Warrantless Searches Not Justified

Evidence seized in a warrantless search of a dumpster may not be used against a company and an individual charged with illegally handling hazardous wastes, according to a ruling by the Massachusetts Supreme Judicial Court (Commonwealth v. Krisco Corp., No. SJC-06786, Aug. 2, 1995).

A Middlesex County grand jury indicted Krisco Corp. and Kristopher Ogonowsky for illegally transferring hazardous wastes. The defendants, who operate an auto body and paint shop, filed a motion to suppress evidence seized from a dumpster on their premises.

State environmental officials began an investigation after receiving an anonymous telephone call from a "disgruntled former employee" regarding the improper disposal of paint residues.

The employee told investigators that the defendants paid him not to reveal their illegal disposal method: placing one-gallon cans in the dumpster shortly before weekly pickup by a waste hauler. The employee also charged that the truck driver knowingly hauled away the paint and got paid to keep silent.

Based on this information, the state began surveillance of the dumpster from the upper story of a nearby building. The dumpster, which the defendants had exclusive rights to use, was located in an alley that was kept closed except when the dumpster was emptied. The inspector could see the alley and the inside of the dumpster, but passersby could not see the dumpster's contents.

During a seven-week period the inspector frequently saw people on the shop premises throw paint cans into the dumpster shortly before trash pickup. He also observed Ogonowsky pass what looked like money to the driver when the dumpster was emptied. He recorded these observations with a video camera.

The inspector showed the videotape to an environmental engineer who worked with state enforcement officials. The engineer knew that the waste paint contained substances requiring special disposal. Now, she needed a legitimate way to enter the premises and seize paint cans from the dumpster for use as evidence in an enforcement proceeding.

Days later, the inspector watched as an employee tossed paint cans into the dumpster. He passed the information to the engineer by walkie-talkie. The engineer, who was waiting nearby, promptly entered the shop through the front door and told Ogonowsky that she was there to do a general environmental inspection. While a companion inspected the shop's records, the engineer walked through the shop and climbed into the dumpster. She emerged carrying paint cans, and told Ogonowsky that they were hazardous wastes that could not lawfully be placed in the dumpster. Ogonowsky insisted that the paint cans ended up in the dumpster by accident.

The trial judge ruled that the warrantless dumpster search could not be justified as an administrative search. As he saw it, the search was really a criminal search under the guise of a civil investigative search "as a subterfuge to avoid the burden of obtaining a warrant."

On appeal, the Massachusetts high court upheld the trial judge, ruling that state agents seized materials from an area where the defendants had a reasonable expectation of privacy. "Unlike activities or objects in the home, which need only to be removed from plain view to be protected, one seeking to protect his or her privacy in a commercial location must take affirmative steps to bar the public from the area they [he or she] wish [wishes] to keep private," the court said. The court also relied on several federal appeals court decisions where public access to a dumpster was held to be the most important factor in determining whether the accused had a reasonable expectation of privacy.

"Ogonowsky ... took affirmative steps to protect his privacy interests in the dumpster," said the court. "He installed gates at either end of the fenced alley and kept them closed until the waste hauler arrived."

In addition, the court noted that Ogonowsky did not freely and voluntarily consent to the search; he merely acquiesced to a show of authority, which is legally insufficient to substitute for a warrant. Moreover, the court criticized the engineer for misleading Ogonowsky about the inspection and for not telling him that he could demand a warrant.

As the court saw it, no emergency existed. The agents had plenty of time to obtain a warrant. "Any perceived exigency due to the short period of time between the placement of the paint cans in the dumpster an the arrival of the ... truck was reasonably foreseeable and therefore cannot [justify a warrantless search]," the court concluded.