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                                MADELINE       A.   HERDRICH


   The fourth amendment to the United States Constitution is an
explicit pronouncement of the fundamental right of our citizens to
be free from unreasonable searches and seizures. ' The guarantee of
the fourth amendment protects and secures the most comprehen-
sive of constitutional rights-the right to privacy. 2 The concept of
the right to privacy, however, is elusive and it is the judiciary's role
to define the scope of privacy rights and the extent of constitutional
protections.3 The United States Supreme Court has set forth a stan-

      1. The fourth amendment to the Constitution 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, and no Warrants
     shall issue, but upon probable cause, supported by Oath or affirmation, and particu-
     larly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
   The textual strictures of the fourth amendment ensures protection of individual liberty.
The second clause, the warrant requirement, operates as a protective mechanism that compels
governmental restraint by requiring police to swear before a magistrate that there is sufficient
evidence to issue a warrant and to search and seize particular things and persons. See Franks
v. Delaware, 438 U.S. 154, 164 (1978) (stating that bulk of fourth amendment protection is in
STUDY IN CONSTITUTIONAL INTERPRETATION 20 (1966) (noting that purpose of fourth amend-
ment is to provide safeguards against unreasonable governmental intrusions); Amsterdam,
Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 411 (1974) (stating that warrant
clause has two effects: first to limit searches to only those situations in which there is probable
cause and, second, to protect populace against arbitrary and capricious police intrusions);
Stengel, The Background of the FourthAmendment to the Constitution of the United States, Part Two, 4
U. RICH. L. REV. 60, 74-75 (1965) (examining fourth amendment and framers' intentions).
     2. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (expressing that Bill of Rights
guarantees create zone of privacy); Mapp v. Ohio, 367 U.S. 643, 656 (1961) (stating fourth
amendment creates right to privacy); see also Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)
(noting that essential purpose of fourth amendment is to safeguard individual privacy from
arbitrary governmental invasions); United States v. Brignoni-Ponce, 422 U.S. 873, 878-80
(1975) (exemplifying that fourth amendment is balance between legitimate public interest and
individual's right to privacy); Terry v. Ohio, 392 U.S. 1, 9 (1968) (emphasizing that right to be
free from governmental restraint is of utmost constitutional importance and should only be
abridged by compelling governmental interest (quoting Union Pac. Rail v. Botsford, 141 U.S.
250, 251 (1881))); see generally P. DIANISOPOULOS & C. DUCAT, THE RIGHT TO PRIVACY 1 (1976)
(recognizing central role of privacy in American society).
      3. See Marbury v. Madison, 5 U.S. (I Cranch) 137, 175-79 (1803) (asserting doctrine of

994                THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 38:993

dard to determine the existence of a fourth amendment privacy
right, based on the reasonableness of the individual's expectation of
privacy. 4 In recent search and seizure decisions, the Supreme Court
has refused to recognize as reasonable an expectation of privacy
that extends beyond the home. 5 The Court's stance on search and
seizure law suggests a narrowing of the scope of protected privacy
interests in favor of the government's interest in gathering criminal
evidence. 6 The judiciary's increasing deference to this governmen-
tal interest, however, threatens to erode the concept of privacy and
the vitality of the fourth amendment.
   The Supreme Court's 1988 decision in California v. Greenwood
demonstrates the Court's current posture toward personal privacy
interests outside the home. In Greenwood the police conducted war-
rantless searches and seizures of Greenwood's trash, outside his

judicial review which established judiciary as interpreter of Constitution). The Supreme
 Court's power to interpret the Constitution is exemplified by the Court's active role in defin-
ing the scope of the fourth amendment. See 4 LEvY, KARST, & MAHONEY, ENCYCLOPEDIA OF
THE AMERICAN CONSTITTION 1628-35 (1986) (describing Court's efforts to define ambiguous
language of fourth amendment).
      4. United States v. Katz, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (joining in
opinion and setting forth reasonable expectation of privacy standard in two parts: individual
must exhibit privacy expectations, and two, society must view privacy expectations as reason-
able). The Katz standard is now the threshold inquiry in a fourth amendment analysis. See,
e.g., Illinois v. Andreas, 463 U.S. 765, 773 (1983) (asserting that issue in fourth amendment
analysis is whether individual has privacy expectation that is reasonable); Rakas v. Illinois, 439
U.S. 128, 143 (1978) (stating that primary inquiry of fourth amendment claim is whether
defendant had reasonable expectation of privacy in area searched); Terry v. Ohio, 392 U.S. 1,
9 (1968) (applying reasonable expectation of privacy analysis set forth in Katz).
       5. See, e.g., California v. Greenwood, 108 S. Ct. 1625, 1629 (1988) (holding that war-
rantless search of trash does not violate fourth amendment privacy right because expectation
of privacy is unreasonable); Maryland v. Macon, 472 U.S. 463, 469 (1985) (asserting purchase
of obscene magazine at store was not constructive search because there is no expectation of
privacy in wares exposed to the public); United States v. Jacobsen, 466 U.S. 109, 118-20
(1984) (distinguishing that expectation of privacy is diminished when packages are opened by
third parties); United States v. Karo, 468 U.S. 705, 713-18 (1984) (concluding that electronic
tracking of chemical cans' movement through dwellings is not intrusion because expectation
of privacy is not reasonable); United States v. Knotts, 460 U.S. 276, 282 (1983) (holding that
no reasonable expectation of privacy exists when police visually observe activity on public
highway). The Supreme Court also does not recognize a right to privacy in the area generally
considered the curtilage of the home when the area is visible to the public. See California v.
Ciraolo, 476 U.S. 207, 211-12 (1986) (finding no expectation of privacy in aerial view of
fenced-in backyard); Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (ruling aerial
search of chemical plant as not violative of fourth amendment); Oliver v. United States, 466
U.S. 170, 178 (1984) (reaffirming that privacy interests in an area outside curtilage of home is
not reasonable.
       6. See supra note 5 (listing recent holdings that narirow scope of fourth amendment by
allowing more warrantless searches); see also Salken, BalancingExigency and Privacy in JI'arrantless
Searches to Prevent Destruction of Evidence: The Need for a Rule, 39 HASTINcs L.J. 283, 283-84
(1988) (suggesting nation's preoccupation with solving drug problems may result in police
seeking to justify more warrantless searches and courts allowing such justifications).
      7. See Williams, The Pendulum Swings: The Rehnquist Court and the De-Emphasis ofIndividual
Liberty in CriminalProcedure Analysis, 65 U. DEr. L. REV. 291, 311-13 (1987) (stating that Rehn-
quist Court's approach limits personal liberty which is substance of fourth amendment).
     8. 108 S. Ct. 1625 (1988).
1989]                           California v. Greenwood                                  995

 home, over a two-month period. 9 Greenwood argued that these
 warrantless searches and seizures violated his fourth amendment
 privacy interest in personal refuse.10 The Supreme Court held that
 the fourth amendment did not extend to a privacy interest in trash
 left in an area accessible to the public; therefore, the warrantless
 search and seizure of such trash did not constitute an unreasonable
 search and seizure in violation of the fourth amendment."'
    The Court's holding in Greenwood is untenable for three reasons.
 First, the Court diverged significantly from its own interpretations
 of privacy, and thus narrowed the scope of United States citizens'
 privacy rights.' 2 Second, the Court's refusal to recognize an indi-
 vidual's subjective expectation of privacy and its singular focus on
 objective, societal concepts of reasonableness repudiates the letter
 and spirit of the expectation of privacy standard.' 3 Finally, the ma-
jority's failure to recognize a privacy expectation in trash forfeited
 the Court's opportunity to consider the search and seizure of per-
 sonal refuse as an exception to the warrant requirement.'
    This Note examines the decision in Greenwood and its impact on
 the scope of fourth amendment protections. Part I provides an
 overview of a traditional fourth amendment analysis and a historical
 review of privacy interests protected by the fourth amendment. Part
 II explains the factual and procedural history of Greenwood and out-
 lines the Supreme Court's holding. Part III critically analyzes the
 Supreme Court's holding in light of prior case law. This Note con-
 cludes that Greenwood conflicts with prior case law, ignores social
 customs and norms, and narrows the scope of fourth amendment

      9. California v. Greenwood, 108 S. Ct. 1625, 1627 (1988).
    10. Id. at 1625-28.
    11. Id. at 1629.
    12. See Katz v. United States, 389 U.S. 347, 351-52 (1967) (plurality opinion) (stating
"[w]hat a person knowingly exposes to the public... is not a subject of Fourth Amendment
protection. But what he seeks to preserve as private, even in an area accessible to the public,
may be constitutionally protected") (citations omitted); United States v. Chadwick, 433 U.S. 1,
 11 (1977) (stressing that "a fundamental purpose of the Fourth Amendment is to safeguard
individuals from unreasonable government invasions of legitimate privacy interests, and not
simply those interests found inside the four walls of the home").
    13. Greenwood, 108 S. Ct. at 1629. The Supreme Court did not recognize Billy Green-
wood's subjective expectation of privacy because the Court determined that society would not
recognize as reasonable a privacy interest in trash placed in public. Id. The Supreme Court
previously had held that steps taken to preserve privacy, even in public, constituted an expec-
tation of privacy that the fourth amendment protected, unless society did not find the privacy
interest justifiable. Katz v. United States, 389 U.S. 347, 350 (1967).
    14. See Brief for Respondent at 26, California v. Greenwood, 108 S.Ct. 1625 (1988) (No.
86-684) [hereinafter Brief for Respondent] (proposing that individual may have legitimate
expectation of privacy in trash but because of likelihood of container's imminent destruction,
warrant exception and lower level of procedural protection should be applied); see also infra
notes 201-03 and accompanying text (discussing idea that warrantless trash search should
require probable cause and exigent circumstances).
996                THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 38:993

protection. In analyzing the deficiencies of the Court's approach,
this Note proposes that the recognition of a lower level of fourth
amendment protection for a privacy interest in a container of trash
would provide the optimal balance between state and individual in-
terests acceptable to society.

