one has to… this case really turns on the question of a document presented to the magistrate pursuant to a request for a search warrant.

And one must presume that the magistrate made inferences favorable to the issuance of the warrant which he did issue.

Lewis F. Powell, Jr.:

Does anybody challenge the use of the term “communal”?

Arnold T. Guminski:

No, Your Honor.

No one has challenged, and it is so described in respondent’s brief.

Lewis F. Powell, Jr.:

The container is described as 8 by 5 by 4 feet.

Arnold T. Guminski:

Yes.

Lewis F. Powell, Jr.:

Would a single individual have a garbage or trash disposal that size?

Arnold T. Guminski:

That would be most likely, Your Honor, unless he generated a lot of trash, which is unlikely.

Thurgood Marshall:

But isn’t the whole record built on what is likely or not?

My query is, we are deciding a constitutional issue on facts that you had a chance to put evidence in and didn’t.

And there was no problem in doing it.

Arnold T. Guminski:

Your Honor, the case arose–

Thurgood Marshall:

You want us to infer this.

Arnold T. Guminski:

–Justice Marshall, the case arose on a motion to quash a warrant on the ground that the legal insufficiency of the affidavit on its face–

Thurgood Marshall:

You could have put on any testimony that was relevant.

Arnold T. Guminski:

–One could not put on relevant testimony at a suppression hearing if the court had denied… had granted the motion to suppress.

Thurgood Marshall:

Well, couldn’t you have objected?

Couldn’t you objected by saying that this is a communal place, and put on evidence to that effect?

Arnold T. Guminski:

Well, the issue before the trial court was the legal sufficiency of the affidavit–

Thurgood Marshall:

Well, could you have put the evidence in there?

Arnold T. Guminski:

–I do not see how procedurally it could have been possible because–

William H. Rehnquist:

Did anyone dispute at this hearing that it was a communal trash bin?

Arnold T. Guminski:

–There has been no dispute at any hearing in the courts below, including the Court of Appeal.

John Paul Stevens:

But the issue isn’t the validity of the warrant.

The warrant was valid.

John Paul Stevens:

The issue is the validity of the search of material that was not encompassed by the warrant.

Arnold T. Guminski:

That is correct.

We petition this Court for certiorari because the ruling of the court below that the communal trash bin search was invalid under the Fourth Amendment was something which we felt was erroneous, and it was a final order for purposes of seeking review in this Court because… for evident reasons.

Harry A. Blackmun:

Mr. Guminski, these containers of this size are common in this area, as they must be in California.

Do you know, or does the record or the affidavit show, that… how the trash got into the big… the depository?

Arnold T. Guminski:

Again, because we are dealing with the sufficiency of the affidavit on its face, which was the only thing presented–

Harry A. Blackmun:

So you don’t know whether it came down there through a chute, or whether the tenants came down and threw it in, or anything of that kind?

Arnold T. Guminski:

–It does not appear expressly ain the record, no.

John Paul Stevens:

You puzzle me by saying we’re dealing with the sufficiency of the affidavit.

We’re not dealing with the sufficiency of the affidavit.

The affidavit has nothing to do with this particular search.

Arnold T. Guminski:

Well, I correct myself.

The only information–

John Paul Stevens:

It took place before the affidavit was granted.

Arnold T. Guminski:

–The only evidentiary matter is that which is contained in the affidavit, that is correcct, Your Honor.

The… the position in Oliver was that the Fourth Amendment itself, by its explicit language, delimited the scope of its protection.

And as… and this is clearly justified by the language of the first clause of the Fourth Amendment, which does not say simply that the right of the people be secure against unreasonable searches and seizures shall not be violated; it provides that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated.

This Court technically defines a search as being an infringement of a reasonable expectation of privacy.

If one were to make a substitutional definition of the term “search” and put it in the text of the first clause of the Fourth Amendment, it would then read: The right of the people to be secure in their persons, houses, papers and effects against unreasonable infringements of their reasonable expectations of privacy and unreasonable searches shall not be violated.

I think this highlights that the Fourth Amendment itself distinguishes between two classes of entities.

The first class of entities is what kind of entity… what kinds of entities are protected by the Fourth Amendment, and that is the houses… the persons, the houses, the papers and effects of the people.

And the second class of entities are, what are those kind of activities which are being prohibited by the Fourth Amendment, and those are infringements of reasonable expectations of privacy with respect to the aforementioned interests.

So the question ultimately comes down to what kind of interests of Rooney were violated such as that he can urge the application of the exclusionary rule in this instant case.

Now, surely his person is not involved.

There is no violation of his Fourth Amendment interest in his person as such.

The next classification is that of his house.

And again, taking words as they appear, we submit that the underground garage of the apartment building to which he and presumably other tenants had access was not part of his house for Fourth Amendment purposes, nor part–

John Paul Stevens:

May I ask at the point, supposing this were a private home with an attached garage, and when they set the garage out to be picked up right inside the alley, but it was still within the garage, but the garage door is left open.

Could the police search the can?

Arnold T. Guminski:

–This would be within the curtilage.

Arnold T. Guminski:

No, sir, presumptively not, because it would be within the curtilage of an individual home dweller.

John Paul Stevens:

But an apartment dweller who handles the garbage in this way has no expectation of privacy.

If it were upstairs in a common area on the same floor where sometimes it might be dumped, but not on his apartment, would you again draw the line?

