TRASH INSPECTIONS AND THE FOURTH AMENDMENT
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TRASH INSPECTIONS AND THE FOURTH AMENDMENT By Thomas V. Kukura, J.D. Special Agent Drug Enforcement Administration Assigned to the Legal Instruction Unit FBI Academy Law enforcement officers have learned that trash inspections are a worthwhile investigative technique that often reveal useful incriminating evidence. Therefore, officers contemplating a trash inspection must be cognizant of fourth amendment requirements to ensure the subsequent admissibility of any evidence obtained. Trash inspections that do not implicate fourth amendment privacy interests can be conducted without either a search warrant or any constitutionally required factual predicate. Conversely, trash inspections that intrude into a reasonable expectation of privacy must generally be conducted pursuant to a search warrant supported by probable cause. This article begins with a discussion of a recent U.S. Supreme Court decision upholding a warrantless trash inspection. It then examines some recent lower court cases that delineate several important factors law enforcement officers should consider in deciding whether a particular trash inspection is lawful under the fourth amendment. SUPREME COURT UPHOLDS WARRANTLESS TRASH INSPECTION In California v. Greenwood, (1) the Laguna Beach, California, police received information regarding possible drug trafficking activity at the residence of Billy Greenwood. After some investigation and surveillance of the Greenwood residence, an officer asked the regular trash collector to pick up the garbage that had been left on the curb in front of the Greenwood home and to turn it over to the police without commingling it with trash from other houses. The trash collector complied, and a subsequent warrantless inspection of the trash bags by the officer revealed evidence of drug use, which formed the basis for a search warrant for Greenwood's residence and his later arrest on felony drug charges. On the authority of an earlier California Supreme Court ruling, which held that warrantless trash inspections violate the fourth amendment, (2) the California courts in Greenwood concluded that the probable cause for the search of Greenwood's residence would not have existed without the evidence obtained from the illegal trash inspections, and that accordingly, all the evidence seized from the residence should be suppressed and all charges against Greenwood dismissed. The U.S. Supreme Court reversed the California court decision. No Reasonable Expectation of Privacy in Publicly Accessible Trash The Supreme Court held that a warrantless inspection of garbage left at the curb for collection does not constitute a fourth amendment search that intrudes into a reasonable expectation of privacy. The Court determined that even though Greenwood may have exhibited a subjective expectation of privacy in his trash, that expectation was not objectively reasonable and not one that society is willing to protect. (3) The Court relied on two factors in concluding there was no reasonable expectation of privacy in trash left at the curb for collection. First, the Court noted that "[I]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops and other members of the public" (4) and that it is well established that "[W]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (5) Finding that Greenwood exposed his garbage to the public sufficiently to defeat his claim to fourth amendment protection, the Court stated that the fourth amendment has never required law enforcement officers to shield their eyes from evidence of criminal activity that could be observed by any member of the public. (6) Here, Greenwood's trash was placed outside the curtilage (7) of his residence in an area particularly suited for public inspection and where any person in the neighborhood had access to the trash. Assumption of the Risk Rationale A second factor relied on by the Court was the fact Greenwood placed his trash at the curb for the express purpose of conveying it to a third party, the trash collector, who might have sorted through the trash or permitted others, such as the police, to do so. In that regard, the Court has consistently held that an individual has no reasonable expectation of privacy in information voluntarily turned over to third parties, even where the information is disclosed with the belief that it will be used only for a limited purpose, and even where it is assumed the third parties will not betray the confidence placed in them. (8) Individuals assume the risk that information they voluntarily reveal to a third party may be conveyed by that person to law enforcement officials. By voluntarily conveying his trash to the regular trash collector for routine pickup, Greenwood assumed the risk that the trash collector might convey the contents of