APPEAL from the Circuit Court of Tazewell County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant, Randall Huddleston, was convicted of three burglaries in the Circuit Court of Tazewell County, the first two after jury trials and the third after a negotiated plea of guilty. In each case defendant was sentenced to a term of imprisonment for not less than four years nor more than twelve years with the sentences to run concurrently. With respect to the first two convictions, defendant appeals from a denial of his motion to quash a search warrant and suppress evidence and further contends that the sentences are excessive. In the event that defendant prevails on these issues, defendant contends that the conviction resulting from his guilty plea should be remanded for resentencing. The cases have been consolidated for this appeal pursuant to defendant's motion.
On January 16, James Marshall, a police officer for the city of Washington, obtained a search warrant for defendant's house, based on an affidavit which recited the following facts:
Officer Marshall had been investigating five residential burglaries which had occurred between January 3, 1974, and January 6, 1974. The officer observed fresh bootprints, which he believed to be of the same size, shape and pattern at point of entry at four of the five places he investigated. The bootprints were apparently not made by any of the victims.
On January 11 or 12, a neighbor of one of the victims told the officer that on one of the nights during which the burglary occurred, she observed an "old, dark, long, low model car with an extensively damaged front end" stop in front of the victim's house and shortly thereafter drive away. This car subsequently returned with its headlights off, and two unidentified people emerged. An hour later the car drove off.
On several occasions the officer saw an automobile which was similar to the one just described parked in front of defendant's residence, although the officer's description made no reference to any damaged area. The officer had known defendant for four years and knew that defendant was on probation for burglary and possession of marijuana.
On January 16, 1974, at 4 a.m., the officer observed two plastic bags containing trash sitting by the street at curbside in front of defendant's residence awaiting pickup by the trash collector. The officer collected the bags and took them to the police station for examination. During the examination police officers found two prescription bottles in the name of one burglary victim, a prescription label bearing the name of another burglary victim and two payroll deduction slips belonging to defendant and his wife. After the search warrant was obtained, police officers searched defendant's house and found more items which had been taken during the burglaries.
After defendant was indicted for the burglaries, he moved to quash the search warrant and suppress evidence. The trial court denied the motion, and at the trial, the items found in defendant's house, as well as the items found in the trash bags, were admitted into evidence.
1 The first issue is whether the trial court erred in denying defendant's motion to suppress. Defendant contends that the trash was illegally seized because the police had neither probable cause nor a search warrant before they seized the trash. Since the search warrant which was subsequently obtained was based in large part upon the items found in the trash, defendant reasons that the search warrant should have been quashed. The State's position is that defendant abandoned the trash when he deposited it at the curbside for pickup and, therefore, has no standing to raise this issue.
There is no dispute that a search and seizure of the trash bags did occur. However, if defendant abandoned the trash, he lacks standing to contest the search. People v. Hejka (3d Dist. 1973), 15 Ill. App.3d 181, 303 N.E.2d 433.
The question of abandonment is an ultimate fact or conclusion based upon a combination of act and intent and is to be distinguished from an examination of the "reasonableness" of a warrantless search or seizure, against which a defendant has a valid claim to Fourth Amendment protection. A person who abandons property no longer has a "reasonable expectation" of freedom from governmental intrusion into the area, or from governmental appropriation of the abandoned property. In Abel v. United States (1960), 362 U.S. 217, 4 L.Ed.2d 668, 80 S.Ct. 683, defendant was arrested in his hotel room, told to pack up his belongings, and taken to the Immigration and Naturalization Services Headquarters. After his departure, an FBI agent, with the permission of the hotel management, searched the room and found incriminating evidence in a wastebasket. In upholding the validity of the warrantless search, the Supreme Court stated that, since defendant had vacated the room and thrown away the articles, defendant had abandoned them. "There can be nothing unlawful in the Government's appropriation of such abandoned property." (362 U.S. 217, 241, 4 L.Ed.2d 668, 687, 80 S.Ct. 683, 698.) See also Parman v. United States (1968), 130 U.S. App. D.C. 188, 399 F.2d 559, cert. denied, 393 U.S. 858, 21 L.Ed.2d 126, 89 S.Ct. 109.
