                                                              I attest to the accuracy and
                                                               integrity of this document
                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 10:16:01 2014.07.28

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMSC-026

Filing Date: June 30, 2014

Docket No. 33,014

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

KEVYN CRANE,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Stephen K. Quinn, District Judge

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Law Works, L.L.C.
John A. McCall
Albuquerque, NM

for Respondent

                                        OPINION

VIGIL, Chief Justice.

{1}      With this opinion we address whether, pursuant to Article II, Section 10 of the New
Mexico Constitution, Kevyn Crane (Defendant) had a reasonable expectation of privacy in
garbage left out for collection in a motel dumpster. The district court found that Defendant
did have such an expectation, and it entered an order suppressing evidence obtained in the
dumpster, as well as evidence later obtained by a warrant, which it found was the proverbial
fruit of the poisonous tree. The Court of Appeals upheld the district court’s ruling, relying

                                             1
on its holding in State v. Granville, 2006-NMCA-098, 140 N.M. 345, 142 P.3d 933, that
New Mexicans do have a reasonable expectation of privacy in garbage left out for collection,
which requires that the police obtain a warrant prior to searching. We affirm the Court of
Appeals’ ultimate holding, but on slightly different grounds.

I.     BACKGROUND

{2}     Defendant was charged with trafficking controlled substances in violation of NMSA
1978, Section 30-31-20(A)(1) (2006) and possession of drug paraphernalia in violation of
NMSA 1978, Section 30-31-25.1(A) (2001). These charges were based on evidence obtained
by the police, who found evidence of methamphetamine manufacturing in the dumpster of
the Choice Inn in Clovis, New Mexico, where Defendant and Christopher Kidd (“Kidd”)
occupied Room 316. Prior to trial, Defendant moved for the suppression of evidence found
in the dumpster, as well as evidence obtained from Room 316, which was acquired by a
search warrant that was based in part on the evidence recovered from the dumpster. He
argued that the police’s warrantless search of the garbage and subsequent immediate
searches violated his constitutional right to be free of unreasonable searches and seizures.
The district court granted the motion to suppress and entered findings of fact and conclusions
of law. The district court based its reasoning on the following facts.

{3}     On July 14, 2008, the Clovis Police Department received an anonymous call from
a guest of the Choice Inn who reported a strong chemical odor coming from Room 316. In
response, the department dispatched members of the Region V Drug Task Force to
investigate. Agent Waylon Rains was the first to arrive, and upon arrival, he immediately
investigated the area. He was unable to identify any odor without alerting Room 316’s
occupants to his presence, but he identified a car he recognized as Defendant’s parked
outside of the room. Agent Rains then spoke with motel staff, alerting them to the
department’s suspicions. He learned from the motel registry that Room 316 was rented to
Kidd.

{4}     While conducting this preliminary survey of the situation, Agent Rains observed a
male, whom he later identified as Kidd, leave Room 316 and discard an unsealed box in the
motel’s dumpster. Once Kidd returned to the room from the dumpster, Agent Rains retrieved
the box from the dumpster and hid behind an adjacent cinder block wall to inspect its
contents. The unsealed box contained miscellaneous trash and an empty box that previously
contained latex gloves. While Agent Rains was behind the cinder block wall, he heard at
least two more items being deposited into the dumpster. He was not sure who deposited the
items; however, he suspected that they were being thrown out by the same individual from
Room 316, as he did not notice anyone else on the property.

{5}      Agent Rains then retrieved two sealed garbage bags from the dumpster. He testified
that it appeared to him that the bags were black, and that there were also smaller clear bags,
the latter of which may have been inside the former. In either case, he did not know what the
bags’ contents were prior to opening them. Once he did open the bags, Agent Rains noted

                                              2
a strong chemical smell. Notably he could not recall whether he noticed the smell before
opening the bags. Agent Rains discovered evidence of methamphetamine production inside
the bags, including empty packages of pseudoephedrine pills, an empty can of acetone,
empty cans of gas line antifreeze, and several matchbook packages. By that point, Agent
Steven Wright had arrived on the scene, and after reviewing the contents of the trash bags
with Agent Rains, he left to obtain a warrant to search Room 316.

{6}    Shortly after Agent Wright departed, Agent Rains observed as Defendant and Kidd
exited Room 316 with a large suitcase and put the suitcase in a vehicle that had arrived to
meet them. Observing that it appeared that the parties were leaving, Agent Rains made
contact and detained them. He asked for identification from all of the parties, and had to
escort Kidd back into Room 316 to retrieve his identification. Upon entering the room,
Agent Rains immediately noted the same chemical smell as was in the trash bags, but saw
no other evidence of the manufacturing of methamphetamine.

{7}      Agent Wright later returned with a search warrant for Room 316, the vehicle earlier
identified as Defendant’s, and the vehicle that arrived to meet them, in which the suitcase
was placed. The agents found additional manufacturing items and paraphernalia including
digital scales, glass pipes, small plastic bags, muriatic acid, Coleman fuel, acetone, and a jar
of bi-layered liquid. They also found personal letters to Defendant stored in a box in the
motel room closet. On this evidence, Defendant was charged with trafficking
methamphetamine and possession of drug paraphernalia.

