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November 15, 2011
Can an individual expect as much privacy in the contents of garbage bags he throws into a hotel's
outdoor commercial bin as when he places the bags into a can outside his home? Yes, says a New Mexico appeals court.
Courts continue to confront the question whether the police may lawfully search one’s garbage. As a starting point, the Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. To take an easy case, if law enforcement officers search the garbage inside your house without a valid search warrant or conduct their search while trespassing on your property, you may have a claim that they acted illegally. Searches conducted near or adjacent to a residence, however, are another story.
The vast majority of courts have found that police officers do not need a search warrant to rummage a garbage can located in a place open to a random passerby. The rulings stem from a U.S. Supreme Court decision that the Fourth Amendment does not guarantee anyone a reasonable expectation of privacy in garbage when it is “readily accessible to any member of the public.” California v. Greenwood, 486 U.S. 35 (1988).
However, a few courts have ruled that the police cannot freely search an individual’s garbage in a number of locations, including the curb in front of a residence, the yard surrounding a house, and one’s office. In so ruling, these courts have defined an individual’s legitimate interest in the privacy of his garbage by reference to state constitutional provisions that surpass the protections under the Fourth Amendment.
Clovis, N.M., police received an anonymous phone call from a Choice Inn guest who reported a strong chemical odor emanating from Room 316. Suspecting methamphetamine (meth) production, two drug task force agents drove to the motel to investigate, putting Room 316 and its occupants under surveillance. After witnessing two trips to the garbage bin by the room’s registered guest, Agent Rains went to the bin and removed two sealed black plastic garbage bags. Although the bags’ contents were not visible, he caught the telltale smell. Without getting a warrant, both agents opened the bags and found items used to manufacture meth.
Based on these items, Agent Wright left the motel to obtain a search warrant while Rains stayed to conduct further surveillance. Presently, he saw two men, including Kevin Crane, leave Room 316. He stopped the men, explained that he was acting on a tip about meth production, and asked them for identification. To retrieve his identification, Crane led Rains back into Room 316, which reeked of the same garbage-bag odor.
After Wright returned with a warrant, the agents searched Room 316 and found still more drug manufacturing items and equipment. Crane was charged with trafficking meth and possession of drug paraphernalia. At trial his lawyer moved to suppress the evidence found in the bin, and the trial judge agreed based on Crane’s “reasonable expectation of privacy in the motel room and the garbage discarded from the room.”
By a 2-1 margin, an appeals court panel affirmed the exclusion of the evidence. “The warrantless search of Defendant’s garbage was unreasonable under the heightened protections . . . of the New Mexico Constitution,” the opinion said. “[W]hen an individual conceals garbage from plain view by placing his or her personal items in a garbage can or an opaque bag, that action exhibits an expectation of privacy that is not unreasonable.”
[State of New Mexico v. Crane, No. 29, 470, N.M.App., Apr. 7, 2011]
Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.
The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].
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