In a Manner of Peeking

Dubious trash search voids firearms conviction.

In 2005, Baltimore Police Officer Charles Manners obtained a warrant to search the home of Davon Tate for drugs and related items based on the officer's prior investigation of Tate's trash. During the search, the police found a gun in Tate's bedroom. Tate, who already had a couple of drug convictions on his record, was charged under federal law with possessing a firearm after being convicted of a felony.

The federal district judge denied Tate's attempt to challenge the affidavit supporting the search warrant and thereby suppress the seized evidence. Tate pleaded guilty and was sentenced to six years' imprisonment. His plea agreement, however, allowed him to appeal the legal sufficiency of Manner's affidavit.

On appeal, a three-judge panel examined the details of the trash investigation and found reason to believe that Manners may have wrongfully omitted key information in the affidavit. The appeals court overturned Tate's conviction and sentence, and remanded the case to a lower court, where Tate will have a chance to prove that the deficient affidavit amounted to a false statement that misled the state judge who issued the warrant.

Manners' affidavit stated, among other things, that he had conducted a trash investigation at Tate's residence, where he retrieved two trash bags that “were easily accessible from the rear yard.”

When Tate challenged the search in district court, he argued that the portion of the affidavit regarding the trash investigation “was constructed intentionally to mislead the state judge into assuming the investigation had been done legally.” On the contrary, Tate alleged that Manners took the trash bags after trespassing onto Tate's property and that the trash had not been abandoned.

In California v. Greenwood, 486 U.S. 35 (1988), the U.S. Supreme Court ruled that police, without a warrant, could search garbage bags left for collection at curbside and seize the contents, which could then be used as evidence of criminal activity. As the court saw it, the property owners had no reasonable expectation of privacy when they left their plastic garbage bags in an area “readily accessible to … scavengers, snoops and other members of the public … for the express purpose of conveying it to a third party, the trash collector ….”

Tate's challenge was supported by a letter from the Baltimore Bureau of Solid Waste indicating that the day Manners took the trash bags was not a trash-collection day in the neighborhood. Tate also offered uncontroverted evidence that the garbage can, which was placed in the alley only on collection days, was inaccessible to a non-resident without bypassing a locked gate or scaling a fence.

“If Tate is correct about his proffered facts,” Manners “omitted important facts and circumstances that, if true, were essential to the constitutionality of the trash investigation,” the appeals court said.

“Manners may have violated Tate's reasonable expectation of privacy,” the court added. “Without the facts drawn from the trash investigation, the remaining contents of the affidavit would not have supported a finding of probable cause.”

[U.S. v. Tate, No. 07-4026, 4th Cir., May 6, 2008]

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

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