that trash to a law enforcement officer. This assumption of the risk rationale applies even if Greenwood believed the garbage would be taken to the dump and destroyed and even if Greenwood believed the confidence he placed in the collector to destroy the trash would not be betrayed. (9) DETERMINATIVE FACTORS IN THE LEGALITY OF TRASH INSPECTIONS Although the Supreme Court in Greenwood clearly held that a person has no reasonable expectation of privacy in trash contained in plastic bags placed outside the curtilage for regular pickup, Greenwood does not hold that all trash inspections conducted by the police are beyond fourth amendment constraints. Lower court decisions since Greenwood have addressed the following four questions that are relevant in determining the constitutionality of trash inspections as a law enforcement investigative technique: 1) Since Greenwood's trash was in plastic bags, is the type of trash container a significant factor in determining whether a person has a reasonable expectation of privacy? 2) Since Greenwood's trash was placed outside the curtilage, is location of the trash a significant factor in assessing a privacy claim; and are warrantless trash inspections permitted on publicly accessible areas of curtilage? 3) Do police need a warrant to enter private areas of curtilage to conduct trash inspections? 4) Can trash collected from private areas of the curtilage during a routine trash collection be delivered to the police for their inspection? Law enforcement officers contemplating a particular trash inspection need to be knowledgeable of how courts have answered these questions to ensure that trash inspections are in conformity with the requirements of the fourth amendment. Type of Container Not Significant in Privacy Analysis Lower court cases since Greenwood clearly hold that the placement of trash in a garbage can or dumpster, as opposed to plastic bags, does not create a reasonable expectation of privacy. For example, in United States v. Trice, (10) Special Agents of the Drug Enforcement Administration obtained a search warrant based, in part, on evidence obtained from a warrantless inspection of a trash can placed near the curb of the defendant's residence. The court rejected the defendant's reasonable expectation of privacy claim because, while a trash can is less accessible than a garbage bag, a trash can placed at the curb is still readily accessible to other members of the public." (11) Similarly, court decisions since Greenwood have denied fourth amendment protection to trash placed in a communal dumpster. (12) While trash placed in a communal dumpster is normally intermingled with the trash of others, such trash is still accessible and others can easily rummage through the dumpster's contents. Because courts conclude that it is not reasonable for a person to believe that trash is safe from inspection when it is placed in a communal dumpster, law enforcement officers in these cases have not been required to obtain a search warrant to inspect trash placed in such dumpsters. These cases suggest that the type of container a person uses to discard trash has little bearing on the extent of fourth amendment protection against police inspection of that trash. Location of the Trash is the Most Determinative Factor The most compelling factor in determining the constitutionality of a warrantless trash inspection is the location of the trash. In Greenwood, the Court held that the warrantless retrieval and subsequent inspection of trash placed for collection outside the curtilage does not constitute a fourth amendment search or seizure because the trash was accessible to the public. While it is clear that an inspection of a trash bag located under a person's kitchen sink would generally require a search warrant authorizing police entry into the home to conduct the search, the legality of trash inspections is more problematic where police make a warrantless entry into curtilage to retrieve and inspect trash, or where trash collectors enter private areas of curtilage to retrieve trash and then turn that trash over to police for inspection. Warrantless trash inspections permitted on publicly accessible areas of curtilage Several courts since Greenwood have held that a person does not have a reasonable expectation of privacy in trash placed for collection inside the curtilage, if the location is readily accessible to the public. Courts assess the constitutionality of a warrantless entry onto curtilage by examining the public accessibility of the area entered to determine whether the entry implicated a reasonable expectation of privacy. In Trice, (13) an officer without a search warrant removed a garbage bag from a trash can located in the curtilage near the street curb of the defendant's residence. Although the trash was technically on the defendant's private property and within