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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