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Expectation of Privacy — Garbage

State v. Sylvester Sigarroa, 2004 WI App 16, PFR filed 1/2/04
For Sigarroa: John Pray, UW Law School

Issue/Holding:

¶14. The State and Sigarroa propose different tests for determining the constitutionality of a warrantless garbage search… .

¶16. Both parties are able to cite case law in support of their competing approaches. However, upon close review of the relevant cases, it appears to this court that the law has moved away from the strict “curtilage” approach. Fewer and fewer cases speak to curtilage as a separate factor….

¶19. Adhering to the development of the case law, we are persuaded that the proper analysis comes under the two-part test proposed by Sigarroa: (1) whether the individual by his or her conduct has exhibited an actual, subjective expectation of privacy, and (2) whether that expectation is justifiable in that it is one which society will recognize as reasonable. Stevens, 123 Wis. 2d at 316. This is not to say that the State’s analysis is entirely off base. We simply hold that a discussion of curtilage/open fields appropriately falls within an expectation-of-privacy analysis and is not a separate factor as the State suggests.

¶21. We do not agree that … that Sigarroa had an actual, subjective expectation of privacy in his trash. We reach this conclusion based on the following evidence. The garbage was placed in a dumpster located at the far rear of the apartment building property. The garbage was placed in the dumpster with the knowledge of and expectation that it would be picked up for disposal by the garbage collection service. While the property was surrounded on three sides by a fence, the fence did not impede access to the property or to the dumpster. Although the property had a “Private Property” sign and signs warning that there should be no playing around the dumpster, the signs did not bar observation of the dumpster from the street or impede access to the dumpster. The dumpster was located in an area totally unassociated with activities that would normally be associated with notions of privacy.

¶22. We now turn to the second prong of the two-part test and hold that even if Sigarroa had demonstrated an actual, subjective expectation of privacy, we cannot say that his expectation is justifiable in that it is one which society would recognize as reasonable. In making our determination, we look to whether our society would expect to have privacy in this garbage under the facts of this case. It is our view that society would not recognize a reasonable expectation of privacy when garbage is thrown into a dumpster with the knowledge and the expectation that control of the garbage would be turned over to third parties. Society would expect that while the most immediate third-party recipient of garbage in a dumpster would be a garbage collector, that is not the only third party one can envision taking control of this garbage. It would not be unreasonable under these facts for society to expect access to the garbage by other third parties (i.e., scavengers and the like) when such garbage is easily accessible to the public. As noted, this garbage was abandoned in a dumpster that was both visible from the street and had unimpeded access from the street. See Greenwood, 486 U.S. at 40. Garbage receptacles “cannot be equated to a safety deposit box,” United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978), and “[t]here is nothing unfair about requiring that people not discard things they want to keep secret, or destroy them before they do.” United States v. Kramer, 711 F.2d 789, 792 (7th Cir. 1983). Evaluating this case on its particular facts, we hold that Sigarroa’s Fourth Amendment protection claim fails.

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