Dumpster Diving And The Law
The following article appeared in the February 1991 issue of the FBI Law
Enforcement Bulletin.
By Thomas V. Kukura, J.D.


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 Bill

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

through 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

trashed 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 that

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 the 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

investigations as a law enforcement 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



Similarity, 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 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 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 implictly

open to the public, or into areas of curtilage close to a

public street that are otherwise expressly or implictly

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 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 the

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. Thus,

when 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 example 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 hold 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 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

trash collector has retrieved and transported the trash off

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



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.



FOOTNOTES



*1 108 S.Ct. 1625 (1988)



*2 See, People v. Krivada 486 P.2d 1262 (1971) The Krivada

Court, presented with fact 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 placed 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

comprehensive 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



*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.

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