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.
RETURN TO NEWSLETTER MENU