{8}     Defendant moved to suppress this evidence prior to trial. He argued that under
Granville, the agents’ warrantless search of the garbage violated his Article II, Section 10
right to be free from unreasonable searches and seizures. The district court granted the
motion, concluding that

       [Defendant] had a reasonable expectation of privacy in [] Kidd’s hotel room,
       and therefore the police could not search the refuse that Kidd threw into the
       dumpster which was not visible, and furthermore, that a warrant for Room
       316 based in large part on what was observed in the trash bags [was] invalid
       and the items found because of the search warrant should be suppressed.

The State appealed the district court’s ruling and the Court of Appeals affirmed.

{9}     The Court of Appeals limited its review, and the parties agreed, “to the
reasonableness of a motel guest’s expectation of privacy in his or her garbage under the New
Mexico Constitution.” State v. Crane, 2011-NMCA-061, ¶ 6, 149 N.M. 674, 254 P.3d 117.
The Court of Appeals also acknowledged that Granville departed from the federal analysis
with respect to garbage searches. Crane, 2011-NMCA-061, ¶ 21. Specifically, it rejected the
State’s arguments that greater public access to motel dumpsters and lesser control over one’s
garbage in dumpsters meant that Defendant had no reasonable expectation of privacy. Id. ¶
22. The Court of Appeals characterized the State’s reasoning as “little more than the Fourth

                                               3
Amendment public accessibility theory . . . that we rejected in Granville.” Crane, 2011-
NMCA-061, ¶ 22.

{10} The Court of Appeals ultimately reasoned that “[b]y placing his garbage in sealed,
opaque bags and depositing it directly in the dumpster provided for motel guests,
Defendant’s actions demonstrated a reasonable expectation that those bags would remain
free from warrantless law enforcement inspection at the place where the garbage is placed
for customary garbage collection.” Id. ¶ 24. Further, “[w]ithout the presence of any other
exception to the warrant requirement, the warrantless search of Defendant’s garbage was
unreasonable under the heightened protections of Article II, Section 10 of the New Mexico
Constitution.” Id. The State now asks us to overrule the Court of Appeals, but we decline to
do so.

II.    DISCUSSION

A.     Standard of Review

{11} At issue in this case is whether Article II, Section 10 of the New Mexico Constitution
prohibits a warrantless search of garbage left for collection in a motel dumpster. “We review
[questions] of statutory and constitutional interpretation de novo.” State v. Ordunez, 2012-
NMSC-024, ¶ 6, 283 P.3d 282 (internal quotation marks and citation omitted).

B.     Article II, Section 10 Provides Greater Protection of Privacy in Garbage Left
       in a Dumpster than the Fourth Amendment

{12} Article II, Section 10 of the New Mexico Constitution states that “[t]he people shall
be secure in their persons, papers, homes and effects, from unreasonable searches and
seizures.” Similarly, the Fourth Amendment to the United States Constitution provides that
“[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” The question before this Court
is whether Defendant’s expectation that the contents of a garbage bag that was put in a motel
dumpster would remain private was reasonable, thereby invoking the protections of Article
II, Section 10 to require that police get a warrant before searching the garbage bag. In
answering this question, we must first determine whether Article II, Section 10 provides
greater protection against warrantless searches of garbage by police than its federal
counterpart. To do so, we adhere to the interstitial approach to constitutional interpretation
set forth in State v. Gomez, 1997-NMSC-006, ¶¶ 19, 22-23, 122 N.M. 777, 932 P.2d 1. The
framework for the Gomez interstitial analysis covers three primary questions: (1) whether
the right asserted by Defendant is protected by the Fourth Amendment to the United States
Constitution; (2) whether Defendant preserved the state constitutional claim in the lower
court; and (3) whether one of three established reasons exists to justify diverging from
federal precedent. Gomez, 1997-NMSC-006, ¶¶ 19, 22. We proceed to address each of these
questions.


                                              4
1.     The right to privacy in garbage left for collection is not protected by the Fourth
       Amendment

{13} To answer the first question of our interstitial analysis, we acknowledge that “[i]t is
well established that the Fourth Amendment does not protect an individual from a
warrantless search of garbage set out for collection.” Granville, 2006-NMCA-098, ¶ 11
(citing California v. Greenwood, 486 U.S. 35, 37 (1988) and United States v. Long, 176 F.3d
1304, 1308 (10th Cir. 1999)). In Greenwood, the United States Supreme Court held that the
police do not violate the Fourth Amendment by searching garbage without a warrant because
society is not prepared to recognize a privacy expectation in garbage as reasonable. 486 U.S.
at 40-41. Thus, the answer to the first interstitial inquiry is that federal jurisprudence does
not establish protection against a warrantless search of garbage left out for collection in a
sealed opaque container by police under the Fourth Amendment.