             I.   FOURTH AMENDMENT ANALYSIS:                     OVERVIEW OF
                              SEARCH AND SEIZURE LAW

    The language of the fourth amendment is clear in purpose, but
 ambiguous in key terminology.' 5 Thejudiciary's attempts to clarify
 the ambiguities has resulted in a complex and uncertain body of law
 which is riddled with exceptions. 16 Relevant Supreme Court cases,
 however, revealed an objective two-part fourth amendment analysis
 to focus a judicial review of a governmental search. 17 In the first
 part of the analysis, a court must address whether the governmental
 search violated a privacy interest protected by the fourth amend-
 ment.18 If the first inquiry is affirmative, the governmental intrusion
 constitutes a protected search and the court proceeds to evaluate
 whether the search and seizure falls within the Supreme Court's in-
 terpretation of a reasonable or unreasonable search.' 9 A determina-
 tion that the governmental action is unreasonable triggers the
judicially created exclusionary rule that prohibits the use of evi-

     15. See LANDYNSRI, supra note 1, at 20, 42 (noting purpose of fourth amendment was
clearly to safeguard populace liberty interests and stating terminology such as unreasonable
search is ambiguous and can be interpreted two ways).
    16. See Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits on Lawyering, 48
IND. L.J. 329, 329 (1973) (stating that state and federal court simultaneous supervision cre-
ates complex search and seizure law).
    17. See infra notes 57-72, 74-84 and accompanying text (describing developments in
search and seizure law with particular emphasis on expectation of privacy analysis); C. WHITE-
BREAD & C. SLOBOGIN, CRIMINAL PROCEDURE 104 (2d ed. 1986) (stating that fourth amend-
ment analysis is two-tiered: (1) consideration of existence of fourth amendment right and (2)
determination whether intrusion violates such right).
    18. See LaFave, The FourthAmendment Today: A BicentennialAppraisal,32 VILL. L. REV. 1061,
 1078-81 (1987) (addressing two-part standard in fourth amendment analysis that requires
determination of existence of fourth amendment right before giving consideration to imposi-
tion of fourth amendment constraints).
    19. See generally Note, Defining a Fourth Amendment Search: A Critique of the Supreme Court's
Post-KatzJurisprudence,61 WASH. L. REV. 191 (1986) (discussing the stages of a fourth amend.
ment analysis). A police intrusion does not necessarily constitute a search under the fourth
amendment. Id. at 196-200. A governmental action is a search only if the person who chal-
lenges the action has a reasonable expectation of privacy in the information uncovered. Id. at
 196. See, e.g., Illinois v. Andreas, 463 U.S. 765, 771 (1983) (explaining that no search occurs
when no legitimate expectation of privacy exists); Walter v. United States, 447 U.S. 649, 663-
65 (1980) (Blackmun,J., dissenting) (commenting that no search occurs unless expectation of
privacy exists); United States v. White, 401 U.S. 745, 751-53 (1971) (stating that definition of
search is violation of reasonable expectation of privacy and once privacy is proven, fourth
amendment analysis will transgress to reasonableness of governmental actions).
1989]                           Californiav. Greenwood                                    997
dence at trial obtained in violation of the fourth amendment.
Conversely, if a court deems that there is no reasonable expectation
of privacy or that the governmental action is reasonable, 21  evidence
seized during the  search in question is admissible at trial.

   A.    Reasonableness of the Search and Seizure and the Warrant Clause
  The reasonableness of a search is at issue when the government
violates a protected privacy interest. 2 2 Traditionally, only the issu-
ance of a valid search warrant satisfied the reasonable search and
seizure inquiry of a fourth amendment analysis. 23 As the law of
search and seizure evolved, however, the Supreme Court realized
that it was not always practical to secure a warrant before con-
ducting a search. 24 Accordingly, the Court identified exceptions to
the warrant requirement. 2 5 Although the Court permits exceptions
to the warrant requirement, a warrantless police search must be

    20. Weeks v. United States, 232 U.S. 383, 398 (1914). The exclusionary rule was ex-
tended to the states in Mapp v. Ohio, 367 U.S. 643 (1961). The exclusionary rule renders
evidence inadmissable, and thus useless at trial, to deter police from enforcing the law
through unconstitutional means. W. LAFAVE, 2 SEARCH & SEIZURE 1082-85 (1987).
    21. See Amsterdam, supra note 1, at 388 (noting that activities that do not fall into fourth
amendment definition of search are afforded no fourth amendment protection).
    22. The Supreme Court construes the reasonableness of a search and seizure in two
ways. First, there is an approach that determines the reasonableness of a search and seizure
based on the behavior and conduct of the government officials. United States v. Rabinowitz,
339 U.S. 56, 65 (1950). This approach takes into consideration exigencies and the need for
police reaction. Id. The second approach is a strict reading of the fourth amendment warrant
clause that considers all warrantless searches per se unreasonable unless the search falls
under an exception. See Mincey v. Arizona, 437 U.S. 385, 390 (1978) (holding that warrant-
less search not within allowable exceptions is per se unreasonable).
    23. See Johnson v. United States, 333 U.S. 10, 13-14 (1948) (reasoning that fourth
amendment has always required inferences to be drawn by neutral and detached magistrate,
not police officers).
    24. See C. WHrIEBREAD & C. SLOBOGIN, supra note 17, at 140 (noting obtaining warrant
would not always be feasible or necessary).
    25. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent exception); Coolidge v.
New Hampshire, 403 U.S. 443 (1971) (plain view exception); Terry v. Ohio, 392 U.S. 1 (1968)
(stop and frisk exception); Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit exception);
Carroll v. United States, 267 U.S. 132 (1925) (automobile exception); Weeks v. United States,
232 U.S. 383 (1914) (search incident to arrest exception).
  The search incident to arrest exception has always been applicable under English and
American law. Meeks, 232 U.S. at 392. With this exception, police may conduct a warrantless
search pursuant to a lawful arrest. Id. The underlying rationale to the search incident to
arrest exception is that a police officer must be able to conduct a search at the scene of an
arrest to protect himself and to preserve valuable evidence. Id. Accordingly, the scope of this
exception is limited to valid arrests and to evidence within the immediate control of the per-
son arrested. Chimel v. California, 395 U.S. 752, 762-63 (1969).
  To perform a warrantless search of an automobile, the police must have probable cause to
believe that the vehicle contains contraband. Carroll, 267 U.S. at 149. In Chambers v.
Maroney, 399 U.S. 42, 51 (1970), the Supreme Court extended the exception to include
searches made after the police seized and removed a vehicle to the police station. Chambers,
399 U.S. at 51.
  The hot pursuit exception allows police to enter a dwelling in pursuit of a fleeing suspect.
farden, 387 U.S. at 298. The Supreme Court's rationale for this exception is based on the
998                THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 38:993

conducted in accordance with procedural safeguards. For example,
the Court has recognized an automobile exception to the warrant
requirement. 2 6 The Court allowed the warrantless searches of mo-
tor vehicles based on inherent mobility2 7 and the populace's lesser
expectation of privacy.2 8 Despite the lowered privacy interest in an
automobile, the Supreme Court has construed the fourth amend-
ment to authorize the warrantless search of a vehicle only if there is
probable cause and exigent circumstances.2 9 Without a proper
showing of probable cause and exigency, a court will deem the
search unreasonable and exclude the evidence seized during the

recognition that the police must be able to dispense with a warrant in emergency situations.
Id. Otherwise, the police would not be able to maintain effective law enforcement. Id.
   The consent exception also permits police to dispense with a warrant. Schneckloth, 412 U.S.
at 218. As its name implies, the person has consented to the search. Nevertheless, the
Supreme Court still examines the totality of the circumstances to determine whether such
consent was voluntary. Id. at 248-49.
   The stop and frisk exception, delineated in Terry v. Ohio, was developed to protect the per-
sonal security of the police officer. Terry, 392 U.S. at 30. Under Terry, police may stop and
frisk, that is, stop a suspect and pat him down, if the police officer's experiences lead him to
conclude reasonably that criminal activity may be afoot. Id. at 30-31.
   Under the plain view exception, police may seize evidence of criminal activity in plain view
without a warrant. Coolidge, 403 U.S. at 464-73. The plain view exception, however, has some
restrictions. First, the police must have lawfully entered the area in which the evidence is
located. C. WHrrEBREAD & C. SLOBOGIN, supra note 17, at 247. Second, an officer must inad-
vertently discover the evidence. Id. Finally, the police must immediately recognize the object
in plain view as evidence of a crime. Id.
     26. See supra note 25 (explaining automobile exception).
     27. See United States v. Chadwick, 433 U.S. 1, 12 (1976) (commenting that treatment of
automobiles has been based in part on inherent mobility).
     28. Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion). The Court in Card-
well found that an individual has a lesser expectation of privacy in an automobile for several
reasons: (1) it is generally used for transportation; (2) an auto seldom serves as a residence or
repository for personal effects and (3) it travels on public highways where its contents are in
plain view. Id. Another reason for the lowered expectation of privacy in autos is their exten-
sive state regulation. See South Dakota v. Opperman, 428 U.S. 364, 368 (1976) (stating lesser
expectation of privacy because automobiles periodically undergo inspections for public
safety); Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (noting reduced privacy interest in
automobiles can be attributed to extensive state regulations of conditions and manner in
which vehicle can be operated on public streets).
     29. Carroll v. United States, 267 U.S. 132 (1925). The Court defined the probable cause
requirement as "the facts and circumstances within [the police officers'] knowledge and of
which they [have] reasonably trustworthy information sufficient to warrant a prudent [person]
in believing that [a suspect] had committed or was committing an offense," Beck v. Ohio, 379
U.S. 89, 91 (1964) (defining probable cause).
   A lowered expectation of privacy is usually found by the Court exists when there is a need
for the police to act immediately because of the imminent destruction of evidence or exigent
circumstances. See Vale v. Louisana, 399 U.S. 30, 33-35 (1970) (stating that if goods are in
process of destruction officers can proceed without warrant based on probable cause);
Schmerber v. California, 384 U.S. 757, 770-71 (1966) (upholding warrantless extraction of
blood to determine blood alcohol level because of danger of imminent destruction of evi-
dence); see also Note, The Need for a Higher Standard of Evigency as a Prerequisitefor Warrantless
Vehicle Searches, 71 IowA L. REV. 1161, 1164-68 (1968) (discussing special circumstances pres-
ent in warrantless searches of vehicles). The rationale behind most exceptions to the warrant
clause can be applied to trash. See Brief for Respondent, supra note 14, at 26 (noting that
exigent circumstances is good reason for lower procedural standards).
1989]                            Californiav. Greenwood                                    999

search.3 0 The automobile exception demonstrates that the adoption
of an exception to the warrant requirement does not relinquish
fourth amendment protections against unreasonable governmental

           B.    Privacy Interest: The Road to Expectation of Privacy
   The Supreme Court originally interpreted a fourth amendment
right to privacy predicated on property law concepts. 31 The Court
explained that a governmental intrusion did not constitute a search
unless there was an element of physical trespass on private prop-
erty.3 2 Later, the Court modified its property based construction
and excluded fourth amendment protections in abandoned prop-
erty,3 3 open fields, 3 4 and third party searches.

