Attorneys for Appellants Attorneys for Appellee
Tom A. Black Steve Carter
June E. Bules Attorney General
Michael Gene Worden
Deputy Attorney General
Indiana Supreme Court
Patrick Litchfield and
Susan May Litchfield,
Appellants (Defendants below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Marshall Superior Court, No. 50D02-0208-FD-172
The Honorable Robert Burner, Senior Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 50A03-0307-CR-270
March 24, 2005
We hold that a search of trash recovered from the place where it
is left for collection is permissible under the Indiana Constitution, but only if
the investigating officials have an articulable basis justifying reasonable suspicion that the subjects
of the search have engaged in violations of law that might reasonably lead
to evidence in the trash.
Factual and Procedural Background
Beginning in approximately 1999, the federal Drug Enforcement Administration had been providing the
Indiana State Police with information subpoenaed from companies that advertised in High Times,
a publication for marijuana growers. In the summer of 2002, the DEA
supplied a list of Indiana addresses that had received shipments from Worms Way,
a gardening supply store that was among the subpoenaed advertisers. Among the
addresses was the Litchfields home in rural Marshall County. On July 5,
2002, and July 22, 2002, Indiana State Police troopers Daniel Ringer and Chad
Larsh went to the address where they found trash barrels in the same
general area where the collection service normally picked up the trash and where
the containers were routinely kept. The barrels were located on the Litchfields
property approximately fifteen to twenty-five feet from the edge of the pavement, and
approximately 175 feet from the nearest corner of the Litchfields house.
On both occasions, the troopers entered onto the property and removed several garbage
bags. A search of the Litchfields trash revealed plant stems, seeds, and
leaves that tested positive for marijuana. The bags seized on July 22
also contained burnt rolling papers and hemp rolling paper packaging. Based on
this evidence, Ringer prepared and obtained a warrant to search the Litchfields home.
Police executed the warrant on July 24, and discovered fifty-one marijuana plants
growing on the back deck of the Litchfields home.
The Litchfields were charged with possession of marijuana and maintaining a common nuisance.
The trial court denied their pretrial motion to suppress the evidence obtained
from the searches of their garbage and the subsequent search of their home.
The Court of Appeals affirmed. Litchfield v. State, 808 N.E.2d 713,
714 (Ind. Ct. App. 2004). We granted transfer. Litchfield v. State,
2004 Ind. LEXIS 737 (Ind. 2004).
The Search of Trash
The standard of appellate review of a trial courts ruling on a motion
to suppress is similar to other sufficiency issues. Taylor v. State, 689
N.E.2d 699, 702 (Ind. 1997). We determine whether substantial evidence of probative
value exists to support the trial courts ruling. Id. We do
not reweigh the evidence and consider conflicting evidence most favorably to the trial
courts ruling. Id.
A. Fourth Amendment Doctrine
Searches of garbage are generally permissible under the Fourth Amendment to the Federal
Constitution. Since Katz v. United States, 389 U.S. 347 (1967), the reasonableness
of a search under the Fourth Amendment has turned on whether the subject
of the search has an expectation of privacy and if so whether that
subjective expectation is reasonable judged by the objective criterion of the views of
society as a whole. Id. at 361 (Harlan, J., concurring). In
California v. Greenwood, 486 U.S. 35, 39 (1988), the United States Supreme Court
upheld the warrantless search of the defendants garbage left at the curb for
pickup. The Court reasoned that because the garbage was easily accessible to
the public, the defendant did not have a reasonable expectation of its privacy.
Federal courts have also upheld the warrantless search of garbage located on
a residents private property, focusing on the objective reasonableness of an expectation of
privacy in the garbage rather than its location. Thus, in United States
v. Kramer, 711 F.2d 789, 797 (7th Cir. 1983), a warrantless search of
the defendants garbage was upheld where the garbage was located inside a low
fence enclosing the defendants yard. The court reasoned that the garbage had
been abandoned and exposed to the public and the officers who seized the
garbage did not threaten the peace and quiet of the defendants home or
interfere with his trash disposal routine. In United States v. Hedrick, 922
F.2d 396 (7th Cir. 1991), the court sustained the search of trash located
in the defendants driveway eighteen feet from the sidewalk. The court took
the view that it was common knowledge that members of the public often
sort though others garbage. As a result, an expectation of privacy may
be objectively unreasonable because of the common practice of scavengers, snoops, and other
members of the public in sorting through garbage. In other words, garbage
placed where it is not only accessible to the public but likely to
be viewed by the public is knowingly exposed to the public for Fourth
Amendment purposes. Id. at 400.