his curtilage, the court held that no fourth amendment search had occurred because the garbage was: (1) In a location that was in public view; (2) easily accessible to pedestrians; and (3) placed near the curb for the express purpose of turning it over to the trash collector. (14) In State v. Trahan, (15) the Supreme Court of Nebraska upheld an officer's warrantless inspection of trash left for collection 4 feet from a trailer. Noting factual similarities to Greenwood, the court held that the public accessibility of the trash and its placement for collection at a designated location were determinative factors in concluding that the officer's entry onto the curtilage and inspection of the trash was not a search that implicated a reasonable expectation of privacy. (16) In Commonwealth v. Perdue, (17) officers investigating the extensive vandalization of a church observed a garbage can underneath the porch of an adjoining parsonage and conducted a warrantless inspection of the trash that revealed incriminating evidence. The defendant argued the warrantless trash inspection violated his reasonable expectation of privacy because the garbage can was within the curtilage of the parsonage where he resided. The Court disagreed and held as follows: "... property rights are only one consideration in determining whether a legitimate expectation of privacy exists.... Being next to a church, the public has easy access to the parsonage and the surrounding area.... As a result, the parsonage and its surroundings are subject to public access. Thus like the garbage left for collection in...Greenwood, the garbage in the instant case was subject to public inspection. Consequently, no objectively reasonable expectation of privacy existed." (18) These cases suggest that garbage put out for collection in an area of curtilage accessible to the public may be subject to warrantless police inspections. As a general rule, the fourth amendment does not prohibit warrantless police entry into publicly accessible walkways implicitly open to the public, or into areas of curtilage close to a public street that are otherwise expressly or implicitly open to the public. (19) Thus, where solicited and unsolicited visitors are invited to enter publicly accessible areas of private property where trash has been placed for collection, it may be constitutionally reasonable for law enforcement to also enter onto that property for the purpose of inspecting the trash. Warrant required for police entry into curtilage not accessible to the public Law enforcement officers should understand that the fourth amendment is implicated when they enter an area of curtilage not accessible to the public. Entry by officers into such areas to retrieve trash put out for collection is a search under the fourth amendment that requires a search warrant based on probable cause. For example, in United States v. Certain Real Property Located at 987 Fisher Road, (20) the court held that an officer could not retrieve without a search warrant the defendant's trash bags, which were placed for collection against the back wall of the home and hidden from the view of ordinary pedestrians. The court held that the officer's entry into the area of the backyard immediately abutting the rear of the home constituted an intrusion into the defendant's reasonable expectation of privacy because the trash was not readily accessible to the public and the officer intentionally trespassed with the express purpose of obtaining the garbage. (21) The limited authority given to trash collectors to enter the curtilage area near the back wall of the home did not also authorize law enforcement officers to enter that area. (22) Thus, where trash is placed for collection in an area of curtilage not immediately accessible to the public, a search warrant is generally required to authorize police entry into that area to remove and inspect trash. Routine Trash Collection Can Be Delivered To Police Courts have suggested that another lawful method for obtaining trash for inspection would be for law enforcement officers to ask the regular trash collector to deliver the trash bags to them after the bags have been removed from the curtilage during a routine trash collection. (23) For example, in a case decided before Greenwood, a trash collector's routine pickup required him to enter into a private area of curtilage through a gate of a fence enclosing the defendant's backyard. (24) In response to an officer's request not to dump the defendant's trash into his truck, the trash collector turned the collected trash over to the police for inspection. The court held the defendant impliedly consented to entry upon his premises by the trash collector and to the removal of the trash to a publicly accessible area where the trash collector could allow the police or anyone else to examine the trash. (25) In essence, the