People v. Krivda

¶1I join in the opinion of the majority that a motion to suppress illegally seized evidence, made pursuant to Penal Code section 1538.5, may not be renewed prior to trial, following expiration of the 30-day period with which to seek extraordinary relief. I do not agree, however, that the area protected by the Fourth Amendment proscription of unreasonable searches and seizures encompasses parkways immediately adjacent to public thoroughfares or pedestrian walkways or *368that the police action enlisting the assistance of the authorized trash collectors in separately picking up trash placed at the curb for pickup transmuted the collection into an unreasonable seizure. Moreover, in my view, a householder has neither a reasonable expectation of privacy as to his curbside trash, nor a right to expect that his trash will be commingled with that .of others before it is subject to examination, governmental or otherwise. Whatever his hope may be as to the ultimate disposition, of his trash, it does not, in my view, rise to a “reasonable expectation of privacy.”1

¶2I do not question the proposition enunciated in People v. Edwards, supra,71 Cal.2d 1096 [80 Cal.Rptr. 633, 458 P.2d 713], that trash cans immediately adjacent to a home, in a place to which the general public is not invited, are within a “constitutionally protected area” (Hoffa v. United States (1966) 385 U.S. 293, 301 [17 L.Ed.2d 374, 381, 87 S.Ct. 408]) as to which the owner may reasonably expect privacy from governmental intrusion. That expectation, however, is inextricably bound up in the physical location of the trash cans. I cannot accept the proposition that either Edwards or the Constitution compels extension of protection to trash cans to those placed adjacent to or on a public thoroughfare, nor do I find any constitutional compulsion for the newly developed doctrine of “commingled trash.”

¶3The majority purport to find support for their conclusion that the police invaded defendants’ reasonable expectation of privacy as to their trash container in Katz v. United States, supra, 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], where the court held that electronic eavesdropping on a telephonic conversation violated the defendant’s privacy on which he justifiably relied. Since Katz, however, the court has further refined the constitutionally justifiable expectations which are protected by the Fourth Amendment. In United States v. White (1971) 401 U.S. 745 [28 L.Ed.2d 453, 91 S.Ct. 1122], the court emphasized the continued viability of Hoffa v. United States, supra, 385 U.S. 293, and prior cases approving various means by which governmental agents or informers, using electronic equipment, record or transmit their conversations with wrongdoers who believe the conversation will remain private. If Whiteand Katzhave any applicability in areas other than electronic eavesdropping, it is in their holdings that an actual expectation of privacy based on a belief that a confederate or one believed to be a confederate will not reveal a defendant’s secrets, is not a constitutionally justified expectation of privacy *369protected by the Fourth Amendment. In Whitethe court explained: “Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubts he has, the risk is his.” (401 U.S. at p. 752 [28 L.Ed.2d at p. 459].) Surely the defendant who discards his trash and places it at the curb to be picked up must also assume the risk that the collector of the rubbish may be an agent of the police or may permit the police to examine the unconglomerated trash once it is picked up. A “constitutionally justifiable expectation of privacy” need not extend to the well of a trash truck.

¶4We need not adopt the position of the Second Circuit that trash placed at curbside for pickup may be characterized as “abandoned” (U.S. v. Dzialak (2d Cir. 1971) 441 F.2d 212 [9 Crim. L. 2046]) since, whether intended to be abandoned solely to the authorized collector or not, it is neither in a constitutionally protected area nor the subject of a constitu- - tionally justifiable expectation of privacy.

¶5I would reverse the judgment.

¶6McComb, J., and Sullivan, J., concurred.

¶7Appellant’s petition for a rehearing was denied August 16, 1971. Wright, C. J., McComb, J., and Sullivan, J., were of the opinion that the petition should be granted.