New Mexico adopts the Greenwood dissent and holds that there is a reasonable expectation of privacy in trash left out for collection in an opaque bag, even in a communal dumpster. City ordinances on trash collection help create the expectation of privacy by regulating it. State v. Crane, 2014 N.M. LEXIS 245 (June 30, 2014):
{16} The foremost distinct state characteristic upon which this Court has elaborated New Mexico’s search and seizure jurisprudence under Article II, Section 10 is “a strong preference for warrants.” Gomez, 1997-NMSC-006, ¶ 36 (citing Campos v. State, 1994-NMSC-012, 117 N.M. 155, 870 P.2d 117 (Campos II); State v. Gutierrez, 1993-NMSC-062, 116 N.M. 431, 863 P.2d 1052; State v. Cordova, 1989-NMSC-083, 109 N.M. 211, 784 P.2d 30)). The underlying principle upon which the preference for warrants is predicated is that “[t]he judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime.” Gomez, 1997-NMSC-006, ¶ 36 (internal quotation marks and citations omitted). Accordingly, New Mexico courts have long held that Article II, Section 10 provides greater protection of individual privacy than the Fourth Amendment. See Granville, 2006-NMCA-098, ¶ 19 (“When interpreting Article II, Section 10, the New Mexico Supreme Court has emphasized its strong belief in the protection of individual privacy.”); see also State v. Attaway, 1994-NMSC-011, ¶ 24, 117 N.M. 141, 870 P.2d 103 (“Article II, Section 10 embodies the disparate values of privacy, sanctity of the home, occupant safety, and police expedience and safety.”), holding modified on other grounds by State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80. We once again elaborate upon our search and seizure jurisprudence based on our strong preference for warrants, depart from federal jurisprudence, and hold that Article II, Section 10 provides greater protection than the Fourth Amendment of the right to privacy in garbage which is sealed from plain view and placed out for collection.
{17} In reaching this holding, “[w]e reiterate that in exercising our constitutional duty to interpret the organic laws of this state, we independently analyze the New Mexico constitutional proscription against unreasonable searches and seizures.” Gutierrez, 1993-NMSC-062, ¶ 16. “The very backbone of our role in a tripartite system of government is to give vitality to the organic laws of this state by construing constitutional guarantees in the context of the exigencies and the needs of everyday life.” Id. ¶ 55. Further, we note “that the role of federal constitutional rights is to ensure a certain minimum level of protection, a role that is not undermined when states decide that greater levels of protection are required.” Developments, supra, 95 Harv. L. Rev. at 1359-1360. “When a state court finds the federal doctrine inadequate, it has a legitimate and compelling reason to elaborate state doctrine in that area independently.” Developments, supra, at 1360. The United States Supreme Court acknowledged these principles: “Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution.” Greenwood, 486 U.S. at 43.
. . .
{24} Likewise, as the Greenwood dissent pointed out, we conclude that society would consider the expectation of privacy to be reasonable, as evidenced by ordinances that prohibit rummaging through another individual’s garbage. Id. at 52 (Brennan, J., dissenting) (“Beyond a generalized expectation of privacy, many municipalities, whether for reasons of privacy, sanitation, or both, reinforce confidence in the integrity of sealed trash containers by prohibit[ing] anyone, except authorized employees of the Town … to rummage into, pick up, collect, move or otherwise interfere with articles or materials placed on … any public street for collection.” (alterations in original) (internal quotation marks and citation omitted)); accord Clovis, N.M., Code of Ordinances ch. 8.04.100 (1985) (“It is unlawful for any person, not authorized to do so, to remove the lid from any refuse container or to collect, molest or scatter the refuse stored in such container.”).
{25} The Greenwood dissent also cited to local ordinances that mandate how garbage is to be disposed of, reasoning that the constitution must protect an expectation of privacy so that the government cannot force an individual to dispose of something she considers private, only to be able to then search through it without a warrant. 486 U.S. at 55-56 (Brennan Click for Enhanced Coverage Linking Searches, J., dissenting). We agree once again. “[A]llowing the State to conduct a warrantless search of refuse set out for collection when an individual is required by law to dispose of his refuse in a specific place, time, and manner is inconsistent with the privacy protections provided by Article II, Section 10.” Granville, 2006-NMCA-098, ¶ 32; see also State v. Boland, 800 P.2d 1112, 1117 (Wash. 1990) (en banc) (holding that while the necessary regulation of garbage must compel a person to reasonably expect that a licensed trash collector will remove his garbage, “this expectation does not also infer an expectation of governmental intrusion”).
{26} The manner in which household trash is disposed of and collected in New Mexico is regulated by municipalities and counties. See generally NMSA 1978, § 74-9-7 (1991). In some communities, garbage must be placed in an individual bin and moved to the curb for collection. See Albuquerque, N.M., Code of Ordinances ch. 9, art. X, Section 1-6(A), (E)(3); Bernalillo County, N.M. Code of Ordinances ch. 70, art. II, § 70-36(a), (f)(3). The City of Clovis, on the other hand, requires its residents to share dumpsters which are provided by the city and placed near the alley for easy access by garbage trucks. We consider compliance with local ordinances governing the disposal of household garbage to support the reasonableness of an expectation that it will remain private from unwarranted inspection by the government.
{27} The State asks us to distinguish between a recognized expectation of privacy under Article II, Section 10 in garbage which is placed in an individual bin from that which is placed in a receptacle that is shared with others. This would require that we discern the level of constitutional protection to privacy in garbage upon whether one disposed of their garbage in an individual trash bin or in a communal receptacle, which in this particular case is mandated by local ordinance. We refuse to render such a distinction meaningful in our constitutional analysis, and we conclude that there is no purposeful distinction in the privacy expectations held by a person who disposes of trash in an individual receptacle from that of a person who places his or her refuse in a shared trash receptacle. While a communal receptacle may be more easily accessible to animals, scavengers or strangers, we agree with the Court of Appeals that “the mere possibility of [greater] access by the public does not negate a person’s reasonable expectation of privacy and the expectation that the garbage will be free from governmental intrusion before it is removed by a garbage truck and disposed of.” Crane, 2011-NMCA-061, ¶ 16. “Article II, Section 10, protects citizens from governmental intrusions, not intrusions from members of the general public, the [garbage] collector, or nearby wildlife.” Granville, 2006-NMCA-098, ¶ 29. Further, “[a]lthough garbage bags are placed in areas accessible to the public, the contents are not exposed to the public.” Crane, 2011-NMCA-061, ¶ 16 (alteration in original) (internal quotation marks and citation omitted).
{28} We also see no difference in a person’s expectation of privacy in garbage that is generated by the occupant of a private residence and the occupant of a temporary dwelling such as a motel room. The protection of privacy afforded under Article II, Section 10 extends to the contents of refuse generated in a temporary dwelling as much as to that which is generated by a separate residence. See Stoner v. State of California, 376 U.S. 483, 490 (1964) (“No less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures.” (citation omitted)). The fact that a person lives in a single-family residence, a multi-family complex, or a temporary dwelling does not prescribe the degree of privacy one is afforded under Article II, Section 10 in the context of garbage searches. Such a criterion would afford those persons who by choice or circumstance live in a single-family residence with more protection of their privacy than those who reside in a temporary or apartment dwelling. We decline to make the level of protection of privacy granted under Article II, Section 10 so arbitrary.
