ACCESS TO TRASH: EXCERPTS FROM PRIVACY LAW IN THE U. S. A.
From: Web Site of Dr. Ronald B. Standler (http://www.rbs2.com/privacy.htm)
Category: Professional News
Date: 11/27/01
Comments: Excerpts from the web site of: Dr. Ronald B. Standler attorney and consultant
I suspect that most people believe that they have more rights to privacy than the law in the U. S. A. recognizes, which means that we should be more active in requesting legislatures to enact statutes in this area. That is why I have posted the following essay on the Internet.
Index
1. What is Privacy? 2. History of Privacy Law 3. Modern Privacy Law 4. Privacy of Businesses 5. Possible Examples 6. Privacy of Garbage 7. Invasions of Privacy by Journalists
_____________________________
6. PRIVACY OF GARBAGE
The U.S. Supreme Court has ruled that the police may legally search, without a search warrant, trash or garbage that individuals put out for collection. California v. Greenwood, 486 U.S. 35 (1988). As explained below, search and seizure of material placed in the trash is a clear invasion of an individual's privacy and this Supreme Court holding should be overturned.
Residents commonly place their trash in plastic bags and put the bags on the curb, for pickup by the municipal trash collection service. The bags themselves are opaque, commonly black or green or brown. The technology to make transparent plastic bags is well known, yet trash bags are always opaque. The color of trash bags is our first hint that people who purchase and use trash bags do not want transparent bags, since that would allow the contents to be easily seen.
The Alaska Supreme Court recognized that
Almost every human activity ultimately manifests itself in waste products and ... any individual may understandably wish to maintain the confidentiality of his refuse.
State v. Smith, 510 P.2d 793, 798 (Alaska 1973) (nonetheless holding that police could search garbage without warrant).
Trash routinely contains many personal items, including:
1. empty prescription medicine bottles, which are always labeled with the individual's name and may be labeled with the name and dosage of the drug, so that someone who searches the trash may infer the individual's medical condition. Particularly in the case of sexually-transmitted diseases or psychiatric disorder, disclosure of the individual's medical condition could cause embarrassment.
2. credit card receipts, which have the person's name and credit card data; someone who searches the trash could use these data to order merchandise by telephone
3. letters that contain confidential information on financial, political, religious, family, or romantic topics
4. empty containers of alcoholic beverages, which could be embarrassing in a town with a substantial number of people who disapprove of alcohol for religious or moral reasons
5. empty boxes for condoms, birth control pill packages, empty containers of spermicide, and other contraceptive materials that could be embarrassing, but are legal to possess and use.
6. telephone invoices, with a list of all long-distance numbers called, with the date and duration of the call
7. paper indicating membership in political or religious groups
This list makes clear that there are a number of items in household trash that people routinely regard as private. When people place such personal items in an opaque plastic bag on the curb for trash collection, they are expressing their continuing expectation of privacy. However, the holdings of courts that there is no expectation of privacy for garbage means that, to protect their privacy, individuals must purchase and routinely use a paper shredder to destroy receipts and letters, before placing them in the trash. Other materials, such as containers of prescription medicine, are more difficult to destroy beyond recognition. Instead of requiring such contortions from individuals, the law should recognize the wrongfulness of such intrusions into garbage.
The argument has been made that garbage from different residences is "promptly intermingled with other garbage in the truck such that its origin can no longer be identified." California v. Rooney, 483 U.S. 307, 322 (1987) (White, J., citing respondent's argument). While this quick anonymity is true for many items, it is not true for paper that contains names of people, such as invoices and labels on containers of prescription medicine.
One of the reasons cited by the U.S. Supreme Court to deny privacy to trash was
It 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.
California v. Greenwood, 486 U.S. 35, 39 (1988) [footnotes omitted].
At the time that the Greenwood opinion was written, this argument had already been demolished by the observation that "We expect officers of the state to be more knowledgeable and respectful of people's privacy than are dogs and curious children." State of Florida v. Schultz, 388 So.2d 1326, 1330 (Fla.Dist.Ct.App. 1980)(Anstead, J., dissenting); quoted with approval in State v. Hempele, 576 A.2d 793, 805 (N.J. 1990). One could obtain substantial protection against small animals by placing trash bags inside a metal or rigid plastic container with a lid. Indeed, in some communities, a municipal ordinance requires such containers.
The mere possibility of intrusion (e.g., burglar entering a house) does not negate the expectation of privacy in other situations, so it is inconsistent to hold differently for garbage. Greenwood, 486 U.S. at 54 (Brennan, J., dissenting); State v. Hempele, 576 A.2d 793, 804 (N.J. 1990).
The U.S. Supreme Court noted that a reporter for a weekly tabloid had seized five bags of garbage from Secretary of State Henry Kissinger, inventoried the contents, and published the results. California v. Greenwood, 486 U.S. 35, n.4 and 1635 (1988). The opinion of the Court used this invasion of Dr. Kissinger's privacy by a reporter as part of the reason to assert that one had no expectation of privacy in one's garbage! Just because Dr. Kissinger chose not to sue the reporter for "public disclosure of private facts" does not mean than an outrageous violation of his privacy did not occur.