    30. See Chadwick v. United States, 433 U.S. 1, 5 (1977) (noting that absent exigencies
automobile exception does not apply).
    31. Boyd v. United States, 116 U.S. 616, 631-32 (1886). In Boyd, a government order
compelled George and Edward Boyd to produce private records during criminal proceedings.
Id. at 618. The Boyds claimed that the forced production violated their fourth amendment
rights. Id. The Court explained that compelling a person to produce private records was a
search and was, therefore, subject to fourth amendment limitations. Id. at 638. The Court
concluded that the fourth amendment protected tangible property and the individual who had
a proprietary interest in such property. Id. at 633-34.
   The Court in Boyd premised its concept of a search on Entick v. Carrington, 19 Howell's St.
Tr. 1029 (1765), a landmark English search and seizure case that predicated the determina-
tion of an unreasonable governmental intrusion on trespass concepts. Entick, 19 Howell's St.
Tr. at 1063. In Entick, a magistrate issued a general warrant to search for and seize papers in
the plaintiff's home. Id. at 1030. Lord Camden, writing for the court, concluded that the
general warrant was invalid because it did not have procedural safeguards to ensure its proper
issuance. Id. at 1063. Accordingly, Lord Camden concluded that the search of the plaintiff's
private property was a trespass. Id. at 1067; seeJ. LANDYNSKI, supra note 1, at 53-61 (noting
importance of Entick to Boyd and importance of Boyd to developing fourth amendment law); T.
tance of Entick to framers of fourth amendment and to subsequent fourth amendment juris-
prudence); see alsoJ.W. HALL, JR., SEARCH AND SEIZURE § 2.2 (1982 & Supp. 1988) (outlining
origins of fourth amendment interpretations); Wilkins, Defining the "Reasonable Expectation of
Privacy'": An Emerging Tripartite Analysis, 40 VAND. L. REV. 1077, 1081-83 (1987) (comparing
history of search warrant and Supreme Court's adoption of English approach).
    32. See Olmstead v. United States, 277 U.S. 438, 464-66 (1928) (stating that absence of
physical intrusion by governmental officials does not constitute search and is not in realm of
fourth amendment); see also Goldman v. United States, 316 U.S. 129, 134-36 (1942) (holding
that detectaphone placed against wall of dwelling was not trespass and did not offend fourth
    33. See Abel v. United States, 362 U.S. 217, 240-41 (1960) (holding seizure of items in
fleeing suspect's hotel room not unreasonable under abandonment theory); Hester v. United
States, 265 U.S. 57, 58 (1924) (reasoning that search and seizure by officials is reasonable if
object searched and seized has been abandoned).
    34. See Hester, 265 U.S. at 58-59 (refusing to extend fourth amendment protection to
individual's open field because not within definition of "persons, houses, papers, and
    35. United States v.Jacobsen, 466 U.S. 109, 118-22 (1984) (holding federal agent search
of package valid because third parties, Federal Express employees, previously had opened
box, found white powder-like substance, and left box open); Burdeau v. McDowell, 256 U.S.
465, 474 (1921) (holding fourth amendment protection inapplicable to evidence obtained by
police as result of third party private searches). But see Walter v. United States, 447 U.S. 649,
1000               THE AMERICAN UNIVERSITY LAW REVIEW                         [Vol. 38:993

   In 1961, in response to a challenge against the use of electronic
surveillance, the Court altered the physical trespass principle to a
requirement of trespass upon a "constitutionally protected area." 3 6
Under the new doctrine, a search was not protected unless it oc-
curred in a constitutionally protected place. 3 7 The definition of an
intrusive search in a constitutionally protected area analysis contin-
ued to focus on the individual's property interest rather than on his
or her personal privacy interest. 38 Reexamination of the doctrine
came in the 1967 case, Katz v. United States.

                  C.    Katz: The Expectation of Privacy Analysis
   In Katz, the defendant, a bookmaker, was convicted of conducting
wagering activities across state lines in violation of a federal stat-
ute.40 The FBI gathered evidence against Katz by wiretapping the
telephone booth he habitually used to place calls. 4 1 The court of
appeals, over Katz's objection, permitted the government to intro-
duce the transcripts of overheard wagering conversations as evi-
dence against Katz. 4 2 Katz then appealed to the Supreme Court.
  The Supreme Court granted certiorari to determine whether the
FBI violated Katz's fourth amendment rights. 4 4 The government ar-
gued that the FBI's actions did not constitute a search because a
public telephone was not a "constitutionally protected area." 4 5 The
Court rejected the government's argument and stated that "the
fourth amendment protects people, not places" against unreasona-

659 (1980) (plurality opinion) (finding that incomplete third-party search is not invitation for
government officials to strip defendant of his remaining privacy expectations in package).
    36. See Silverman v. United States, 365 U.S. 505, 512 (1961) (protecting privacy of home
from government intrusion even though police did not physically trespass). In Silvennan, the
police placed an electronic listening device through a wall in the defendant's home. Id. at
506. The Court, explaining that the Constitution protects certain locations, held that a gov-
ernmental intrusion on these protected areas constituted a search. Id. at 509-12. In its hold-
ing, the Court modified the physical trespass requirement to any form of physical penetration
by governmental officials in what it termed a "constitutionally protected area." Id. at 512; see
also Hoffa v. United States, 385 U.S. 293, 301-02 (1966) (explaining that fourth amendment
safeguards personal security in constitutionally protected areas from unwarranted govern-
mental intrusions); Lanza v. New York, 370 U.S. 139, 143-44 (1962) (stating constitutionally
protected areas imbued with attributes of privacy are free from unreasonable searches).
    37. See supra note 36 (explaining new definition of search is based on constitutionally
protected area doctrine).
    38. See Silverman, 365 U.S. at 512 (invalidating search despite absence of physical trespass
but not abandoning emphasis on nature of area intruded upon).
    39. 389 U.S. 347 (1967).
    40. Katz v. United States, 389 U.S. 347, 348 (1967).
    41. Id.
    42. Katz v. United States, 369 F.2d 130, 134-35 (1966), rev'd, 389 U.S. 347 (1967).
    43. Katz, 389 U.S. at 340.
    44. Id. at 350.
    45. Id. at 351.
1989]                          California v. Greenwood                                 1001

ble searches and seizures. 4 6 The Court explicitly abandoned the use
of property law as the controlling force in a fourth amendment anal-
ysis and concluded that its decision could not turn solely on the
physical location of the intrusion.
   The Court continued its analysis by considering whether Katz had
a lowered expectation of privacy because he was in the public's view
when he made the telephone calls. 4 8 The government contended
that because the telephone booth from which Katz made his calls
was constructed partly of glass, Katz was in the public view and con-
sequently, that such public exposure diminished his fourth amend-
ment protection. 49 The Court refused to accept the government's
argument, however, and reasoned that the proper inquiry in a pri-
vacy analysis was not the location of the intrusion but whether the
intrusion violated a justifiable privacy interest that the individual
sought to preserve. 50 Accordingly, the Court distinguished that
Katz, by closing the phone booth door, sought to exclude the "unin-
vited ear" not the "univited eye" and that society would recognize
this expectation of privacy as reasonable. 5 1
   In his famous concurring opinion, Justice Harlan clarified the Katz
majority's holding.5 2 Justice Harlan explained that the standard for
a reasonable expectation of privacy was two-fold, in which a court
should determine: (1) whether the individual manifests a subjective
expectation of privacy (subjective prong);53 and (2) whether the in-
dividual's expectation is one which society is willing to recognize as
reasonable (objective prong).
   The Katz standard has revolutionized courts' fourth amendment
analyses and remains the threshold inquiry. 55 Consequently, if a
court does not recognize a privacy interest under the Katz test, the
individual has no fourth amendment claim against the government

    46. Id.
    47. Id. at 351-53. The Court in Katz moved away from precedent by focusing on the
individual's expectations of privacy rather than the location of the privacy interest. Id.
    48. Id. at 352.
    49. Id.
    50. Id. at 352-53. The Court explained that what an individual "seeks to preserve as
private, even in an area accessible to the public, may be constitutionally protected." Id. at
    51. Id.
    52. Id. at 361 (Harlan, J., concurring).
    53. Id. at 351-52. The Court, purporting to use only the subjective prong, also consid-
ered whether society would recognize the individual's expectation of privacy as reasonable.
    54. See infra notes 72-84 and accompanying text (discussing objective expectation
    55. See California v. Greenwood, 108 S. Ct. 1625, 1628 (1988) (applying Katz two-prong
standard for reasonable expectation of privacy); Smith v. Maryland, 442 U.S. 735, 740 (1979)
(declaring that expectation of privacy analysis is threshold issue in fourth amendment cases).
1002                THE AMERICAN UNIVERSITY LAW REVIEW                         [Vol. 38:993
for an unreasonable search and seizure.5 6 Critics have expressed
concern over the all-or-nothing protection of the fourth amendment
analysis and the Katz standard's susceptibility to value judgments
and unjust decisions.5 7 Moreover, confusion among the lower
courts over implementation of the Katz standard persuaded the
Supreme Court to provide further guidance.

                       D. Post-Katz Supreme Court Decisions
1.     Subjective expectation of privacy
   Following Katz, the Supreme Court elaborated on what consti-
tuted a reasonable subjective expectation of privacy in United States
v. Chadwick.59 In Chadwick, the Supreme Court recognized that one
has a subjective expectation of privacy in a package or container,
and this privacy interest is protected by the fourth amendment.6 0 In
particular, the Court considered whether an individual's expectation
of privacy in a footlocker taken from the trunk of a car was a reason-
able expectation. 6 1 The Court reasoned that luggage is a repository

  56. See supra notes 18-21 and accompanying text (describing in general fourth amend-
ment analysis).
 § 2.1(e), at 314-20 (1987) (criticizing Katz' standard as "all or nothing" approach to recogni-
 tion of privacy interest and advocating analysis which would adopt standard somewhere in
 between firm rule and loose standard); Amsterdam, supra note 1, at 388 (noting when fourth
 amendment privacy interest is recognized, Court reviews violation of interest with same scru-
 tiny as search of home would receive, but if found not to fit under Katz standard as reasonable
 privacy interest, police activities can be as unreasonable as police please them to be); Wasser-
 strom, The Incredible Shrinking FourthAmendment, 21 Am. CRIM. L. REV. 257, 271 (1984) (stating
 that Katz subjective and objective prongs can be manipulated easily and therefore constitutes
 no standard at all).
    Compare Note, California v. Ciraolo: The Demise of PrivateProperty, 47 LA. L. REV. 1365, 1371
 (1987) (concluding that Katz reasonable expectation of privacy analysis is elusive and no clear
 boundaries can be gleaned from decision) with Note, Expectation of Privay Analysis and Warrant-
 less Trash ReconnaissanceAfterKatz v. United States, 23 ARIZ. L. REV. 283, 287-88 (1981) (herein-
 after Note, Expectation of Privacy] (listing seven general elements of privacy analysis that are
 recognizable in post-Katz decisions).
    Other commentators are concerned primarily with the subjective prong. See Smith v. Mary-
 land, 442 U.S. 735, 740-42 n.5 (1979) (suggesting that Katz subjective prong may result in
 inadequate fourth amendment protection); United States v. White, 401 U.S. 745, 786 (1971)
 (Harlan, J., dissenting) (questioning validity of subjective prong of Katz test by noting that
 expectations may transcend law); see also Amsterdam, supra note 1, at 384 (raising doubts
 about subjective prong); DiPippa, Searchingfor the FourthAmendment, 7 U. ARic. LITrLE ROCK L.
J. 587, 621-27 (1984) (discussing gradual abandonment of Katz subjective prong).
      58. See generally Comment, The Relationship Between Trespass and Fourth Amendment Protection
After Katz v. UnitedStates, 38 OHIO ST. L.J. 709 (1977) (detailing conflicting approaches used by
 lower federal courts and confusion regarding extent to which Katz supplants traditional tres-
 pass doctrine).
      59. 433 U.S. 1 (1977).
      60. United States v. Chadwick, 433 U.S. 1, 7 (1977).
      61. Id. at 6-7. In Chadwick, officials became suspicious when a trained narcotics dog snif-
 fed Chadwick's footlocker at the train station, signaling the presence of drugs. Id. The of-
 ficers waited until Chadwick placed the locker in his car trunk before they approached him
 and seized the locker. Id. The agents later opened the footlocker without a warrant and
1989]                           California v. Greenwood                                  1003

