Garbage is Public Property on Curb

Law enforcement officials do not need a warrant to search a trash can that a homeowner sets out for collection in a publicly accessible area next to his house, according to a federal appeals court ruling. [U.S. v. Redmon, No. 96-3361, 7th Cir., March 10, 1998.]

Drug enforcement agents in Urbana, Ill., got word from an informant that a man named "Shaw" was expecting a shipment of cocaine. An undercover agent delivered a cocaine package to Shaw, who, when questioned, claimed he had received it for Joseph Redmon.

Redmon and his next-door neighbor owned townhouse units with adjoining garages and shared a common driveway. To reach their respective entryways, one had to proceed up the driveway toward the garages.

A sidewalk to Redmon's front door branched to the left. To reach the neighbor's front door, one had to take the walk to the right.

Under suspicion for narcotics dealing, Redmon was observed on trash collection days removing garbage cans from his garage and placing them on the driveway between the garage doors. After the trash was picked up, he would carry the empty cans back inside his garage. A city ordinance banned curbside placement of cans.

Acting without a search warrant, the police sifted through the contents of Redmon's garbage while the cans were sitting outside his garage awaiting collection. They found bags and other material commonly used in packing and shipping drugs. What's more, the seized items tested positive for cocaine.

Based on the garbage can evidence, a judge issued a search warrant for Redmon's house where police found packages of cocaine. A federal grand jury later indicted Redmon for possessing and intending to distribute illegal drugs.

Redmon challenged the warrant that was obtained on the basis of items taken from his garbage cans. He argued that the searches were unreasonable under the Fourth Amendment to the U.S. Constitution, and he attempted to prevent the prosecutors from using the resulting evidence against him. U.S. District Judge Harold A. Baker, however, refused to exclude such evidence.

On appeal, the full U.S. Court of Appeals for the Seventh Circuit, by an 8-5 margin, upheld the district court's ruling. The majority opinion noted that not every "police peek into a suspicious garbage can ... requires a warrant."

In 1988, the U.S. Supreme Court ruled that police officers did not need a warrant to examine the contents of plastic garbage bags that a homeowner had placed at the curb [California v. Greenwood, 486 U.S. 35]. The high court held that individuals could have no reasonable expectation of privacy in trash left for collection in an area accessible to the public.

As Redmon could not place his trash at curbside without violating the local ordinance, his "curb" for garbage pickup purposes was outside his garage on the shared driveway, the appeals court concluded. The path to his front door came near the garbage cans with no obstruction and was accessible by friends, guests, neighbors, solicitors, strangers, scavengers and other members of the public, the majority said.

Adopting the Greenwood standard, the appeals court rejected Redmon's claim that items seized from his trash without a warrant violated his rights under the Fourth Amendment.

"It takes little more than a look at the plat ... showing the Redmon location at the intersection of two city streets and the short common driveway-sidewalk arrangement with his neighbor to see how very publicly exposed and accessible Redmon left his garbage," the majority opinion said.

Separate concurring opinions by three judges mentioned "abandonment" as another reason to deny Fourth Amendment protection for garbage. Thus, if an individual customarily deposits his garbage in a receptacle and leaves it for pickup by trash collectors, "he has manifested an intent to abandon his refuse," which is "tantamount to 'throwing away' [an accepted and reasonable] subjective exception of privacy in it ...," a concurring opinion said.

Five judges joined in a dissenting opinion, asserting that trash was protected against warrantless searches because homeowners generally assume that the contents of garbage cans placed near their dwelling remain private property until the trash collectors cart the material away.

"It is tempting to suppose that the search of a garbage can could never violate [privacy rights] because the act of discarding something ... is a relinquishment of any interest in it," the dissent said. "But that answer ... would entitle the police to enter the home itself and rifle the trash cans ... found there."