|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Krisco
Corp., 421
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
[421
Morris M. Goldings,
Before LIACOS, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.
LIACOS, Chief Justice.
The
defendants, Krisco Corp. and Kristopher
Ogonowsky, each were indicted by a Middlesex County
grand jury on four counts of violating G.L. c. 21C, §
5 (1994 ed.), which prohibits, inter alia, the
transfer of hazardous waste to an unlicensed individual. Each defendant was also indicted on two
counts of attempting an illegal transfer of hazardous waste in violation of the
statute. The defendants filed a motion
to suppress evidence seized from a dumpster on the defendants' commercial
premises. After an evidentiary hearing,
a judge in the Superior Court granted the defendants' motion. A single justice of this court allowed the
Commonwealth's application for interlocutory appeal. We affirm the allowance of the motion to
suppress.
We recite
the facts found by the motion judge. The
defendants operated an auto body repair and paint shop in
Based on
this information, David Spector, an inspector from
the "Environmental Strike Force" (comprised of members of the
department, the Attorney General's office, and the State police) began a
surveillance of the dumpster from the upper story of a neighboring
building. The dumpster was [421 Mass. 39] located in an alley that was kept closed most of the time except
during the emptying of the dumpster.
From his surveillance point, Spector could see
the alley and the surface of the inside of the dumpster. Spector conducted
surveillance of the dumpster over a period of weeks.
The
contents of the dumpster were not visible to passersby in the alley. However, it was possible to climb into the
dumpster and look through its contents.
Occasionally, objects were thrown into the dumpster by unknown
persons. The dumpster was emptied weekly
into a truck which compacted the material immediately. A private company, Waste Management Company,
was under contract with the defendant corporation to pick up the contents of
the dumpster and haul it away.
(FN2) There was no evidence
regarding the ultimate destination of the garbage.
The
dumpster was emptied every Thursday between July 23, 1992, and October 8,
1992. On twelve dates Spector made observations of the dumpster and, on many of
these dates, saw paint cans thrown into the dumpster by people on the premises,
shortly before pick up. He also observed
the defendant Ogonowsky pass what he believed to be
money to a waste disposal company employee when the dumpster was emptied. He recorded these observations with a video
camera. The observations were consistent
with the information received from the disgruntled former employee.
[421 Mass. 40] Spector conferred with Nancy Thornton,
an environmental engineer attached to the strike force, and showed her the
video‑tape of his surveillance.
Thornton knew that the kind of paint used in auto body shops contained
ingredients which make paint a hazardous material requiring special disposal
and that both placement of the material into the dumpster and its subsequent
disposal by Waste Management would be unlawful.
The judge concluded that, based on this information, Thornton had
probable cause to believe that the defendants were engaged in a regular and
knowing illegal scheme to dispose of paint by prearrangement with the operator
of the disposal truck to put the paint cans in the dumpster shortly before pick
up so as to avoid detection.
By mid‑September,
Thornton made a decision to conduct an administrative inspection as a way to
gain entrance to the premises and to seize paint cans from the dumpster for use
as evidence in a later enforcement proceeding.
Thornton planned to wait until Spector
observed cans being thrown into the dumpster and then enter the premises and search
the dumpster before the arrival of the Waste Management truck.
On October
8, 1992, Spector observed an employee dispose of from
five to eight cans in the dumpster and passed the information to Thorton by walkie‑talkie. In the company of another member of the
strike force, Thornton entered the MAACO shop through
the front door and told Ogonowsky that she was an
inspector from the department and was there to do a "multimedia"
inspection. Ogonowsky
asked her what that was and she told him that it was an inspection for air
pollution, water pollution, solid waste, hazardous waste, drains, and
industrial waste. Ogonowsky
told her that the Massachusetts Water Resources Authority had been there
previously to inspect the drains. She
said she would still like to do an inspection.
He asked her to do it quickly because he was busy.
While
Thornton's colleague inspected the shop's records, Thornton examined the shop
and then moved to the dumpster. Ogonowsky was friendly and cordial and asked Thorton [421
Mass. 41] whether she was going to
climb into the dumpster. When she said
yes, he remarked he was glad he did not have her job.