for personal effects and therefore is afforded a high level of fourth
amendment protection. 6 2 Accordingly, the Court concluded that
the diminished expectation of privacy in an automobile did not
lessen the fourth amendment protections afforded to Chadwick's
privacy interest in the footlocker.
   In later decisions, the Supreme Court expanded the scope of
Chadwick when it ruled that the principal strength and monetary      4
value of a container is irrelevant to a fourth amendment analysis.6
Therefore, fourth amendment protection extends to all types of
containers, unless their contents are in plain view or the search 6of
the container falls within the scope of another legitimate search.
   Additionally, the Court has held that a privacy interest in the re-
maining portion of an incomplete third party search is reasonable.
In Walter v. United States6 6 the Court reviewed whether the partial
search of a package by a third party could be completed by the po-
lice.6 7 The Court asserted that the governmental search can not ex-

discovered a large quantity of marijuana. Id. The Court held that regardless of the dimin-
ished privacy aspects of an automobile, a container was a repository for personal effects and
had a higher degree of privacy expectation. Id. at 7.
     62. Id. at 13; see also United States v. Jacobsen, 466 U.S. 109, 114 (1984) (stating that
"[Il]etters and other sealed packages are in the general class of effects in which the public at
large has a legitimate expectation of privacy; warrantless searches of such effects are presump-
tively unreasonable").
     63. Chadwick, 433 U.S. at 12-16. The Chadwick Court reasoned that factors that diminish
rights in auto do not apply to luggage. Id. The Court found that luggage contents are not
open to the public view, nor is luggage subject to regular inspection. Id. See also supra notes
25-28 and accompanying text (discussing diminished privacy expectation in automobiles).
     64. Id. In a similar fact situation, Arkansas v. Sanders, 442 U.S. 753 (1979), the Court
distinguished Chadwick by noting that certain containers inherently are not afforded protec-
tion. Id. at 757. The Court stated that "some containers (for example, a kit of burglar tools
or a gun case) by their very nature cannot support any reasonable expectation of privacy
because their contents can be inferred from their outward appearance." Sanders, 442 U.S. at
764 n.13. The Court addressed the worth of a container in Robbins v. California, 453 U.S.
420, 423-28 (1981) (plurality opinion). In Robbins, the police stopped an automobile based
upon probable cause and searched it, finding opaque green plastic packages. Robbins, 453
U.S. at 422. The police unwrapped the packages, finding a large amount of marijuana in each.
The Court rejected a "constitutional distinction between searches of luggage and searches of
less worthy containers" and held that the fourth amendment protects all containers equally
unless their contents are in plain view or their contents can be inferred from their outward
appearance. Id. at 425-28.
     65. See United States v. Ross, 456 U.S. 798, 822 (1982) (reinforcing Robbins statements
on worthiness of containers). Ross, however, narrowed Robbins with respect to the permissible
scope of automobile searches. Under Ross, a lawful automobile search may extend to the
entire area in which the object may be found, including containers. Id. at 816-17, 823-24. In
Ross, during a legitimate warrantless search of a vehicle and its trunk police discovered several
closed bags. Id. at 801. The police subsequently opened the containers and found heroin and
large amounts of cash. The Court held that in instances in which police officers have probable
cause to search a vehicle, they may conduct a warrantless search of every part of that vehicle
for which there is probable cause to search. Id. at 824.
     66. 447 U.S. 649 (1980).
     67. Id. at 651-52. In Malter, a misdirected package was opened by a third-party who
found film boxes with descriptions of pornographic content. Id. The third-party turned the
boxes over to the FBI who viewed the films without a warrant. Id. The defendant faced
1004               THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol.   38:993

ceed that of the third party's search. 68 The plurality reasoned that
the incompletion of the third party's search is not an invitation for
government officials to strip the defendant of his remaining privacy
expectations in the package.
  Taken together, Chadwick and Walter define the fourth amendment
right afforded to a privacy interest in a sealed container. 70 The
Court clearly recognized that a container housing personal effects
affords a high level of fourth amendment protection. In a third-
party search, this protection will only be diminished by the scope of
intervening circumstances. 7 1 Both Chadwick and Walter exemplify
subjective expectations of privacy that accord the individual full
fourth amendment protection.

2.    The objective prong: expectation of privacy not recognized as reasonable
   In post-Katz decisions addressing the objective prong of the Katz
standard, the Supreme Court clarified the relevance of public expo-
sure to an expectation of privacy analysis. 7 2 In Smith v. Maryland,
the Court considered whether the government's use of the tele-
phone company's pen register to record telephone numbers from a
suspect's home was an intrusion on his reasonable expectation of
privacy. 74 The Court asserted that because the telephone com-

charges of violating federal obscenity laws based on the FBI's search. Id. The Supreme Court
asserted that the scope of the private-party search did not diminish the defendant's actual or
subjective expectations of privacy. Id. at 658.
    68. Id. at 659.
    69. Id. at 659 n.13 (citing that partial invasion of privacy does not authorize total
    70. See supra notes 61-64 and accompanying text (outlining recognition of privacy inter-
est in container).
    71. Walter v. United States, 447 U.S. 649, 656-57 (1980) (stating incomplete third party
search does not diminish defendant's remaining expectation of privacy).
    72. See O'Connor v. Ortega, 480 U.S. 709 (1987) (holding employee's "reasonable ex-
pectation of privacy" must turn on case-by-case analysis because of great variety in work envi-
ronments in public sector); California v. Ciraolo, 476 U.S. 207 (1986) (clarifying objective
prong of Katz test by asking whether government's intrusion violates societal values); Oliver v.
United States, 466 U.S. 170 (1984) (holding petitioner had reasonable expectation of privacy
in his field; it was not "open field"); Michigan v. Clifford, 464 U.S. 287 (1984) (declaring
second prong of Katz is essentially objective and is one that society is prepared to recognize as
reasonable); United States v. Knotts, 460 U.S. 276 (1983) (holding person traveling in auto-
mobile on public highway has no reasonable expectation of privacy in his movements); Doe v.
Renfrow, 451 U.S. 1022 (1981) (declaring school's use of trained police dog was not violation
of petitioner's reasonable expectation of privacy); Smith v. Maryland, 442 U.S. 735 (1979)
(stating society not willing to recognize privacy interest in telephone numbers dialed); Cioffi
v. United States, 419 U.S. 917 (1974) (reading Katz to require electronic monitoring to be
conducted only pursuant to warrant); Cardwell v. Lewis, 417 U.S. 583 (1974) (stating that
even though knowing exposure to the public may not be subject to fourth amendment protec-
tion, driving on public roads does not waive one's constitutional rights to be free of unreason-
able searches).
    73. 442 U.S. 735 (1979).
    74. Smith v. Maryland, 442 U.S. 735, 737 (1979). A pen register is a device installed by
1989]                            Californiav. Greenwood                                   1005

pany's monthly bill reflected the telephone numbers the defendant
dialed, he knew or should have known that the numbers were plainly
visible to a third party. 75 Accordingly, the Court ruled that an ex-
pectation of privacy in telephone numbers exposed to a third party
is unreasonable. 7 6 Similarly, the Court refused to recognize an indi-
vidual's explicit manifestation to gain privacy because the objective
of privacy remained within the public's view. 7 7 In California v.
Ciraolo,78 the Court addressed the aerial search of Ciraolo's fenced-
in backyard. 79 The Court held that society could not honor
Ciraolo's expectation of privacy, despite his overt manifestation of
such an expectation because "any member of the flying public" eas-
ily could have viewed his property.8 0 Accordingly, the Court ruled
that society would consider the degree of police intrusiveness to be
reasonable. '
   Unfortunately, the dispositive factors that comprise the objective
prong of the Katz test are not all readily apparent.8 2 Post-Katz cases

the telephone company which discloses only the numbers that have been dialed from a partic-
ular phone. Id. at 741. The pen register does not pick-up conversations. Id.
    75. Id. at 743-44.
    76. Id. at 742.
    77. See supra note 25 (describing plain view exception).
    78. 476 U.S. 207 (1986).
    79. California v. Ciraolo, 476 U.S. 207 (1986). In Ciraolo, the police investigated a tip
that marijuana was growing in Ciraolo's backyard; however, when they arrived, they found a
10-foot high fence. Id. at 209. To enhance their view, the police flew a plane over the defend-
ant's property and then spotted the marijuana field. Id.
    80. Id. at 213-14.
    81. Id. at 214. In 1986, the Court decided another aerial surveillance case, Dow Chem.
Co. v. United States, 476 U.S. 227 (1986). In Dow, the Environmental Protection Agency
arranged a flyover to inspect the Dow Chemical Company's plant. Dow, 476 U.S. at 227.
Although Dow had an elaborate security system which necessitated the flyover for an inspec-
tion, the Court analogized the industrial plant to an open field, an intrusion into which society
would recognize as reasonable. Id.
   The Supreme Court earlier had applied similar reasoning in electronic surveillance deci-
sions. See United States v. Knotts, 460 U.S. 276, 278 (1983). In Knotts, the police placed a
beeper into a package being delivered to an illegal drug laboratory. Id. The police were able
to monitor the travels of the package by tracing the signals from the beeper. Id. at 278-79.
The Court held that use of the beeper signals, which traced the movement of the package on a
public highway, constituted a reasonable search. Id. at 282. The Court reasoned that the
fourth amendment did not prohibit police from augmenting their natural sensory faculties.
Id. (citing United States v. Lee, 274 U.S. 559, 563 (1927) (stating that use of searchlight is aid
to officers and is not prohibited by fourth amendment)).
   The Court also has refused to protect an evplicit manifestation of privacy in open fields. See
United States v. Oliver, 466 U.S. 170 (1984). In Oliver, the defendant posted a "No Trespass-
ing" sign on a gate leading to his field. Id. at 178. Police disregarded the sign, searched the
defendant's field, and found marijuana plants. Id. at 173-74. The Court premised its holding
on historical and contemporary interpretations of the fourth amendment that did not recog-
nize protection of open fields, regardless of the expectations of privacy one displayed, be-
cause society did not have an interest in protecting the privacy of activities in open fields. Id.
at 176-81.
    82. Compare Note, Expectation of Privay, supra note 57, at 288 (stating that seven factors
can be gleaned from Katz privacy analysis: (1) defendant's own conduct, (2) strength of physi-
cal barriers; (3) number of people with access; (4) number of people outside enclosure; (5)
1006               THE AMERICAN UNIVERSITY LAW REVIEW                         [Vol. 38:993
emphasize the public's ability to plainly see the item or enclosure in
question. 3 The Court has also stated that it considers societal
norms, law, and the intent of the framers of the Constitution when
applying the objective prong of the Katz test.

                D. Post-Katz: Warrantless Searches of Garbage
   Prior to Greenwood v. California, 5 the Supreme Court was silent on

the application of the Katz doctrine to warrantless searches of
trash. 86 This lack of directive from the Supreme Court resulted in
lower courts' continued reliance on traditional property based con-
cepts. 8 7 The majority of post-Katz cases involving warrantless
searches of trash were decided based on an abandonment analysis
with few jurisdictions applying the Katz analysis.