court reasoned that the trash collector did precisely what the defendant contemplated by coming onto the private curtilage and taking the trash. While an individual may not contemplate that a trash collector will not "commingle" his trash and take it to the dump, Greenwood holds that an individual assumes the risk that trash turned over to a collector may be conveyed by that third party to law enforcement officials. (26) Thus, a person does not retain a reasonable expectation of privacy in trash once it leaves the curtilage. A trash collector who enters the curtilage to collect trash subsequently turned over to police is considered a private actor for fourth amendment purposes when acting in the scope of a routine trash collection. Law enforcement officers who request assistance from trash collectors should ensure that they do nothing that exceeds the routine performance of their duties. Trash placed for routine collection in private areas of curtilage can constitutionally be turned over to the police after its routine removal from the curtilage by the trash collector. However, law enforcement officers contemplating this method of obtaining trash for inspection should consult with a competent legal adviser to determine whether a search warrant would be a more prudent method of obtaining the trash. CONCLUSION The cases discussed in this article suggest that law enforcement officers can, without a search warrant, constitutionally retrieve and inspect trash that is placed for collection in a publicly accessible area. Conversely, entry by law enforcement officers into private areas of curtilage constitutes a search that generally requires a search warrant based on probable cause. Trash left for routine collection within a private area of curtilage can be inspected without a search warrant by police after the the trash collector has retrieved and transported the trash off the private property. Officers contemplating a warrantless trash inspection should be thoroughly familiar with State law, as well as the Federal constitutional principles discussed in this article, because State courts may impose more restrictive rules under State law. (27) FOOTNOTES (1) 108 S.Ct. 1625 (1988). (2) See, People v. Krivada, 486 P.2d 1262 (1971). The Krivada Court, presented with facts similar to those in Greenwood, held the defendant continued to maintain a reasonable expectation of privacy in his trash concealed in paper bags, even after the trash had been place into the well of the refuse truck. (3) 108 S.Ct. at 1629. Greenwood declared that he had a subjective expectation of privacy in the inspected garbage because of the following factors: (1) The trash was placed for collection at a fixed time; (2) it was contained in opaque plastic bags; (3) the collector was expected to pick up the trash and mingle it with other trash and deposit it at the dump; and (4) the trash was on the street for a short time and there was very little chance the trash would be inspected by anyone. (4) Id. at 1628-29. (5) Id. at 1629. (6) Id. (7) Curtilage is generally defined as the area immediately surrounding a residence in which the intimate activities related to private domestic life are associated. For a more comprehenisve discussion of curtilage, see Sauls, "Curtilage-The Fourth Amendment in the Garden," FBI Law Enforcement Bulletin, May 1990. (8) See, e.g., United States v. Maryland, 99 S.Ct. 2577 (1979) and United States v. Miller, 425 U.S. 435 (1976). (9) 108 S.Ct. at 1629. (10) 864 F.2d 1421 (8th Cir. 1988). (11) Id. at 1424. (12) See, e.g., United States v. Dunkel, 900 F.2d 105 (7th Cir. 1990) and United States v. Young, 862 F.2d 815 (10th Cir. 1988). (13) 864 F.2d 1421 (8th Cir. 1988). (14) Id. at 1423. (15) 428 N.W.2d 619 (1988), cert. denied, 109 S.Ct. 561 (1988). (16) Id. at 623. (17) 564 A.2d 489 (Pa. Super. 1989). (18) Id. at 493. (19) See, People v. Shorty, 731 P.2d 679, 682 (Colo. 1987). (20) 719 F.Supp. 1396 (E.D. Mich. 1989). (21) Id. at 1404-5. (22) Id. (23) Id. at 1407, n.8. (24) Croker v. State, 477 P.2d 122 (Wyo. 1970). (25) Id. at 125. (26) 108 S.Ct. at 1629. (27) See, e.g., State v. Hempele, 576 A.2d 793 (N.J. Sup. Ct. 1990) and State v. Boland, 48 CrL 1205 (Wash. Sup. Ct. 1990). The Washington Supreme Court rejected the U.S. Supreme Court's reasoning in Greenwood and held that under their own State constitution, citizens do have a reasonable expectation of privacy in trash set out for pickup and a warrant is required before State law enforcement officers can inspect that trash. _______________ Law enforcement officers of other than Federal jurisdiction who are interested in this article should consult their legal adviser. Some police procedures ruled permissible under Federal constitutional law are of questionable legality under State law or are not permitted at all.
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