2.     Defendant adequately preserved his state constitutional claim

{14} The second question in our interstitial analysis is whether Defendant adequately
preserved his claim under our state constitution. When “precedent construes the provision
to provide more protection than its federal counterpart, the claim may be preserved by (1)
asserting the constitutional principle that provides the protection sought under the New
Mexico Constitution, and (2) showing the factual basis needed for the trial court to rule on
the issue.” Gomez, 1997-NMSC-006, ¶ 22. We note, as did the Court of Appeals below, that
Defendant’s motion to suppress was based on his claim that our state constitution protects
his expectation of privacy in the garbage that was placed in the motel dumpster. Crane,
2011-NMCA-061, ¶ 6. Because Defendant’s motion to suppress was based solely on the
state constitution, the Court of Appeals limited its review of his claim on appeal to Article
II, Section 10 of the New Mexico Constitution. Id. Defendant based his motion to suppress
specifically on Granville, which interpreted Article II, Section 10 as providing more
protection of privacy in garbage left out for collection than the Fourth Amendment. 2006-
NMCA-098, ¶ 24. Likewise, the district court relied on Granville in granting Defendant’s
motion to suppress. Therefore, Defendant adequately preserved his constitutional claim
under Article II, Section 10.

3.     Reasons to depart from federal jurisprudence

{15} The third Gomez prong requires us to determine whether at least one of three grounds
exists which would justify departing from federal jurisprudence, namely: (1) the federal
analysis is flawed or undeveloped; (2) structural differences exist between federal and state
government; or (3) distinctive state characteristics exist that would support the departure.
1997-NMSC-006, ¶ 19. “Because some of these factors will be present in virtually every
case . . . [this Court] weigh[s] the relevant considerations in the case at hand to determine
whether they favor elaboration of state constitutional doctrine and to identify the factors
deserving the greatest attention in that elaboration.” Developments in the Law—The
Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1359 (1982)

                                              5
(hereinafter Developments). For the reasons that follow, we consider certain distinct state
characteristics to be adequate grounds upon which to depart from federal jurisprudence and
elaborate on our state search and seizure jurisprudence with respect to garbage searches.

{16} The foremost distinct state characteristic upon which this Court has elaborated New
Mexico’s search and seizure jurisprudence under Article II, Section 10 is “a strong
preference for warrants.” Gomez, 1997-NMSC-006, ¶ 36 (citing Campos v. State,
1994-NMSC-012, 117 N.M. 155, 870 P.2d 117 (Campos II); State v. Gutierrez, 1993-
NMSC-062, 116 N.M. 431, 863 P.2d 1052; State v. Cordova, 1989-NMSC-083, 109 N.M.
211, 784 P.2d 30)). The underlying principle upon which the preference for warrants is
predicated is that “[t]he judicial warrant has a significant role to play in that it provides the
detached scrutiny of a neutral magistrate, which is a more reliable safeguard against
improper searches than the hurried judgment of a law enforcement officer engaged in the
often competitive enterprise of ferreting out crime.” Gomez, 1997-NMSC-006, ¶ 36 (internal
quotation marks and citations omitted). Accordingly, New Mexico courts have long held that
Article II, Section 10 provides greater protection of individual privacy than the Fourth
Amendment. See Granville, 2006-NMCA-098, ¶ 19 (“When interpreting Article II, Section
10, the New Mexico Supreme Court has emphasized its strong belief in the protection of
individual privacy.”); see also State v. Attaway, 1994-NMSC-011, ¶ 24, 117 N.M. 141, 870
P.2d 103 (“Article II, Section 10 embodies the disparate values of privacy, sanctity of the
home, occupant safety, and police expedience and safety.”), holding modified on other
grounds by State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80. We once again
elaborate upon our search and seizure jurisprudence based on our strong preference for
warrants, depart from federal jurisprudence, and hold that Article II, Section 10 provides
greater protection than the Fourth Amendment of the right to privacy in garbage which is
sealed from plain view and placed out for collection.

{17} In reaching this holding, “[w]e reiterate that in exercising our constitutional duty to
interpret the organic laws of this state, we independently analyze the New Mexico
constitutional proscription against unreasonable searches and seizures.” Gutierrez,
1993-NMSC-062, ¶ 16. “The very backbone of our role in a tripartite system of government
is to give vitality to the organic laws of this state by construing constitutional guarantees in
the context of the exigencies and the needs of everyday life.” Id. ¶ 55. Further, we note “that
the role of federal constitutional rights is to ensure a certain minimum level of protection,
a role that is not undermined when states decide that greater levels of protection are
required.” Developments, supra, 95 Harv. L. Rev. at 1359-1360. “When a state court finds
the federal doctrine inadequate, it has a legitimate and compelling reason to elaborate state
doctrine in that area independently.” Developments, supra, at 1360. The United States
Supreme Court acknowledged these principles: “Individual States may surely construe their
own constitutions as imposing more stringent constraints on police conduct than does the
Federal Constitution.” Greenwood, 486 U.S. at 43.

