Summary 2009 WY 13

Summary of Decision issued February 5, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Barekman v. State

Citation: 2009 WY 13

Docket Number: S-08-0119

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellant Barekman: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General.

Facts/Discussion: Barekman pleaded guilty to one count of possession with intent to deliver a controlled substance while reserving his right to appeal the denial of his motion to suppress evidence seized from his trash.

Fourth Amendment: Appellant claimed the trash search violated the Fourth Amendment. The district court relied on California v. Greenwood in their decision. In Greenwood, the Court reaffirmed the principle that what a person knowingly exposes to the public, even in his own home or office, is not protected by the Fourth Amendment. As in Greenwood, Appellant exposed his garbage to the public sufficiently to defeat his claim to Fourth Amendment protection by placing it in bins 25-30 feet from his trailer home for removal by a third party. Placing bags in a location where they were readily visible and accessible from a public thoroughfare and exposed not just to the trash collector but to anyone, the defendant had no expectation of privacy.
Article 1, § 4 of the Wyoming Constitution: Under Wyoming law, a person alleging an illegal search must demonstrate a legitimate expectation of privacy in the searched property. There was no dispute the trash in the bag came from Appellant’s residence. It was retrieved from a barrel belonging to someone else who placed it next to the curb on a public thoroughfare for residents to leave their trash. Appellant took no precautions to keep the trash private. The Court reviewed similar cases from New Jersey and Vermont courts deciding that it would not recognize increased protection under Article 1, § 4 of the Wyoming Constitution. The appellant did not have an expectation of privacy in his trash that society would accept as objectively reasonable.
Appellant also asserted law enforcement’s affidavit was not sufficient to support issuance of a search warrant absent the evidence seized in violation of the state and federal constitutions. The Court’s holding that the trash search did not violate either constitutional provision made consideration of the issue unnecessary.

Conclusion: The Court held that the search of Appellant’s trash without a warrant did not violate Barekman’s constitutional rights and affirmed the denial of his suppression motion.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/dkpnx3 .

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