A majority of states follow federal doctrine and hold that their state constitutions
permit a warrantless search of trash that has been left out for collection
based on a lack of a reasonable expectation of privacy.
See footnote As the
Supreme Court of Maryland e
xplained, the law that has emerged since Greenwood is
essentially the same as it was before that case was decided, although, as
a general rule, it is based less on the property concept of abandonment
than on the conclusion that, by depositing the trash in a place accessible
to the public, for collection, the depositor has relinquished any reasonable expectation of
privacy. State v. Sampson, 765 A.2d 629, 634 (Md. 2001). Some
states have rejected this view and have found trash searches violative of either
the Fourth Amendment or their state constitutions. Most states reaching this conclusion
have based it, contrary to Greenwood, on the view that a person has
a reasonable expectation of privacy in garbage placed out for collection.
Greenwood forecloses any claim under the Fourth Amendment, the Litchfields do
not challenge the searches of their trash under the Federal Constitution, but ask
us to exclude the evidence as the product of a search and seizure
in violation of the Indiana Constitution.
B. Reasonableness of a Search under the Indiana Constitution
The Litchfields argue that the warrantless search of their trash was unreasonable and
therefore violated Article I, Section 11 of the Indiana Constitution. Article I,
Section 11 reads:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable search or seizure, shall not be violated; and no
warrant shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the person or thing to
Although this language tracks the Fourth Amendment verbatim, Indiana has explicitly rejected the
expectation of privacy as a test of the reasonableness of a search or
seizure. The legality of a governmental search under the Indiana Constitution turns
on an evaluation of the reasonableness of the police conduct under the totality
of the circumstances. Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994).
We have not elaborated on the methodology of evaluating reasonableness beyond the
directive in Moran to consider the totality of the circumstances. Specifically, we
have not explicitly addressed whether reasonableness is to be evaluated from the perspective
of the investigating officer (in this case, Trooper Ringer), or the subject of
the search (the Litchfields), or both.
We believe that the totality of the circumstances requires consideration of both the
degree of intrusion into the subjects ordinary activities and the basis upon which
the officer selected the subject of the search or seizure. One factor
that may render a search unreasonable is an arbitrary selection of the subject.
Thus, we have permitted roadblocks for the purpose of testing for impaired
drivers, but only under procedures that assure that no individual is subject to
arbitrary selection. State v. Gerschoffer, 763 N.E.2d 960, 966 (Ind. 2002); compare
Mich. Dept of State Police v. Sitz, 496 U.S. 444, 455 (1990) (same
under Fourth Amendment). We have also upheld legislation requiring motorists to use
seat belts, but we have warned that stopping vehicles to inspect for violations
is not permissible without an individualized basis to suspect noncompliance. Baldwin v.
Reagan, 715 N.E.2d 332, 334 (Ind. 1999). In both cases we were
dealing with a seizure of the person, but the intrusion on the citizen
was relatively minora brief stop of an automobile. And in both cases
the scope of the permitted inquiry is limited, in one case to driving
while intoxicated and in the other to seat belt use. In each
case we nonetheless required either articulable individualized suspicion or a process designed to
prevent officers from indiscriminate selection of those to be searched.
Even when officers have some indication of potential criminal activity, we have balanced
it against a concern for excessive discretion in selection of a subject.
In State v. Bulington, 802 N.E.2d 435 (Ind. 2004), officers who stopped the
driver of a vehicle suspected of methamphetamine manufacture based on purchases of packages
of a known methamphetamine precursor did not have enough facts for individualized suspicion
of criminal activity. The majority found the seizure unreasonable, concluding that if
such a stop were allowed, the police would be given too much latitude
to exercise arbitrary discretion. Id. at 440.
Our explanation of reasonableness in other contexts has focused on both the degree
of intrusion or indignity visited upon the citizen and the constraints on the
detaining officer. Random searches have been sustained in at least one circumstance.
In Linke v. Northwestern Sch. Corp., 763 N.E.2d 972, 985 (Ind. 2002),
random drug testing of middle and high school students was held to be
reasonable under Article I, Section 11. Although those tested were limited to
students who drove to school or participated in athletics or a number of
other activities, the majority did not rely on that restriction in sustaining the
policy. Rather, the majority observed that a court should weigh the nature
of the privacy interest upon which the search intrudes, the character of the
intrusion that is complained of, and the nature and immediacy of the governmental
concern to determine whether the Policy is reasonable under the totality of these circumstances.
Id. at 979 (citing Veronia Sch. Dist. 47j v. Acton, 515 U.S.
