The state of our trash in Florida: the use of evidence found in residential garbage to establish probable cause to search a citizen's home.

• Author: Jenkins, Jim

As most of us know, once we carry or drag our garbage to the street for disposal, it is fair game for authorities to snatch and sift through to their hearts' delight. Fortunately, most of our trash contains nothing but garbage and applications for new lines of credit from companies that think lawyers are great credit risks. However, many of our criminal clients are not aware of the risks involved with placing their garbage out for collection.

In many jurisdictions, trash pulls have become one of the narcotics squads' best resources for obtaining incriminating evidence that provides grounds for search warrants of our clients' homes. However, on occasion, law enforcement officers and agencies either do not understand the law or are too impatient to gather legally sufficient evidence to establish probable cause to search someone's home. Often the agents or officers, after finding marijuana seeds and stems or cocaine residue in a trash pull, will rush to the courthouse to get a search warrant based upon clearly insufficient evidence. They present the facially deficient affidavit listing evidence of clear-cut narcotic law violations to judges who are often very willing to sign a search warrant when the affidavit establishes evidence of illicit drug use.

This article is intended to be a brief review of the case law surrounding trash pulls. It does not address omissions from, or false information included in, the affidavit for search. As you can imagine, the analysis of this issue is extremely fact intensive.

Whose Trash is it Anyway?

There is no reasonable expectation of privacy with respect to garbage placed out for collection by the garbage man. (1) The act of placing trash outside for collection is an act of abandonment and hence, there is no Fourth Amendment protection. (2) Whether the garbage seized was readily accessible to the public is a factual determination decided on a case-by-case basis; there is no bright-line rule that applies to all garbage suppression cases. The 11th Circuit has recently addressed this issue in United States v. Segura-Baltazar, 448 F.3d 1281 (11th Cir. 2006), and found that the applicability of the Fourth Amendment hinges on whether the garbage left for collection is "readily accessible to the public" as to render any expectation of privacy objectively unreasonable. (3) In Segura, one of the issues was whether garbage left near the garage of Segura's house and in open view to the public was readily accessible to the public even though it was within the curtilage (generally the land or yard adjoining a house) of Sergura's house. The 11th Circuit, after citing several cases addressing the issue by other federal circuits, held it did not need to address the curtilage issue because the garbage was readily accessible to the public even though it was within the home's curtilage. (4) The court also noted that in Segura's case, the sanitation workers would pick up the garbage even if it was not taken completely to the curb for pick-up. So, it appears, in some factual scenarios, if the court finds that the garbage is "readily accessible" to the public to rummage through, even if it has not been taken to the street for pick-up, the garbage may be considered legally abandoned, allowing law enforcement officers to search it.

Determination of Probable Cause and Standard of Review

Probable cause has been defined as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in his or her belief that the suspect is guilty of the offense charged. (5) To establish probable cause sufficient to issue a search warrant, an affidavit in a warrant application must set forth two elements: 1) a particular person has committed a crime; and 2) evidence relevant to the probable criminality is likely located at the place to be searched. (6)

In determining whether probable cause exists to justify a search,

the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the...