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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.