The 4th Circuit Talks Trash

When you brought your trash out to the curb last week, you may not have thought you were knowingly exposing all of its contents to public view. But as far as the Fourth Amendment is concerned, you generally have no reasonable expectation of privacy in the contents of your discarded items at the curbside, so law enforcement can search it without a warrant – that is, without probable cause to suspect the trash will contain evidence of a crime.

Dissenting from the majority opinion to that effect in California v. Greenwood (1988), Justice William J. Brennan Jr. wrote that “members of our society will be shocked to learn that the Court, the ultimate guarantor of liberty, deems unreasonable our expectation that the aspects of our private lives that are concealed safely in a trash bag will not become public.” The decision is now 30 years old, but its logic still strikes many waste-generating citizens as surprising and wrong. Earlier this year, a couple of Oregon reporters enjoyed an Internet revival of the time they turned the tables and rummaged through the trash of their local mayor, police chief, and prosecutor in 2002 to make a point about the privacy rights implicated by that practice. The public officials were not pleased.

There is something about poking through someone else’s garbage that makes you feel dirty, and it’s not just the stench and the flies. Scrap by scrap, we are reverse-engineering a grimy portrait of another human being, reconstituting an identity from his discards, probing into stuff that is absolutely, positively none of our damn business….

And yet, there is also something seductive, almost intoxicating, about being a Dumpster detective. For example, we spot a clothing tag marked “44/Regular.” Then we find half of a torn receipt from Meier & Frank for $262.99. Then we find the other half, which reads: “MENS SU 3BTN.” String it together, and we deduce that [the DA] plunked down $262.99 for a size-44 three-button suit at Meier & Frank on Saturday, Nov. 16, at 9:35 am….

Chinese takeout boxes and junk-food wrappers testify to a busy lifestyle with little time to cook. A Post-it note even lays bare someone’s arithmetic skills (the addition is solid, but the long division needs work).

The civic “ick” factor of investigative “trash pulls” is apparent to many state officials, and Greenwood doesn’t prevent them from creating their own constitutional and statutory protections for privacy rights in residential trash. It’s also worth noting that the literal “ick” factor (think week-old diapers, tampons, condoms, and spoiled food) is a natural disincentive to overuse trash pulls as a law-enforcement tool. After a residential garbage search last month that apparently yielded probable cause to raid a Virginia home, an officer told The Winchester Star: “It’s certainly not something someone would enjoy doing, going through someone’s trash, but if it’s necessary, we’ll certainly do it.” The officer couldn’t tell reporters exactly what they found in the trash that supported a warrant to search the home.

But that question just got more important in the 4th Circuit’s jurisdiction. In an opinion published Dec. 14, the court in United States v. Lyles said that three marijuana plant stems and empty packs of rolling papers found in curbside trash didn’t support probable cause to suspect even that marijuana was probably in the associated house, let alone the other illegal drugs and firearms mentioned in the affidavit for the warrant to search the house.

Writing for the panel, Judge J. Harvie Wilkinson III acknowledged Greenwood but insisted that our curbside trash isn’t completely divorced from the privacy protections of our homes:

[H]omeowners do not sever all connections to their trash. The trash from a home often will contain a variety of private items and effects. The fact that someone wishes to dispose of something does not mean he intends all others to have access to it. One need only imagine the discomfort of watching a neighbor or stranger sift through trash bags recently left at the curb. Indeed, the relevance of items discovered in a trash pull is predicated on a connection between trash and the home. But the rationale for allowing warrantless trash searches is, ironically, predicated on the lack of a connection between trash and the privacy expectations in the home.

Precisely because curbside trash is so readily accessible, trash pulls can be subject to abuse. Trash cans provide an easy way for anyone so moved to plant evidence. Guests leave their own residue which often ends up in the trash. None of this means that items pulled from trash lack evidentiary value. It is only to suggest that the open and sundry nature of trash requires that it be viewed with at least modest circumspection. Moreover, it is anything but clear that a scintilla of marijuana residue or hint of marijuana use in a trash can should support a sweeping search of a residence. The Supreme Court recognized similar dangers in searches incident to traffic stops, where allowing comprehensive searches following minor infractions would create “a serious and recurring threat to the privacy of countless individuals.” Arizona v. Gant, 556 U.S. 332, 345 (2009).