C.      Reasonable Expectation of Privacy Extends to Garbage Discarded Outside a
        Motel Room in a Dumpster Near an Alley

                                               6
{18} Having concluded that the New Mexico Constitution affords a greater protection of
privacy in garbage left for collection than its federal counterpart, we proceed to apply the
two-prong test set out in the seminal case of Katz v. United States, 389 U.S. 347 (1967) to
the facts in this case to conclude that Article II, Section 10 requires police to obtain a warrant
prior to searching garbage. See Akins v. United Steel Workers of Am., 2010-NMSC-031, ¶
15, 148 N.M. 442, 237 P.3d 744 (“In developing a body of state common law, we may look
to federal law for guidance . . . .”). The applicable two-prong test in Katz is summarized in
Justice Harlan’s concurring opinion. 389 U.S. at 361 (Harlan, J., concurring). Justice Harlan
reiterated that “‘the Fourth Amendment protects people, not places,’” and summed up the
majority’s articulation of what protection it affords as setting forth a twofold requirement.
Id. (Harlan, J., concurring). First, “a person [must] have exhibited an actual expectation of
privacy,” and second, “the expectation [must] be one that society is prepared to recognize
as reasonable.” Id. (Harlan, J., concurring). Thus, the Katz two-prong test has both subjective
and objective components.

{19} The Court of Appeals declined to apply the first (subjective) prong of the Katz test
in this case. Instead, it focused solely on the second prong—whether society would
recognize as reasonable an expectation of privacy in garbage. Crane, 2011-NMCA-061, ¶¶
9-10. We disagree with the Court of Appeals’ rationale on this point and hold that both
prongs of the Katz test apply in this case. While the ultimate inquiry may be the
reasonableness of the individual’s expectation of privacy, that objective measure cannot take
place in a vacuum. Without considering whether the facts in a particular case support an
individual’s actual expectation of privacy, there would be nothing to measure society’s
recognition of reasonableness against. “Reasonableness is given life by the factual matrix
in which events take place.” Attaway, 1994-NMSC-011, ¶ 24. Courts should consider
whether a defendant has exhibited an actual or subjective expectation of privacy and whether
such an expectation is one that society is prepared to recognize as reasonable. Katz, 389 U.S.
at 361 (Harlan, J., concurring).

{20} Applying the first subjective Katz prong to the facts in this case, we note that the
garbage was placed in an opaque bag and was sealed from plain view. The opaque garbage
bags were placed directly in the dumpster, rather than being left in the motel room for
disposal by the housekeeping staff. Such conduct reflected an actual expectation that the
contents of the garbage bags would remain private from inspection by others. Accordingly,
we apply the second Katz prong to determine whether Defendant’s expectation of privacy
is reasonable. To answer this question, we rely on the notion that

        The contents of a person’s garbage are evidence of his most private traits and
        intimate affairs. A search of one’s garbage can reveal eating, reading, and
        recreational habits; sexual and personal hygiene practices; information about
        one’s health, finances, and professional status; details regarding political
        preferences and romantic and other personal relationships; and a person’s
        own private thoughts, activities, beliefs, and associations. [A]lmost every
        human activity ultimately manifests itself in waste products[,] and . . . any

                                                7
       individual may understandably wish to maintain the confidentiality of his
       refuse.

Granville, 2006-NMCA-098, ¶ 25 (alterations in original) (internal quotation marks and
citations omitted). The contents of one’s trash reveal the most personal details and nuances
of one’s life. This precept shapes our discourse of whether garbage that is disposed of in a
receptacle that is shared with others renders it acceptable for inspection by police without
a warrant.

{21} When considering this very precept in holding that the Fourth Amendment does not
require a warrant prior to searching garbage left out for collection, the majority’s rationale
in Greenwood was essentially that “[i]t 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.” 486 U.S. at 40 (footnotes omitted). Further,
“respondents placed their refuse at the curb for the express purpose of conveying it to a third
party, the trash collector, who might himself have sorted through respondents’ trash or
permitted others, such as the police, to do so.” Id.” Therefore, because the defendants
“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,” the
Supreme Court held that “respondents could have had no reasonable expectation of privacy
in the inculpatory items that they discarded.” Id. at 40-41 (internal quotation marks and
citation omitted). We disagree with this underlying notion and agree with Justice Brennan’s
dissent in Greenwood that the majority’s analysis is flawed.

{22} The Greenwood dissent artfully articulated the flaw in the majority’s holding that the
defendant’s expectation of privacy was objectively unreasonable by first noting that

       Scrutiny of another’s trash is contrary to commonly accepted notions of
       civilized behavior. I suspect, therefore, that members of our society will be
       shocked to learn that the Court, the ultimate guarantor of liberty, deems
       unreasonable our expectation that the aspects of our private lives that are
       concealed safely in a trash bag will not become public.

Id. at 45-46 (Brennan, J., dissenting). The dissent reasoned, and we agree, that when one
seals garbage in an opaque container, one exhibits a reasonable expectation that the contents
of the sealed, opaque container will remain private until the garbage is inextricably
commingled with other refuse. Id. at 55-56 (Brennan, J., dissenting).

