USCA1 Opinion

September 22, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-2289
UNITED STATES OF AMERICA,
Appellant,
v.
ALAN N. SCOTT,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Torruella and Stahl, Circuit Judges,
______________
and Hornby,* District Judge.
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_____________________

Mark W. Pearlstein, Assistant United States Attorney, with

___________________
whom Wayne A. Budd, United States Attorney, was on brief for
______________

appellant.
Charles P. McGinty, Federal Defender Office, for appellee.
__________________

____________________
____________________

____________________
*

Of the District of Maine, sitting by designation.

TORRUELLA, Circuit Judge.

_____________

Constitutionally

speaking,

we are concerned here with trying to determine whether there is a

difference
sole

between so-called

issue

presented by

private and

this

appeal

public garbage.

is

whether

the

The

Fourth

Amendment prohibits the warrantless seizure and reconstruction of

shredded

documents

found

in

trash bags

curtilage of appellee's house.

Otherwise

whether

private

the

shredding

constitutionally

of

recognizable

outside

the

stated, we must decide

documents

privacy expectancy

the shredded remnants, individually and

they become public garbage.

located

attaches

which follows

collectively, even after

Relying on California v. Greenwood,

__________
486

U.S.

35

(1988),

the

affirmative and suppressed

district

court

the evidence.

_________

answered

in

the

We conclude that

the

trial court misinterpreted Greenwood and reverse its ruling.

_________
I
Appellee was suspected by
("IRS") of involvement in
through

the

filing of

systematically seized
collection in front
numerous shredded
when

a scheme to defraud the

false income

and combed

tax

The agents

left for

Their search revealed

to 5/32 inch

together

then used this

establishing probable cause

IRS agents

through garbage bags

documents reduced
pieced

United States

returns.

of appellee's house.

painstakingly

evidence.

the Internal Revenue Service

produced

strips, which

incriminating

evidence as the basis

to request various search

The search warrants

were issued and

executed, and the

garnered additional

evidence used to secure

for

warrants.

searches

appellee's 47 count

-2-

indictment for violation of

18 U.S.C.

287.

suppress

documents

as well

seized

the reconstructed

pursuant to the search warrants.

Appellee

moved to

as the

evidence

Appellee argued that by

shredding

the

documents

he

had

reasonable expectation of privacy

was

protected

by

the

manifested

an

objectively

in the shredded remnants which

Fourth

Amendment,

contention

that

convinced the district court.

Both parties
court rely on
positions,
decided

to this

the same

case as authority

California v.
__________

that

warrantless

the

manifested a

Amendment

seizure of
of a home,

as the

for their

Greenwood, supra.
_________ _____

Fourth

search and

outside the curtilage

appeal as well

This

does

district

respective

seminal case

not

prohibit

garbage left

for collection

except "if respondents

subjective expectation of privacy

the

[have]

in their garbage

that society accepts as objectively reasonable."

Id. at 39.
___

II
We

start out with the obvious proposition that what we

are dealing with here is trash.

__
at the

time the challenged evidence

authorites,
whether
documents
that

it

was public
______

appellee intended

appellee

also

remnants in a

came into the hands

trash.
to

intended

That is,

keep secret

in question by shredding

documents once they were

The

More important is the fact that

irrespective

the contents

them, there can

to dispossess

shredded documents were deposited

himself

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to unknown third
in a public

of

of the

be no doubt

shredded, and to place their

public area accessible

of the

of

those

fractured

parties.

place and in

the

control of third parties, without any limitation as to their

use.

Trash collectors and others were

the trash in

any manner they

rummage through
that might be.
contents

of

realities.
"public"
public

the garbage

saw fit.

at liberty to dispose of
They were also free

and explore its

to

contents, whatever

Any analysis of the expectation of privacy in the

the

garbage

must take

into

consideration

these

Thus, it is appropriate to call the evidence at issue

trash because

place

and

it was

over

trash left

which

its

for collection

producer

had

in a

relinquished

possession.
Greenwood recognizes that the
_________
collection in

a public place

Id.
___

Therefore, appellee

not

have a legitimate

garbage

went into

garbage bags

does not

search of trash left for

offend societal

should have been forwarned that

expectation of

a public

privacy once

place because

would not be exempt

from public scrutiny.

