§ 6.08 INSPECTION OF GARBAGE

• Jurisdiction: United States

§ 6.08. Inspection of Garbage¹²³

The Supreme Court held in California v. Greenwood¹²⁴ that a person has no reasonable expectation of privacy in garbage enclosed in a closed bag and left for collection outside the curtilage of the home. No search occurs, therefore, when an officer opens a trash bag left at the curb and sifts through its contents.

In Greenwood, the Court conceded that G, the homeowner whose garbage was inspected by the police, might have had a subjective expectation that the trash bag would not be opened by the police or the public. However, it concluded that G's Fourth Amendment claim failed on objective grounds, because "it is common knowledge" that plastic garbage bags left on the curb for pickup "are readily accessible to animals, children, scavengers, snoops, and other members of the public."

In light of this common knowledge, the Court invoked two related "search" rules. First, applying Katz and the aerial surveillance decisions,¹²⁵ it stated that the Fourth Amendment does not protect information knowingly exposed to the public. Second, citing Smith v. Maryland,"¹²⁶ a case in which the police learned what phone numbers a home-dweller had called by seeking the information from the telephone company, the Court noted that one cannot have a reasonable expectation of privacy in information voluntarily turned over to others.

However, Greenwood goes further than the cases the Court cited. In those cases, the individuals exposed information to others "by conducting activities in an area visible to aircraft, and by making telephone calls, the numbers of which were being recorded by the telephone company). In Greenwood, G only knowingly exposed the container that enclosed the information. As the dissent pointed out, G did not "flaunt[] his intimate activity" by exposing the contents of his trash.

Essentially, under Greenwood, G's expectation of privacy is considered illegitimate because of, as the dissent put it, the "mere possibility that unwelcome meddlers [might] open and rummage through the containers." Because private persons might snoop, individuals have no constitutionally recognized reasonable expectation of privacy when and if the police — not private persons — in fact snoop. If that is enough to render the Fourth Amendment inapplicable, the dissenters asked rhetorically, would the Court suggest that "the possibility of a burglary negates an expectation of privacy in the home[?]"

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Notes:

^[123] See generally 1 LaFave, Note 98, sup...