In considering searches of luggage and packages, the U.S. Supreme Court held that there was no distinction between worthy containers (e.g., fancy suitcase, attach� case) and unworthy containers (e.g., paper bag), if the containers were opaque. Katz v. U.S., 389 U.S. 347, 361 (1967)(Harlan, J., concurring); Robbins v. California, 453 U.S. 420, 425-427 (1981); U.S. v. Ross, 456 U.S. 798, 815, 822 (1982). Because one expects law to be consistent, garbage that is in an opaque container should be protected from search. State v. Hempele, 576 A.2d 793, 803-804 (N.J. 1990).
I think a dissenting judge in a case in a Florida appellate court said it well:
In my view, a homeowner, upon placing items in a closed garbage container and placing the container in a position on his property where the container can be conveniently removed by authorized trash collectors, is entitled to reasonably expect that the container and the trash therein will be removed from his property only by those authorized to do so, and that such trash will be disposed of in the manner provided by ordinance or private contract. By sealing the containers in a secure manner and placing the containers on his own property, the owner has done everything within his own means to insure the privacy of the contents thereof, short of delivering the containers to a central disposal site himself.
State of Florida v. Schultz, 388 So.2d 1326, 1330 (Fla.Dist.Ct.App. 1980) (Anstead, J., dissenting)
It is possible for states to provide their citizens with a higher level of privacy than the U.S. Constitution. Greenwood 486 U.S. at 43. At least five state supreme courts have held that their state constitution prohibits search of garbage without a warrant:
1. California. People v. Krivda, 486 P.2d 1262 (Calif. 1971), vacated and remanded, 409 U.S. 33 (1972), reaff'd, 504 P.2d 457 (1973), cert. denied, 412 U.S. 919 (1973).
2. Hawaii. State v. Tanaka, 701 P.2d 1274 (Haw. 1985).
3. New Jersey. State v. Hempele, 576 A.2d 793 (N.J. 1990).
4. Washington. State v. Boland, 800 P.2d 1112 (Wash. 1990).
5. Vermont. State v. Morris, 680 A.2d 90 (Vt. 1996).
In this regard, the New Jersey Supreme Court made a good point when it recognized that their state constitution "does not ask what we expect from government. It tells us what we should demand of government." State v. Hempele 576 A.2d 793, 802 (N.J. 1990). That same court stated that "we have not merely the authority to give full effect to the state protection [when the state constitution affords more protection than the U.S. Constitution], we have the duty to do so." Id. at 800.
In most of the cases involving police searches of garbage, the defendant has been selling illegal recreational drugs. I have the feeling that much of the opinions of courts are nothing more than the bogus philosophical argument that "the end justifies the means": because drug dealers are evil, they have no rights. Of course, the judges are sophisticated enough to cover their real motivation with long, technical arguments about no reasonable expectation of privacy, curtilage, abandonment, etc. In contrast, I believe the issues are simple: the confidential contents of much garbage, together with its opaque container, is enough to justify requiring a search warrant before the police can open the garbage bag. Erudition and scholarship should not be used to make issues more complicated than necessary for a full understanding!
The current law in the U.S.A. (federal as well as most states) is that (1) a person has no reasonable expectation of privacy for contents of garbage and (2) a person has relinquished any property interest in garbage, even when it sits in metal trash cans or opaque plastic bags at the person's home awaiting collection. This sorry state of affairs needs correction, probably by legislation.
ABANDONMENT & CURTILAGE ARGUMENTS
The Court in Greenwood decided that case according to the Katz test (reasonable expectation of privacy), not considering whether the trash bags were abandoned property. However, many state and federal trial and appellate courts have considered the issue of abandoned property.
Trash bags on the curb might be considered as abandoned property. True abandoned property is available to anyone who finds it. But trash bags were put on the curb with the reasonable expectation that the municipal trash collection service � and no one else � would pick up the bags and dispose of them anonymously. See People v. Krivda 486 P.2d 1262, 1268 (Calif. 1971); State v. Hempele, 576 A.2d 793, 808 (N.J. 1990). Trash is not abandoned property, because it is not available to anyone who finds it.
But, even if trash be abandoned property, it does not follow that the former owner has also relinquished an expectation of privacy in the garbage. For example, in mailing a first class letter one relinquishes the letter, while retaining the right of privacy to the contents. California v. Greenwood, 486 U.S. at 55 (1988)(Brennan, J., dissenting); Ex parte Jackson, 96 U.S. 727 (1878). This analogy can be extended: one does not control the routing of telephone conversations or telegraphic messages, but 18 USC � 2511 requires that the telephone and telegraph companies maintain the confidentiality of the messages in their system. Still further, people sometimes discard items to maintain their privacy. State v. Hempele, 576 A.2d 793, 809 (N.J. 1990).
