Iowa's Top Court Says Cops Can't Search People's Garbage Without A Warrant
from the [starts-selling-COME-BACK-WITH-WARRANT-trash-bags] dept
Pretty much everywhere in the United States it's accepted that if the public has access, law enforcement has access. This is the legal theory behind things like automatic license plate readers (anyone can see a license plate), utility pole-mounted cameras (anyone can see someone's front yard), and (to our benefit) recordings of public officials (if they're performing their public duties).
This theory (along with the theory of abandonment) tends to govern people's trash. Once it is outside the house and made accessible to sanitation services, it can be accessed by anyone, including law enforcement officers. Sifting through trash that has been "abandoned" is one of several ways officers compile the probable cause for search warrants.
Trash can't tell you everything but it can give you some idea what's going on inside a house. Conclusions are drawn from what's been observed in trash cans and officers move in. Sometimes they're horribly, horribly wrong. Sometimes they draw the correct inferences and make a successful bust. In either case, warrantless access to people's trash has been considered lawful for years.
Until now.
The Iowa Supreme Court [PDF] says garbage being abandoned for pickup by sanitation workers still has an expectation of privacy. (via We Are Iowa)
The state's top court breaks away from years of accepted jurisprudence to extend constitutional protections to residents' trash. But only the state's Constitution. The Fourth Amendment still doesn't cover trash pulls.
In this case, officers performed a couple of warrantless trash pulls, finding evidence of alleged drug production or use (poppy seeds, empty poppy seed packets, fabric pieces that tested positive for morphine). Using this as a basis for a search warrant, officers searched the house and found something else.
The police executed the warrant at Wright’s residence on November 21. They discovered a baggie containing two grams of marijuana and several capsules of Vyvanse, a prescription drug for which Wright had no prescription.
So, not the drugs the officers thought they would find, but drugs nonetheless. Nicholas Wright challenged the warrantless search of his trash, claiming this violated his rights.
Wright made two arguments in support of his motion. First, he argued Heinz physically trespassed on his property. Second, he argued he had a reasonable expectation of privacy in the contents contained in his trash bags. Wright argued the search warrant ultimately issued was without probable cause if the evidence obtained from the warrantless seizures and searches of his trash bags were suppressed.
The district court disagreed with Wright's assertions. So did the state appeals court. The state's top court, however, sees things differently. It takes its time getting to the point, but does perform the invaluable service of running down both state and federal interpretations of the Fourth Amendment and the state's own Article I Section 8, its Fourth Amendment equivalent. The court reaches this conclusion:
Current Fourth Amendment jurisprudence is a mess.
Instead of saying things are too screwed up to weigh in on a case like this -- one already rejected by two other courts -- the Iowa Supreme Court decides to set some precedent. It says taking trash is both a search and a seizure under the state Constitution.
Heinz meaningfully interfered with and “seized” the garbage bags and papers and effects contained therein when he removed the garbage bags from Wright’s trash bins, took possession of them, and transported them to the police station for further inspection.
[...]
It is equally apparent Heinz engaged in a search when he opened the garbage bags and rummaged through them.
A search is a search, even when the intrusion is minimal. The court cites the US Supreme Court's Jones decision, which said the warrantless placement of a tracking device on a vehicle was a trespass.
Here, Heinz testified he opened the garbage to “obtain information about what Mr. Wright may have been doing inside [his] house” and obtain evidence “related to drug activity.” A constitutional search occurs whenever the government commits a physical trespass against property, even where de minimis, conjoined with “an attempt to find something or to obtain information.”
That what was searched was "only" trash doesn't matter. A search was performed without a warrant specifically to find evidence of criminal activity.
We have little trouble concluding the property at issue is protected within the meaning of article I, section 8. Opaque garbage bags are containers, and containers are an “effect” as originally understood. See United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982). The fact that the containers happen to be garbage bags rather than, say, expensive luggage, is not of constitutional consequence. There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers.” . [...] In addition, Heinz opened the garbage bags and searched through the contents. The contents included other personal property, including two pieces of mail addressed to Wright. Letters are certainly papers. Further, “[l]etters . . . are in the general class of effects,” and “warrantless searches of such effects are presumptively unreasonable.” Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1657.
The court also says there was no "abandonment" of the trash, contrary to the state's arguments. State law says only licensed trash collectors can haul away trash. The leaving of trash outside the house is done with the assumption that only an "authorized collector" -- entities governed by their own set of state and city laws -- will move or otherwise access trash bags and their contents. Even when it's left outside to be collected, residents still maintain control of these possessions until an authorized collector takes possession. Cops aren't authorized collectors.