646, 660 (1995)). This explicitly added to the calculus the factor of
the severity of the law enforcement need in addition to the degree of
the intrusion. However, the degree of intrusion may render a search unreasonable,
even where law enforcement needs are obviously present. In Edwards v. State,
759 N.E.2d 626, 630 (Ind. 2001), we focused entirely on the degree of
intrusion on the citizen and lack of individualized suspicion: to the extent a
warrantless strip search of a misdemeanor arrestee is conducted on the basis of
jail security, the indignity and personal invasion necessarily accompanying a strip search is
simply not reasonable without the reasonable suspicion that weapons or contraband may be
introduced into the jail.
Finally, if a violation of law is established, not merely suspected, a seizure
has been upheld, even if the violation is quite minor. Thus, in
Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001), we found nothing unreasonable
in permitting an officer, who may have knowledge or suspicion of unrelated criminal
activity by the motorist, to nevertheless respond to an observed traffic violation.
The Court held that it was not unreasonable for a motorist who commits
a traffic law violation to be subject to accountability even if the officer
was motivated by furthering an unrelated criminal investigation. Id.
In sum, although we recognize there may well be other relevant considerations under
the circumstances, we have explained reasonableness of a search or seizure as turning
on a balance of: 1) the degree of concern, suspicion, or knowledge
that a violation has occurred, 2) the degree of intrusion the method of
the search or seizure imposes on the citizens ordinary activities, and 3) the
extent of law enforcement needs.
C. Searches of Trash
This Court first addressed the legality of trash searches under Article I, Section
11 in Moran v. State, where the totality of the circumstances test was
also first articulated. In that case, the Indiana State Police initially identified
Andrew Holland and Dominick Moran based on their purchases at a hydroponic equipment
store operated by ISP for the purpose of identifying potential marijuana growers.
Further investigation revealed excessive energy consumption at Hollands home, and unusual warm areas
were observed through thermal imaging surveillance. Id. at 537-38. At about
5:00 a.m. on a day scheduled for trash pickup, two ISP officers drove
to Hollands house where they found several trashcans about one foot from the
street in front of the house, near the mailbox. Id. at 538.
The officers emptied the cans into the back of their truck and
a subsequent search revealed marijuana clippings. Id. Based in part on
this evidence, officers obtained a warrant to search the house and found both
marijuana cuttings and several growing plants. Id. Holland and Moran were
then charged with possession of marijuana. Id. They moved to suppress
all evidence and testimony related to the warrantless search of the trash and
the house based on their contention that the search of the garbage violated
Article I, Section 11.
The majority in Moran explained: Because we read this section of our constitution
as having in its first clause a primary and overarching mandate for protections
from unreasonable searches and seizures, the reasonableness of the official behavior must always
be the focus of our state constitutional analysis. Id. at 539.
The Court held that this reasonableness is to be determined based on a
totality of the circumstances. Id. at 541. The Court concluded that
the search was reasonable, explaining that one who places trash bags for collection
intends for them to be taken up, and is pleased when that occurs,
and that the officers conducted themselves in a similar manner to trash collectors
and did not cause a disturbance. Id. The majority also noted,
however, that Hoosiers are not entirely comfortable with the idea of police officers
casually rummaging through trash left at curbside. Id. The Moran dissent
argued that the search of Morans trash was not reasonable and concluded that
because a persons trash may reveal intimate details of the persons life and
because it is unreasonable to dispose of ones trash anonymously, trash ought to
be protected under Article I, Section 11.
Since Moran, the Court of Appeals has grappled with several cases arising from
searches of trash. In Lovell v. State, 813 N.E.2d 393 (Ind. Ct.
App. 2004), trans. denied, police officers went to Lovells home where they smelled
a strong odor of ether. Id. at 395. There was no
response when they knocked on the door, so they parked in a nearby
parking lot and observed the residence. Id. After four people left
the home, the officers retrieved three garbage bags that had been placed by
the mailbox. Id. A search of the bags revealed evidence of
the manufacture and use of methamphetamine. Id. The officers then obtained
a warrant, searched Lovells automobile and home, and found additional evidence. Id.
at 396. Lovell was charged with dealing in methamphetamine and possession of
chemical reagents or precursors with intent to manufacture. Id. at 397.
She moved to suppress the evidence found in the trash bags and the
evidence found pursuant to the resulting search warrant. Id. The trial
court denied her motion and the Court of Appeals affirmed, reasoning that the
search was reasonable under the totality of the circumstances. Id. at 398.