{23} The Greenwood dissent also pointed out that if the defendant in that case had been
transporting the garbage, rather than leaving it out for collection, there is no doubt that the
bag’s contents would have been constitutionally protected from an unwarranted search,
absent some exception to the warrant requirement. Id. at 48 (Brennan, J., dissenting). Simply
because the garbage was left out for collection, rather than transported, the dissent reasoned
that the constitution should offer no less protection. Id. (Brennan, J., dissenting). We agree.

                                              8
Constitutional protections are not to be accorded such arbitrariness so as to be granted to
those persons who have the wherewithal to privately control the disposal of their waste by,
for instance, having their garbage personally taken to the landfill.

{24} Likewise, as the Greenwood dissent pointed out, we conclude that society would
consider the expectation of privacy to be reasonable, as evidenced by ordinances that
prohibit rummaging through another individual’s garbage. Id. at 52 (Brennan, J., dissenting)
(“Beyond a generalized expectation of privacy, many municipalities, whether for reasons of
privacy, sanitation, or both, reinforce confidence in the integrity of sealed trash containers
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.” (alterations in original) (internal quotation marks and citation
omitted)); accord Clovis, N.M., Code of Ordinances ch. 8.04.100 (1985) (“It is unlawful for
any person, not authorized to do so, to remove the lid from any refuse container or to collect,
molest or scatter the refuse stored in such container.”).

{25} The Greenwood dissent also cited to local ordinances that mandate how garbage is
to be disposed of, reasoning that the constitution must protect an expectation of privacy so
that the government cannot force an individual to dispose of something she considers
private, only to be able to then search through it without a warrant. 486 U.S. at 55-56
(Brennan, J., dissenting). We agree once again. “[A]llowing the State to conduct a
warrantless search of refuse set out for collection when an individual is required by law to
dispose of his refuse in a specific place, time, and manner is inconsistent with the privacy
protections provided by Article II, Section 10.” Granville, 2006-NMCA-098, ¶ 32; see also
State v. Boland, 800 P.2d 1112, 1117 (Wash. 1990) (en banc) (holding that while the
necessary regulation of garbage must compel a person to reasonably expect that a licensed
trash collector will remove his garbage, “this expectation does not also infer an expectation
of governmental intrusion”).

{26} The manner in which household trash is disposed of and collected in New Mexico
is regulated by municipalities and counties. See generally NMSA 1978, § 74-9-7 (1991). In
some communities, garbage must be placed in an individual bin and moved to the curb for
collection. See Albuquerque, N.M., Code of Ordinances ch. 9, art. X, Section 1-6(A), (E)(3);
Bernalillo County, N.M. Code of Ordinances ch. 70, art. II, § 70-36(a), (f)(3). The City of
Clovis, on the other hand, requires its residents to share dumpsters which are provided by
the city and placed near the alley for easy access by garbage trucks.1 We consider


       1
         “A metal trash collection container must be located so that it is conveniently
accessible and is used by six residential units. The location of the trash container must be
readily accessible by trash collection trucks.” Clovis, N.M., Code of Ordinances, ch.
18.70.900(H) (1999). “Every person within the city shall use and maintain the garbage and
rubbish receptacles provided by the city to be kept at the rear of property abutting the alley,
and, in case the property does not so abut on or have access to an alley, the garbage and

                                              9
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.

{27} The State asks us to distinguish between a recognized expectation of privacy under
Article II, Section 10 in garbage which is placed in an individual bin from that which is
placed in a receptacle that is shared with others. This would require that we discern the level
of constitutional protection to privacy in garbage upon whether one disposed of their garbage
in an individual trash bin or in a communal receptacle, which in this particular case is
mandated by local ordinance. We refuse to render such a distinction meaningful in our
constitutional analysis, and we conclude that there is no purposeful distinction in the privacy
expectations held by a person who disposes of trash in an individual receptacle from that of
a person who places his or her refuse in a shared trash receptacle. While a communal
receptacle may be more easily accessible to animals, scavengers or strangers, we agree with
the Court of Appeals that “the mere possibility of [greater] access by the public does not
negate a person’s reasonable expectation of privacy and the expectation that the garbage will
be free from governmental intrusion before it is removed by a garbage truck and disposed
of.” Crane, 2011-NMCA-061, ¶ 16. “Article II, Section 10, protects citizens from
governmental intrusions, not intrusions from members of the general public, the [garbage]
collector, or nearby wildlife.” Granville, 2006-NMCA-098, ¶ 29. Further, “[a]lthough
garbage bags are placed in areas accessible to the public, the contents are not exposed to the
public.” Crane, 2011-NMCA-061, ¶ 16 (alteration in original) (internal quotation marks and
citation omitted).