Thornton
retrieved paint cans from the dumpster and informed Ogonowsky
that they were hazardous waste which could not lawfully be disposed of in the
dumpster. Ogonowsky
said the cans must have been placed there by accident.
The judge
held that the warrantless search of the shop and the
dumpster could not be justified as an administrative search, (FN3) under a
theory of consent to search, or as a search based on exigent
circumstances. The judge also disagreed
with the Commonwealth's contention that the defendants lacked a reasonable
expectation of privacy in the dumpster which would preclude protection under
the Fourth Amendment to the United States Constitution and art. 14 of the
Declaration of Rights of the Massachusetts Constitution.
[1] 1. Expectation of privacy. The Fourth Amendment and art. 14 protect
from unreasonable search and seizure those areas in which individuals have a
subjective expectation of privacy that is objectively "reasonable,"
"justified," or "legitimate." California v. Greenwood,
486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30
(1988). See Commonwealth v. Welch, 420 Mass. 646, 653, 651 N.E.2d 392 (1995);
Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 160‑161,
580 N.E.2d 1014 (1991); Commonwealth v. Cote, 407 Mass. 827, 833,
556 N.E.2d 45 (1990), quoting
Commonwealth v. Blood, 400 Mass. 61, 68, 507 N.E.2d 1029 (1987);
Commonwealth v. Pratt, 407 Mass. 647, 660‑661, 555 N.E.2d 559
(1990);
Commonwealth v. Panetti, 406 Mass. 230,
231‑232, 547 N.E.2d 46 (1989).
Thus, the first step in analyzing a search or seizure by government
agents is whether the individual against whom the fruit of the search or
seizure is used as evidence (1) had a subjective expectation of privacy in the
place [421 Mass. 42] searched or the item seized that (2)
society would accept as reasonable. California v. Greenwood, supra at 39, 108
S.Ct. at 1628. Katz v. United States, 389 U.S. 347, 361,
88 S.Ct. 507, 516‑17, 19 L.Ed.2d 576 (1967)
(Harlan, J., concurring).
[2]
Usually, the second part of the test, i.e., whether the asserted expectation of
privacy was objectively reasonable, is the most disputed. This element is highly dependent on the
particular facts involved and is determined by examining the circumstances of
the case in light of several factors. Commonwealth v. One 1985 Ford Thunderbird
Auto., 416 Mass. 603, 607, 624 N.E.2d 547 (1993). These factors include the nature of the
intrusion, whether the government agents had a lawful right to be where they
were, and the character of the location searched. See
Commonwealth v. Welch, supra at 653‑654, 651 N.E.2d 392;
Commonwealth v. One 1985 Ford Thunderbird Auto., supra. An examination of the character of the
location should include a determination whether the
defendants owned the place or controlled access to it as well as whether the
place was freely accessible to others. Commonwealth v. Welch, supra. Commonwealth v. Panetti,
supra at 232, 547 N.E.2d 46. We
also consider whether the defendant took normal precautions to protect his
privacy.
Commonwealth v. Pina, 406 Mass. 540, 545,
549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct.
96, 112 L.Ed.2d 67 (1990). Commonwealth v. D'Onofrio,
396 Mass. 711, 716‑717, 488 N.E.2d 410 (1986). Commonwealth v. Simmons,
392 Mass. 45, 50, 466 N.E.2d 85, cert. denied, 469 U.S. 861, 105 S.Ct. 196, 83 L.Ed.2d 128 (1984).
In cases
involving the reasonableness of an expectation of privacy in trash and garbage,
courts have focused on the degree to which the garbage at issue was exposed, or
accessible, to the public. California v. Greenwood, supra at 40‑41,
108 S.Ct. at 1628‑29. United States v. Comeaux, 955 F.2d 586, 589 (8th Cir.), cert. denied,
506 U.S. 845, 113 S.Ct. 135, 121 L.Ed.2d 89, and
cert. denied sub nom. Roberson v. United States,
506 U.S. 944, 113 S.Ct. 387, 121 L.Ed.2d 296 (1992).
United States v. Hedrick, 922 F.2d 396, 400 (7th Cir.), cert.
denied, 502 U.S. 847, 112 S.Ct. 147, 116 L.Ed.2d 113
(1991).