The court pointed out many other houses had garbage bags next to
their mailboxes and apparently Lovells and the others bags had been placed out
for trash pickup. Id. The court also noted that the officers
seized the garbage in the same way that garbage collectors would and did
not trespass onto the Lovells property. Id.
In State v. Stamper, 788 N.E.2d 862, 863 (Ind. Ct. App. 2003) trans.
denied, Stamper placed a garbage bag at the bottom of a garbage pile
on his property an undetermined distance from the end of his driveway.
A No Trespassing sign was posted on the property near the garbage pile.
Police went onto the property and retrieved the bag. A search
of the bag revealed evidence of marijuana use. The Stamper court held
the search unreasonable based on the police entry onto Stampers property. Id.
at 866 n.2. The court explained, If we were to hold otherwise,
police could search everyones opaque garbage bags on their property without reason and
thereby learn of their activities, associations, and beliefs. Id. at 867 (citing
State v. Tanaka, 701 P.2d 1274, 1276 (Haw. 1985)).
The Court of Appeals in this case acknowledged Stamper, but disagreed with a
test of reasonableness based on whether the trash is on public or private
property. Litchfield v. State, 808 N.E.2d 713, 716 (Ind. Ct. App. 2004).
The Litchfields urge us to adopt the reasoning in Stamper that whether
police commit a trespass when searching a persons garbage is the decisive factor
in determining the reasonableness of the search. They argue that we should
hold that because Ringer entered their property to retrieve their garbage, the search
of that garbage was unreasonable. The State argues that the Stamper court
improperly applied Moran by affording too much weight to the fact that the
police trespassed on Stampers property. The State urges that whether or not
police trespassed on a persons property is only one factor in the totality
of circumstances Moran directs that whether the police enter unto the subjects property
be considered in evaluating the reasonableness of a search. We think that the
reasonableness of officer conduct in searching a citizens trash does not turn on
whether or not the police entered onto the citizens property. Property lines
are wholly irrelevant to the degree of suspicion of a violation or the
need for enforcement and largely irrelevant to the degree of intrusion inflicted by
the search or seizure. Moreover, the precise boundaries of a piece of
real estate are not always apparent to one viewing the property, and various
easements may well complicate the effort to identify whether trash barrels are fair
We also disagree with the view that searches of trash are per se
unreasonable. Some states have invalidated all official searches of garbage. Most
of them acknowledged, as stated in Greenwood, that a person may expect that
his or her garbage is readily accessible to animals, children, scavengers, snoops, and
other members of the public. They reasoned explicitly or implicitly that people may
nevertheless hold a different expectation as to access by police. State v.
Hempele, 576 A.2d 793, 805 (N.J. 1990); see also People v. Krivda 486
P.2d 1262, 1268 (Cal. 1972) (defendants had a reasonable expectation that their trash
would not be rummaged through and picked over by police officers acting without
a search warrant); Tanaka, 701 P.2d at 1276-77; (people reasonably believe that police
will not indiscriminately rummage through their trash bags to discover their personal effects);
State v. Boland, 800 P.2d 1112, 1117 (Wash. 1990) (while a person must
reasonably expect a licensed trash collector will remove the contents of this trash
can, this expectation does not also infer an expectation of governmental intrusion).
We do not find the arguments for a per se rule persuasive.
Seizure of trash that is in its usual location for pickup is no
intrusion at all on the owners liberty or property interests. The owner
wants and expects the trash to go away, and who removes it is
normally a matter of indifference. If the trash is located in the
place where it is normally picked up, the trash collection agency, whether public
or private, is invited onto the property to the extent necessary to gather
and empty the trash. Police officers can perform the same acts with
no greater intrusion. It is not the intrusion, but rather the concern
for unwarranted official snooping that makes the identity and purpose of the collector
significant. But even that consideration is more formal than substantive. At
the point the trash is removed by the authorized collector it is presumably
fair game. See Mast v. State, 809 N.E.2d 415, 417 (Ind. Ct.
App. 2004). Prohibiting officers from examining trash before it is collected thus
imposes burdens on law enforcement by forcing officers to accompany or follow trash
collectors or work at the city dump to do what might be much
more easily accomplished but provides no real protection to the citizen. In
sum, because there is no intrusion, if properly justified by other factors, a
search of trash is reasonable.
We think, however, that it is not reasonable for law enforcement to search
indiscriminately through peoples trash. As the majority explained in Moran, although a
search of a persons garbage may be reasonable under specific circumstances, Hoosiers are
not entirely comfortable with the idea of police officers casually rummaging through trash
left at curbside. 644 N.E.2d at 541. We also agree with
the conclusion of the Stamper court that police should not be permitted to
enter a persons property and search his or her garbage without reason.