Arnold T. Guminski:

He would not have a Fourth Amendment interest violated, according to our–

John Paul Stevens:

In other words, it has to be in an area with respect to which he has the sole right of possession; if it’s in common with other tenants, it doesn’t apply.

Arnold T. Guminski:

–Or it can meaningfully be said to be his curtilage.

And we submit that the common underground–

John Paul Stevens:

The common areas of a multiple unit apartment dwelling don’t have any curtilage, do they?

Arnold T. Guminski:

–Are not… does not itself constitute a curtilage of any particular tenant.

Sandra Day O’Connor:

How about if it’s a coop?

Arnold T. Guminski:

Here… we would submit that it does not, either, Your Honor, although there may be title–

Sandra Day O’Connor:

Even though they owned the common area?

Arnold T. Guminski:

–Yes, but a person may have title and share with many in access to a particular common area, but the question would be whether it would be in a meaningful sense, his house and his curtilage.

And you could have a coop with many, many residents, albeit all legal owners in general having common use of a common area.

Sandra Day O’Connor:

Well, I guess you can have multiple owners of an individual dwelling as well.

You wouldn’t say that diminishes the expectation of privacy of the resident, would you?

Arnold T. Guminski:

Well, of course, one is always, Justice O’Connor, coming to close questions of where one draws the line.

And it may well come to a point where one will say that there may be multiple residents of a single dwelling yet to be considered a single dwelling residence, where, yes, a number of persons, such as members of one family, could be… would have one curtilage–

Antonin Scalia:

Well, if you had a whole bunch of unrelated persons in a multiple unit dwelling with many bedrooms, let’s say a dormitory with a bunch of college students in it, you wouldn’t say that one college student has a Fourth Amendment right with respect to the bedroom of another college student, would you?

Arnold T. Guminski:

–No, I would not, Your Honor.

Antonin Scalia:

So the multiple unit thing is quite a different situation.

Arnold T. Guminski:

A multiple unit is a different situation.

I was just trying to accommodate–

Antonin Scalia:

Just because people all live together doesn’t mean that each one of them has a right of privacy in the entire area that they’re living together in?

Arnold T. Guminski:

–No, it does not.

No, it does not.

I was just trying to acknowledge to Justice O’Connor that one does come to closer cases where decision making becomes more critical, but we do have this in this–

John Paul Stevens:

But the question in the multiple unit case is not whether one tenant has privacy rights in another tenant’s private area, but rather, whether any of them have a privacy right in a common area from which the public is excluded?

And I take it you say no, they don’t.

Arnold T. Guminski:

–Well, we are saying that they do not have a Fourth Amendment interest.

Arnold T. Guminski:

It is not a part of their house within the meaning of the Fourth Amendment.

Now, they may have interests in containers or cars or effects, their effects, in that common area.

John Paul Stevens:

But if this garbage had been left, for example, in the front hall or the entrance hall of a large building, they would have… they’d lose their privacy interests the same way–

Arnold T. Guminski:

I would submit on that analysis, yes, Your Honor.

John Paul Stevens:

–or on the… in the garbage on the same floor they lived on.

As soon as it gets out of their exclusive possession, would be your position?

Arnold T. Guminski:

Yes, but if it is a common container, container open to the use of… of everybody, there is no Fourth Amendment interest.

If a person, however, may have his own container in a garage, garages frequently have… apartment garages frequently have containers, storage containers.

John Paul Stevens:

So you said to me, in a home and a garage, they’d be protected if you left it in the garbage still in the garage.

What about a two-flat, and they share a garage?

You’d say that’s a common area, so there’s no protection there?

That’s your distinction, as I understand it.

Arnold T. Guminski:

That is an extremely, extremely close case, where I would say that one would be–

John Paul Stevens:

If two-flat isn’t enough, what about three-flat, and as soon as we get to 28, have we crossed the constitutional line?

Arnold T. Guminski:

–I would say that one would feel compelled to say that when you have a two-unit–

John Paul Stevens:

That’s different from a single unit.

Arnold T. Guminski:

–that’s different from single, but there may be… there may be a greater scope to reasonable expectation of privacy.

We are distinguishing between two issues, Justice Stevens.

Before you can discuss whether a person has a reasonable expectation as to a house, you might say, you have to decide whether it’s his house in a meaningful sense.

Thurgood Marshall:

Well, let’s do that here.

Arnold T. Guminski:

Pardon me?

Thurgood Marshall:

Let’s do that right here.

What is there in this record to show this man’s relationship to the building?

Arnold T. Guminski:

It does not show… one can infer that he is a tenant.

He is described as being in apartment eight.

Thurgood Marshall:

What does it show?

Arnold T. Guminski:

He is… it indicates that he is a tenant.

He is indicated as being in apartment eight.

Thurgood Marshall:

What does it show positively?

Arnold T. Guminski:

It does not show expressly whether he is or is not a–

Thurgood Marshall:

How does it show who used the garbage can?

How many people used it?

Arnold T. Guminski:

–It does not expressly show how many people used it.

However, as Justice Powell points out–

Thurgood Marshall:

My whole point originally was, all these things you talk about are not in this record.

Well, if he weren’t a tenant, I suppose his Fourth Amendment claim would be nonexistent, if he’s simply a stranger to the building.

And saying he’s a tenant is putting him in the most favorable spot you would permit.

