Opinion
Case No. 2:02-CR-0379TC
February 20, 2003
ORDER
The Federal Grand Jury returned an indictment against Defendants Joshua Saunders, Bridget Carol. Saunders, Andy Don Stocks and Brody Kent Bates, charging Defendants with several drug-related crimes. Joshua and Bridget Saunders move to suppress evidence seized during a search, authorized by warrant, of the Saunders' residence and related buildings. Additionally, all Defendants move to suppress statements they allegedly made during the search. According to Defendants, the information in the affidavit filed in support of the search was based on three unlawful trash searches and therefore, all evidence seized during the search must be suppressed as "fruit of the poisonous tree." For the reasons set forth below, the Defendants' motions are DENIED.
The Findings of Fact are based on the testimony presented at two hearings, the exhibits and affidavits submitted, and the court's conclusions regarding the credibility of the witnesses.
Taylor Karl Miller and his wife lived at 2522 West Horseshoe Circle, South Jordan, Utah. Mr. Miller leased an apartment on the property to Defendants Bridget Saunders and her husband Joshua Saunders. Bridget Saunders is the daughter of Duane Fluckinger, the previous owner of the property. The property was bounded on one side by West Horseshoe Circle and on the other side by Bonanza Way. The Saunders' apartment was on the Bonanza Way side. Downstairs from the Saunders' apartment was a second apartment, which, at the time of the search, Mr. Miller had leased to a man named Munoz.
Although Mr. Miller was the actual buyer of the property, his daughter held the title.
Defendants submitted the affidavits of Mr. Fluckinger and Fred Law, the real estate agent who represented Mr. Fluckinger during the sale of the property. According to their affidavits, the downstairs apartment was not, in fact, an apartment, but "caretaker's rooms" and renting of this space was a violation of code. (Fluckinger Aff. at ¶ 8.) But this evidence is largely irrelevant to the issues here because it is clear that Mr. Miller did rent the space: first to a tenant who died and then to Mr. Munoz.
There were two garages attached to the property, one used by the tenants ("the tenants' garage") and a larger one ("the large garage"). The lease between the Saunders and Mr. Miller did not include use of the tenants' garage. But Mr. Miller testified that "[h]alf of the garage was to be used by the upstairs tenants [the Saunders] and half of the garage was used by the downstairs tenant." Transcript ("tr") of Dec. 2, 2002 Hearing 16) Mr. Miller had a key to the tenants' garage.
Mr. Miller noticed a lot of traffic coming to the property. Disturbed by the amount of traffic, he voiced his concerns to some police officers who had come to the property to investigate the theft of several items from the large garage. Sometime later, in March or April 2002, Sgt. Kevin Worlton, who was assigned the Metro Narcotics Task Force, called Mr. Miller. Mr. Miller told Worlton about the traffic coming to the property. Sgt. Worlton and Mr. Miller had several subsequent telephone conversations and Sgt. Worlton came to the property to meet personally with Mr. Miller. Mr. Miller showed him around the property. During their conversations, Sgt. Worlton told Mr. Miller that "it appeared that there may be some drugs coming onto the property and people coming to purchase them." (Id. 25.)
Mr. Miller had watched a television report about garbage and drugs. He described what he had seen: "[W]e noticed on the t.v. there was somebody that was talking about drugs and things like that, and they said a lot of times people would buy all these things from pharmacies and throw it in the garbage, and a lot of times you could tell what was going on by the garbage." (Id. 21.) After seeing this report, Mr. Miller asked Sgt. Worley if this report was correct and Sgt. Worley told him that it was. Mr. Miller then asked Sgt. Worley whether he wanted to look at some of the Saunders' trash and Sgt. Worley said he would inspect the trash if Mr. Miller would put it on the street.
Mr. Miller testified that he called Sgt. Worlton three or four times to notify him that he had put the Saunders' trash out on the street if the Sergeant wanted to inspect it. This happened three times: on May 13, 15, and 16, 2002. On May 13 and May 15, either Mr. Miller or Mr. Munoz, at the direction of Mr. Miller, gathered the Saunders' trash from the tenants' garage. The Saunders did not give permission to take their trash from the garage. Mr. Miller then put the trash out on the street, called Sgt. Worlton, and police officers collected it.
