Vice Squad
Thursday, February 17, 2005
In Some States, Your Trash is Private

In 1988, the US Supreme Court held that warrantless searches of the closed trash bags you have placed on the curb for collection do not violate the 4th Amendment's protections against unreasonable searches. But US citizens are also governed by state constitutions, which can be more protective of individual rights than is that federal document. In Washington state, the constitution includes the following provision: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." That was good enough for a state court of appeals to declare a search of a drug defendant's trash to have been a violation of the state constitution. (Thanks to Ted Frank at Overlawyered for the pointer.) In 2003, the New Hampshire Supreme Court came to a decision similar to that of the Washington Court of Appeals.

Incidentally, I believe that Vice Squad has had occasion before to quote from Justice Brennan's dissent in the 1988 trash case:
A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests. It cannot be doubted that a sealed trash bag harbors telling evidence of the "intimate activity associated with the ‘sanctity of a man's home and the privacies of life,'" which the Fourth Amendment is designed [p51] to protect.

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