[H]aving deposited their garbage in an

area
particularly suited
for public
inspection and, in a manner of speaking,
public
consumption, for
the express

he did

his private

the contents

Court stated in Greenwood:

_________

values.

of the

As the

purpose of having strangers take it,

(citation omitted), respondents
could
have had no reasonable expectation of
privacy in the inculpatory items that
they discarded.
_________

Id. at 40-41 (emphasis supplied); see also United States v. Dunn,

___
________ _____________
____
480 U.S. 294,
open field

304 (1987)

(erection of ranch

does not create a

type fences in

an

constitutionally protected privacy

interest); United States v. Lamela, 942 F.2d 100 (1st Cir. 1991);
_____________
______
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United States v.
_____________

Wilkinson, 926
_________

F.2d 22, 27

(1st Cir.),

cert.
_____

denied, 111 S. Ct. 2813 (1991) (placing trash bags within barrels
______
inside defendant's lawn not
privacy"
view

entitled to elevated "expectation of

respecting the trash).

of the

Fourth

Amendment.

Other circuits agree with this

See,
___

e.g., United States

____ ______________

v.

Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (warrantless search of
_______
garbage within the curtilage of the
garbage was readily

home permissible because the

accessible to the public); United States v.

______________

Hedrick,
_______
curtilage

922

F.2d

of a

home

396

(7th Cir.

may be

1991)

searched

(garbage

without a

within
warrant

the

when

accessible to the public).

III
In our view, a person who places trash at a
disposed of or destroyed
"[i]mplicit in

by a third person abandons

the concept of

abandonment is a

curb to be

it1 because

renunciation of

any reasonable expectation of privacy in the property abandoned."

United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972).
_____________
_______
fact

that

shredding,

the abandoned
although

property

constituting

subjective desire or hope that

was

partially destroyed

evidence

of

The

by

appellee's

the contents be unintelligible to

third parties, does not change the fact that it is as a result of

appellee's

own actions that the

shredded evidence was placed in

____________________

1
Although appellee contends that the Supreme Court rejected
abandonment as a basis for deciding Greenwood, the above-cited
_________
language in the Greenwood majority opinion, which specifically
_________
refers to discarding inculpatory items, leads us to a different
__________
conclusion. Greenwood, at 40-41. To "discard" is to "abandon,
_________
relinquish, forsake." Rodale, The Synonym Finder, p. 299 (1978).
__________________
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the public domain.

pile on
had

Had the shredded

remnants been placed in

the curb in front of the house, or even more doubtfully,

an errant

desk into

breeze blown

the street into

car, the government would

shredded documents
the open window

from appellee's

of a passing

certainly have been free to

police

seize the

incriminatory evidence without a warrant, and to use its contents

without
supra;
_____

limitation against
United States
_____________

expectation of privacy
inapplicable);

appellee.

v. Oliver,
______

United States v.
______________

466 U.S.

in open fields and

United States
_____________

v. Fahey, 769
_____

170, 177

Dunn,
____

(1984) (no

thus Fourth Amendment

F.2d 829,

838 (1st

Cir. 1985) (no expectation of privacy in open mines).

What we have here

is a failed attempt at

secrecy by

reason of underestimation of police resourcefulness, not invasion

of

constitutionally

protected

privacy.

constitutional protection from police

by helicopter of

partially covered greenhouse, valid); California v.

__________

enclosed by 10
States,
______

no

See Florida v. Riley,

___ _______
_____

445, 449-51 (warrantless surveillance

U.S. 207, 212-15 (1986)

is

scrutiny as to information

received from a failed attempt at secrecy.