On May 16, Mr. Miller saw that the Saunders' trash can had been placed on Bonanza Way. Mr. Miller hadn't seen who put the trash on the street, but he assumed it had been done by Mr. Saunders because he knew that neither Mr. Munoz or one of Mr. Miller's family members had carried it out. Mr. Miller tried, but could not reach Sgt. Worlton. Mr. Miller and his wife then took the trash can from Bonanza Way and unloaded the trash into the trunk of their car. When Mr. Miller did reach Sgt. Worlton and told him that he had the Saunders' trash in his car trunk, Sgt. Worlton told him to put it out on the street and the police would collect it. Mr. Miller followed these instructions, putting the trash in a can for the police to collect.
Sgt. Worley never directed Mr. Miller to gather the trash. (Id. 45, 46,61.) Mr. Miller didn't tell Sgt. Worley that the trash had been taken from the tenants' garage.
According to Defendants, Mr. Miller had no right to be in the tenants' garage and he clearly had no right to take the Saunders' trash from the tenants' garage and put it on the street for the police to collect. For several reasons, the court concludes that Mr. Miller did have the right to be in the tenants' garage.
First, and most important, Mr. Miller, who was a credible witness, testified that he did. The court asked: "Did you come and go in that tenants' garage?" (Id. 46-47.) Mr. Miller answered: "Yes. I went out and looked to see how things were and what the situation was quite of ten." (Id. 46.) He answered that he was sure that the tenants saw him coming and going into the tenants' garage. (Id.) He also testified that the tenants' garage "wasn't their garage. He wasn't in the lease. It was just a garage that we had allowed the tenants to use, and so it wasn't their garage. The only thing that was theirs was the apartment. And as I would go through, I would check to see the conditions of things and, you know, just basically look over things and see what's going on, and I did that quite often." (Id. 47.)
Second, consistent with Mr. Miller's testimony, the lease agreement between Bridget Saunders and Mr. Miller does not include the tenants' garage. (Lease Agreement, Ex. 5.) When weighed against the testimony of Mr. Miller and the explicit terms of the lease agreement, the affidavit testimony of Mr. Fluckinger is not convincing. Mr. Fluckinger stated in his affidavit that "Miller and I discussed, I insisted, and we agreed that the occupancy included the garages located in the same, large building in which the apartment is located." (Fluckinger Aff. at ¶ 6) Mr. Fluckinger swore that he "insisted that the lease include all the space being used by the Saunders." (Id. 10.) But the lease does not include the use of the tenants' garage. And if the parties had agreed that the Saunders would have the sole right to the tenants' garage, it would seem that the lease would include such a provision. The more likely answer is that Mr. Miller simply permitted the Saunders, and the downstairs tenant, to use the tenants' garage although he was under no obligation to do so.
When counsel for the United States offered Exhibit 5, defense counsel objected on the grounds that the copy had no signature line. The court stated that it could not receive the exhibit until a "good copy" of the lease was submitted. (Id. at 17-18) Counsel for the United States submitted what appears to be a full and accurate copy of the lease which is now received into evidence as Exhibit 5.
Similarly, in view of the fact that the lease agreement itself does not cover the tenants' garage, Fred Law's statement that it "was clearly stated and understood that Bridget Saunders was to have the exclusive rights and usage of the integral two-car garage as part and parcel of the rental agreement . . . ." is not persuasive. (Decl. of Fred Law at ¶ 4.)