1.   Abandonment analysis
   The abandonment doctrine is based on the property law concept
that once an individual relinquishes his property, the one who first
takes possession of the property is the new owner.8 9 The Supreme
Court applied such an abandonment analysis for discarded effects in
Abel v. United States.90 In Abel, the Court held that it was lawful for
the police to seize the contents of a hotel room wastepaper basket
because the petitioner's departure indicated an abandonment of
those articles. 9 1 The Court applied the abandonment doctrine in a
literal property sense, by distinguishing relinquishment of physical
control of an item is the basis of intent. 9 2 The Court found that the
petitioner had intended to abandon the items in the wastepaper bas-

social inhibitions; (6) sensory enhancing; and (7) defendant's control of enclosure) and Wil-
kins, supra note 31, at 1080 (citing three interrelated inquiries in Katz standard: (1) place of
intrusion; (2) nature and degree of intrusion; and (3) object of surveillance) with DiPippa,
supra note 57, at 597 (stating Court has supplied little guidance to determine expectation of
privacy standard).
    83. California v. Ciraolo, 476 U.S. 207, 212 (1986).
    84. See O'Connor v. Ortega, 480 U.S. 709, 715 (1987) (stating that Court has no "talis-
man" to determine expectation of privacy; however, Court considers intention of framers of
fourth amendment, uses to which individual puts location, and recognition that certain areas
deserve most scrupulous protection from government invasion).
    85. 108 S. Ct. 1625 (1988).
    86. California v. Greenwood, 108 S. Ct. 1625, 1630 (1988).
    87. Id.
    88. See infra note 94 (describing abandonment cases).
    89. See C. BERGER, LAND OWNERSHIP AND USE 643-45 (1968) (describing doctrine of
ownership for abandoned property). Compare Hester v. United States, 265 U.S. 57, 58 (1924)
(finding that intrusion is not search if items abandoned in flight) with Rios v. United States,
365 U.S. 253, 262 (1960) (holding that dropping package in cab is not abandonment).
    90. 362 U.S. 217 (1960).
    91. Abel v. United States, 362 U.S. 217, 241 (1960). The petitioner did not check out of
the hotel room. Rather, he left to escape the police. Id.
    92. Id.
1989]                             California v. Greenwood                                     1007

ket because he had vacated the hotel room to avoid police prior to
the search.
   Abel, however, was decided before Katz, and with the genesis of
the Katz reasonable expectation analysis, one would have expected
the lower courts to employ the Katz test, not a property based analy-
sis, to warrantless trash searches. Several lower courts, however,
continued to apply an abandonment analysis to warrantless searches
of trash.
   A decision representative of the lower courts' strict application of
the abandonment doctrine is United States v. Terry. 9 5 In Terry, the
police searched the defendant's daily trash, which he left for collec-
tion on the sidewalk. 9 6 The search of the trash yielded enough in-
formation to incriminate the defendant. 9 7 The United States Court
of Appeals for the Second Circuit noted that had the defendant in-
tended to retain control over his trash he would have taken more
precautions to preclude inspection. 98 Accordingly, the Second Cir-
cuit held that absent a demonstration of intent to maintain physical
control over the trash container, the act of placing trash at curbside
for pick-up was abandonment and a voluntary relinquishment of
fourth amendment protection. 99

    93. Id.
    94. See United States v. De la Espriella, 781 F.2d 1432, 1437 (9th Cir. 1986) (holding that
garbage placed outside for collection is abandoned property); United States v. Vahalik, 606
F.2d 99 (5th Cir. 1979) (asserting that act of placing garbage out for collection is act of aban-
donment which terminates any reasonable expectation of privacy in trash); Magda v. Benson,
536 F.2d 111, 112 (6th Cir. 1976) (per curiam) (concluding that individual has no fourth
amendment privacy right in abandoned property such as garbage); see also United States v.
Mustone, 469 F.2d 970, 972 (Ist Cir. 1972) (stating that implicit in abandonment concept is
relinquishment of any reasonable expectation of privacy).
    95. 702 F.2d 299 (2d Cir.), cert. denied sub nom. Williams v. United States, 461 U.S. 931
    96. United States v. Terry, 702 F.2d 299, 306 (2d Cir.), cert. denied sub nom. Williams v.
United States, 461 U.S. 931 (1983). In Terry, DEA agents suspected Willard Williams of nar-
cotics violations. Id. To corroborate their suspicions, police removed Williams' trash bags
from the sidewalk for a period of six months. Id. The search of the trash produced traces of
cocaine, Williams' personal letters regarding heroin transactions, and financial records of
drug accounts set up for narcotics dealers. Id. Williams subsequently was convicted of nar-
cotics violations. Id. at 307-08.
    97. Id. at 306.
    98. Id. at 309. The court claimed that if the defendant desired to prohibit inspection of
his trash, he should have burned, shredded, or supplied written instructions to this effect. Id.
Moreover, the court asserted the nature of a taped plastic bag does not indicate an intent to
retain privacy. Id.; see Note, Expectation of Privacy, supra note 57, at 301-02 (stating that judicial
review of warrantless search of trash is based on actual physical relinquishment element in
    99. Terry, 702 F.2d at 309.
1008               THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 38:993

2.   The hybrid: an expectation of privacy analysis adopting
   Several federal circuits have applied a hybrid of an expectation of
privacy analysis and an abandonment analysis to warrantless
searches of trash.' 0 0 These courts generally hold that the act of
placing trash at curbside is abandonment and that society would not
recognize a reasonable expectation of privacy in abandoned prop-
erty.' 0 1 A Third Circuit case exemplifying such a hybrid analysis is
United States v. Reicherter.1 2 In Reicherter, the court stated that the
underlying assumption was that trash placed in an area for waste
disposal collection was abandoned. 08 The court reasoned in its ap-
plication of the subjective prong of the Katz standard that it was in-
conceivable that anyone would have an expectation of privacy in
items intended to be discarded. 1 4 The court held that, even if an
individual had a privacy expectation, society would consider such an
expectation to be unreasonable. 1 50

3.   Expectation of privacy analysis
   Although the majority of federal courts apply the property based
abandonment doctrine or the hybrid analysis, the California state
courts frequently apply a strict Katz expectation of privacy analy-
sis.' 0 6 In People v. Krivda,1 7 a California state court recognized a

   100. In United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978), cert. denied, 440 U.S. 959
(1979), the Fourth Circuit held there is no reasonable expectation of privacy in trash placed
out for collection unless special arrangements have been made for its disposal. Id. at 1025.
The Seventh Circuit held that an individual's expectation of privacy in garbage is not entitled
to the same constitutional protections that a privacy expectation in land receives. United
States v. Kramer, 711 F.2d 789, 793 (7th Cir.), cert. denied, 464 U.S. 962 (1983). In Kramer, the
court reasoned that the fourth amendment protects an individual's privacy interests in peace
and quiet, relaxation, and public esteem, and the police seizure of garbage on private prop-
erty offends none of these interests. Id. at 794. In United States v. Michaels, 726 F.2d 1307
(I Ith Cir. 1985), the Eleventh Circuit held that because the defendant placed his garbage in
an area open to public inspection, he could not have any reasonable expectation of privacy in
those items. Michaels, 726 F.2d at 1313. In United States v. Thorton, 746 F.2d 39 (D.C. Cir.
1984), the United States Court of Appeals for the District of Columbia held that there is no
reasonable expectation of privacy in trash. Thorton, 746 F.2d at 49.
   101. See supra note 100 and accompanying text; infra notes 102-05 and accompanying text
(outlining hybrid approach).
   102. 647 F.2d 397 (3d Cir. 1981).
   103. United States v. Reicherter, 647 F.2d 397, 399 (3d Cir. 1981). The police collected
defendant's trash on three separate occasions while posing as trash collectors and then pro-
ceeded to conduct a search of the container. Id. at 398.
   104. Id. at 399.
   105. Id. The Court determined reasonableness based on the ease of public accessibility to
items one no longer intends to retain. Id.
   106. The first California state case in which a court applied an expectation ofprivacy anal-
ysis was People v. Edwards, 71 Cal. 2d 1096, 458 P.2d 713, 80 Cal. Rptr. 633 (1969). In
Edwards, the police, acting on a tip, searched three trash cans near Edwards' back door and
found marijuana. Edwards, 71 Cal.2d at 1098-99, 458 P.2d at 714, 80 Cal. Rptr. at 634. The
California Supreme Court suppressed the evidence and held that the search violated the de-
1989]                            Californiav. Greenwood                                   1009

subjective expectation of privacy in a container of trash.' 0 8 In
Krivda, the court considered whether the defendants had a reason-
able expectation of privacy in trash cans placed on the street. 0 9
Noting that the accessibility of the trash to the public did not dimin-
ish the Krivdas' expectation of privacy, the court held that the
Krivdas sought to preserve their privacy by sealing the containers of
trash and that the court must recognize this expectation of privacy
as reasonable.'10 The court concluded that the personal nature of
the contents in a container of trash and the potential for police
abuse gave the court reason enough to recognize the Krivdas' pri-
vacy interest."'
   The approach in Krivda is representative of other California
courts' application of the Katz expectation of privacy standard to a
search of trash.' 1 2 For example, the Greenwood case originated in the

