                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0180
                             Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS WRIGHT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Adam Sauer,

District Associate Judge.



       Nicholas Wright appeals the denial of his motion to suppress. AFFIRMED.




       Colin Murphy of Gourley Rehkemper Lindholm, P.L.C., West Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



       Considered by Bower, C.J., and Greer and Ahlers, JJ.
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BOWER, Chief Judge.

       Nicholas Wright appeals the denial of his motion to suppress evidence

obtained from warrantless “trash rips.”1 Because Wright’s trash was left in an open

container in the alley for the express purpose of garbage collection, we conclude

collection of that trash by law enforcement did not violate his constitutional right to

be free from unreasonable searches and seizures.

I. Background Facts and Proceedings.

       In August 2017, Clear Lake Police Officer Brandon Heinz received

information that someone named “Beef” was selling drugs near Rookie’s Bar in

Clear Lake. Wright lived near Rookie’s Bar, and his nickname is “Beef.”

       On September 11, at approximately midnight, Officer Heinz went to Wright’s

residence and observed two unlidded trash cans “at the edge of the alley behind

the residence,” where trash cans were lined up for pick-up later that morning.

Officer Heinz collected trash bags from Wright’s garbage containers and

transported them to the police station. In the trash, Officer Heinz found poppy seed

packages and ripped up t-shirt squares with brown stains. He submitted the seeds

and fabric squares to the department of criminal investigations (DCI) lab for testing.

The DCI lab confirmed the seeds were from a poppy plant, one of the three t-shirt

squares submitted for testing was positive for morphine, and the other two squares

were positive for morphine and cocaine. Officer Heinz conducted similar trash




1Trash rips, pulls, or grabs refer to the practice of obtaining and sifting through a
person’s trash. See, e.g., United States v. Jackson, 728 F.3d 367, 369–70 (4th
Cir. 2013) (analyzing whether a trash pull was conducted within the curtilage of the
defendant’s apartment).
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pulls on November 6 and 20 at about midnight before the scheduled garbage pick-

up. He found similar items in the trash bags.

      Officer Heinz applied for a search warrant of Wright’s residence, detailing

the three trash rips and the evidence obtained from them. The warrant issued and,

when executed, police found marijuana and prescription medicine for which Wright

had no prescription. Wright was charged with possession of a prescription drug

without a prescription, possession of marijuana, and possession of a schedule II

controlled substance.

      Wright filed a motion to suppress the evidence obtained from the garbage

cans asserting:

             (1) [Wright] manifested a subjective expectation of privacy in
      the contents of his garbage containers wherever they are located on
      his property.
             (2) Society has accepted his expectation of privacy as
      objectively reasonable as evidenced by the Clear Lake City Code
      and other similar municipal ordinances across the State of Iowa that
      concern the collection of garbage.
             (3) Clear Lake Police Officer Brandon Heinz physically
      trespassed onto [Wright’s] property three times during a three-month
      period to remove [Wright’s] garbage, thereby obtaining information
      regarding [Wright’s] person, house, papers and effects.
             (4) Officer Heinz searched the contents of [Wright’s] garbage
      containers on each occasion without a warrant.
             (5) Officer Heinz acted with reckless disregard for the truth in
      ultimately applying for the search warrant in this case because he
      omitted a number of facts for the magistrate’s consideration that
      would have cast doubt on probable cause, including, but not limited
      to, the fact that he is not authorized by the City of Clear Lake to
      collect garbage; it is illegal for anyone to scavenge garbage[2]; and
      that he physically trespassed onto [Wright’s] property for this
      purpose.
             (6) When the information illegally obtained by Officer Heinz is
      stricken from the warrant application, the warrant fails for probable
      cause.