Finally, common sense dictates that Mr. Miller, who was the landlord of the property, would have an interest in making sure that the shared areas, such as the tenants' garage, were kept clean. In fact, Mr. Miller testified that he was concerned about the amount of garbage in the tenants' garage because there had been rats in the horse barn located on the property and he "didn't want any more of those varmints coming in . . . ." (Tr. of Dec. 2, 2002 Hearing at 24) Mr. Miller asked Mr. Munoz to clean the garage and put the garbage in a can. (Although it is unclear how may times Mr. Munoz cleaned the garbage in the tenants' garage, Mr. Millers use of the phrase, "which he [Munoz] would do" to describe Mr. Munoz's cleaning efforts suggests that this happened on several occasions. Id. at 26.)
Therefore, based on the above, it appears that Mr. Miller had the right to come and go in the tenants' garage, which he did.
CONCLUSIONS OF LAW
A. Was Mr. Miller a Government Actor?
The Fourth Amendment protects citizens against unreasonable searches and seizures by government actors. But the Fourth Amendment does not apply to searches by private parties absent governmental involvement.United States v. Humphrey, 208 F.3d 1190, 1203 (10th Cir. 2000). The Defendants contend that Mr. Miller was acting as a government agent when he took, or had taken, the trash from the tenants' garage and placed it on the street for the police to collect. (This argument applies only to the events of May 13 and 15, 2002, because Mr. Miller did not gather the trash from the tenants' garage on May 16. On that day, he took Saunders' trash from a garbage can that had been placed on Bonanza Way by someone other than Mr. Miller.)
The Tenth Circuit has formulated the following two-part test to determine whether a search by a private person is, in fact, government action: (1) "whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends."Pleasant v. Lovell 876 F.2d 787, 797 (10th Cir. 1989). Both parts must be met for the search to be attributed to the government. (Id.) The alleged intrusive conduct here is Mr. Miller's taking, or having Mr. Munoz take, the Saunders' trash from the tenants' garage and placing it on a public street. While there is no question that Sgt. Worlton knew that Mr. Miller was gathering the trash from somewhere and putting it on the street, there is no evidence to suggest that Sgt. Worlton knew about the circumstances of where the trash was located before Mr. Miller placed it on Horseshoe Circle nor that he acquiesced in or agreed to entry into the tenants' garage to gather the trash. In other words, Sgt. Worlton simply knew that the trash was available on the public street, without knowing the particulars (whether intrusive or not) of how it arrived there. Accordingly, the first part of the test is not met.
The second part focuses on Mr. Miller's purpose in gathering the trash for law enforcement. The government contends that Mr. Miller had his own, independent reasons for gathering the trash, "sanitation and vermin control on the property." (Mem. in Opp. to Defs' Motion to Supp. Ev. 10.) The evidence does indicate that Mr. Miller was concerned about the amount of garbage in the tenants' garage and the possibility of "varmints." (Tr. of Dec. 2, 2002 Hearing at 24.) Because Mr. Miller had his own, legitimate motivation to collect the trash from the tenants' garage, the court concludes that the second part of the test is not met. (See United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir. 1996) (finding that manager of a bus station who opened a package containing contraband was not a government actor even though police officer present; manager opened the package because of concerns about the safety of bus passengers.)
B. Did the Saunders Have a Reasonable Expectation of Privacy in their Trash in the Tenants' Garage?
Even assuming that Mr. Miller was a government agent, the search and seizure of the Saunders' trash was not in violation of the Fourth Amendment. A warrantless search of garbage is unreasonable if a Defendant "had a subjective expectation of privacy in [the] garbage that society accepts as objectively reasonable." California v. Greenwood, 486 U.S. 35, 37 (1988). "Society does not recognize a reasonable expectation of privacy in `trash left for collection in an area accessible to the public.'" United States v. Long, 176 F.3d 1304, 1308 (10th Cir.), cert. denied, 528 U.S. 921 (1999). The tenants' garage was accessible not only to Mr. Miller, but to Mr. Munoz, the other tenant. Mr. Miller explained that he permitted both the upstairs and the downstairs tenants to use the tenants' garage. Accordingly, Mr. Miller came and went, openly, into the tenants' garage as he had the right to do. The Saunders had no reasonable expectation of privacy in trash they left in the tenants' garage.
For the above reasons, Defendants' Motions to Suppress are DENIED.