Arnold T. Guminski:

–That is true, Mr. Chief Justice.

Thurgood Marshall:

Nobody’s doing him any favors.

Was the judgment below in your favor?

Arnold T. Guminski:

The judgment below sustained the search warrant on the ground that the affidavit had sufficient–

Byron R. White:

Well, did you… did you want to introduce… there’s never been a trial, is that it?

Arnold T. Guminski:

–No, there has not been a trial.

Byron R. White:

And did you want to introduce anything you got out of the trash bag–

Arnold T. Guminski:

The–

Byron R. White:

–or just what you found in the search warrant?

Arnold T. Guminski:

–There would be an intention, if the ruling of the Court of Appeal were overturned, to introduce evidence pertaining to what was found in the trash bag.

Byron R. White:

But the… the Court of Appeal… the Court of Appeal said that the warrant was valid based on other evidence?

Arnold T. Guminski:

That matter in the affidavit–

Byron R. White:

So that everything you found under the search warrant is admissible.

Arnold T. Guminski:

–That is correct, Your Honor.

But the ruling as far as the… by the Court of Appeal is a ruling which forecloses the use of what was discovered as far as the trash bag; that would be the rule of the case.

Byron R. White:

And you think you’re really going to use that at this trial, or you think that you would really need to?

Arnold T. Guminski:

Well, Your Honor, I think what we really want would be to hope to tend to overrule People v. Krivda, which was here before this Court in 1972, and which was remanded then because there were independent state grounds.

I mean, I wish to answer candidly to your question, Justice; there is an intention to use it, of course.

But it is a vehicle of review.

Harry A. Blackmun:

Let me get back to Justice Stevens’ private home.

Instead of having the trash can in the garage, he puts it out on Monday morning out on the curb.

It’s his trash can.

There… only his trash is in it.

Arnold T. Guminski:

That is correct.

Harry A. Blackmun:

Is that…?

Arnold T. Guminski:

According to our analysis, that when a person sets out a trash can, albeit that trash can is his effect, when he sets it out for collection, he is manifesting an unequivocal, unconditional intent to part with this trash forever.

He is expressing a judgment that it no longer has any value for him, and therefore, we submit that it has ceased to be his papers and effects within the meaning of the Fourth Amendment.

John Paul Stevens:

That’s true whether it’s in–

Arnold T. Guminski:

He no longer manifests a reasonable expectation of privacy.

John Paul Stevens:

–But that’s true whether it’s in the garage or on the curb, isn’t it?

Arnold T. Guminski:

It makes no difference, that’s correct.

John Paul Stevens:

And in both cases, it can or cannot be searched?

Arnold T. Guminski:

Pardon me?

John Paul Stevens:

And in both cases, it can or cannot be searched?

Arnold T. Guminski:

That is correct, Your Honor.

John Paul Stevens:

Which?

Arnold T. Guminski:

Well, you are saying it–

John Paul Stevens:

Earlier you told me it could not be searched if it is in the garage.

Arnold T. Guminski:

–No, I am saying this, Justice Stevens.

If, in either case, if somebody places trash in a communal trash bin of a–

John Paul Stevens:

No, no, we’re talking now about a single home, following up Justice Blackmun’s example.

Arnold T. Guminski:

–If somebody places a trash bit out for collection, it can be searched.

John Paul Stevens:

But if it’s in the garage, it cannot?

Arnold T. Guminski:

If it’s in his garage, it cannot.

John Paul Stevens:

Even though the garage door is open?

Arnold T. Guminski:

Even though it is open–

John Paul Stevens:

And you base that on a different intent to surrender any expectation of privacy between those two cases?

Arnold T. Guminski:

–The point is that the right of ownership to one’s house and reasonable expectation of privacy with respect to the house encompasses his garage.

Antonin Scalia:

One case involves curtilage and the other case doesn’t involve curtilage; that’s the difference between the two, right?

Arnold T. Guminski:

That is correct.

Harry A. Blackmun:

But there’s no abandonment of title?

Arnold T. Guminski:

There is no abandonment of title.

Harry A. Blackmun:

To the trash.

Arnold T. Guminski:

But we are dealing with trash.

And the trash… it seems to me that the fathers… the founders of the Constitution and the Bill of Rights would have applauded Katz v. United States in considering that electronic surveillance, which was not anticipated by them would be covered by the Fourth Amendment, but that they would be somewhat scandalized to think that trash set out for collection or in the place of a communal trash bin remained–

Harry A. Blackmun:

What I’m trying to get at, a little while ago you said that there was abandonment of ownership of trash out on the curb.

Arnold T. Guminski:

–There was… he abandoned… yes, he abandoned his–

Harry A. Blackmun:

Well, suppose his wife’s diamond ring fell in it by mistake.

She hasn’t abandoned any claim to ownership, has she?

Arnold T. Guminski:

–Well, in terms of title, I suppose, no.

But this is a… this is a–

Harry A. Blackmun:

Well, you don’t only suppose, you know, don’t you?

Arnold T. Guminski:

–He would certainly go to retrieve, that is true, once he became aware.

But for Fourth Amendment purposes, he is manifesting then and there and unconditional, unequivocal intent to part with the trash.

And I’m sure that the founders of the Constitution would not think that these were among the papers and effects as to which there could be a reasonable expectation–

Antonin Scalia:

You wouldn’t prosecute somebody who picked up the diamond ring in the trash in collecting the garbage, or an apple core, for that matter, for larceny?