fendant's reasonable expectation of privacy because the trash was located within the curtilage
of his home. Id. at 1099,458 P.2d at 715-18, 80 Cal. Rptr. at 635. In explaining its reasoning,
the court declared that the defendant did not abandon the trash, and that an expectation of
privacy continued to exist in a container that was set out for disposition. Id., 458 P.2d at 715-
18, 80 Cal. Rptr. at 635.
   107. 5 Cal. 3d 357, 486 P.2d 1262, 96 Cal. Rptr. 62 (1971), cert. denied, 412 U.S. 919
   108. People v. Krivda, 5 Cal. 3d 357, 363-64, 486 P.2d 1262, 1268-69, 96 Cal. Rptr. 62,
68-69 (1971), cert. denied, 412 U.S. 919 (1973). In Krivda, the police conducted surveillance of
the Krivdas' home for suspected drug activity. Id. at 358, 486 P.2d at 1263, 105 Cal. Rptr. at
63. The police, to corroborate their suspicions, instructed the trashmen to empty their truck's
garbage bin and to proceed to pick up only the Krivdas' trash and hand it over to them. Once
completed, the police examined the contents one block away and found evidence of narcotics
use. Id., 486 P.2d at 1263, 105 Cal. Rptr. at 63.
   109. Id. at 364-67, 486 P.2d at 1269-72, 96 Cal. Rptr. at 69-72.
   110. Id. at 363-64, 486 P.2d at 1268-69, 96 Cal. Rptr. at 68-70. The court noted that
ordinances governing trash disposal often compelled one to place trash barrels on the street.
Id. at 366 n.7, 486 P.2d at 1268 n.7, 96 Cal. Rptr. at 68 n.7. Thus, placement of the barrels on
the street did not convey any intent to expose the garbage to the public but was in compliance
with the law. Id. at 366, 486 P.2d at 1268, 96 Cal. Rptr. at 68.
   111. Id. at 363, 486 P.2d at 1268, 96 Cal. Rptr. at 68-69. The court relied on the dictum
of the decision in Edwards, which addressed the potential embarrassment of revealing one's
trash. Id., 486 P.2d at 1268; 96 Cal. Rptr. at 68-69.
   112. See People v. Rooney, 175 Cal. App. 3d 634, 641, 221 Cal. Rptr. 49, 53 (1985), cert.
dismissed, 107 S. Ct. 2852 (1987) (per curiam). In Rooney, the police rummaged through a
communal garbage bin and found a brown bag that contained mail addressed to the defend-
ant. Id. at 639, 221 Cal. Rptr. at 52. The police went through the mail and concluded that the
defendant was conducting bookmaking operations. Id., 221 Cal. Rptr. at 51. The court held
that the search was unreasonable and stated that the focus of an expectation of privacy analy-
sis was not the location of the item but the reasonableness of an individual's privacy expecta-
tion. Id. at 645, 221 Cal. Rptr. at 56. Justice Brennan referred to Rooney in California v.
Greenwood, stating that a "property interest [in trash] does not settle the matter for fourth
amendment purposes, for the reach of the fourth amendment is not determined by state prop-
erty law." California v. Greenwood, 108 S. Ct. 1625, 1634-35 (1988) (Brennan, J., dissent-
   In addition to the California courts' approach, a Hawaiian state court in State v. Tanaka, 67
Haw. 658, 701 P.2d 1274 (1985), faced the question whether police may search and seize
trash contained in opaque bags without a warrant. Id. at 661, 701 P.2d at 1276. The Hawai-
ian court utilized a test similar to the Katz two-prong test. Id., 701 P.2d at 1276. The court
found that the defendant sealed the opaque container, which demonstrated an actual expecta-
1010              THE AMERICAN UNIVERSITY LAW REVIEW                         [Vol. 38:993
California courts and was similarly decided.' 3 The Supreme Court
in Greenwood, however, rejected the Krivda rationale and found no
expectation of privacy in a container of trash.'

                         II.    CALIFORNIA      v.   GREENWOOD

                               A.    FactualBackground
   In early 1984, the Laguna Beach Police Department received a tip
that a truck containing illegal drugs was enroute to the Laguna
Beach residence of William Greenwood. 1 5 Several days later, one
of Greenwood's neighbors complained that there was heavy late
night traffic in front of the Greenwood home and that a rental truck
was parked outside the home. 1 16 A police surveillance of Green-
                                                  1 17
wood's home confirmed the neighbor's report.
   Based upon the surveillance, the police instructed the neighbor-
hood trash collector to separate out Greenwood's trash and turn it
over to the police for inspection. 1 8 Over the next two months, po-
lice searches of Greenwood's trash produced enough evidence in-
dicative of narcotics use for the police to obtain a warrant to search
Greenwood's home. 119 During the police search of Greenwood's
home, the police discovered quantities of cocaine and hashish. 120 A
police officer then arrested Greenwood on felony narcotics
charges. 12 ' Greenwood subsequently posted bail and was
   After Greenwood's release, the police conducted a second series
of searches of his garbage based on new reports of many late night
visitors to Greenwood's home. 123 Again, the garbage contained evi-
dence indicative of narcotics use, sustaining a second search warrant

tion of privacy. Id. at 661-62, 701 P.2d at 1276. The court acknowledged that it derived the
reasonableness standard from the Hawaiian state constitution rather than from federal deci-
sions. Id. at 662, 701 P.2d at 1276-77. In Tanaka, the court recognized that permitting police
searches of trash containers without a warrant would invade the privacy of Hawaiian citizens.
Id., 701 P.2d at 1276-77.
   113. California v. Greenwood, 108 S. Ct. 1625, 1627 (1988).
   114. Id.
   115. Id.
   116. People v. Greenwood, 182 Cal. App. 3d 729, 732, 227 Cal. Rptr. 539, 542 (1986),
rev'd, 108 S. Ct. 1625 (1988).
   117. California v. Greenwood, 108 S. Ct. 1625 (1988).
   118. Id. at 1627. A county ordinance required Greenwood to place his garbage on the
curb at least once a week and prohibited Greenwood from burning or otherwise destroying
his refuse. Id. at 1636-37 (Brennan, J., dissenting) (citing Orange County Codes). The trash
collectors did not search Greenwood's trash container. Id. at 1637.
   119. Greenwood, 182 Cal. App. 3d at 432, 277 Cal. Rptr. at 540.
   120. Greenwood, 108 S. Ct. at 1628.
   121. Id.
   122. Id.
   123. Id.
19891                           California v. Greenwood                                  1011

for Greenwood's home.1 24 After finding more narcotics and evi-
dence of narcotics trafficking, the police arrested Greenwood for the
second time.
  A California superior court determined that the police obtained
the evidence against Greenwood illegally and dismissed the charges
against him.1 26 The court explained that warrantless trash searches
violated the fourth amendment and that the police would not have
had probable cause to search Greenwood's home without the evi-
dence from the trash searches.' 27 The prosecution appealed to the
California Court of Appeals which affirmed the superior court's de-
cision.12 8 The California Supreme Court denied the state's petition
for review. 129 The United States Supreme Court, however, granted
a petition for writ of certiorari to review the holding of the Califor-
nia court.13 0
   In a six-two decision, the Supreme Court reversed the California
Court of Appeals. 3 1 The Court held that the fourth amendment
did not recognize a privacy interest in a container of trash placed
outside the curtilage of the home. 32 The Court concluded that
leaving one's trash for collection voluntarily conveyed and exposed
the contents of trash to the public and to the police.' 3 3 In so con-
cluding, the Court held that society would not recognize Green-
wood's expectation of privacy as reasonable.

                                  B.     Court's Analysis
1.      Majority holding
   Writing for the majority, Justice White first addressed the asser-
tion that Greenwood exhibited an expectation of privacy in the trash
he placed outside the curtilage of his home for disposal.' 3 5 The
Court conceded that Greenwood may have had a subjective expecta-

   124. Id.
   125. Id. at 1627-28.
   126. Id. at 1628.
   127. Id.
   128. People v. Greenwood, 182 Cal. App. 3d 729, 734, 227 Cal. Rptr. 539, 542 (1986),
rev'd, 108 S. Ct. 1625 (1988).
   129. California v. Greenwood, 108 S. Ct. 1625, 1629 (1988).
     130.   Id.
  131. Id. Justice White wrote the majority opinion. Id. Justice Brennan, joined by Justice
Marshall, dissented. Id. at 1631-37. Justice Kennedy did not participate in the decision. Id. at
  132. Id. at 1629.
  133. Id. at 1631.
  134. Id. at 1625.
   135. Id. at 1628. The dissent pointed out that the majority properly rejected the state's
attempt to distinguish trash searches on the theory of abandonment and premised its analysis
on the two-prong expectation of privacy standard. Id. at 1634 (Brennan, J., dissenting).
1012                THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 38:993

 tion of privacy in the trash, but explained that a subjective expecta-
 tion of privacy was irrelevant because the fourth amendment only
 protected objective expectations of privacy, as measured by what so-
 ciety would consider as reasonable. 13 6 The Court concluded that
 society did not recognize as reasonable an expectation of privacy in
                                            1 7
 trash which was accessible to the public.
    To support its conclusion, the Court cited three factors.1 3 8 First,
 the Court acknowledged that society. recognizes that garbage bags
 are accessible to snoops, animals, and children. 1 9 Second, the
 Court observed that the voluntary surrender of trash to a third
 party, such as the garbage collector, renounces control over the
 property.140 Third, the Court noted that it could not expect the po-
 lice to avert their eyes from information or an object that is readily
                                                 14 1
 accessible to the public and to a third party.
    Justice White supported the Greenwood holding with the expecta-
 tion of privacy analyses set forth in Smith v. Maryland14 2 and Califor-
 nia v. Ciraolo. 14 3 The emphasis of these Supreme Court decisions
 was that exposure of an activity clearly visible to the public dimin-
 ished a reasonable expectation of privacy. 14 4 In addition, the Court
 explained that an overwhelming number of lower courts had re-
jected fourth amendment protections for trash. 14 Accordingly, the

   136. Id. at 1628.
   137. Id. at 1628-29.
   138. Id.
   139. Id. The Court stated "it is common knowledge that plastic garbage bags left on or at
the side of a public street are readily accessible to animals, children, scavengers, snoops, and
other members of the public." Id. The Court cited, as support for its dictum, a North Dakota
state case in which a neighborhood dog dragged the defendant's trash from his yard to a
neighbor's yard, after which the neighbor allowed the police to search the trash. Id. at 1628
(citing State v. Ronngren, 361 N.W.2d 224 (N.D. 1985)). The Court also cited an incident in
which a reporter seized the garbage bags of then-Secretary of State Henry Kissinger and
searched them as support for the Court's statement that trash on the street is accessible to
"snoops." Id. (citing Wash. Post, July 9, 1975, at A1, col. a (criticizing journalists' practice of
picking through trash although recognizing such as common practice)).
   140. Id. at 1629.
   141. Id. The Court also supported its conclusion by quoting the following dictum from
Katz v. United States, 389 U.S. 347, 351 (1967): "What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth Amendment protection."
Greenwood, 108 S. Ct. at 1629.
   142. 442 U.S. 735 (1979). The Court relied on Smith to demonstrate that the fourth
amendment does not protect information given to third parties. California v. Greenwood,
108 S. Ct. 1625, 1629 (1988). In Smith the Court held that an individual had no expectation of
privacy in the telephone numbers he voluntarily conveyed to a third party such as the tele-
phone company. Smith v. Maryland, 442 U.S. 735, 743 (1979). See supra notes 73-76 and
accompanying text (discussing Smith decision).
   143. 476 U.S. 207 (1986). The Ciraolo decision provided that fourth amendment protec-
tion was not afforded to activities in a yard that was exposed to any member of the flying
public. California v. Ciraolo, 476 U.S. 207, 213-14 (1986). See supra notes 77-81 and accom-
panying text (discussing decision in Ciraolo ).
   144. Greenwood, 108 S. Ct. at 1629.
   145. Id. at 1629-30. The majority of federal cases that the Court relied on for support
1989]                           Californiav. Greenwood                                   1013

Court found that society would not recognize a privacy right in trash
outside the curtilage of the home; therefore, the warrantless trash
searches provided probable cause to sustain the search warrants for
Greenwood's home.1