{28} We also see no difference in a person’s expectation of privacy in garbage that is
generated by the occupant of a private residence and the occupant of a temporary dwelling
such as a motel room. The protection of privacy afforded under Article II, Section 10 extends
to the contents of refuse generated in a temporary dwelling as much as to that which is
generated by a separate residence. See Stoner v. State of California, 376 U.S. 483, 490
(1964) (“No less than a tenant of a house, or the occupant of a room in a boarding house, a
guest in a hotel room is entitled to constitutional protection against unreasonable searches
and seizures.” (citation omitted)). The fact that a person lives in a single-family residence,
a multi-family complex, or a temporary dwelling does not prescribe the degree of privacy
one is afforded under Article II, Section 10 in the context of garbage searches. Such a
criterion would afford those persons who by choice or circumstance live in a single-family
residence with more protection of their privacy than those who reside in a temporary or
apartment dwelling. We decline to make the level of protection of privacy granted under



rubbish receptacles shall be kept at the nearest street line designated as the garbage and
rubbish collection route during the hours of collection.” Clovis, N.M., Code of Ordinances
ch. 8.04.070. “The city manager shall determine the type and size of all receptacles and their
location. All persons not serviced by metal refuse containers shall use roll-out carts furnished
by the city.” Clovis, N.M., Code of Ordinances ch. 8.04.070.

                                              10
Article II, Section 10 so arbitrary.

D.     The State’s Arguments

{29} The State makes several arguments challenging the rationale in Granville, and it
urges this Court to overturn that case, or at the very least to reverse the Court of Appeals’
extension of the right to privacy in sealed garbage left for collection in a shared dumpster.
The State’s overarching theory is that a police officer simply should not be required to obtain
a search warrant before searching the contents of garbage left out for collection. We reject
the State’s arguments disputing the rationale in Granville and applied by the Court of
Appeals in this case.

{30} The State contends that because this case involves garbage discarded outside a motel
room in a dumpster near an alley, the issue is the meaning and security of one’s “effects,”
not the sanctity of one’s “home.” The State acknowledges that “there is a heightened
expectation of privacy in one’s home,” State v. Bomboy, 2008-NMSC-029, ¶ 11, 144
N.M.151, 184 P.3d 1045, that is shared by an occupant of a motel room. See State v.
Zamora, 2005-NMCA-039, ¶ 13, 137 N.M. 301, 110 P.3d 517 (“We have also held . . . that
a motel room is the equivalent of a dwelling for [search and seizure] purposes and that as a
registered guest, the occupant is entitled to the same rights he would have possessed had his
private residence been searched rather than his hotel room.” (internal quotation marks and
citation omitted)). However, the State contends that the alley in Granville and the common
areas of the motel in this case lay outside the curtilage of the home and cannot reasonably
be expected to be treated as the home itself because these areas do not harbor the same
intimate activity associated with the privacy of a home. We refuse to take such a narrow
view of the language in Article II, Section 10 because “what [a person] seeks to preserve as
private, even in an area accessible to the public, may be constitutionally protected.” Katz,
389 U.S. at 351. One does not waive an expectation of privacy under Article II, Section 10
solely because one removes garbage from the home and sets it out for collection. What is
important is whether one conceals it from plain view. See Katz, 389 U.S. at 361 (Harlan, J.,
concurring) (“[O]bjects, activities, or statements that [one] exposes to the ‘plain view’ of
outsiders are not ‘protected’ because no intention to keep them to himself has been
exhibited.”). In this case, Kidd took steps to keep the garbage private by placing it in an
opaque bag and discarding it himself in the dumpster rather than having motel housekeeping
take it away.

{31} The State also argues that “effects,” unlike a “home,” are movable, and once an effect
is removed from the home, it receives constitutional protection as an “effect” and not as part
of the “home.” In response, we reiterate that in the context of garbage searches by police,
the analysis does not depend upon the differences between an “effect” and a “home”—that
one can be moved while the other cannot. It depends instead upon whether there were steps
taken, as in this case, to keep the property private from inspection by others, including
police.


                                              11
{32} The State next urges us to apply an abandonment theory to garbage which is left for
collection, arguing that it should be treated as an “abandoned effect.” The State argues that
because garbage, as an “effect,” is left for collection, its owner has voluntarily abandoned
it, along with any privacy interest thereto, which supports the propriety of a warrantless
search of the garbage by police. The State relies on State v. Everidge, 1967-NMSC-035, ¶¶
23, 26, 77 N.M. 505, 424 P.2d 787, which held that an abandoned package containing
incriminating evidence was not protected from a warrantless search under the Fourth
Amendment. Everidge is distinguishable, as it did not interpret the abandonment concept
under Article II, Section 10. Pursuant to our interpretation of the New Mexico Constitution’s
heightened protections, we refuse to adopt such a narrow view that would essentially lead
us to render one to have forfeited one’s privacy interest by placing garbage outside the home
for collection. To the contrary, we consider that the removal of garbage from one’s home and
the proper placement of it out for collection supports rather than negates a reasonable
expectation of privacy.

