Trash Cannabis

ON SOME STREETS, ONE CAN FIND potholes. On others, there's pot.

Armed with a search warrant, Arkansas law-enforcement officers entered the home of Harvey and Donna Morris. While searching the Morris' bedroom, the officers found digital scales, pounds of marijuana and an assortment of firearms. Below a dresser, officers found a canister containing $20,000. A shoe in the bedroom closet contained $5,000, and an arrow quiver by the dresser held yet another $5,000. Harvey Morris had nearly $12,000 in his possession. Officers also found a radio scanner tuned to police frequencies.

The Morrises were charged with possessing drug paraphernalia with the intent to use and simultaneously possessing a controlled substance and a firearm. Before trial, their lawyer asked the court to disallow the evidence seized from their home because the search warrant was based on items taken without a warrant from their trash, which they had set out for pick up by a collection service.

At a hearing on the evidence issue, officers stated that they drove past the Morris residence at night and saw two closed 96-gallon containers in a ditch “just off the road.” Other trash containers in the neighborhood were the same distance off the roadway. The officers said they stepped from the roadway into the ditch, removed three bags from one of the containers, emptied the contents of the other container into a truck and returned the containers to the ditch. The officers later inspected the contents.

The trial judge refused to exclude the evidence seized by the officers under the search warrant. After a jury found the couple guilty on all counts, they received prison sentences on the simultaneous possession charge, and both were fined $2,500 on the paraphernalia charge.

On appeal, the Morrises argued that the trial court wrongfully allowed the seized evidence to be presented at their trial. Citing the Arkansas Constitution, they claimed that they had a reasonable expectation of privacy, which the officers ignored by walking onto their property and opening the trash cans. The Arkansas Court of Appeals rejected their claim, noting that Arkansas law upholds a warrantless search and seizure of garbage on the same grounds as do the federal courts.

For at least 16 years, the prevailing federal constitutional standard has been based on the answer to this question: Does society accept as objectively reasonable the individual's subjective expectation of privacy in garbage left at the curb outside a residence?

In California v. Greenwood, 486 U.S. 35 (1988), the U.S. Supreme Court concluded that protection against unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution does not apply to garbage left on or near a public street for the purpose of making it available for collection. “Given that the trash was exposed to the public, appellants did not have a reasonable expectation of privacy … and it is irrelevant that [they] privately contracted for trash pickup and that the canisters were closed,” the Arkansas appeals court stated.

[Morris v. State, 2004 WL 897512, Ark. App., Apr. 28, 2004]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.