Arnold T. Guminski:

–No, I would not, Your Honor.

John Paul Stevens:

But supposing the neighbor picks it up in the full view of the owner who had thought it was lost and saw it?

To whom would it belong?

Well, you are speaking then of a question of–

John Paul Stevens:

The diamond ring?

Arnold T. Guminski:

–personal property, as far as lost or misplaced property.

John Paul Stevens:

If it’s abandoned, as a matter of property law, the neighbor could claim it.

Arnold T. Guminski:

Well, there are two different concepts.

John Paul Stevens:

I understand.

Arnold T. Guminski:

One is mere property law, and the other–

John Paul Stevens:

You’re saying, for Fourth Amendment purposes it’s abandoned.

Arnold T. Guminski:

–is what is abandonment for Fourth Amendment purposes.

William H. Rehnquist:

Thank you, Mr. Guminski.

We’ll hear now from you, Mr. Lewis.

Arthur Lewis:

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

I’d like to begin with a statement from this Court only a few weeks again in Arizona versus Hicks.

There’s nothing new in the realization that the Constitution sometimes insulates the criminality of a few of us in order to protect the privacy of us all.

Arthur Lewis:

This case here is a search without a warrant where police intended to seize the property of the defendant.

A warrant is required, except in certain well delineated cases such as automobile exceptions.

We talk in terms here not of abandonment.

We have a curtilage problem.

One of the things we have to rely on in this particular matter is not only Oliver but even what this Court said in Dunn.

We find no problem with what this Court has said.

If I might quote from Oliver, where the Court said: The rule of Hester that we reaffirm in Oliver today may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.

And the Court went on to say that open fields do not provide the setting for those intimate activities intended to be sheltered from governmental interference.

And the Court went on to say that since open fields can be viewed by the public to see growing crops, in this case marijuana, fences or no trespassing signs do not generally bar the public from seeing or viewing these open fields.

Now, we can live with this–

Antonin Scalia:

As opposed to subterranean communal garages which are the site of intimate activities?

3–

Arthur Lewis:

–Correct.

Because one of the intimate activities that we deal with in our everyday life in our homes is the accumulation of trash.

You’ve got to do something with your trash.

You must dispose of it.

As his Honor just indicated, we put it out on a curb.

Antonin Scalia:

–Right.

And you would assert that even trash out on a curb would retain the right of privacy?

Arthur Lewis:

Yes, there is–

Antonin Scalia:

So you’re not relying on the curtilage… on the curtilage distinction?

Arthur Lewis:

–I do, from this standpoint.

When we go from Oliver to Dunn, we find what this Court has indicated would be helpful.

The Court didn’t say it was a talisman.

It’s not a litmus test.

But the Court did point out in Dunn what would be helpful in determining what does or does not constitute the curtilage.

There were four items mentioned.

And I submit one is, the proximity of the area claimed to the home.

Now, in Dunn, the Court went on to say that 50 or 60 yards was too far away.

There were fences around it, barbed wire.

Arthur Lewis:

In Oliver we had no trespassing signs.

Antonin Scalia:

xxx whether it was horizontal or vertical distance, did we?

Arthur Lewis:

That’s correct.

Antonin Scalia:

You might be in good shape if we just meant horizontal distance.

Arthur Lewis:

That’s correct, Your Honor, because the petitioners in their opening brief pointed out that Mr. Rooney lived in the northwest apartment, and it was the southeast end of the building where the trash was.

What this confronts me with is the fact that we’re now going to have First Amendment apartments and those without First Amendment rights, and First Amendment rights may rent for $100 a month more if they’re closer to the trash.

Antonin Scalia:

Why is that so extraordinary?

I’ll tell you something that makes it even worse than that.

You have people who have Fourth Amendment garbage collectors and people who don’t have Fourth Amendment garbage collectors.

Because some places we’ve lived, they would come into your yard, and open the gate, and take out your trash from inside your yard.

And you could leave it fenced in until they came and collected it.

Other, more surly garbage collectors will not do that, and you have to leave it out at the curb.

You cannot leave it within your curtilage.

Now, is there some denial of equal protection of the law, because you have different, you know, garbage collectors of varying amounts of goodwill.

Arthur Lewis:

There is for one reason.

I find one reason for that, Your Honor.

Because if there is a reasonable expectation of privacy, it is people and not places.

That’s where we’re drawing this distinction.

That’s why we’re here.

That’s why we have this particlar problem.

Thurgood Marshall:

xxx inside of a house is not outside of the curtilage?

Arthur Lewis:

Well, I would submit–

Thurgood Marshall:

Well, why don’t you say that inside a house is not, quote, an open field, end quote?

Arthur Lewis:

–I do say.

Inside a house is not an open field.

Thurgood Marshall:

Well, where are you getting all these other problems?

Arthur Lewis:

Trash outside is still not an open field, if it’s not in my backyard.

If it’s under–

Thurgood Marshall:

xxx open fields, is it?

Arthur Lewis:

–Trash inside his house is not an open field.

Thurgood Marshall:

Well, this trash was inside a house.

Arthur Lewis:

It is our position that the subterranean–

Thurgood Marshall:

Well, why don’t you stick to that?

Arthur Lewis:

–Well, I do now.

I submit we go even further.

William H. Rehnquist:

Well, the Court of Appeals said that the trash bin was located in the apartment’s garage, which was an area accessible to the public.