2 These assertions relied upon municipal ordinances he noted in the first
unnumbered paragraph of his motion.
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      At the hearing on the motion, Officer Heinz testified that he did not leave the

alley to collect the garbage. He further testified he could see the garbage bags

from his patrol vehicle and there were no lids on the garbage cans. He testified he

touched the garbage cans on two of the trash rips. The district court ruled:

      The evidence clearly establishes that the garbage collected in this
      case was indeed set out for pickup. The garbage can was placed
      right next to the public alley the night before garbage pickup was
      scheduled. This was true on all three occasions. No city agencies
      or the general public were barred from access on the public alley
      where the garbage was collected. [Wright] cannot maintain a
      reasonable expectation of privacy in garbage that has been set out
      to be picked up by a public agency.
              Since [Wright] did not maintain an ongoing reasonable
      expectation of privacy in the abandoned garbage, [his] contention
      that the evidence should be suppressed because the police collected
      the garbage themselves rather than requesting the garbage
      collection company to turn it over to law enforcement is immaterial.
      Once the property has been abandoned, [Wright] relinquishes claims
      of wrongdoing on the part of law enforcement in obtaining that
      abandoned property.

The court found the city ordinance making scavenging unlawful was not relevant

to its analysis. The court denied the motion to suppress.

      Wright filed a motion to enlarge, and the court entered additional findings

and conclusions:

      In [United States] v. Kramer, defendant argued that the police
      trespassed on his property to seize garbage bags. [711 F.2d 789,
      792 (7th Cir. 1983).] In that case, the court had found that police
      removed the garbage bags from inside a knee-high chain fence that
      ran along a street curb. Further, the court found that police had to
      step a few feet upon the outer edge of defendant’s front yard or reach
      across the fence to remove the garbage bags. The court considered
      three factors when analyzing whether police had trespassed upon
      defendant’s property: (1) one’s interest in peace and quiet; (2) one’s
      interest in relaxing in his home, where what he says and does is not
      subject to public scrutiny, and (3) one’s interest in public esteem,
      keeping private intimate matters about oneself. [Id. at 793.] The
      court found that the alleged trespass did not infringe upon any of the
      three interests stated above.
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              By briefly touching the garbage cans, Officer Heinz did not
      threaten the peace and quiet of [Wright’s] home; did not interfere with
      [Wright’s] enjoyment of his front yard or interfere with the weekly
      routine that [Wright] followed in disposing of his garbage; nor did the
      police hear or see things in or near [Wright’s] house when retrieving
      the garbage.
              [Wright], in his brief in support of motion to suppress evidence,
      cites [United States] v. Jones, 565 U.S. 400 (2012), which held that
      installing and using a GPS for monitoring a vehicle’s movement
      constituted a Fourth Amendment search under the “trespass test.”
      The Court in Jones found that a vehicle should receive the same
      degree of protection from government intrusion as a home. A brief
      touching of a garbage can is substantially different than a GPS
      monitoring device being installed on a vehicle. A garbage can
      directly next to a public alley should not receive the same degree of
      protection as a vehicle or home.

      Wright appeals.

II. Scope and Standard of Review.

      “Because this case concerns the constitutional right to be free from

unreasonable searches and seizures, our review of the district court’s suppression

ruling is de novo.” State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011). “We make

an independent evaluation of the totality of the circumstances as shown by the

entire record.”   Id.   “Each case must be evaluated in light of its unique

circumstances.”   State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (citation

omitted).

      “The district court’s findings of fact are binding on appeal if supported by

substantial evidence. Evidence is substantial when a reasonable mind would

accept it as adequate to reach the same findings.” State v. Smith, 926 N.W.2d

760, 762 (Iowa 2019) (citation omitted).3


3“Substantial evidence review is a deferential standard of review; the question is
not whether the evidence supports a different finding but whether the evidence
supports the finding actually made.” Smith, 926 N.W.2d at 762.
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III. Discussion.

         Wright acknowledges that under California v. Greenwood, 486 U.S. 35, 39–

40 (1988), warrantless searches of garbage set out for collection do not violate a

reasonable expectation of privacy. However, Wright asserts that Jones stands for

the proposition that any trespass on his personal effects—including his garbage

set out for collection—violates the Fourth Amendment. Wright reads too much into

Jones.

