State v. Hoffman, 196 P.3d 939 (Kan. App. 2008).

Procedural History:

The Defendant, Lewis I. Hoffman, was arrested for drug offenses and filed a motion to
suppress evidence that was obtained during a warrantless trash pull. The District Court granted
Hoffman’s motion to suppress. The State then appealed claiming that Hoffman did not have an
expectation of privacy when he had left the trash for collection by a third party.

Facts:

Over the course of a few months, the Greeley County sheriff’s deputy climbed into a
trash truck multiple times before it entered Lewis Hoffman’s property. Hoffman’s driveway to
his property is more than two miles away from the nearest town of Tribune, Kansas. To get to
Hoffman’s dumpster you must go down his quarter mile long private driveway to his residence.
Hoffman’s dumpster is not visible to the public. Hoffman’s trash was then taken to a landfill
where two deputies searched through it. From the evidence they gathered through the warrantless
searches, the police obtained a search warrant and found substantial evidence of Hoffman’s
attempts to manufacture methamphetamine, as well as other drug-possession violations. Hoffman
was then arrested for the drug offenses.

Issue:

Should the motion to suppress evidence should be reversed if the Defendant, Lewis
Hoffman, had a reasonable expectation of privacy in the trash collected by a third party from his
rural home?

Rules of Law:

First, the court must determine whether the trash was located within the curtilage of the
residence. Second, if the trash is located within the curtilage, the court must determine “‘whether
the person manifested a subjective expectation of privacy in the trash container and whether that
expectation of privacy in the garbage is objectively reasonable.’” State v. Fisher, 154 P.3d 455
(Kan. 2007).

Analysis:

The issue is whether the motion to suppress evidence should be reversed if the
Defendant, Lewis Hoffman, had a reasonable expectation of privacy in the trash collected by a
third party from his rural home. The Hoffman court examined the State’s appeal claiming that
Hoffman did not have an expectation of privacy when he had left the trash for collection by a
third party. The U.S. Supreme Court has upheld warrantless trash pulls when left on a curbside
for collection. The Court has noted, “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.” California v. Greenwood, 486 U.S. 35, 40 (1988). For items left in such an accessible
place, “the police cannot reasonably be expected to avert their eyes from evidence of criminal
activity that could have been observed by any member of the public.” Id. at 41.

Although, the Defendant’s case differs from Greenwood significantly. The trash in
Greenwood was on a city street curb in Laguna Beach, California rather than at a rural Kansas
property two miles from the nearest town. The Hoffman court noted a case that the Kansas
Supreme Court considered that was factually similar. In that case, the plurality opinion applied a
two-part test. First, the court must determine whether the trash was located within the curtilage
of the residence. Second, if the trash is located within the curtilage, the court must determine
“‘whether the person manifested a subjective expectation of privacy in the trash container and
whether that expectation of privacy in the garbage is objectively reasonable.’” State v. Fisher,
154 P.3d 455 (Kan. 2007).

The first question the Hoffman court must consider is whether the Defendant’s trash was
within the curtilage of his home. The district court found that it was within the curtilage with
ample evidence supporting it, and the State did not challenge that conclusion. The second
question is considerably more complex. The facts from the Fisher case are similar but there is
one considerable difference: in Fisher, the defendant burned his trash, but Hoffman had his trash
collected by a third party. The State argues that this distinction makes the difference in this case
because “any objective or subjective expectation of privacy disappeared when the Defendant put
his trash in the dumpster for collection by sanitation workers.” State v. Hoffman, 196 P.3d 939,
941 (Kan. App. 2008).

The Seventh Circuit has noted that the Greenwood court “chose not to rely on principles
of abandonment ... despite the reliance on that principle by most of the circuit courts which had
considered the constitutionality of garbage searches.” United States v. Hedrick, 922 F.2d 396,
398 (7th Cir. 1991). The court emphasized that the expectation of privacy was lost because his
trash was publically accessible. We conclude that the fact that Hoffman had left his trash for
pick-up by a trash collector, standing alone, does not eliminate any reasonable expectation of
privacy because Greenwood suggests that this fact alone is not determinative. Hoffman, 196 P.3d
at 941.

Since the only difference between Fisher and Hoffman’s case is that Hoffman had a third
party collect his trash, the Hoffman court noted that one fact alone does not call for a different
result than the Fisher court reached. The Fisher plurality noted that “[a]n important inquiry in
applying the Greenwood analysis to garbage within the curtilage is whether the garbage was so
readily accessible to the public that its contents were exposed to the public for Fourth
Amendment purposes.” Fisher, 154 P.3d at 455. The Hoffman court noted that Hoffman’s trash
was a quarter mile from a public road; therefore, it was not accessible to the public.

Although, some courts from different jurisdictions have reached the conclusion that if a
person has their trash collected by a third party they do not have a reasonable expectation of
privacy. Given the importance of public accessibility to the rationale of both Greenwood and
Fisher, we believe that those cases provide the most helpful guidance in reaching the correct
result in Hoffman's case. Hoffman, 196 P.3d at 942.
 Given his rural setting, we conclude that the mere fact that he allowed a third party to
haul his trash away did not eliminate his reasonable expectation of privacy in that trash. Id. The
district court properly held that the trash pulls at Hoffman's dumpster violated the Fourth
Amendment, and that violation requires that the evidence be suppressed because it was obtained
by a warrant based on the illegal trash pulls. Id. The Hoffman court concluded that Hoffman had
a reasonable expectation of privacy in the trash; therefore, the unwarranted trash pulls violated
the Fourth Amendment and the motion to suppress evidence is affirmed.

Conclusion:

The Hoffman court concluded that Hoffman had a reasonable expectation of privacy in
the trash; therefore, the unwarranted trash pulls violated the Fourth Amendment and the motion
to suppress evidence is affirmed.

Holding:

The Hoffman court affirmed the holding of the District Court.