Arthur Lewis:

Correct.

William H. Rehnquist:

So when you say it’s a house, you certainly don’t mean it had the sort of privacy interests that you’d get inside the four walls of a house?

Arthur Lewis:

I do make this distinction, Your Honor.

There’s a distinction between being open to the public and accessible to the public.

Now, in Dunn and Oliver, the officers were able to go onto the fields and see the contraband.

In our particular instance, with all due deference to counsel, they were precluded from introducing evidence.

But if we take it in the light most favorable to them, we have an apartment dwelling in an urban area which, while the record doesn’t show was fenced as in Dunn, the Court pointed out fencing wouldn’t actually have to be required.

You have a situation where perhaps even the garage door is not gated shut.

All you can have is people walking by and seeing this large trash bin.

What distinguishes Rooney and what gives him his right of privacy and the expectation thereof, is the fact that he saw to it, however it was done, that it be at the bottom.

Obviously, if it’s on the top–

William H. Rehnquist:

If it had been at the top, we’d have a different case?

Arthur Lewis:

–Clearly, if it was on the top exposed to view, then perhaps, under the auto exceptions, where an officer might be deemed to have a right to go in and look at a vehicle, for whatever reason.

But one thing we haven’t spoken of here is that this was a case where there was an anonymous phone call, and the first investigation that was done, other than to check Mr. Rooney’s name and find out that some years before he had been arrested for this activity, was to search his trash.

Now, I submit, that is not what we are looking for in effective law enforcement.

Antonin Scalia:

Assume that this… what was it?

8 by 5 by 4–

Arthur Lewis:

Five feet high?

Antonin Scalia:

–Right, this isn’t put out on the curb for collection, right?

I mean I assume that the garbage truck is one of those trucks that drives inside and lifts it up and it dumps into the truck automatically?

Arthur Lewis:

There was not testimony to indicate whether the maintenance people had to take that large trash truck and put it outside for the garbage man, or whether the truck came in.

I somehow doubt that the size of these garbage trucks would permit them to be driven into the subterranean garage.

Antonin Scalia:

Well, I somehow doubt that the size of this container would allow it to be carried outside the garage, too.

Arthur Lewis:

If the container couldn’t be carried outside the garage, I think certainly a truck couldn’t come in.

William H. Rehnquist:

Don’t we have to assume that the Court of Appeals thought some of these things that are not in the record like whether the garbage truck came in or the container went out or whether the garage door was up or down made no difference?

That it recited in its opinion the facts that it thought were controlling, and the facts it didn’t recite would not have affected its determination?

Arthur Lewis:

I have no quarrel with that.

Because what the Court did was to point out that the people hadn’t established that the property was abandoned.

That was in the Court of Appeals’ opinion, that the people had failed to establish that the property was abandoned.

They went one step further and pointed out that they weren’t impressed with my particular argument that he had a heightened expectation of privacy because the trash barrel was within the curtilage; and went directly from there to the automobile exception.

Now, I don’t object to law enforcement doing their job well.

And I have no quarrel with policemen who want to search trash.

Antonin Scalia:

This case has everything in it.

There’s no element of Fourth Amendment law that isn’t here.

We’re into the automobile exception now.

Arthur Lewis:

We’re in a garage where automobiles are kept.

Now, in the brief… and that, of course, is what the Court of Appeals did.

We’re in the garage.

The recital of the facts by the Court of Appeals reflects that the officers saw Mr. Rooney drive into the subterranean garage.

So I think we’re safe in concluding that, one, he did own an automobile; and two, he did keep it in the garage.

When we go to Dunn, which I haven’t gotten to, other than to discuss the proximity, we talk about whether the area is included within an enclosure, and in the footnotes Your Honors have indicated that the actual enclosure is only incidentally helpful to this Court in determining whether it is or isn’t within the curtilage.

And if I might just read from the footnote where the Court said: We decline the government’s invitation to adopt a bright line rule that the curtilage should extend no farther than the nearest fence surrounding a fenced house.

Going on: The primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.

It appears to me that one’s personal papers… and incidentally, while–

William H. Rehnquist:

Mr. Lewis, supposing that this 28-apartment building had all been inhabited by a rather wealthy person and his staff of servants, this clearly would be within the curtilage in that sense.

But do you think, nonetheless, inhabited by 28 different people or different families, that when they have a communal area, that there isn’t a point where the numbers mean you’ve lost privacy, even though it is not open to the public, or even though it’s within the curtilage?

Arthur Lewis:

–I don’t believe it’s the numbers that give rise to the loss of the privilege of curtilage.

I think it’s the nature of the activity that one is engaged in, and where one puts those personal, private papers one still does not want the world to see.

We all know what the Court said in Krivda as to why people may not want their neighbors reading their trash: dunning letters; subscriptions to communist literature at a time in our history when that was not a very favorable thing for one to do.

William H. Rehnquist:

Well, you can take that kind of trash that you don’t want people to… and bury it over in the park.

And that doesn’t mean that you’re free from having the police look over in the park.

Arthur Lewis:

Well, that’s what the petitioner suggested in their brief, that we could burn it, that we could shred it, that we could throw it down our garbage disposal, or we could eat it.

I don’t believe they suggested the latter; that’s my suggestion.

I know not what else we might do.