         “[T]he Fourth Amendment protects people, not places. What a person

knowingly exposes to the public, even in his own home or office, is not a subject

of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351

(1967). In Greenwood, the United States Supreme Court concluded:

         [R]espondents exposed their garbage to the public sufficiently to
         defeat their claim to Fourth Amendment protection. 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. . . . [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,” respondents could have had no
         reasonable expectation of privacy in the inculpatory items that they
         discarded.

486 U.S. at 40–41 (footnotes and citations omitted); see also United States v.

Spotted Elk, 548 F.3d 641, 653–54 (8th Cir. 2008) (citing Greenwood, 486 U.S. at

40–43) (“Police may search trash left outside the curtilage of the house to be

picked up by garbage collectors, because the owners of the trash have abandoned

it.”); United States v. Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (rejecting a

challenge to the denial of a motion to suppress evidence of trash search “even

assuming that the garbage cans were within the curtilage” and noting the “focus
                                          7

under Greenwood is whether the garbage was readily accessible to the public so

as to render any expectation of privacy objectively unreasonable” (citation

omitted)); United States v. Trice, 864 F.2d 1421, 1424 (8th Cir.1988) (“A person

must do more than place trash for collection in a trash can, that the public has

access to, to create an objectively reasonable expectation of privacy.”). Applying

the reasonable-expectation-of-privacy analysis, the Supreme Court concluded

“that society would not accept as reasonable respondents’ claim to an expectation

of privacy in trash left for collection in an area accessible to the public.”

Greenwood, 486 U.S. at 41. The Supreme Court therefore upheld the validity of

the warrantless search and seizure of garbage left out for collection. Id. at 40–41.

       In State v. Henderson, this court observed, “The Fourth Amendment

protects only against the government’s intrusion upon a person’s legitimate

expectation of privacy.” 435 N.W.2d 394, 396 (Iowa Ct. App. 1988). We found the

Greenwood rationale persuasive and agreed with the Supreme Court that

       “society as a whole possesses no such understanding with the
       regard to garbage left for collection at the side of a public street.” We
       determine the use of evidence obtained by searching the defendant’s
       garbage did not intrude upon his legitimate expectation of privacy
       and therefore, was properly considered by the magistrate in issuing
       a search warrant of the defendant’s premises.

Id. at 397 (citation omitted); see also State v. Skola, 634 N.W.2d 687, 690–91

(Iowa Ct. App. 2001). Our supreme court has not overruled these holdings or

intimated it may divert from them. Nor has the legislature taken any action that

would call these rulings into question.

       Wright argues, however, that the later-decided Jones case stands for the

proposition that any trespass on his personal effects—including his garbage
                                           8


containers—constitutes an unreasonable search. Citing local ordinances requiring

that garbage be collected by authorized persons and making it illegal for anyone

to scavenge garbage, Wright asserts society recognizes his subjective expectation

of privacy in his garbage is reasonable.4 Even assuming Wright maintained a

subjective expectation of privacy in his garbage, we are not convinced that the

municipal ordinances to which Wright points embody a societal expectation of

privacy in garbage that would lend credence to his claim. The Greenwood court

rejected the defendant’s assertion that “his expectation of privacy in his garbage