How significant is this language, notably lacking in citations? On one hand, the court later takes pains to highlight the disparity between the few items found in the trash and what was authorized by the remarkably broad warrant. The warrant application didn’t name the homeowner or defendant and provided no facts about an ongoing drug investigation that had yielded the defendant’s name in the first place. Yet the warrant still authorized the police to seize “essentially anything in the home, including cell phones, jewelry, records, diaries, and firearms.” It permitted a search of every book, record, and document in the house. In a phrase sure to be cited in future lawful-search defenses, the court observed: “This case is almost singular in the sparseness of evidence pulled in one instance from the trash itself and the absence of other evidence to corroborate even that.” (Boldface added.) In other words, arguably, this holding is limited to its facts, and Judge Wilkinson’s civic philosophizing about residential trash is dicta (not binding on future cases).

Perhaps so. But on the other hand, we’re entering a new era of Fourth Amendment jurisprudence that’s fundamentally re-evaluating the legal dichotomy between private and public, at least in cases involving smartphones. In Riley v. California (2014) and more importantly in Carpenter v. United States just this year (2018), the Supreme Court has taken the first steps toward acknowledging that the way we have thought about constitutional privacy protections thus far simply doesn’t fit ordinary lifestyles in the digital context. It’s true that the Carpenter decision was written very narrowly, and ultimately it may not do much more than create a “digital exception” that leaves existing Fourth Amendment notions intact. But another possibility, though more remote, is that future cases will be generally freer to develop a more robust middle ground between what’s private and what isn’t.

After all, statistically speaking, it actually is objectively reasonable to expect the contents of our trash to be de facto private. That sense of privacy is based not on other people’s ability to rummage through our gross garbage (which Greenwood emphasized) but based instead on the low probability that anyone would choose to do so. You could call it herd privacy: The reasonable belief that there’s no reason why you’d be singled out from a huge number of other humans for special scrutiny.

This idea underpins the burgeoning digital exception, even if not explicitly. Why do so many people use smartphones, even when we know they’re constantly collecting data about our personal lives? It’s largely because information like your location, or even your search queries, feels depersonalized if it’s just a few data points among billions. Until very recently, the proposition that this galaxy of information was being used to create extremely detailed, sometimes second-by-second profiles of our individual activities would have sounded like a dystopian conspiracy theory; that is, possible but very unlikely. Based on the state of technology as we have known it most of our lives, we could maintain a reasonable sense of privacy that was admittedly much lower than if our information were stored in our private homes, but also much higher than if it were published it in a newspaper.

Our willingness to protect our privacy, usually at some cost, reasonably rises and falls with how likely we think it is that our privacy will be invaded. If you suspected someone was stalking you, you might take pains to keep your windows covered, even – or especially – when you were at home. But under normal conditions, you’d be more likely to leave the curtains open sometimes. Other than a stalker, who would even be looking in your windows, and who really cares if they do? At home with open windows and no suspected stalker, it’s statistically reasonable to feel a limited sense of privacy, even if that privacy could theoretically be violated. It’s the same for the trash you’ve put out for collection: Probably not a reasonable source of worry if you don’t have a stalker, but a definite privacy vulnerability if you do.

Although Carpenter isn’t understood to apply outside the digital world, the same concerns that support a digital exception to standard Fourth Amendment principles arise in the context of ordinary curbside trash. As the Oregon reporters’ escapades illustrated, the same categories of intimate life details – perhaps harmless but definitely still private – can be gleaned from your trash bags as can be collected from your phone, depending on which apps you’ve downloaded and how they approach permissions. Where you eat and what you order. Where you shop and what you buy. Who your friends are. What you read. What organizations you associate with or support financially. Your vices, your health problems. If family members live with you, the same goes for them.

They’re the same concerns Judge Wilkinson hints at when considering the private nature of trash in Lyles. Yes, we’ve effectively “abandoned” our trash, perhaps even to public property near the road. But as Justice Brennan rightly declared in his Greenwood dissent, ”[s]crutiny of another’s trash is contrary to commonly accepted notions of civilized behavior.” Put differently, just because someone is technically or legally able to invade our privacy does not mean that we should expect them to do so. Without explicitly contradicting Greenwood, Wilkinson seems to be on the same page:

The fact that someone wishes to dispose of something does not mean he intends all others to have access to it. One need only imagine the discomfort of watching a neighbor or stranger sift through trash bags recently left at the curb.

It’s similar to the discomfort I’d have if I left my phone unlocked and then saw someone poking around on my homescreen. Although Lyles doesn’t mention Carpenter or analogize to smartphones, it seems significant to me that the 4th Circuit has taken the case as an opportunity to observe that, when it comes to trash, there’s a rather stark mismatch between what Fourth Amendment jurisprudence says is reasonable and what ordinary people believe is reasonable.

In Carpenter, the Court said that smartphones were indispensable to participation in modern society. Do they feel the same way about residential trash collection?



Categories: 4th U.S. Circuit Court of Appeals, Essays, Opinions, Published

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