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- February 1991
-
-
- 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.