should be deemed reasonable as a matter of federal constitutional law because




4 A case with very similar facts to those presented here was recently decided by
the Minnesota Supreme Court. See State v. McMurray, 860 N.W.2d 686, 689
(Minn. 2015). The Minnesota Supreme Court was asked to determine whether the
state constitution requires greater protection than the Fourth Amendment “in the
context of a warrantless search of garbage set out for collection in an area
accessible to the public.” Id. The Minnesota court noted, “[T]he analysis adopted
in Greenwood was consistent with the decisions of a vast majority of state courts,
including our decision applying the Fourth Amendment in State v. Oquist, 327
N.W.2d 587, 591 (Minn. 1982).” Id. at 691. “[D]uring the last [thirty-two] years, we
have repeatedly held that garbage set out for collection is not protected by the
Fourth Amendment and may be searched without a warrant.” Id. at 692. The court
concluded, “[T]here is no principled basis for interpreting article I, section 10, of the
Minnesota Constitution to afford greater protection against warrantless searches
of garbage set out for collection than the Fourth Amendment to the United States
Constitution.” Id. at 694.
       Like Wright, the McMurray dissenters argued municipal ordinances
pertaining to garbage collection supported the reasonableness of an expectation
that household garbage will remain private from unwarranted inspection by the
government. Id. at 699–700 (Lillehaug, J. dissenting); see also State v. Crane,
329 P.3d 689, 696–97 (N.M. 2014) (“We consider compliance with local
ordinances governing the disposal of household garbage to support the
reasonableness of an expectation that it will remain private from unwarranted
inspection by the government.”).
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the warrantless search and seizure of his garbage was impermissible as a matter

of California law.” 486 U.S. at 43 (considering municipal ordinances).5

       In Jones, the Supreme Court observed:

       Katz . . . established that “property rights are not the sole measure
       of Fourth Amendment violations,” but did not “snuf[f] out the
       previously recognized protection for property.” As Justice Brennan
       explained in [a later] concurrence, Katz did not erode the principle
       “that, when the Government does engage in physical intrusion of a
       constitutionally protected area in order to obtain information, that
       intrusion may constitute a violation of the Fourth Amendment.” We
       have embodied that preservation of past rights in our very definition
       of “reasonable expectation of privacy” which we have said to be an
       expectation “that has a source outside of the Fourth Amendment,
       either by reference to concepts of real or personal property law or to
       understandings that are recognized and permitted by society.”

565 U.S. at 406–08 (citations omitted); see also Florida v. Jardines, 569 U.S. 1, 7–

8 (2013) (stating there is no doubt that the officers entered the curtilage of

defendant’s home because “[t]he front porch is the classic exemplar of an area

adjacent to the home ‘to which the activity of home life extends’” and determining

the entry onto that constitutionally-protected area was without implicit license

(citation omitted)).

       Here, the district court found there had been no physical intrusion into a

constitutionally-protected area.   Accord Jackson, 728 F.3d at 369–70, 374



5 The Greenwood court observed individual states could construe their own
constitutions as imposing more stringent constraints on police conduct. 486 U.S.
at 43. Iowa courts have not concluded the Iowa Constitution provides greater
protection to garbage set out for collection:
       We refuse to depart from the explicit holding in Henderson that
       warrantless garbage searches do not violate our state constitution.
       Based on our precedent and the prevailing opinion of the majority of
       states, we uphold the validity of warrantless garbage searches under
       article I, section 8 of the Iowa Constitution.
Skola, 634 N.W.2d at 690–91 (footnote omitted).
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(concluding “the two-to-three feet between the patio and the common sidewalk,

was not ‘so intimately tied to the home itself that it should be placed under the

home’s “umbrella” of Fourth Amendment protection’” (citation omitted)).6 There

was no evidence Officer Heinz left the public alley to collect any of the garbage.

We agree with the district court that even if Officer Heinz touched the garbage can,

this was not an intrusion akin to attaching a tracking device on a person’s car. The

district court’s findings are supported by substantial evidence and are, therefore,

binding on us. See Smith, 926 N.W.2d at 762.

       Because Officer Heinz did not intrude upon a constitutionally-protected

interest and Wright had no reasonable expectation of privacy in the contents of the

garbage containers left out for collection, we affirm the district court’s denial of his

motion to suppress. We affirm.

       AFFIRMED.




6Cf. State v. Weatherly, No. W2017–01014–CCA–R3–CD, 2018 WL 2263566, at
*4–6 (Tenn. Crim. App. Feb. 6, 2018) (finding an unreasonable intrusion where
police officers collected trash from a can located off the defendant’s driveway and
next to the kitchen door on the side of the defendant’s home).