488 U.S.

There

Ciraolo, 476
_______

(warrantless aerial surveillance of yard

foot fence,

valid); Dow Chemical Co. v.

_________________

United
______

476 U.S. 227, 239 (1986) (taking aerial photographs of a

factory from navigable airspace, valid).

Appellee here
5/32 inch pieces made
wrong.

thought that

them undecipherable.

He is in no better

tears

up a

reducing the

document by

documents to

It turned out he was

position than the citizen who merely

hand and discards

the pieces

into the

-6-

sidewalk.
pick up

Can there be any doubt that the police

the pieces

from the

against that person?

"higher" technology
paper

grant

attempt at

sidewalk for

Should the mere use of

in attempting

higher
secrecy?

are allowed to

use of the

more sophisticated

destruction of the

constitutional

protection

We

There

think not.

contents

to

pieces of

this failed

is no constitutional

requirement that police techniques in the detection of crime must

remain

stagnant while

activities secret
who
that

those intent

have the

they

authorities

will

not

be

their nefarious

new knowledge.

documents in a

some obscure

blithely discards them as

that

benefit of

prepares incriminatory
matter in

on keeping

secret code

foreign language],

could well be in

[or

translated]

for an unpleasant

[or for

and thereafter

trash, relying on the premise

deciphered

A person

or hope
by

the

surprise if his

code is "broken" by the police

abstruse language],
subjective

[or a translator is found for the

but he cannot

make a valid claim

that his

expectation in keeping the contents private by use of

the secret code [or language]

was reasonable in a constitutional

sense.
In our

view, shredding garbage

and placing it

in the

public domain subjects it to the same risks regarding privacy, as

engaging

in a private conversation in public where it is subject

to the possibility

that it

may be overheard

by other

persons.

Both are failed attempts at maintaining privacy whose failure can

only

be attributed to the

obvious

risk factors.

conscious acceptance by

the actor of

In the case of the conversation, the risk

-7-

is that conversation in a public area may be overheard by a third

person.

In

the disposal of

trash, the risk

is that it

may be

rummaged through and deciphered once it leaves the control of the

trasher.
practically

In both situations the expectation of privacy has been

eliminated

enforcement officials

by

the

citizen's

are entitled to apply

own

action.

Law

human ingenuity and

scientific advances to collect freely available evidence from the

public domain.
The
before

he

mere

fact

placed it

reasonable heightened
Amendment.

that appellant

outside

of

his home

expectation

for public

decline

to

legible whole.
appellant

not create

this garbage

in an

area

At

most third parties

the shredded

remnants

Fourth Amendment, however, does

when a third party

Fourth

inspection and consumption.

reconstitute

The

garbage

under the

most, appellant's actions made it likely that

would

his

does

of privacy

Appellant still discarded

particularly suited

shredded

expends the effort

into

not protect

and expense to

solve the jigsaw puzzle created by shredding.

The test
of

privacy "is

for determining legitimacy

not whether

the individual

of an expectation
chooses to

conceal

assertedly private activity, but instead whether the government's

intrusion

infringes

upon

the

personal

protected by the Fourth Amendment."

U.S. at 212.
if

societal

values

California v. Ciraolo,
__________
_______

476

The ultimate question in this respect is "whether,

the particular form of

permitted

and

to go

[conduct] practiced by

unregulated

by constitutional
-8-

the police is

restraints, the

amount of

privacy and

diminished to a compass
open society."
(8th

freedom

citizens would

be

inconsistent with the aims of a free and

United States
_____________

Cir. 1991).

remaining to

For the

v. Henderson, 940
_________
reasons

stated, and,

F.2d 320,
we

322

believe,

following the strictures of Greenwood, such dangers are not found

_________
in the present case.

The decision of the district court is reversed and this

case is remanded for action consistent with this opinion.
Reversed and remanded.
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________

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