Monday, October 13, 2008 Bendigo: Talking trash By Raul B. Bendigo Under My Hat
IN EARLY 1984, a policewoman received information that Mr. Accused was engaged in the trafficking of illegal narcotics.
She further learned that a criminal suspect had informed a drug enforcement agent in February 1984 that a truck filled with illegal drugs was en route to the address of Mr. Accused. In addition, a neighbor complained of heavy vehicular traffic late at night in front of the house of Mr. Accused. The vehicles, the neighbor reported, remained outside the house of Mr. Accused for only a few minutes.
So, the home of Mr. Accused was put on surveillance. Every week for two months and once more a month later, the police searched the trash that Mr. Accused left in opaque bags in the curb in front of his house. This was done by asking the neighborhood's regular trash collector to pick up the plastic bags and to turn the bags over to the police.
The trash was minutely scrutinized in the hope that the police could find something that could give them a footing in the way of building up a case.
Finally finding paraphernalia connected with drug use in the garbage bags, the police filed an application in court for a warrant to search the house.
Attached to the application were the affidavits of the policemen describing the paraphernalia they found among the trash. When the officers searched the house, they found cocaine and marijuana. Mr. Accused and another person were arrested and released on bail.
In May, another investigator again collected the garbage bags left in the curb. They again contained evidence of drugs. Another warrant was obtained and the police found more drugs and evidence of drug trafficking in the house.
However, the California Superior Court dismissed the charges on the ground that the warrantless search of the trash violated the U.S. Constitution's Fourth Amendment (the rule against unreasonable searches and seizures). The court's decision was appealed by the prosecution with the Court of Appeal (CA). The CA affirmed the Superior Court's decision. The California Supreme Court denied the prosecution's petition for review. The prosecution brought up the case to the U.S. Supreme Court (SC).
Voting 6-2 (one member did not take part), the SC reversed the ruling of the Superior Court and the Court of Appeal. The SC ruled that the "Fourth Amendment does not prohibit the warrantless search and seizure of garbage outside the curtilage of a home."
The SC said that a warrantless search and seizure would be unreasonable if the accused had a subjective expectation of privacy in his garbage, an expectation that is generally accepted as objectively reasonable. The SC noted that in this case Mr. Accused left the trash for collection in an area particularly open for public inspection. He therefore could not claim a reasonable expectation of privacy in the items that he discarded.
It is common knowledge, the Court said, that plastic bags left along a public street are readily accessible to animals, children, scavengers, snoops and other members of the public. The police "cannot reasonably be expected to avert their eyes from evidence that was open" to the eyes of the public.
