Dumpster Diving for Evidence?

Q: Are the police legally allowed to sift through the trash that you left on the street? Can they use whatever they find as evidence against you?

A: Oddly enough, if the police want to get dirty, they generally can. You may be asking yourself, could that really be worth it for them? What person would willingly dig through someone else’s trash? In reality, this could be their only opportunity to begin building a case against a suspect. With limited exceptions, absent a warrant based on probable cause that a crime was committed, they are not allowed to search someone’s home. This could be their only opportunity to obtain any evidence. From a more practical standpoint, they also want that potentially incriminating item before it makes its way to the dump, never to be found again!

In one Midwest case we were involved with, Customs seized a steroid package in the mail. The amount of the shipment was too small for the feds to get involved with. But Customs alerted the local police, who had a lot more time on their hands. The locals took a ride by the suspect’s house on the day of his trash pick-up, and secretly scooped up the bags of his curbside garbage.  They examined every inch of it, finding a discarded Customs seizure notice from a previous anabolic steroid order and various notes referencing steroids – but no empty vials or used syringes. That was just the beginning. For five straight weeks, these officers tenaciously collected the suspect’s garbage and carefully combed through it until they finally had enough to ask a judge to sign a search warrant for the residence. The warrant was signed, and the suspect was busted. I can’t fathom the willingness of these cops to sift through all that filth week after week. Was it based on their unfailing dedication to the pursuit of law enforcement, or on some prurient curiosity in poking into the residents’ trash? The suspect’s wife, by coincidence, was a popular local exotic dancer.

The Fourth Amendment of the United States Constitution protects a person’s expectation of privacy. Now what does that have to do with our trash inspecting officers? This is the standard with which the legality of their actions is governed. If a person has a legitimate and reasonable expectation of privacy in a specific place, the Fourth Amendment protects that area from searches and seizures by the government and its agents. The application of the Fourth Amendment to our “trash” conundrum is exemplified in the case of California v. Greenwood.[1]  There, the Supreme Court of the United States examined a case where the police were attempting to gather evidence pertaining to an alleged drug dealer. While attempting to do so, they asked the local sanitation department to turn over all of the garbage that was coming from the suspect’s home once it had been collected. The trash collectors complied, and upon inspection of the materials, narcotics-related paraphernalia was recovered. Using this newly acquired evidence, the officers were able to successfully apply for a search warrant because they now had the probable cause necessary. That search warrant was eventually executed, and the suspect subsequently faced drug-related charges as a result. The court held that this conduct was not performed in violation of the defendant’s Fourth Amendment rights and the evidence was lawfully collected. They reasoned that curbside garbage is, “readily accessible to animals, children, scavengers, snoops, and other members of the public.” As a result, the court held that it would be unreasonable to find that a person has a privacy interest as it relates to the Fourth Amendment in their roadside garbage. This decision wasn’t without its detractors, as the dissenting Judge opined that, “scrutiny of another’s trash is contrary to accepted notions of civilized behavior.”

What may come as a surprise to some, is that if a State believes that its citizens are entitled to more protections than provided by the Fourth Amendment, they can give just that.  Take for example the case of Oregon v. Lien.[2]  Unlike the case of Greenwood, the Oregon court found that a defendant has a constitutionally protected privacy interest in their garbage where the local sanitation company had turned over a suspect’s trash to police after picking it up. As discussed earlier, the Fourth Amendment only protects your privacy interests against the Government and its agents.  So how did the court justify this ruling in Oregon? They explained that by agreeing to take possession of the defendant’s trash and bringing it to the police, the sanitation workers were acting as the government’s agents and therefore, the Fourth Amendment is applicable. The question still remained: how could anyone reasonably expect privacy with respect to their trash? The Court went on to say that, “most Oregonians would consider their garbage to be private and deem it highly improper for …curious neighbors, ex-spouses, employers, opponents in a lawsuit, journalists, and government officials, to name a few—to take away their garbage bin and scrutinize its contents. In this case, the sanitation company’s manager acknowledged that norm: He would not collect garbage from a customer at the request of a private citizen because that would ‘violate the customer’s privacy.’”

Hawaii and Vermont have also ruled similarly to Oregon, holding that there is a reasonable expectation of privacy in your garbage.[3] Some states think it is more of a case by case determination. Take the decision of the Alaskan Supreme Court, where they held many factors must be considered, including how close the trash was to a person’s home, whether it was a house or an apartment complex, where the search was conducted and who searched performed the search (the police or a private citizen).[4]

Another major concern is the accessibility of one’s trash to the remainder of the public.  How can a police officer collecting trash as evidence be sure that a random stranger didn’t just dump their illicit items in front of someone else’s home? In Illinois, this issue was addressed and the court found that because other members of a community may have access to the trash, the mere existence of incriminating material in garbage does not automatically create sufficient probable cause without further proof of who its rightful owner was.[5]

In sum, there is not one uniform answer at this time regarding the question of expectations of privacy in one’s trash. It is clear however, in order to truly protect yourself, you shouldn’t throw anything away that you wouldn’t want a police officer to find.

[1] 486 US 35 (1988)

[2] 364 Or. 750 (2019)

[3] SeeState v. Tanaka, 701 P2d 1274 (1985, Hawaii), State v. Morris, 680 A2d 90 (1996, Vt.)(opaque trash bags placed at curbside for collection; Greenwood rejected)

[4] Smith v. State, 510 P2d 793 (1973, Alaska), cert den 414 US 1086

[5] People v. Burmeister, 728 NE2d 1260 (2000, Ill.)

By Rick Collins and Don Casadonte, Jr.