Defendant relies on People v. Krivda (1971), 5 Cal.3d 357, 486 P.2d 1262, 96 Cal.Rptr. 62, vacated and remanded, 409 U.S. 33, 34 L.Ed.2d 45, 95 S.Ct. 32, aff'd on same grounds, 504 P.2d 457, 105 Cal.Rptr. 521, and asserts that he had a "reasonable expectation of privacy" as to the contents of the trash bags. In Krivda the California Supreme Court, citing Katz v. United States (1967), 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507, upheld the defendant's expectation of privacy as to the contents of a trash can placed on a public sidewalk awaiting pickup by rubbish collectors and affirmed the suppression of evidence obtained during a warrantless search of the trash can.
This precise issue has not been decided in Illinois. Our examination of other jurisdictions convinces us that People v. Krivda is not persuasive authority and should not be followed.
In Croker v. State (Wyo. 1970), 477 P.2d 122, police enlisted the aid of a rubbish collector who picked up defendant's trash and turned it over to the police. The court, citing Abel v. United States, upheld the warrantless search, a holding in direct conflict with Krivda. See also State v. Purvis (1968), 249 Ore. 404, 438 P.2d 1002.
In both Willis v. State (Tex.Crim. App. 1975), 518 S.W.2d 247, and United States v. Minker (3d Cir. 1962), 312 F.2d 632, cert. denied, 372 U.S. 453, 9 L.Ed.2d 978, 83 S.Ct. 952, warrantless searches of trash barrels which defendants shared with other tenants of apartment houses were upheld. The courts found that defendant, by placing the trash in common receptacles for pickup by the trash collectors, had abandoned the trash and no longer had a protectible interest in the seized items.
A warrantless search of defendant's garbage can, which had been placed beside an alley for pickup, was upheld in State v. Fassler (1972), 108 Ariz. 586, 503 P.2d 807. The court declined to follow Krivda and held that the trash was abandoned, stating that defendant knowingly exposed the trash to the public and therefore had no legitimate expectation of privacy under such circumstances. In United States v. Dzialak (2d Cir. 1971), 441 F.2d 212, cert. denied, 404 U.S. 883, 30 L.Ed.2d 165, 92 S.Ct. 218, a Railway Express agent took incriminating evidence from defendant's trash can placed in front of defendant's house and gave the evidence to the FBI. While it has been contended that this case is distinguishable on the basis that the search was conducted by a private person, a close reading of this case clearly shows that the court in Dzialak did not reach the substantive issue of the reasonableness of the search. Instead the court, citing Abel v. United States, found "it abundantly clear that Dzialak abandoned the property * * * and thus there `can be nothing unlawful in the Government's appropriation of such abandoned property.'" 441 F.2d 212, 215.
In United States v. Mustone (1st Cir. 1972), 469 F.2d 970, government agents seized trash bags after the agents had observed defendant place the bags near curbside garbage cans "several doors away" from his residence. Defendant contended that the warrantless search violated his Fourth Amendment rights, citing Krivda. The court stated:
"We are not persuaded by this authority, however, and hold that when [defendant] deposited the bags on the sidewalk he abandoned them. Implicit in the concept of abandonment is a renunciation of any `reasonable' expectation of privacy in the property abandoned. The contrary suggestion strikes us as anomalous." 469 F.2d 970, 972.
Defendant also relies on Ball v. State (1973), 57 Wis.2d 653, 205 N.W.2d 353, where evidence was suppressed which had been seized after a warrantless search of the defendant's trash barrel located on defendant's property at the rear of his house. The court rejected the State's claim of abandonment and stated that, considering the location of the barrel and the fact that the barrel was not visible from the highway was no indication that the defendant intended to relinquish control and possession.
Ball is readily distinguishable from the case at bar because the location of the trash in Ball contradicted any claim of abandonment, and defendant had not demonstrated by his acts any intention of relinquishing control or possession. In our view, the location of the trash is a significant factor in determining whether defendant has abandoned the trash or whether defendant has a "reasonable expectation of privacy," because any analysis of that expectation is ...