
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.                                          ______________                                _____________________               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  between so-called  private and  public garbage.   The          sole  issue  presented by  this  appeal  is  whether  the  Fourth          Amendment prohibits the warrantless seizure and reconstruction of          shredded  documents  found  in  trash bags  located  outside  the          curtilage of appellee's house.  Otherwise  stated, we must decide          whether   the  shredding   of   private   documents  attaches   a          constitutionally  recognizable  privacy expectancy  which follows          the shredded remnants, individually and  collectively, even after          they become public garbage.   Relying on California v. Greenwood,                                                   __________    _________          486   U.S.  35  (1988),  the  district   court  answered  in  the          affirmative and suppressed  the evidence.   We conclude that  the          trial court misinterpreted Greenwood and reverse its ruling.                                     _________                                          I                    Appellee was suspected by  the Internal Revenue Service          ("IRS") of involvement in  a scheme to defraud the  United States          through  the  filing of  false income  tax  returns.   IRS agents          systematically seized  and combed  through garbage bags  left for          collection in front  of appellee's house.   Their search revealed          numerous shredded  documents reduced  to 5/32 inch  strips, which          when   painstakingly   pieced  together   produced  incriminating          evidence.  The agents  then used this  evidence as the basis  for          establishing probable cause  to request various search  warrants.          The search warrants  were issued and  executed, and the  searches          garnered additional  evidence used to secure  appellee's 47 count                                         -2-          indictment for violation of  18 U.S.C.   287.  Appellee  moved to          suppress  the reconstructed  documents  as well  as the  evidence          seized  pursuant to the search warrants.  Appellee argued that by          shredding   the  documents  he   had  manifested  an  objectively          reasonable expectation of privacy  in the shredded remnants which          was  protected  by  the   Fourth  Amendment,  a  contention  that          convinced the district court.                    Both parties  to this  appeal as well  as the  district          court rely on  the same  case as authority  for their  respective          positions,  California v.  Greenwood, supra.   This  seminal case                      __________     _________  _____          decided  that   the  Fourth  Amendment  does   not  prohibit  the          warrantless  search and  seizure of  garbage left  for collection          outside the curtilage  of a home,  except "if respondents  [have]          manifested a  subjective expectation of privacy  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.   More important is the fact that                                __          at the  time the challenged evidence  came into the hands  of the          authorites,  it  was public  trash.    That is,  irrespective  of                               ______          whether  appellee intended  to  keep secret  the contents  of the          documents  in question by shredding  them, there can  be no doubt          that  appellee  also  intended  to dispossess  himself  of  those          documents once they were  shredded, and to place their  fractured          remnants in a  public area accessible  to unknown third  parties.          The  shredded documents were deposited  in a public  place and in                                         -3-          the  control of third parties, without any limitation as to their          use.   Trash collectors and others were  at liberty to dispose of          the trash in  any manner they  saw fit.   They were also free  to          rummage through  the garbage  and explore its  contents, whatever          that might be.  Any analysis of the expectation of privacy in the          contents  of  the  garbage  must take  into  consideration  these          realities.  Thus, it is appropriate to call the evidence at issue          "public"  trash because  it was  trash left  for collection  in a          public  place  and  over  which  its  producer  had  relinquished          possession.                    Greenwood recognizes that the  search of trash left for                    _________          collection in  a public place  does not  offend societal  values.          Id.  Therefore, appellee  should have been forwarned that  he did          ___          not  have a legitimate  expectation of  privacy once  his private          garbage  went into  a public  place because  the contents  of the          garbage bags  would not be exempt  from public scrutiny.   As the          Court stated in Greenwood:                          _________                      [H]aving  deposited  their garbage  in an                      area   particularly  suited   for  public                      inspection  and, in a manner of speaking,                      public   consumption,  for   the  express                      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,  304 (1987)  (erection of ranch  type fences in  an          open field  does not create a  constitutionally protected privacy          interest); United States v. Lamela, 942 F.2d 100 (1st Cir. 1991);                     _____________    ______                                         -4-          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  entitled to elevated "expectation of          privacy"  respecting the trash).   Other circuits agree with this          view  of the  Fourth  Amendment.   See,  e.g., United  States  v.                                             ___   ____  ______________          Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (warrantless search of          _______          garbage within the curtilage of the  home permissible because the          garbage was readily  accessible to the public); United  States v.                                                          ______________          Hedrick,  922  F.2d  396  (7th Cir.  1991)  (garbage  within  the          _______          curtilage  of a  home  may be  searched  without a  warrant  when          accessible to the public).                                         III                    In our view, a person who places trash at a  curb to be          disposed of or destroyed  by a third person abandons  it1 because          "[i]mplicit in  the concept of  abandonment is a  renunciation of          any reasonable expectation of privacy in the property abandoned."          United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972).  The          _____________    _______          fact  that  the abandoned  property  was  partially destroyed  by          shredding,   although   constituting   evidence   of   appellee's          subjective desire or hope that  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).                                         __________________                                         -5-          the public domain.   Had the shredded  remnants been placed in  a          pile on  the curb in front of the house, or even more doubtfully,          had  an errant  breeze blown  shredded documents  from appellee's          desk into  the street into  the open window  of a passing  police          car, the government would  certainly have been free to  seize the          incriminatory evidence without a warrant, and to use its contents          without  limitation against  appellee.   United  States v.  Dunn,                                                   ______________     ____          supra;  United States  v. Oliver,  466 U.S.  170, 177  (1984) (no          _____   _____________     ______          expectation of privacy  in open fields and  thus Fourth Amendment          inapplicable);  United States  v. Fahey, 769  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.      There   is   no          constitutional protection from police  scrutiny as to information          received from a failed attempt at secrecy.  See Florida v. Riley,                                                      ___ _______    _____          488 U.S.  445, 449-51 (warrantless surveillance  by helicopter of          partially covered greenhouse, valid); California v.  Ciraolo, 476                                                __________     _______          U.S. 207, 212-15 (1986)  (warrantless aerial surveillance of yard          enclosed by 10  foot fence,  valid); Dow Chemical  Co. v.  United                                               _________________     ______          States,  476 U.S. 227, 239 (1986) (taking aerial photographs of a          ______          factory from navigable airspace, valid).                    Appellee here  thought that  reducing the  documents to          5/32 inch pieces made  them undecipherable.  It turned out he was          wrong.   He is in no better  position than the citizen who merely          tears  up a  document by  hand and discards  the pieces  into the                                         -6-          sidewalk.  Can there be any doubt that the police  are allowed to          pick up  the pieces  from the  sidewalk for  use of the  contents          against that person?   Should the mere use of  more sophisticated          "higher" technology  in attempting  destruction of the  pieces of          paper  grant  higher  constitutional  protection  to  this failed          attempt at  secrecy?  We  think not.  There  is no constitutional          requirement that police techniques in the detection of crime must          remain  stagnant while  those intent  on keeping  their nefarious          activities secret  have the  benefit of  new knowledge.  A person          who  prepares incriminatory  documents in a  secret code  [or for          that  matter in  some obscure  foreign language],  and thereafter          blithely discards them as  trash, relying on the premise  or hope          that  they  will   not  be  deciphered  [or  translated]  by  the          authorities  could well be in  for an unpleasant  surprise if his          code is "broken" by the police  [or a translator is found for the          abstruse language],   but he cannot  make a valid claim  that his          subjective  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  conscious acceptance by  the actor of          obvious  risk factors.  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.   In both situations the expectation of privacy has been          practically  eliminated  by  the   citizen's  own  action.    Law          enforcement officials  are entitled to apply  human ingenuity and          scientific advances to collect freely available evidence from the          public domain.                    The  mere  fact  that appellant  shredded  his  garbage          before  he  placed it  outside  of  his home  does  not create  a          reasonable heightened  expectation  of privacy  under the  Fourth          Amendment.   Appellant still discarded  this garbage  in an  area          particularly suited  for public  inspection and consumption.   At          most, appellant's actions made it likely that  most third parties          would  decline  to  reconstitute  the shredded  remnants  into  a          legible whole.  The  Fourth Amendment, however, does  not protect          appellant  when a third party  expends the effort  and expense to          solve the jigsaw puzzle created by shredding.                    The test  for determining legitimacy  of an expectation          of  privacy "is  not whether  the individual  chooses to  conceal          assertedly private activity, but instead whether the government's          intrusion  infringes  upon  the   personal  and  societal  values          protected by the Fourth Amendment."   California v. Ciraolo,  476                                                __________    _______          U.S. at 212.   The ultimate question in this respect is "whether,          if  the particular form of  [conduct] practiced by  the police is          permitted  to go  unregulated  by constitutional  restraints, the                                         -8-          amount of  privacy and  freedom  remaining to  citizens would  be          diminished to a compass  inconsistent with the aims of a free and          open society."   United States  v. Henderson, 940  F.2d 320,  322                           _____________     _________          (8th  Cir. 1991).    For the  reasons  stated, and,  we  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.                    ________     ________                                         -9-