2.    The dissent
   In his dissent, Justice Brennan asserted that the majority substan-
tiated its holding on an incomplete and inaccurate expectation of
privacy analysis. 1 4 7 Justice Brennan first noted that prior Supreme
Court decisions extended fourth amendment protection to contain-
ers.' 48 Justice Brennan further stressed that fourth amendment pro-
tection afforded to containers was not contingent upon the owner's
intent to transport or dispose of the property. 14 9 Accordingly, he
argued that the contents of daily refuse were sufficiently personal to
be regarded as effects within the fourth amendment context and
should receive the same fourth amendment protections as do the
contents of other containers.
  Justice Brennan then refuted the majority's holding that society
would not recognize Greenwood's privacy interest in trash as rea-
sonable.' 5 1 He explained that Greenwood took sufficient steps to
preserve his privacy and therefore did not knowingly expose the
contents of the trash to the public.' 52 Moreover, Justice Brennan
emphasized that reasonable expectations of privacy were based on
social customs. 153 Citing local laws that prohibited snooping and

were decided on the doctrine of abandonment, which the Court rejected in the instant case.
   146. Id. at 1631.
   147. Id. at 1634-37 (Brennan, J., dissenting).
   148. Id. at 1632 (Brennan, J., dissenting). Justice Brennan noted that the Court acknowl-
edged the sanctity of a closed container as early as 1878. Id. (citing ExparleJackson, 96 U.S.
727 (1878)). Justice Brennan concluded, -[i]n short, so long as a package is 'closed against
inspection,' the Fourth Amendment protects its contents, 'wherever they may be,' and the
police must obtain a warrant to search it just 'as is required when papers are subjected to
search in one's own household.'" Id.
   Moreover, with the emergence of the Katz reasonable expectation standard, the Court has
reaffirmed the individual's right to reasonable expectation of privacy in closed containers. Id.
(citing United States v. Ross, 456 U.S. 798, 822 (1982) (stating that there is no constitutional
distinction between "worthy" and "unworthy" containers); Robbins v. California, 453 U.S.
420, 426 (1981) (holding that unless container contents are in plain view, they are protected
by fourth amendment); Arkansas v. Sanders, 442 U.S. 753, 766 (1979) (upholding expectation
of privacy in small unlocked suitcase); United States v. Chadwick, 433 U.S. 1, 11 (1977) (find-
ing expectation of privacy in locked footlocker)).
   149. Id. at 1634 (Brennan, J., dissenting).
   150. Id. at 1634-35 (Brennan, J., dissenting) (citing California v. Rooney, 107 S.Ct. 2852,
2859 (1987) (White, J., dissenting) (quoting prominent archaeologist Emil Haury, who said,
"If you want to know what is really going on in a community, look at its garbage.")).
   151. Id. at 1632 (Brennan, J., dissenting).
   152. Id. at 1635 (Brennan,J., dissenting).
   153. Id. 1635-36 (Brennan,J., dissenting).
1014               THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 38:993

noting a societal repulsion towards garbage snooping, Justice Bren-
nan deduced that Greenwood's privacy interest was legitimate.
In conclusion, Justice Brennan stated that the majority failed to real-
ize that society indeed would recognize a privacy interest in trash as
reasonable.' 5 5

                                       III.       ANALYSIS

   The Supreme Court incorrectly held in Greenwood that the fourth
amendment does not protect an expectation of privacy in a
container of trash. 15 6 The majority's analysis has two flaws. First,
the Court's opinion conflicts with prior case law interpretations of a
subjective expectation of privacy. 15 7 Second, the majority fails to
address social norms and local law in its evaluation of a privacy in-
terest. 158 A consistent and complete application of the expectation
of privacy analysis would have increased the likelihood of an affirma-
tive finding that Greenwood had a privacy right in his trash. 159 A
recognition of a protected privacy interest in a container of trash
would permit the Court to recognize a warrantless search of the re-
fuse as an exception to the warrant requirement. The rationale for
the warrant exception could be based on the refuse's imminent de-
struction and one's lesser expectation of privacy in trash. 160 This

   154. Id. Brennan quoted a local ordinance from Cheektowga, New York that protects
privacy in trash by "prohibit[ing] anyone, except authorized employees of the Town .... to
rummage into, pick up, collect, move or otherwise interfere with articles or materials placed
on . . . any public street for collection." Id.
   The Greenwood decision precipitated quite a bit of public response. For example, a large
percentage of editorials appearing in the major newspapers sharply criticized the decision and
its implications. See, e.g., L.A.D.J., May 23, 1988, at 4, col. 1 (noting Greenwood is constricting
fourth amendment); L.A. Times, May 21, 1988, at 8, col. 1 (asserting that Greenwood carves still
another exception to warrant requirement and is swallowing up fourth amendment); Wash.
Post, May 20, 1988, at A2 1, col. 5 (questioning whether urgency of public hysteria over drug
problem is why Supreme Court shortcut fourth amendment); N.Y. Times, May 18, 1988, at
A30, col. 1 (noting that decision threatens innocent persons' privacy from prying officials,
thereby curtailing freedom of United States citizens).
    155. California v. Greenwood, 108 S. Ct. 1625, 1631-38 (Brennan, J., dissenting).
    156. Id. at 1631 (Brennan, J., dissenting).
    157. Compare id. at 1629 (stating that more people having access to container lessens pri-
vacy interest) with United States v. Chadwick, 433 U.S. 1, 5 (1977) (holding container found in
area of diminished privacy is still afforded full fourth amendment protection) and Katz v.
United States, 389 U.S. 347, 348 (1967) (finding protected privacy right for conversations in
public telephone booth).
    158. See Greenwood, 108 S. Ct. at 1634-35 (Brennan, J., dissenting) (arguing that social
norms and local laws determine privacy rights that society deems reasonable); infra notes 185-
93 and accompanying text (stating that Court should have recognized Greenwood's expecta-
tion of privacy in light of social customs and prior interpretations of privacy).
    159. See Greenwood, 108 S.Ct. at 1633-35 (Brennan,J., dissenting) (concluding that proper
analysis compels finding of reasonable expectation of privacy in trash).
    160. See Carroll v. United States, 267 U.S. 132, 153 (1925) (distinguishing between stan-
dard for search of house and search of mobile vehicle). Trash, like an automobile, is movea-
ble and this characteristic may require police to act immediately to obtain and preserve
19891                           California v. Greenwood                                  1015

lowered level of fourth amendment protection would require a
probable cause safeguard, thus thwarting arbitrary and capricious
                                                                 16 1
police intrusions while preserving effective law enforcement.
The Court's decision not to afford even a limited fourth amendment
protection to a container of trash threatens the right of the Ameri-
can people to be free from unreasonable governmental intrusion.
1.    The Supreme Court decision conflicts with previous interpretationsof the
     expectation of privacy analysis
  The majority's expectation of privacy analysis conflicts with prior
case law determinations of the concept of a protected privacy inter-
est. 162 In particular, the Court's reliance on the proposition that a
public location diminishes privacy is contrary to the Katz treatment
of a public location.163 In Katz, the Court reasoned that a proper
inquiry in a privacy analysis is not the location of the intrusion but
whether the intrusion violated an expectation of privacy the individ-
ual sought to preserve. 164 The Court in Katz, however, recognized
that activities knowingly exposed to the public without any attempt
to ensure privacy do not receive fourth amendment protection. 165
Billy Greenwood sought to preserve his privacy in the contents of
his trash by excluding the uninvited eye through the use of a sealed
opaque plastic bag. 16 6 In Greenwood, the majority mistakenly inter-
prets exposure of the outside of the container as public exposure of
the contents. The Court's application of the facts to an expectation
of privacy analysis defies the substance of the Katz standard.'

evidence. As with the automobile exception, however, the police should be required to have
probable cause before conducting warrantless searches and seizures of trash. See supra note
25 (discussing automobile exception and lowered expectation of privacy).
   16 1. See Salken, supra note 6, at 326-31 (explaining that warrantless search and seizure was
established by Court to avoid destruction of evidence and to safeguard police when they are
faced with exigent and dangerous circumstances).
   162. See California v. Greenwood, 108 S. Ct. 1625, 1633 (1988) (Brennan, J., dissenting)
(stating that precedent unequivocally recognizes privacy interest in sealed opague plastic
bags). The Supreme Court in Greenwood rejected the traditional application of the abandon-
ment doctrine to warrantless searches of trash and selected the expectation of privacy analysis
as the proper standard of review. See id. at 1634 (Brennan, J., dissenting) (stating explicitly
that Greenwood majority properly rejected state's argument for abandonment standard of re-
view); see also supra notes 89-94 and accompanying text (discussing abandonment approach).
   163. Compare Greenwood, 108 S. Ct. at 1628 with Katz v. United States, 389 U.S. 347, 351-52
(1968) (extending privacy beyond protected areas by recognizing right to personal privacy).
   164. Katz, 389 U.S. at 351-52.
   165. Id.
   166. Greenwood, 108 S. Ct. at 1628-29.
   167. Id. The majority application of an expectation of privacy resembles the Silverman
constitutionally protected area analysis. In Katz the Supreme Court overruled the constitu-
tionally protected area analysis based on the reasoning that the fourth amendment protects
people not areas. Katz, 389 U.S. at 351. The Greenwood Court failed to afford protection to
Billy Greenwood because the area in which he placed the trash was accessible to the public.
Greenwood, 108 S. Ct. at 1628.
1016                THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 38:993
   To support its holding, the majority also pointed to the post-Katz
decisions of Smith v. Maryland 16 and United States v. Ciraolo.' 69 The

Court misinterpreted the reasoning of these decisions. The ration-
ale of both of these post-Katz decisions was that an expectation of
privacy is diminished when one exposes incriminating evidence in
plain view to the public or third party. 170 In Greenwood, the narcotics
and paraphernalia that the police found in Greenwood's trash were
in an opaque trash bag and therefore were not plainly visible to the
public. 17' Additionally, a third party, the trash collector, was only
exposed to the exterior of the bag, but at no time initiated steps to
view the bag's content, therefore never plainly seeing the incrimi-
nating evidence. 1
   The majority's focus on public location disregards the well-estab-
lished privacy interests in a container. 173 The Supreme Court, in
several cases, has extended full fourth amendment protection to a
container regardless of its worth or location. 174 Previous cases
demonstrate that the Court has interpreted the fourth amendment
to protect personal effects from unwarranted intrusions. 75 The
contents of trash are personal effects; they can reveal intimate and