In moving his trash to the alley for collection, Wright agreed only to convey his property to a licensed collector. Wright would have the right to retrieve the property prior to collection and the right to exclude all others from rummaging through his garbage bins prior to collection.
The court also says there's a limited expectation of privacy in the contents of garbage bags. While this privacy evaporates once the bags are collected and processed by sanitation companies, it existed at the point the officer took the bags and searched the contents.
This is the precedent set in Iowa by this decision:
We hold Officer Heinz conducted an unreasonable search and seizure in violation of article I, section 8 of the Iowa Constitution when he acted without a search warrant and removed opaque trash bags from waste bins set out for collection behind a residence, took possession of the trash bags, transported them to a different location, opened the bags, and searched through the contents.
The case goes back to the lower court. The evidence will be suppressed but Wright's conviction still stands for now. It will be up to the state to prove its case without the evidence found in the trash bags, which then formed the basis for the search that resulted in Wright's arrest. That's not going to be easy.
This essentially makes trash pulls illegal. At the very least, it forbids cops from opening bags to take a look at their contents. Residents using clear trash bags won't necessarily be covered by this decision, since anything observable by other citizens can also be seen by officers.
This may result in law enforcement working more closely with sanitation companies to find some way to mark garbage officers would like to search and create a chain of custody that allows this evidence to be used to obtain search warrants or present in court. Once the bag hits the dump or processing center, it's open season.
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Filed Under: 4th amendment, garbage, iowa, search, warrant
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I know you meant it as a joke, but...
Techdirt absolutely should start selling 'Come back with a warrant' printed trash bags.
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The same theory justifies doxing.
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This whole case stinks to high heaven.
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Re:
well, the evidence WAS thrown out, after all.
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Simple administrative issue...
Just make every cop an official trash collector as part of their duties. I mean, they like to say "we take out the trash." Then, it can be in a literal sense.
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Ticks on the back of society...
Sifting through trash that has been "abandoned" is one of several ways officers compile the probable cause for search warrants.
Unless these officers are making sure recyclable goods are going into the right bin, I'm really, really struggling to think of a more pointless job than this. Just imagine telling your SO or your kids what you do for a living...
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"find some way to mark garbage officers"
Just lob paintballs at all of them.
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The court got it perfectly right
The garbage was on this person's private property, so it couldn't be "accessed by anyone." Just because the homeowner has (presumably) contracted a sanitation company to transport the garbage away at some time, doesn't mean its abandoned and doesn't give every Tom, Dick and Harry permission to come dumpster dive in their backyard.
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If it's otherwise publicly available
Then it's totally chill for me to go around digging through cops' trash (outside of Iowa), right?
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Exactly
Glad to see they mentioned the 'trespass to plant tracker" case which was the first thing that comes to mind when I read the headline.
After all, intent counts for a lot. You put out the trash for the collectors, not for anyone. If your car is parked in the driveway (or at the curb), its contents are not legally fair game. Nor is the box Amazon left on your porch. If your kid leaves their tricycle on the sidewalk, it's still not anyone's for the taking.
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Re: The court got it perfectly right
I'm not entirely sure - edges of property have an interesting legal status. In many states (I don't know about Iowa specifically), the local governments maintain an easement zone at the edge of the property that allows access for government employees. In some cases, it is only for very specific purposes, and in others it is vague and open to interpretation.
Additionally, one approach the local government could taken would be to review (and survey) actual property lines. In my last house, I had about 5 feet of yard on the street side that wasn't actually mine; it was originally assessed for eventual widening of the street. However, about 10 years after the neighborhood was laid out (back in the '50's), an elementary school was built, effectively dead-ending the street about 3 houses down, so the street never was widened.
But, technically, those 5 feet are still city property.
This probably explains why trash placement where I live requires the roller-can to be placed so that the rear wheels are in the gutter; not only for ease of access to the garbage truck, but to ensure that my garbage is off of my property, and thus fair game.
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Re:
Or repeal the state law about "authorized collectors". It's legal for anyone to go through the trash in other areas. Some people make a living at it.
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Have we learned nothing from Joseph Wambaugh? I guess we can look forward to a rash of star-chamber justice in Iowa now.
https://youtu.be/k8DCHDBkeWQ.
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Re:
Hug, I don’t know why I thought The Star Chamber was based on a Wambaugh novel; or why I couldn’t find the previous scene anywhere (where the defense spends ten minutes arguing the unconstitutionality of the police searching a garbage can.)
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A question
“Wright would have the right to retrieve the property prior to collection and the right to exclude all others from rummaging through his garbage bins prior to collection.”
Where does this leave scrappers? At least in Iowa? Scrapping: The idea of driving by peoples houses and picking up trash you can later resell, donate, or use.