Arthur Lewis:

One, in California, because of the smog situation, we can’t burn it anymore, so we have a problem.

It was suggested that it be thrown into the fireplace.

Some of us don’t have fireplaces, and I don’t believe the Fourth Amendment is only restricted to those of us who have a fireplace.

We can put it in the paper shredder.

However, my experience indicates that government has time.

And I have seen the results of paper shredders… perhaps they’re not very effective or good ones… in which they’re pasted the materials together and been able to read the documents.

We could eat it.

But the government is patient there, too, because we’ve had those narcotics cases where the contraband has been swallowed, and the government merely waits.

So what I’m suggesting is, if we’re going to say that we can do these things and hide it, what we’re inviting is for the government to set up a screen outside our sewer and get our effluent as it comes out.

And I don’t think this is where we’re going.

I don’t think this is what we want.

I think what we’re losing sight of here is, I’m not trying to restrict the police from inspecting garbage or trash when they think it’s necessary.

Clearly, if it’s on the top and it’s exposed to view, you’ve given up any Fourth Amendment rights; you should have done something else.

But I think Mr. Rooney, in putting it in the bottom half of his trash bin, doesn’t exhibit a Fourth Amendment right, whether we know how he did that or not.

Antonin Scalia:

I really don’t follow your argument.

Your assumption seems to be that the principle of the Fourth Amendment is somehow that you ought to be able to keep things secret if you want to.

And I don’t see that as a principle of the Fourth Amendment.

The Fourth Amendment is just that there are certain areas of your life which are private.

Now it may well be that there are no ways to keep some things secret, like the disposal of a dead body.

That doesn’t mean that the Fourth Amendment isn’t working, simply because there is no way you could dispose of it that the police wouldn’t find it.

I don’t understand.

Arthur Lewis:

I have no quarrel with that.

Because if you have a dead body in your home or apartment.

And after a period of… they can’t get in if they don’t know about it.

When the odor begins to make itself available to those on the outside, I don’t think there’s any problem in getting a warrant.

I submit that the warrant requirement is not very difficult, and it’s not very onerous.

Antonin Scalia:

But your point here was, gee, there ought to be some way to get rid of these things that the police wouldn’t find it.

That’s not the principle of the Fourth Amendment at all.

What do you do… speaking of curtilage, what do you do about the fenced in area around the apartment house?

I assume if you think the subterranean garage is part of the curtilage, you would also say that the grounds around this 28-unit apartment house that were surrounded by a fence, that is also curtilage?

Arthur Lewis:

I don’t go that far.

Antonin Scalia:

Well, what’s the difference between them?

Arthur Lewis:

The difference is that you’re not engaging in those intimate activities of life that one expects–

Antonin Scalia:

Well, what intimate activities of life go on in the garage?

Arthur Lewis:

–Well, this is where one is compelled… some things do come to mind.

But one is compelled, because of modern life, to live in an apartment building, and to dispose of one’s trash.

And the accumulation of trash, as counsel so eloquently said, is the combustion of life.

You have to get rid of your trash, and it isn’t necessarily–

Antonin Scalia:

Every nonapartment dweller has the same problem, and what we do is, we keep it in our house and put it out once a week, okay?

Arthur Lewis:

–Then the question is simply the expectation of privacy, the reasonable expectation of privacy that our trash will not be read by the neighbors or the police.

We can’t control our neighbors, I understand that.

And the definition that the people have suggested is that we lose our right to privacy when we’re unable to exclude others, trespassers.

But I submit that I can’t keep uninvited people out of my house.

Trespassers may come in.

I have been burglarized.

But I haven’t lost my Fourth Amendment right because of my inability to keep these people out of my home.

It’s the manifestation of a reasonable expectation of privacy.

Byron R. White:

Well, what did the Court of Appeal here mean by saying that this area was accessible to the public?

Arthur Lewis:

That someone passing by might be able to look into the subterranean garage and see this trash bin.

Byron R. White:

Well, ordinarily, the fact that a trash bin was located in an area accessible to the public.

The ordinary… that would just… you would think that a member of the public going on there, going in that area, would not be trespassing.

Arthur Lewis:

There’s nothing in the record and I think counsel would agree that there’s nothing in the record to indicate that it was open to the public.

Byron R. White:

It just doesn’t sound like the courts below even relied on the curtilage notion.

It did… it would have said, visible, if it meant what you said.

It didn’t say “visible”.

It said–

Arthur Lewis:

I’m prepared to concede that the trash can, the trash bin, is visible.

William H. Rehnquist:

–Well, but what I’m saying is that if the Court of Appeals had meant to say what you say it meant to have said, it would have said that this was visible to the public.

But they went much further.

They said it was accessible to the public.

William H. Rehnquist:

That doesn’t suggest just seeing.

It suggests physically touching.

Arthur Lewis:

I would submit that one could go into the subterranean garage, be he a policeman or some stranger, and touch the trash.

But I would submit that Mr. Rooney would have the right to eject someone who doesn’t live there, belong there, or whatever else.

Mr. Rooney would always have the right to reclaim his trash.

If Mr. Rooney were going to the trash bin to deposit it.

And if the police in their infinite wisdom knew that one day he would have to get rid of his trash, and having no probable cause… see, that’s the thing that disturbs me.

There is no probable cause here.

It’s been conceded.

It’s been admitted.