United States v. Dunkel, 900 F.2d 105, 107
(7th Cir.1990), vacated on other grounds, 498 U.S. 1043, 111 S.Ct. 747, 112 L.Ed.2d 768 (1991). Commonwealth v. Pratt, supra
at 660‑661, 555 N.E.2d 559. Commonwealth v. Chappee,
397 Mass. 508, 512‑513, 492 N.E.2d 719 (1986). It is well established [421 Mass. 43] that, in
general, government agents may make a warrantless
search of areas in which the public has free access, including areas in which
trash or garbage is discarded. United States v. Hall, 47 F.3d 1091, 1095
(11th Cir.), petition for cert. filed, 63 U.S.L.W.
3892 (1995). See Sullivan v. District Court of Hampshire, 384 Mass. 736, 742, 429
N.E.2d 335 (1981) ("an individual can have only a very limited expectation
of privacy with respect to an area used routinely by others").
In regard
to the privacy interest in garbage, most cases have involved searches of
garbage found on or near residential property.
The leading case, California v.
Greenwood, supra, established that trash left bagged and on the curb
outside the curtilage of a home is not protected by
the Fourth Amendment because it is left in a place "particularly suited
for public inspection" and for the purpose of transferring possession to a
third person, the garbage collector, who would then be free to search the
garbage or allow others to search it. Id. at 40‑41, 108 S.Ct. at 1628‑29.
Federal courts have applied
Greenwood 's reasoning in a variety of factual settings involving
residences, and have consistently focused on the degree to which the garbage
was accessible to the public. See, e.g., United States v. Scott, 975 F.2d 927,
929 (1st Cir.1992), cert. denied, 507 U.S. 1042, 113 S.Ct.
1877, 123 L.Ed.2d 495 (1993) (no reasonable expectation of privacy in shredded
documents in trash bag on curb outside residence); United States v. Comeaux, supra (no reasonable expectation in trash bag
left in alley behind home even if within curtilage
because trash exposed to public); United States v. Hedrick, supra (no
reasonable expectation of privacy in trash bags left in barrels within curtilage of home where barrels were fully visible and
accessible to public); United States v. Certain Real Property
Located at 987 Fisher Rd., 719 F.Supp. 1396, 1404
(E.D.Mich.1989) (reasonable expectation of privacy in trash bags placed against
outside wall of house within curtilage and not
visible from street). See also United States v. Michaels, 726 F.2d
1307, 1312‑1313 (8th Cir.), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984) (pre‑Greenwood case holding no reasonable
expectation[421 Mass. 44]
of privacy in trash deposited in communal trash bin of apartment
complex).
Our court
has addressed the constitutional implications of such searches on two
occasions, both involving residential property.
In these cases we followed the reasoning of the Federal cases. See
Commonwealth v. Pratt, supra (no reasonable expectation of privacy under
art. 14 or Fourth Amendment in trash bags left curbside for collection);
Commonwealth v. Chappee, supra at 512, 492
N.E.2d 719 (similar facts decided on basis of Fourth Amendment only).
[3] The
degree of public access is usually much greater in commercial locations than in residential
locations. Historically, courts have
held that an individual's expectation of privacy in commercial premises is
somewhat less than in a residence. United States v. Hall, supra at
1095. Thus, although the test whether
the expectation of privacy is reasonable is the same for both the residential
and commercial spheres, the factors employed in the analysis are not
necessarily accorded the same weight when commercial property is involved. Id. Unlike activities or objects in the home,
which need only be removed from plain view to be protected, one seeking to
protect his or her privacy in a commercial location must take affirmative steps
to bar the public from the area they wish to keep private. Id. See
Katz v. United States, supra at 351‑352, 88 S.Ct.
at 511 (what an individual "seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected");
United States v. Swart, 679 F.2d 698, 701 (7th Cir.1982) (defendant
had reasonable expectation of privacy in area of business premises not open to
public).