{33} The State also argues that because New Mexicans do not view garbage any
differently than other Americans, the concept of humiliation considered in Granville should
be rejected because embarrassment has never before been considered (with the exception of
the limited context of strip searches), and police should essentially have the same right to
search through garbage as others. Our holding is not premised upon the humiliation or
embarrassment that one may experience from an invasion of privacy. Humiliation and
embarrassment are the natural human reactions to an invasion of privacy, but it is the
expectation of privacy that our constitution protects. As we have stated, to rummage through
one’s most private affairs would be a consummate violation of their expectation of privacy.

III.   CONCLUSION

{34} Based on the above, we conclude that Defendant had a reasonable expectation of
privacy in the garbage left in the motel dumpster, which required that the police obtain a
search warrant prior to searching its contents. The district court properly suppressed the
evidence obtained from the unlawful search.

{35}   IT IS SO ORDERED.

                                              ____________________________________
                                              BARBARA J. VIGIL, Chief Justice

WE CONCUR:

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

                                             12
PETRA JIMENEZ MAES, Justice, dissenting
CHARLES W. DANIELS, Justice, joining in the dissent

MAES, Justice (dissenting).

{36} I believe that an individual has no expectation of privacy in his or her trash when
disposing of it in a public place, on commercial property, such as a dumpster in a motel
parking lot. I suggest that there is a difference in one’s reasonable expectation of privacy on
commercial property versus residential property. Thus, I respectfully dissent from the
majority’s holding and in addition to my own analysis, I adopt Judge Wechsler’s dissenting
opinion in the Court of Appeals which is attached hereto as an appendix. See State v. Crane,
2011-NMCA-061, ¶¶ 28-33, 149 N.M. 674, 254 P.3d 117 (J. Wechsler, dissenting).

{37} This case is distinguishable from Granville where this Court held that a person has
a reasonable expectation of privacy in one’s garbage that has been placed on the curb outside
their residence. State v. Granville, 2006-NMCA-098, ¶¶15, 22-23, 140 N.M. 345, 142 P.3d
933. Here, Defendant disposed of his garbage in a detached dumpster on commercial
property. Because Granville focuses on one’s reasonable expectation of privacy in
residential garbage, that analysis does not control here.

{38} The central issue in this case is not privacy interests in different residential trash
receptacles but instead, privacy interests in commercial trash receptacles. Thus, I disagree
with the majority’s characterization of the State’s argument that it is asking us to distinguish
a “person’s expectation of privacy in garbage that is generated by the occupant of a private
residence and the occupant of a temporary dwelling such as a motel room.” See maj. op., ¶
28.

{39} The majority cites various city ordinances to support the notion that “one’s
compliance with local ordinances governing the disposal of household garbage [supports]
the reasonableness of their expectation that it will remain private from unwarranted
inspection by the government.” Maj. op., ¶ 26. I believe that the majority’s focus on the city
mandated type of receptacle to be used is in error. A person’s expectation of privacy in their
garbage is based on the assumption that others will not rummage through it. Therefore, we
should focus our analysis on the mandated procedures for the collection of garbage.

{40} Clovis, Albuquerque, and Bernalillo County all treat residential garbage collection
differently than commercial garbage collection. Herein lies the crucial property distinction
that should guide our expectation of privacy analysis in the context of commercial
properties. The city of Clovis identifies this distinction by mandating that “[g]arbage and
rubbish accumulated by residences shall be collected at least once each week. Garbage and
rubbish accumulated at all other establishments shall be collected as often as the city
manager may deem necessary for the protection of the public health.” Clovis, N.M. Code of
Ordinances, ch. 8.04.030 (emphasis added). The fact that residents living in communities of
more than six, who have to share a communal trash receptacle due to limited space, does not

                                              13
effect accessibility or collection of said garbage by the city. Rather, Clovis treats residential
garbage differently from all other types of garbage in terms of frequency of collection and
control by the city.

{41} A similar distinction is found in Albuquerque’s code which the majority neglects to
address. See Albuquerque, N.M. Code of Ordinances, § 9-10-1-8. Section 8 specifically
distinguishes between residential and commercial properties, regardless of the type of trash
container utilized, by listing “hotels, restaurants, and other such businesses and institutions”
as commercial properties. Section 8(A)(2). The ordinance mandates that “[a]ll commercial
containers are to be accessible between the hours of 4:00 a.m. and 8:00 p.m., or as otherwise
designated by the Mayor,” and that the Mayor can “require that more frequent collections
be made where necessary to protect the public health.” Section 8(A)(2)(a), (c). Bernalillo
County makes the same distinction in its code. See Bernalillo County, N.M. Code of
Ordinances ch. 70, art. II, § 70-39(b)(1), (2). It is clear from the ordinances that commercial
properties must have trash receptacles that are openly available to the public for mandated
periods of time and may be collected more or less frequently depending on public safety. On
the other hand, citizens have control over how often they want to put out their trash for
collection and accessibility to said trash on their residential property.