It would appear to me that there should be the requirement of some strong suspicion, and in the Court of Appeal they said, the automobile exception might apply, because trash is somewhat moveable, albeit not by the owner of the bin.

The garbage truck man can come along and take it.

If there’s any exigent circumstance–

John Paul Stevens:

Well, as I understand the California rule, they don’t require a warrant.

They just require probable cause, and then they can make a warrantless search that you could with a car.

Arthur Lewis:

–Correct.

Correct.

And I would only ask this Court to limit it to that.

They don’t need a warrant if they have probable cause and an exigent circumstance.

That’s all we’re seeking here.

Antonin Scalia:

Suppose the inhabitant of apartment 28 whom your client doesn’t know at all is down there in the garage, and he seeks this big crate of garbage over there, and he rummages around in it, and he picks up something that your client had thrown away down there?

Arthur Lewis:

Mr. Rooney has a problem.

He has the same problem that any of us have.

Antonin Scalia:

Well, would Mr. Rooney be able to get it back, do you think, if he hadn’t… it’s not a diamond ring that was thrown away by mistake; it’s a piece of trash.

And Rooney says, you know, I’m sorry for throwing that out, I want it back.

So he goes up to apartment 28 and he demands it back.

Do you think he’d be entitled to get it back?

Arthur Lewis:

Whether he’s able to get it back doesn’t determine his right to have it.

If it was a policeman who seized it, clearly he isn’t going to get it from him if the policeman doesn’t want to give it to him.

Antonin Scalia:

No, I’m talking about whether it’s realistically been abandoned when it’s been put down there, and whether that place is a place in which he thinks he really has privacy in what he has deposited in the garbage bin.

Antonin Scalia:

It seems to me, he doesn’t.

It seems to me he knows that anyone of the inhabitants of any of the other 27 apartments can go down there and take out of that trash bin whatever they want to take out of it.

Arthur Lewis:

If they take it out, he doesn’t know about it, they turn it over to the police, it’s the same problem we have with any third party who confronts the police with some illegally obtained items; it’s not police conduct.

What we’re looking for here, and what we’re asking this Court and imploring it, really, because we’re losing gradually so much of our Fourth Amendment rights under so many different theories.

I would hate to see one more step be taken in that direction.

Mr. Rooney’s trash is in that bin.

If as he deposits it a neighbor or a policeman takes it out in his presence, I say that Mr. Rooney would have the right to say, no, that’s my trash; I don’t want you to have it.

If Mr. Rooney were to come down in the middle of the night hoping nobody sees it and put it in there and the police were to seize it, he may have lost that right.

That it’s the governmental intrusion that we’re looking for.

It has been suggested that when one puts one’s trash out on the sidewalk, it’s government we’re turning it over to.

And I submit, no, we’re turning it over to perhaps a government sanitation inspector, a government whatever else, but not a government policeman.

Antonin Scalia:

xxx feel the same way about the trash on the sidewalk, too?

Arthur Lewis:

Yes.

Antonin Scalia:

You think if my neighbor comes around and takes something out of the trash can that I’ve laid down on the sidewalk, I can come up to him and say, hey, give that back to me, that’s my trash.

Arthur Lewis:

I think so, just as much as you can claim the ring.

Certainly you’d have the right to claim a ring that you threw in there, or any other thing of value, and if you think that some of that stuff has value that you don’t want it go to somebody–

Antonin Scalia:

I could prosecute them for theft of it?

Arthur Lewis:

–I’m not prepared… if they refused to give it to you, I think you would have a cause of action; whether it would be in criminal law, I’m not prepared to say.

Because, you know, there are certain other elements that come into play.

Byron R. White:

0 xxx.

Arthur Lewis:

Yes.

Byron R. White:

Let’s assume he owns it and he could get it back.

But could he… say he notices a neighbor, comes around and runs through his trash every week, and is reading pieces of paper.

Could he have him stopped when the garbage pail is out on the curb in a public place?

Arthur Lewis:

Well, I think one would have the right, in front of one’s home or even in the subterranean garage, to keep one’s trash from one’s neighbors.

If you have a single family home, and your neighbor is coming, then I think it’s incumbent upon you to–

Byron R. White:

Well, how far do you go?

Suppose it gets on the garbage truck, and all of a sudden, there is a policeman pouring through that… the top layer of garbage or trash that’s just been put on the truck?

As soon as the trashman takes it, is his privacy interest gone?

Arthur Lewis:

–I say, no, Your Honor.

Byron R. White:

He can follow it right to the dump?

Arthur Lewis:

I follow it to the dump until such time it has been mixed with a large conglomeration of trash elsewhere and lost its identity.

I truly feel–

Byron R. White:

I guess you really have to say that.

Arthur Lewis:

–I beg your pardon?

Byron R. White:

I guess your theory just has to take you that far.

Arthur Lewis:

Well, it happens to, and I think one of the things I did, counsel did, was to begin to talk to friends and acquaintances about, what do you think happens to your trash?

Do you have any objection–

Byron R. White:

Well, really, the question is, do you think… do you think that any person can have a reasonable expectation of privacy in the papers that the trashman picks up out of his trash can and dumps in his truck?

And if you think he is reasonable, you think the public is really of a mind to respect his right of privacy to a bunch of trash that’s now in a trash truck, a garbage truck?

Arthur Lewis:

–Well, I think against government intrusion, yes.

I think people do have a right to expect–

Byron R. White:

Well, it just so happens, that the trashman is a government employee.