The grey-zone ‘job’ is most or all of the income for many people in this country.
I’m the first to stand up and admit that I’m not against grabbing someone else’s “trash” and equally “one mane’s trash is another man’s treasure “!!
There are even numerous small level cases of the right of a scraper to pick up scrap.
Even on “private” property in the case of dumpsters: specifically if the ‘private’ property is open to the public the disposed of trash is as well.
So how does this ruling change the balance of abandonment.
I know the premise here is cops and digging through bags.
But the other side of the issue here is it now theft to take someone’s trash?
That would be a serious side effect.
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Re: A question
In that city, it was already illegal to "take or collect waste set out for collection on any premises, unless such person is an authorized solid waste collector." So any "scrappers" there are already having a bad time.
As far as "scrappers" living in other municipalities in Iowa, this ruling does not effect them. The referenced provisions of the Iowa state constitution only prohibit unreasonable searches by the government and, presumably, "scrappers" are not government representatives. Private entities searching your garbage would be a question for the legislature.
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Re: Re: A question
Thanks for the clarification.
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Re: Ticks on the back of society...
It's a dirty job, but someone has to do it.
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Re: The court got it perfectly right
"...doesn't mean its abandoned and doesn't give every Tom, Dick and Harry permission to come dumpster dive in their backyard."
In their backyard, no. I'm guessing that while on the person's premises the trash is still considered their property.
After the sanitation company has started carting it away...it depends on the wording of the sanitation contract.
I can imagine a few precedents where a panicked homeowner has to ask the dump truck to stop so he can look for the wedding ring, smartphone or expensive jewellery the kids, dogs, or s.o. threw into the garbage by accident or deliberately. It's likely the homeowner retains some rights around the trash but has provided a goahead for the sanitation company do do with it as they see fit unless the homeowner raises specific objections.
And that includes "showing the trash to the cops". I honestly don't see a problem with the cops gaining reasonable suspicion, putting on a pair of rubber gloves and sifting through the refuse of a given house. Although to be sure they'd have to wait until the trash has left the homeowner's land and hold up the dump truck in the middle of the street to do it.
This seems like it might give the local PD a whole new look. That of gawking bypassers watching a pulled-over dump truck with half a squad of boys in blue digging through it while the truck drivers stand around shaking their heads.
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Re: Re: The court got it perfectly right
In most of the country precedent is once you attempt to dispose of it it’s considered abandoned.
And all you have to do is look up street scrap or dumpster diving videos to see how big a thing it is. Freeganism comes to mind too!
I’ve gathered many thousands in free A/V and computer/tech equipment from the curb or dumpster over the years and I don’t care what anyone thinks of it!
Put a 1979 vhs deck on top of your pile and nothing will stop me from grabbing it.
“ That of gawking bypassers watching a pulled-over dump truck with half a squad of boys in blue digging through it while the truck drivers stand around shaking their heads.”
Lmfao
I’ve actually seen that in Chicago more than once.
I watched a tech out a bloody tampon in a plastic container once.
I just shake my head and thin ‘that’s desperation’.
Why, well in the same pile next to the dumpster was a 70” plasma TV. Which I waited patiently for.
Never got it to work but still have the screen in my basement. Too afraid to take it apart any further. Weird crap in those.
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Re: A question
it's called dumpster diving! and it is illegal everywhere. and yes you can get charged with theft and trespassing.
as for the blue lies mafia going dumpster diving , most states require a warrant while some don't.
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Re: Re: A question
“Everywhere “?
Uh, no. Look it up.
At least 5 states have specifically addressed it as legal in courts: California, Nevada, Illinois, and Florida.
If the property is open to the public by design the dumpster on the proper is equally open to the public.
Two of the biggest defenders of private access to dumpsters both lost, and both happen to have gone out of business:
Fry’s Electronics and Toys R Us.
In the case of drys the claim was user protection of discarded hard drives. And the decisions all declared Fry’s had to secure the drives from possession to verified destruction. Which is why they partnered with Green Disk.
TRU cases where about where the company’s liability ended on tax right offs.
They stopped being arse blasts when a Florida case ruled placing it in the dumpster with evidence was enough to satisfy tax requirements.
A dumpster and the 25’ square around it are the property of the waste company on contract.
Non-epa-regulated waste is, legally, discarded (read abandoned) property.
That’s why local trash collectors can take and sort out anything they want. You gave it to the public.
It’s also why it’s absolutely vital you shred documents.
The law is on the side of the person who opts to ebay your recycled tax records
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Re: Re: Re: The court got it perfectly right
"I’ve gathered many thousands in free A/V and computer/tech equipment from the curb or dumpster over the years and I don’t care what anyone thinks of it!"