Federal
courts have, on a few occasions, considered the reasonableness of the
expectation of privacy in dumpsters on commercial property. In these cases, as in cases involving
residential property, the courts have generally considered the public's
accessibility to the dumpster the most important factor as to whether an
expectation of privacy in the dumpster was reasonable. They have also considered whether any actions
were taken to exclude the public from the dumpster. [421 Mass. 45] The United States Court of Appeals
for the Seventh Circuit has held that the owner of an office building had no
reasonable expectation of privacy in a dumpster located in the parking lot of
the building. United States v. Dunkel,
supra. The court pointed out that
seven tenants of the building used the dumpster and that the parking lot in
which the dumpster was located was used by visitors to the building and was
fully accessible to the public. Id. at 106‑107. The location was not secured in any way so
as to exclude the public. Id.
More recently, the United States Court of Appeals for the Eleventh
Circuit held that a defendant had no reasonable expectation of privacy in
shredded documents found in a dumpster on the defendant's commercial property
where the dumpster was located on a road which was not marked as private or
barricaded in any way and was thus fully accessible to the public. United
States v. Hall, supra at 1093, 1095.
[4] The
dumpster at issue in the instant case was located in an alley adjacent to the
defendants' business and, although strangers occasionally managed to throw
objects into the dumpster, it was intended for use exclusively by the MAACO shop. The
contents of the dumpster were not visible to passersby and it was possible to
gain access to its contents only by climbing into the dumpster. Unlike cases finding no reasonable
expectation of privacy, Ogonowsky in the instant case
took affirmative steps to protect his privacy interest in the dumpster. He installed gates at either end of the
fenced alley and kept them closed until the waste hauler arrived. In these circumstances, the judge was
warranted in concluding that the defendants demonstrated their subjective
expectation of privacy in the contents of the dumpster, and that, further, this
expectation was one which society would accept as reasonable. See
Commonwealth v. Chappee, supra at 512, 492 N.E.2d
719.
Because
the defendants enjoyed an expectation of privacy in the dumpster which was
constitutionally protected, the strike force agent who conducted the search of
the dumpster was required to obtain a search warrant prior to conducting the
search. She did not. The record discloses no reason for [421 Mass. 46] this failure in light of the existence of ample probable
cause. Warrantless
searches are presumptively unreasonable and therefore illegal absent a showing
by the Commonwealth of the existence of one of the recognized exceptions to the
warrant requirement. Here, the
Commonwealth relies on the theory of consent, and, in the alternative, the
existence of exigent circumstances which it alleges made the obtaining of a
warrant impracticable.
2. Consent. "When a prosecutor relies upon consent
to justify the lawfulness of a search, he has the burden of proving that the
consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing
no more than acquiescence to a claim of lawful authority."
Bumper v. North Carolina, 391 U.S. 543, 548‑549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). See
Commonwealth v. Buchanan, 384 Mass. 103, 106‑107, 423 N.E.2d 1005
(1981). Consent is made freely and
voluntarily when it is given "unfettered by coercion, express or
implied." Commonwealth v. Harmond,
376 Mass. 557, 561, 382 N.E.2d 203 (1978), quoting Commonwealth v. Walker, 370 Mass. 548, 555, 350 N.E.2d 678, cert.
denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314
(1976).
[5] The
judge concluded that the consent given by Ogonowsky
in the instant case was "nothing more than acquiescence to a show of
lawful authority." "Voluntariness of consent 'is a question of fact to be
determined in the circumstances of each case.' " Commonwealth v. Harmond, supra, quoting Commonwealth v. Aguiar, 370 Mass. 490,
496, 350 N.E.2d 436 (1976). This finding
was not clearly erroneous and was warranted by the evidence. See
Commonwealth v. Cantalupo, 380 Mass. 173, 177,
402 N.E.2d 1040 (1980); Commonwealth v. Bizarria,
31 Mass.App.Ct. 370, 378, 578 N.E.2d 424 (1991). Thornton declared that she was from the
Department of Environmental Protection and was on the premises for the purpose
of making an administrative inspection. Ogonowsky was not informed that he could demand she obtain
a warrant. Although this fact is not
determinative of the issue, it is relevant with regard to the voluntariness of the consent. Schneckloth
v. Bustamonte, 412 U.S. 218, 248‑249, 93 S.Ct. 2041, 2058‑59, 36 L.Ed.2d 854 (1973). Commonwealth
v. Cantalupo, supra at 178, 402 N.E.2d 1040.