{42} While Clovis, Albuquerque, and Bernalillo all mandate that communal trash
receptacles be utilized for larger residential complexes, each municipal code draws a
distinction in the actual collection of the trash based on the nature of the property. In all three
codes, residents have more control over their trash, and collection is limited; commercial
trash however is not as protected and subject to heavier government control. Thus, it is
logical that one would have a reasonable expectation of privacy in residential trash in which
he or she exercises greater control. However, it is illogical that a person would have an
objectively reasonable expectation in trash that he or she disposes of on commercial property
that by law is afforded less protection. Therefore, the majority’s concern that a finding of no
expectation of privacy in this case would constitute discrimination of rights based on one’s
type of residential dwelling is misguided. Maj. op., ¶ 28.

{43} In fact, the majority drew the correct distinction yet reached an incorrect conclusion
when it stated that “[t]he fact that a person lives in a single family residence, a multi-family
complex, or a temporary dwelling does not prescribe the degree of privacy one is afforded
under Article II, Section 10 in the context of garbage searches.” Id. (emphasis added). In this
case there is nothing in the record to establish that Defendant was living in the motel. This
case does not present a scenario that requires us to confront unequal expectations of privacy
based on residential status. Instead, we are required to analyze the expectation of privacy one
has in disposed garbage on commercial property. The city ordinances cited by the majority
support my suggestion that we implement and adhere to a bright-line rule which
distinguishes residential and commercial property in the context of Article II, Section 10 of
our Constitution. I believe that there is no expectation of privacy in one’s garbage disposed
of in an open dumpster on commercial property. I would hold that the police did not need
a search warrant prior to searching the contents of the trash.

                                                14
                                              ____________________________________
                                              PETRA JIMENEZ MAES, Justice

I CONCUR:

____________________________________
CHARLES W. DANIELS, Justice

APPENDIX

             State v. Crane, 2011-NMCA-061, 149 N.M. 674, 254 P.3d 117

                                DISSENTING OPINION

WECHSLER, Judge (dissenting).

{28} I do not believe that, as an extension of Granville, “society is prepared to recognize
as reasonable” the privacy expectation in this case. Granville, 2006-NMCA-098, ¶ 11.

{29} In Granville, this Court addressed the issue of “whether Article II, Section 10, of the
New Mexico Constitution prohibits the warrantless search of an individual’s garbage bags
placed in trash containers located in an alley behind a residence” where the defendant
resided. Granville, 2006-NMCA-098, ¶¶ 1, 3. We concluded that “an individual in New
Mexico has a reasonable expectation of privacy in his garbage placed for collection in an
opaque container.” Id. ¶ 33. The issue before us in this case is whether this constitutional
protection extends beyond the facts of Granville to garbage placed in a motel dumpster.

{30}    I do not believe that there is a reasonable expectation of privacy in these
circumstances. I do not reach this view because such garbage does not reveal the
individual’s private matters or that an individual can have a reasonable expectation of
privacy in garbage placed for collection in an opaque container; these were predicate
propositions of Granville. Nor do I reach this conclusion because a motel guest does not
have a privacy interest in a motel room; a motel guest has the same rights concerning the
search of the room that apply to the search of a residence. See Zamora, 2005-NMCA-039,
¶ 14. Rather, I arrive at my conclusion because I believe that, when viewed objectively, a
motel guest does not have a reasonable expectation of privacy in garbage placed outside of
the motel room in a dumpster.

{31} First, in my opinion, a dumpster in a parking lot cannot reasonably be viewed as part
of the motel room. I consider the general and reasonable expectation for garbage disposal
in a motel room to be that the guest would deposit the garbage in a trash container provided
by the motel in the room. A motel room is different from a residence in this regard. At a
residence, as indicated by Granville, the resident has the responsibility to place the garbage
at the collection point outside of the residence. Granville, 2006-NMCA-098, ¶ 32. Thus,

                                             15
I do not consider cases such as Zamora that draw a parallel between a motel room and a
residence for search and seizure purposes to control this case.

{32} Second, I view the issue, at least in part, as one of control. An individual who
disposes of garbage outside a residence, as in Granville, has nearly full control of the
garbage until it is collected. That is, the individual has not ceded control, and if the
individual chooses to retrieve items placed for collection, there is not difficulty in doing so.
On the other hand, an individual placing garbage in a dumpster at a motel does not have the
same level of control; it is significantly more difficult to retrieve garbage because it is
intermingled with garbage that did not originate from the individual. Moreover, the motel,
which has no relation to the individual for this purpose, has overall control of the dumpster
and the collection of garbage within it. See Granville, 2006-NMCA-098, ¶ 31 (adopting the
reasoning of State v. Galloway, 109 P.3d 383 (Or. Ct. App. 2005), that when an individual
makes arrangements for collection of garbage, the individual has a reasonable expectation
the collection will take place as arranged). An individual disposing of garbage in this
manner has ceded control of it and has placed the garbage beyond the individual’s zone of
privacy.

{33} I thus do not believe that a motel guest has a reasonable expectation of privacy in
garbage disposed of in the motel’s dumpster outside of the guest’s room and respectfully
dissent from the opinion of the Court.

JAMES J. WECHSLER, Judge




                                              16