788 N.E.2d at 867. We think the concern for reasonable searches
of trash is best addressed by the requirement that, in order for a
search or seizure to be reasonable, trash must be retrieved in substantially the
same manner as the trash collector would take it. If garbage has
been placed out for collection at the usual place for collection and is
easily accessible to any member of the public, in the absence of a
mistake, any claim to possessory ownership has been abandoned. The citizen expects
that trash to be collected and has effectively ceded all rights in it.
See Moran 644 N.E.2d at 541. There is therefore no material
intrusion into the citizens ordinary activities.
As already noted, however, an important factor in evaluating a reasonable search is
appropriate restriction on arbitrary selection of persons to be searched. We believe
a requirement of articulable individualized suspicion, essentially the same as is required for
a Terry stop of an automobile, imposes the appropriate balance between the privacy
interests of citizens and the needs of law enforcement. Allowing random searches,
or searches of those individuals whom the officers hope to find in possession
of incriminating evidence gives excessive discretion to engage in fishing expeditions. See
Delaware v. Prouse, 440 U.S. 648, 663 (1979); Bulington, 802 N.E.2d at 440;
Baldwin, 715 N.E.2d at 337.
In Article I, Section 11 terms, that
is unreasonable. The police need not go to the lengths elaborated in
Mast v. State, 809 N.E.2d 415 (Ind. Ct. App. 2004), where police rode
in the trash pickup and searched it only after it was taken by
its usual collectors. But police do need to ensure that they do
not cause a disturbance or create the appearance of a police raid of
In this case, it is undisputed that the seized trash was left in
barrels on the property in its regular place for collection. The Litchfields
therefore abandoned it and exposed it to the public. It seems clear
that the police acted reasonably by quickly and quietly retrieving the trash from
the place it was ordinarily collected without creating undue embarrassment or indignity.
However, we cannot determine from this record whether the information supplied by the
DEA enabled the state police to be reasonably certain that the Litchfields had
responded to an advertisement in High Times, or merely informed the police that
the Litchfields had purchased from a vendor that coincidentally had advertised in that
publication. There may be other facts bearing on whether the officers possessed
articulable individualized grounds for suspicion that the Litchfields were involved in illegal activity.
At the time of the suppression hearing, we had not yet expressly
adopted the requirement that a search of a persons garbage be based on
reasonable suspicion. There was no evidence presented on this issue and the
trial court made no finding. We therefore remand this case to the
trial court for a finding as to whether or not the officers possessed
reasonable suspicion sufficient to obtain and search the Litchfields garbage.
This case is remanded to the trial court for further proceedings consistent with
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.
See, e.g., Smith v. State 510 P.2d 793, 797 (Alaska 1973); Rickard
v. State, 123 S.W.3d 114, 119 (Ark. 2003); People v. Hillman, 834 P.2d
1271, 1277 (Colo. 1992); State v. DeFusco, 620 A.2d 746, 751 (Conn. 1993);
Lirousa v. State, 408 S.E.2d 436, 437 (Ga. Ct. App. 1991); State v.
McCall, 26 P.3d 1222, 1223 (Idaho 2001); State v. Hendersen, 435 N.W.2d 394,
396 (Iowa Ct. App. 1988); State v. Alexander, 981 P.2d 761, 766 (Kan.
1999); State v. Lambertus, 482 So. 2d 812, 814 (La. Ct. App. 1986);
State v. Texel, 433 N.W.2d 541, 543 (Neb. 1989); State v. Carriere, 545
N.W.2d 773, 776 (N.D. 1996); State v. Brown, 484 N.E.2d 215, 217 (Ohio
Ct. App., 1984); Cooks v. State, 699 P.2d 653, 656 (Okla. Crim. App.
1985); Levario v. State, 964 S.W.2d 290, 296 (Tex. App. 1997); State v.
Jackson, 937 P.2d 545, 549 (Utah Ct. App. 1997); State v. Stevens, 367 N.W.2d
788, 796 (Wis. 1985); Croker v. State, 477 P.2d 122, 125 (Wyo. 1970).
See State v. Tanaka, 701 P.2d 1274, 1276-77 (Haw. 1985); State v.
Goss, 834 A.2d 316, 319 (N.H. 2003); State v. Rhodes, 565 S.E.2d 266,
271 (N.C. Ct. App. 2002); State v. Morris, 680 A.2d 90, 94-95 (Vt.