Things discarded on or in sanctioned public repositories intended for garbage, you mean?
Note that the OP specifically references an officer trespassing on private property and sifting through/removing the contents of the garbage. This is a fairly significant difference between "owned" and "abandoned".
"I’ve actually seen that in Chicago more than once. "
There's probably a reason american police aren't exactly held in high regard these days - aside from racking up a body count actually putting criminals in other countries to shame - because it's not as if going to a judge and obtaining a warrant to search the premises is hard in most US jurisdictions, if you have reasonable cause of suspicion.
"I just shake my head and thin ‘that’s desperation’. "
And desperation for what, I'd wonder? generally speaking, if cops have reason to suspect a person, stakeout and surveillance will deliver grounds for a warrant soon enough. My money in this case would be unofficial administrative punishment. Can't very well assign KP to a cop, but digging through a dump truck to major shame and embarrassment?
*"Why, well in the same pile next to the dumpster was a 70” plasma TV. Which I waited patiently for."
There's recycling and then there's just hoarding. There's good reason plasma was replaced by LCD where you can expect many failure to be fixable. Even the smallest crack between the plates will leak noble gas and possibly mercury. And this is usually the main cause of failure as well. I'd advise taking it to the hazardous waste deposit stat.
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Re: Re: Re: Re: The court got it perfectly right
I appreciate your concern but I have over 25 years of experience in tech repair. I can quickly tell physical damage after removing the case shell.
This was a case of a power surge blowing out ics.
But I’m not experienced enough in the technology to fix it myself.
Given the size, and the superior quality of the image, eventually I’ll trade repair with someone off book. Till then: it sits safely agains my shelving.
I’ve dealt with far worse for a few bucks. Like smoke detectors (radioactive) and analogue thermostats (Mercury).
My penchant for old/archaic tech has already solidified my fate with lead poisoning.
If I’m lucky my cigarette addiction will kill me before I slip into full blown memory issues.
Once again it doesn’t take much of a search to find out how long I’ve been in tech. I’m a published author and have worked for multinational game companies. Both as a developer and as a service tech.
Mercury is the least of my concerns after spending a decade maintaining old pre-80s mainframes.
There’s also that basic premise: screw it.
A working plasma TV can still fetch over a grand. For a free trash grab, worth it to me on my sub-20k annual.
A low end 720p plasma can compete with the best 5/6/8K when it comes to contrast.
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Re: Re: Re: Re: Re: The court got it perfectly right
"Mercury is the least of my concerns after spending a decade maintaining old pre-80s mainframes."
Most of the other stuff kills you slowly in one way or other. Mercury, however, makes you weird. And not, alas, weird in the way of becoming the best futterwacker in underland. Lead, arsenic, ftalates, all the assorted chemistry of immature tech in days gone by, fine. But mercury alone I'd really stay away from.
"A low end 720p plasma can compete with the best 5/6/8K when it comes to contrast."
Increasingly niche today...on a 72" I'd argue you need at least 2K res to get a clear picture. On the other hand with that size I guess you can still watch it if you hang it on the far side of a shooting range.
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Re: Re: Re: Re: Re: Re: The court got it perfectly right
Lol, that’s actually quite funny at the end.
Yes, Mercury is bad. Along with arsenic, florocarbide, bsp, etc.
I’m under 50, can’t have kids, and suffer mild short term memory loss.
I’m quite the advocate for safety regulations in tech.
It’s part of my concern (concern, not opposition) with right to repair.
I’m a prime living example of what NOT to do safety wise.
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Re: Re: Re: Re: Re: Re: Re: The court got it perfectly right
"I’m quite the advocate for safety regulations in tech. "
There are times I'm frustrated by the nitpicky regulations of the EU - like coming down on pastries for containing enough cinnamon to prompt liver issues if you eat your own weight's worth of pastries in one sitting.
But then I look at the US and some of the reasons as to why there are heavy import blockades on so many comestibles, electronics, plastic toys etc from over there and I get the shivers at what we're locking out and you poor bastards end up living with, sleeping in, or eating.
"It’s part of my concern (concern, not opposition) with right to repair. "
Concern which would be better placed with the OEM, i believe. If devices are made which after five or ten years of use risk the health and safety of the customers then the one fixing the device shouldn't be at fault - it's up to the OEM to include safety guidelines sufficient to let the independent repairman operate on the device safely.
Same as electricity and gas regulations, heavily regulated due to how many died of faulty electrical appliances and water heaters in the early 20th century.
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“ it's up to the OEM to include safety guidelines sufficient to let the independent repairman operate on the device safely”
Sounds good to me. Now if only Congress (states and national) could figure that out!
I believe the only country with more toxic production than us is China!
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