Commonwealth v. Buchanan, supra at 107, 423 N.E.2d 1005.
[6] [421 Mass. 47] 3. Exigent circumstances. The Commonwealth argues that its agents did
not have probable cause to search the dumpster until the paint cans were placed
in it on October 8, the day of the search, and that they had insufficient time
to obtain a warrant to search the dumpster between the time the paint cans were
placed in the dumpster and the arrival of the Waste Management truck. Thus, the Commonwealth argues, once probable
cause was established, the circumstances became exigent and a warrant was not
required.
[7] We
agree with the judge that Spector and Thornton had
established probable cause to believe that paint cans would be placed in the
dumpster on October 8, a Thursday, long before that date arrived. Spector had begun
surveillance of the dumpster weeks before and had observed paint cans being
placed in the dumpster on nearly every Thursday at the same time of day. The warrant could have been executed within
seven days after its issuance and thus could have been obtained even though the
paint cans were not in the dumpster at the time of issuance. See G.L. c. 276, §
3A (1994 ed.). We conclude that no
exigent circumstances existed which would relieve the Commonwealth of its
responsibility in obtaining a search warrant.
See Commonwealth v. Forde, 367 Mass. 798, 801‑803, 329 N.E.2d 717
(1975) (warrantless search of apartment violated
Fourth Amendment where police failed to obtain warrant even though they had surveilled apartment for some time and had probable cause
for week prior to search). Any perceived
exigency due to the short period of time between the placement of the paint
cans in the dumpster and the arrival of the Waste Management truck was
reasonably foreseeable and therefore cannot be relied on by the Commonwealth. Id.
at 802‑803, 329 N.E.2d 717. Those
cases relied on by the Commonwealth,
Commonwealth v. Killackey, 410 Mass. 371, 572
N.E.2d 560 (1991); Commonwealth v. Cast, 407 Mass. 891, 556
N.E.2d 69 (1990); Commonwealth v. King, 35 Mass.App.Ct. 221, 617 N.E.2d 1036 (1993), are
distinguishable from the instant case in that they all involve warrantless searches of automobiles. Exigency requirements are applied far less
stringently with regard to automobiles [421
Mass. 48] due to their inherent
mobility.
Commonwealth v. Cast, supra at 904, 556 N.E.2d 69.
The order
of suppression is affirmed.
So ordered.
(FN1.) Six against Kristopher
Ogonowsky and five against Krisco
Corp.
(FN2.)
The relevant findings of the judge were stated as follows:
"The
contents of the dumpter could not be seen by casual
passers by. Some effort and risk would
be involved for someone to climb into the dumpster and rummage around, and
there was only a limited window of opportunity for such rummaging. It was reasonable to expect that it was
unlikely to occur in any given short period of time. Although activity around the dumpster could
be seen from elevated positions it was reasonable to expect that particular
items of trash could not be identified from such a vantage point.
"The
dumpster was technically for the sole use of the defendants, not the general
public. It was a piece of personal
property which was not itself slated for disposal, but for re‑use. The dumpster was not abandoned in any sense,
as a trash bag is. Although it was not
locked, the defendant had a right to secure it until it was emptied."
(FN3.) On this appeal, the Commonwealth does
not argue that the judge erred in concluding that the search of the defendants'
premises and the dumpster was not a valid administrative search. The judge found that the search "was not
a valid administrative search, but rather was a criminal investigative search
using G.L. c. 216, § 8, as a subterfuge to avoid the
burden of obtaining a warrant."
See Commonwealth v. Bizarria, 31 Mass.App.Ct.
370, 377‑378, 578 N.E.2d 424 (1991).
See also Commonwealth v. Tart,
408 Mass. 249, 256, 557 N.E.2d 1123 (1990); Commonwealth v. Frodyma,
386 Mass. 434, 437‑438, 443‑445, 436 N.E.2d 925 (1982).