Arthur Lewis:

–But he’s not a policeman inclined to take this for whatever particular purpose.

What I submit is, there are different levels of government.

The government trashman is a government trashman.

One expects the government trashman to take it out to the trash and dispose of it.

One of the things we pointed out in our brief as well is, that if this is… we’re not hamstringing the police by trying to prevent them from looking at trash.

If they have no probable cause to believe somebody’s engaged in criminal conduct, it would be clear that they don’t want to go through everybody’s trash.

It’s not one of those normal, routine, governmental or police functions.

One of the things we attempted to do in our brief was to point out all of the objections that the petitioners had and the briefs of amici in here as to why they don’t like what is occurring, that the police are being hamstrung.

I find it significant, even Ceraolo, which held that within the curtilage, he didn’t take care to see that it couldn’t be seen from a flying airplane.

I thought that Mr. Rooney was perhaps prescient in moving his trash into an underground garage.

I suppose the next thing is whether he has to be careful of a low flying helicopter.

But what he has done is to put it in an opaque paper bag and put it at the bottom of the bin.

He’s done–

Harry A. Blackmun:

You keep saying all the time, he put it in the bottom of the bin.

How do you know that?

He might have put it… just thrown it in, and 20 other tenants came down and put things on top of it.

Arthur Lewis:

–Absolutely right.

Arthur Lewis:

Since we don’t know, I think we’re bound by the fact that it wasn’t visible to people passing by.

Harry A. Blackmun:

Would it make my difference if it were not in a brown paper bag?

Arthur Lewis:

I don’t think the color of course would do it, or whether it would be paper or plastic.

I think as long as it’s opaque–

Harry A. Blackmun:

Well, if it were not in a bag, what if he just threw the betting tickets in the container as he went by?

Arthur Lewis:

–Yes, if he threw them in the containers, and someone could… a policeman come by, because if a neighbor came by and saw it, not much would happen unless the neighbor wanted to take it to the police, and if they did, then of course the police may use that.

If a policeman came by for whatever reason, perhaps he’s in an area where he has a right to be, and he looks in the trash and he sees it, we have many cases like that.

Clearly, yes, then he has a right to seize it.

But when all we know is that it’s in a opaque bag and it’s in the bottom of the trash, I don’t see why we take his Fourth Amendment right away.

He has done something to indicate a desire for privacy.

Antonin Scalia:

Well, that doesn’t… that doesn’t… that indicates a desire for secrecy.

But he does that when he creeps out into the park at night and tries to hide it under a bush in the park.

And a policeman can surely come around and take it from under the bush.

The mere fact that he wants to keep it secret is not equivalent with a Fourth Amendment right.

Arthur Lewis:

Well, that’s correct.

But what we’re doing here is indicating not that we want to keep it secret… if I used that term, then I apologize, and I should have said, he’s evidenced an expectation of privacy in it.

He’s not publishing it to the world, nor does he want it–

Antonin Scalia:

So has the fellow who hides it under the bush in the park?

Arthur Lewis:

–Because it’s an open fields.

And this Court has said, we’re not going to extend the Fourth Amendment to the open fields.

Antonin Scalia:

He hides it under a bench on a cement street.

I mean, you know, fields doesn’t–

Arthur Lewis:

That isn’t a part of the curtilage where one would normally expect… I say, no, he doesn’t have it there.

Antonin Scalia:

–But you’re mixing up your two arguments now.

The curtilage argument is quite separate.

I mean, we were… we were just talking about your general privacy in garbage argument, which is different from your curtilage argument?

Arthur Lewis:

I can’t extend the privacy argument to the placing of trash in a public park on or under a bench.

I can’t do that.

These are somewhat related, and I think that’s why they’ve got to be considered.

I objected to the petitioners trying to say that this is an abandonment case.

Arthur Lewis:

I submit it’s a curtilage case as well.

If we go through the rest of the items in Dunn, it’s the nature of the use to which the area is put.

And I submit, household trash, storing it and taking it to the trash man, is that sort of activity.

Then of course this Court pointed out, the steps taken by the resident to protect the area from observations by people passing by.

And I submit that the size of the trash container, where it was, there’s nothing in the record to indicate that what he put there was visible without it.

But I would close with this final statement that we find in Dunn.

As Professor Amsterdam has observed, the question is not whether you or I must draw the blinds before we commit a crime.

It is whether you and I must discipline ourselves to draw the blinds everytime we enter a room under pain of surveillance if we do not.

And that’s the sort of thing I would hate to see the country come to.

I had a number of other items.

Yes, the closing that I would like to leave you with was the objection by one of the amici to this Court was that if you couldn’t decide it on the issue of abandonment and curtilage, that you ought to decide it on the basis of Leon, and that is, that there’s a good faith belief on the part of the officer.

And that somewhat struck me as being a last gasp sort of thing.

Because in California, Krivda’s been the law for some 15 years.

And why policemen are still going through the trash is somewhat of a mystery.

I would point out to this Court that almost every year, ever since Krivda, we still have policeman taking the trash, getting the trash truck, and going through it.

This argument is fought all the time.

There is obviously not a response to what it is that the courts are saying.

And I’m asking this Court to send another message, that if there is a reasonable expectation of privacy in one’s items, that it has got to be respected.

William H. Rehnquist:

Thank you, Mr. Lewis.

The case is submitted.