The Fourth Amendment to the U.S. Constitution explicitly prohibits "unreasonable searches and seizures" of people's houses by the government. This protection has been extended to the area immediately surrounding the house, which is called the "curtilage". Some courts have considered it significant whether the garbage bags are inside or outside the curtilage, with a view toward protecting garbage inside the curtilage, but not protecting garbage outside the curtilage.
In Greenwood, the U.S. Supreme Court only considered garbage that was outside the curtilage. Greenwood 486 U.S. at 37. Again, we must remind ourselves that the Court in Greenwood decided that case according to the Katz test (reasonable expectation of privacy), partly because the trash bags at issue in that case were outside the curtilage. But the Court in Greenwood never suggested that the concept of curtilage was determinative of a privacy right in garbage. A much better analysis of curtilage is given in State v. Hempele, 576 A.2d 793, 799 (N.J. 1990).
The reason that trash bags are placed outside the curtilage is that municipal ordinances require trash to be placed at the curb, for the convenience of collection personnel, so trash can be collected in an efficient and orderly way. The choice of location is not an expression of residents' desires to forfeit any privacy interest in the contents of their trash. Therefore, I think courts' arguments about curtilage are irrelevant to the real issue.
SEARCHES OF GARBAGE BY OTHER THAN POLICE
The privacy of garbage is an issue that extends beyond police searches without a warrant. In many cases of computer crime, a person obtained computer account numbers and passwords by searching garbage cans outside buildings that contained mainframe computers. A common way for people to steal credit card numbers (in the days before electronic processing of credit card transactions) was to rummage through the trash of retail merchants and find the carbon paper from credit card receipts. Who has committed the greater wrong: (1) the business who carelessly discarded confidential information or (2) the punk who deliberately searched through garbage in search of the confidential information to use for unlawful purposes?
There are also a few reported cases in which a company searched through the garbage of a competitor, in an attempt to find lists of customers, corporate strategy, embarrassing material, etc. The Soap Co. v. Ecolab, Inc., 646 So.2d 1366 (Ala. 1994); Camp, Dresser & McKee, Inc. v. Steimle & Assoc., Inc., 652 So.2d 44 (La.Ct.App. 1995). The dissent in Ecolab mentions that, because Greenwood held that a person has no legitimate expectation of privacy in garbage, there is no legal basis for the complaint. This is an example of how the bad decision in Greenwood can affect more than just privacy of individuals. Technically, Greenwood is inapposite, because, as explained above in section 4, businesses have no right of privacy.
MY ANALYSIS AND OPINION:
Yes, I am a Garbologist! (A person who studies Garbage! Ha! Ha!) I have done an early pickup of garbage from the fronts of homes and I have done some dumpster diving in the dumpsters of apartment complexes and businesses on many occasions. I believe the author, Dr. Ronald B. Standler, is of the opinion that garbage deserves some expectation of privacy and he quotes and highlights the opinions and dissents of the Courts that agree with him. I disagree with him and the Courts disagree with him. I know that the law allows us to confiscate garbage once it has been placed in a dumpster or out by the curb. As the article reveals, there is much information that can be gleaned from a few days or a weeks worth of garbage.
Usually, I will pick up the garbage of a subject for at least 2 weeks and up to a month or more in order to learn nearly everything about that person if needed. With more than a month�s worth of garbage, I will have had a good chance to gather every utility bill, credit card statement, discarded copies of notes, letters, contracts and of course lots of garbage. I will know what the person�s favorite foods and beverages are. I may know if the person consumes excessive alcoholic beverages and what prescription and non-prescription drugs they are taking. I may have receipts for nearly every purchase they made. I could learn when, where and what they did (and maybe even who and how) from organizing all of these pieces of evidence in chronological order.
CONCLUSION:
As you can see, much information can be learned about a person from a bag of garbage.
Here are some things that you could do to protect yourself from prying eyes.
Use common sense when discarding important papers and confidential information. You could shred them or bag them up separately and take them to a garbage dumpster not tied to your home or business. This would not prevent someone else from going through your garbage but it would prevent a targeted attack on your privacy.
Other than shredding, the best thing would be to keep all of your personal information filed or boxed in your home until you can discard it safely outside of prying eyes.
Sincerely,
Lenny Vasbinder, P.I.
*-This site is always being updated. Please look at all of our new Pages with: Interesting Articles, Analysis, Case Samples, Photographic Evidence Samples and my Political Pages!
**-No part of this Analysis, Opinion or Conclusion should be construed as Legal Advice. This is only an example of things that can happen during the Investigation, Pre-Trial, Trial and Post-Trial processes in any Legal Proceeding. Please consult an Attorney for Legal Advice or Assistance.
2002, 2003, 2004, 2005 -Copyright-Lenny Vasbinder
