Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/TRASH.TXT

Text File | 1991-03-28 | 21KB | 442 lines

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, whi