   168. 442 U.S. 735 (1979). The Court's reliance on Smith is distinguishable on its facts.
Greenwood, 108 S. Ct. at 1629. In Smith, the telephone company provided the police with infor-
mation from company records. See supra notes 74-75 and accompanying text (discussing Smith
holding and relevant facts). In Greenwood, however, the trash collector was responsible for
collecting the trash bags and disposing of them in the county dump without opening them.
See Brief for Respondent, supra note 14, at 10 (arguing that Greenwood had reasonable expec-
tation of privacy in trash because collector's duty was to dispose of trash in county dump).
   169. 476 U.S. 207 (1986). The aerial surveillance in Ciraolo merely enhanced the officers'
vision of evidence that was in plain view from that particular air space. See supra notes 79-81
and accompanying text (discussing Ciraolo). In contrast, the two-month systematic opening
and searching of sealed containers in Greenwood cannot be classified as a mere enhancement of
police senses. See Greenwood, 108 S. Ct. at 1631 (Brennan,J., dissenting). The Court's use of
the open view/public access standard is, therefore, improper.
   170. See United States v. Ciraolo, 476 U.S. 207, 214 (1986) (holding that plain visibility to
flying public diminishes privacy expectations in backyard); Smith v. Maryland, 442 U.S. 735,
742 (1979) (noting that telephone numbers were detailed on monthly bill by telephone com-
panies and in plain sight of employees).
   171. Greenwood, 108 S. Ct. at 1631 (Brennan,J., dissenting). The trash collector did not
open the trash container before providing it to the police. See Brief for Respondent, supra
note 14, at app. 7.
   172. Id. See supra notes 66-71 (discussing third party searches).
   173. Greenwood, 108 S. Ct. at 1636 (Brennan,J., dissenting) (stating "[wlhat a person...
seeks to preserve as private, even in an area accessible to thepublic, may be constitutionally pro-
tected.") (quoting Katz v. United States, 389 U.S. 347, 351-52 (1967) (emphasis supplied)).
   174. In container search cases the Supreme Court has repeatedly asserted that an individ-
ual has an expectation of privacy in a sealed container regardless of its nature. See United
States v. Ross, 456 U.S. 798, 822 (1982) (stating that there is no distinction between "worthy"
and "unworthy" containers); Robbins v. California, 453 U.S. 420, 427 (1981) (upholding ex-
pectation of privacy in green opaque plastic wrapping); Arkansas v. Sanders, 442 U.S. 764,
766 (1979) (finding expectation of privacy in unlocked suitcase); United States v. Chadwick,
433 U.S. 1 (1977) (recognizing expectation of privacy in locked footlocker).
   175. See California v. Greenwood, 108 S. Ct. 1625, 1633 (Brennan,J., dissenting) (discuss-
ing container searches rationales in affording full fourth amendment protection).
19891                           Californiav. Greenwood                                   1017

private matters about an individual's lifestyle. 176 Further, an ex-
plicit manifestation of privacy, such as sealing the drug parapherna-
lia in a container of trash, seeks to exclude the uninvited eye and
reveals intent to preserve privacy.
   In Greenwood, the majority formulated a new interpretation of pri-
vacy by disregarding case law. 178 If the majority had applied the
proper expectation of privacy analysis used for containers coupled
with the proper public location analysis, the Court would have rec-
ognized Greenwood's privacy interest in his garbage. 79 Greenwood
also represents the potential revival of the constitutionally protected
area analysis that the Court overruled in Katz. 180 The Court's hold-
ing substantially relies on a property based interpretation of the
fourth amendment and resembles the constitutionally protected
area test. 81 Further, the Court substantiates its holding with a
plethora of lower court cases that utilize the abandonment doctrine,
a doctrine which defies the Katz rationale of basing privacy on rea-
sonable expectations rather than on property concepts.' 8 2 By defy-
ing Katz and reverting to a property-based construction, the Court
significantly narrows the concept of fourth amendment privacy
rights. 18 3 The Court's incomplete expectation of privacy analysis
and inconsistent application of prior interpretations of public expo-
sure is further flawed by the Court's disregard for social customs. 1

2.   Social customs

    The Court's silence on social norms and customs exacerbates the
 flaws in the Greenwood decision. The only consideration that the ma-
jority gave to societal customs is a statement that trash exposed to
 the public invites snooping; therefore, Greenwood has no expecta-

   176. See id. at 1634 (Brennan, J., dissenting).
   177. Id. at 1633 (Brennan, J., dissenting).
   178. See Gewitz, Precedentand the Rehnquist Court, THE NEw REPUBLIC, Oct. 24, 1988, at 13.
   179. See supra notes 173-77 and accompanying text (arguing that Court disregarded prece-
dent by failing to properly analyze privacy expectation in container).
   180. The Court in Greenwood concerned itself more with the location of the trash than with
the steps Greenwood took to preserve privacy. See Greenwood, 108 S. Ct. at 1628.
   181. See supra notes 3 1-36 and accompanying text (discussing property based construction
of fourth amendment).
   182. Greenwood, 108 S. Ct. at 1629.
   183. Id. The Katz decision expanded fourth amendment protection beyond property in-
terests. See Katz v. United States, 398 U.S. 347, 353 (1968) (stating that fourth amendment
protects people and not places; therefore, fourth amendment may protect individual from
search even in public place). The Greenwood decision does not address the Katz subjective
prong with any sincerity and its holding is based on a constitutionally protected area analysis.
Seemingly, the Court's intent is to overrule Katz. DiPippa, supra note 57, at 604-21.
   184. See California v. Greenwood, 108 S. Ct. 1625, 1635 (1988) (Brennan, J., dissenting).
1018               THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 38:993
tion of privacy that society would deem reasonable.1 8 5 In his dis-
sent, Justice Brennan sharply refuted the majority's reliance on
public access to deny a reasonable privacy interest and correctly
stressed that the element of reasonableness is composed of societal
understanding of local laws and social customs. 8 6 For example, in
Orange County, where Greenwood resided, a penal ordinance di-
rects that county residents dispose of trash through the county sani-
tation system at least once a week, rather than burning or burying
refuse.' 8 7 An action compelled by law is within the realm of social
customs and norms. 18 8 These customs and norms translate into so-
cietal expectations of privacy that encompass the right to be free
from arbitrary and capricious police intrusions when complying with
local laws.' 8 9 Because county law compelled Greenwood to dispose
of his trash through the county's sanitation service, society would
expect that Greenwood would retain his privacy expectations in
such items. 1 09

   In addition to local laws, social norms shape expectations of pri-
vacy that society deems reasonable.' 9 ' The majority contends, pos-
sibly correctly, that society recognizes that snooping is a recurrent
problem, but the majority then incorrectly concludes that members
of society condone such behavior and that a reasonable individual
would consider the problem of snooping before placing her garbage
out for collection. 192 Reaction to the Greenwood decision and the
public outrage that occurred after other similar well-publicized
snoopings suggest that society does not view garbage snooping as

3.    The Court should recognize a limited privacy interest in trash
  The Greenwood decision invites unregulated police surveillance of
America's daily refuse, thus implicitly narrowing the freedoms em-
bodied in the fourth amendment.' 94 Prior interpretations of the

   185. See id. at 1628-29 (explaining that garbage bags left in public street are readily acces-
sible to animals and people).
   186. See id. at 1636 (Brennan, J., dissenting) (stating that had Greenwood flaunted con-
tents of trash container for all to see any expectation of privacy would be unreasonable).
   187. Id. at 1636-37 (Brennan, J., dissenting).
   188. Id.
   189. Id.
   190. Id. at 1637 (Brennan, J., dissenting).
   191. See id. at 1635 (Brennan, J., dissenting).
   192. Id. at 1637 (Brennan, J., dissenting).
   193. See id. at 1635 (Brennan, J., dissenting) (discussing public outrage after reporter
snooped in Henry Kissinger's garbage and reported contents). See supra note 154 (discussing
reaction to trash snooping).
   194. Id. at 1637 (Brennan, J., dissenting). This fear is expressed in State v. Tanaka, 67
Haw. 658, 662, 701 P.2d 1274, 1276-77 (1985). The court in Tanaka held that the warrantless
19891                            Californiav. Greenwood                                   1019

fourth amendment have afforded full protection to the curtilage of
the home, 9 5 luggage, 19 6 and a brown paper bag. 19 7 The Court in
Greenwood, however, affords no protection to a container of trash.
   Lower courts might construe the majority's silence on container
searches as a narrowing of fourth amendment protections for less
worthy containers located in a public setting. 198 A logical extension
of this proposition would be the gradual depreciation of constitu-
tional protections to other containers housing personal effects, such
as luggage.' 9 9
   The Court could have advanced its fourth amendment analysis by
finding a limited privacy protection for trash. 200 The limited stan-
dard would be proper because of the highly moveable nature of a
container of trash and the exigencies imminent destruction cre-
ates. 2 0 ' Like the automobile exception, the Court should have al-
lowed a warrantless exception based on a demonstration of
probable cause and exigencies of the circumstance. 20 2 The Court's
adoption of such a rule would preserve the efficiency of law enforce-
ment while maintaining the individual's reasonable expectation of
privacy. 20 3 Further, the probable cause requirement would protect

search and seizure of garbage was illegal. Tanaka, 67 Haw. at 658, 701 P.2d at 1276. Justice
Hayashi stated "[i]f we were to hold otherwise, police could search everyone's trash bags on
their property without any reason and thereby learn of their activities, associations and be-
liefs." Id., 701 P.2d at 1277.
    195. See United States v. Dunn, 480 U.S. 294, 301 n.4 (1987) (explaining that framers'
meaning of home included area surrounding home). U.S. CONsT. amend. IV.
   196. See United States v. Chadwick, 433 U.S. 1, 11 (1977) (holding that expectation of
privacy in footlocker is reasonable).
    197. See United States v. Ross, 456 U.S. 789, 822 n.30 (1982) (citing United States v.
Robbins, 453 U.S. 420, 427 (198 1) (explaining that an expectation of privacy has been recog-
nized in brown paper bag)).
    198. See California v. Greenwood, 108 S. Ct. 1625, 1629 (1988) (stating that susceptibility
to snooping and accessibility to third parties diminishes reasonable expectation of privacy).
   199. See United States v. Paulino, 850 F.2d 93, 96 (2d Cir. 1988) (finding no right of
privacy existed under rubber mat in automobile). The court in Paulino relied on Greenwood in
finding that although Paulino had a subjective expectation of privacy, his expectation was
unreasonable. Id. Moreover, the court found it relevant that the automobile was in a high
crime area. Id.; see also United States v. Lovell, 849 F.2d 910, 912 (5th Cir. 1988) (citing
Greenwood and holding trained dog sniffing luggage at airport is not intrusion in area pro-
tected by fourth amendment).
   200. See supra notes 23-114 and accompanying text (discussing fourth amendment analysis
and limited expectation of privacy when destruction of evidence is imminent).
   201. See Vale v. Louisiana, 399 U.S. 30, 35 (1970) (stating goods in process of destruction
can be seized on probable cause without warrant); Salken, supra note 6, at 327 (noting that
courts find warrantless action justifiable when imminent destruction of evidence constitutes
exigent circumstance).
   202. See Carroll v. United States, 267 U.S. 132, 162 (1925) (holding exigent circumstances
coupled with probable cause that automobile contained contraband made warrantless search
   203. See Brief of Respondent, supra note 14, at 25 (stating when individual has exhibited
reasonable expectation of privacy in trash, police should only be able to seize it on showing of
probable cause); see also Note, The Needfor a HigherStandardof Exigency as Prerequisite ll'arrant-
1020              THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 38:993

society against arbitrary and capricious police searches.


   Californiav. Greenwood represents a retreat from prior privacy de-
cisions expanding the fourth amendment to protect the individual's
personal privacy interests, not just her property interests. The
Supreme Court's abandonment ofjudicial protection for a personal
privacy expectation in trash effectively invites arbitrary and capri-
cious surveillance of the American citizenry's trash. In Greenwood,
the Court shirks its role as constitutional arbiter by foregoing an
attempt to recognize a lowered expectation of privacy which would
effectively satisfy personal privacy and compelling governmental in-
terests. The unfortunate ramification of the decision is that Green-
wood explicitly and implicitly narrows personal privacy and trashes a
measure of constitutional protection.

less Vehicle Searches, 71 IowA L. REv. 1161, 1164-68 (1986) (discussing Court's rationale for
warrantless searches).

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