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August 20, 2005

Garbage, privacy, and the law

The Supreme Court of Montana recently ruled that citizens have no expectation of privacy with regard to the contents of their trash.

Read Justice James C. Nelson's remarkable concurring opinion. [via CNET]


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» Erosion of Rights from The MojoWire
Garbage, privacy, and the law The Supreme Court of Montana recently ruled that citizens have no expectation of privacy with regard to the contents of their trash. Read Justice James C. Nelson's remarkable concurring opinion. [via CNET] [Read More]

» Garbage Is Not Private from Political Parrhesia
Via Majikthise, we read a stunning concurring opinion in a Montana Supreme Court decision giving police the right to rummage through garbage without a warrant or court approval. Justice James C. Nelson concurred with the decision, but at least he... [Read More]

» Orwell predicted this from Linkmeister
Your wretched refuse is not protected by law, at least in Montana.The Supreme Court of Montana ruled last month that police could conduct a warrantless "trash dive" into the trash cans in the alley behind the home of a man... [Read More]


That really was a remarkable opinion, if for no other reason it was amazingly introspective and personal for a piece of legal reasoning.

But unfortuantely, I wish he had taken the final step as he threatened to at the end of his opinion, and just dissented, drawn the proverbial line in the sand and said "no, this is the limit to which we are going to allow invasions of privacy."
mojo sends

Justice James C. Nelson:

I fear that, eventually, we are all going to become collateral damage in the war on drugs, or terrorism, or whatever war is in vogue at the moment

So do I. And the idea that the police can go through our trash without a warrant should be illegal as the 4th Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It does not say we are secure in our homes, but that our papers and effects, should be secure. If jurists and politicians don't think pawing through someone's trash is an unreasonable seizure, perhaps the answer is the guerilla action we are starting to see of activists targeting the trash of opponents of privacy.

In the words of Tony Soprano, 'Garbage is our bread and butter.'

The rationale that by putting your papers into the trash constitutes your releasing them into the public domain has been used by law enforcement for many years.

I'm not saying its right or wrong... just that it ain't news.

No, it's not news at all. That's why JCN wrote such a bitter concurring opinion. He's not an activist judge, as it were.

You're right of course, I remember this being decided by the Supreme Court some years back. But I don't think that most Americans would find it acceptable if they knew. Their introduction to it should be secrets from the trash of judges and politicians being spread on the internet.

If the Constitution doesn't protect us from the police snooping in our trash, then it certainly doesn't protect us from private citizens doing the same. We need a campaign to engender outrage at this invasion of privacy. And Lindsay's just the one to lead it.

This gives a whole new meaning to "take out the trash."

Yes, it's been like this for many years.

What'e even less well-known is that it doesn't apply when you have a private trash service.

If you don't use "public" trash pickup (live outside town, have a business that doesn't get public service, etc) and have to pay for a private service, then the cops have to get a search warrant, just like a search of your house.

Whether the cops actually follow the rules or not is another matter.

I agree, epi, that this is something that unites most Americans. In fact, the privacy issue is a good way to sort the conservatives from the neo-fascists, since real conservatives are generally pro-privacy. (For men, at least.)

Yes, we should all take affirmative steps to secure our privacy.. Shredders: they're not just for crooks anymore.

Cass Sunstein wrote a great article entitled, "Fighting for the Supreme Court: How right-wing judges are transforming the Constitution" in 9/05 issue of Harper's.

He points out that, just as "American citzens in 1945...would have a hard time recognizing their Constitution" in 1970, so citizens from 1970 might be puzzled by the strange new Constitution of 2005.

Not much has changed in terms of the wording, of course; the only significant changes during these periods were the 22nd, 24th, and 26th amendments. But, as Sunstein writes, "In 1945 the Constitution permitted racial segregation, did not protect the right to vote, permitted official prayers in the public schools, and gave little protection to political dissent." I might add that it also did not prohibit beating confessions out of suspects, it allowed internment on account of race, and it allowed states to pass laws prohibiting abortion and specific sex acts between married couples.

One could say that it took much judicial activism to produce the Constitution of 1970, but would any of us want to live under the Constitution of 1945?

Now, Sunstein warns, we face a federal court system that is already imposing a new Constitution on the country. The 1971 Constitution prohibited warrantless search of garbage (People v. Krivda). In 1988, our new Constitution permitted warrantless search of garbage (California v. Greenwood). Sunstein tells us that this is only the tip of the iceberg, and that as the Supreme Court drifts further toward activism, our Constitution will become less and less recognizable. He also makes a good case for the idea that Roberts replacing O'Connor would be a big step away from restraint and toward judicial activism.

Unfortunately, I'm constrained by copyright law from presenting Sunstein's entire argument, so you'll have to buy the 9/05 Harper's if you want to be enlightened. It's also got a great debate on the Horowitz effort to enforce ideological affirmative action in universities (featuring Lani Guinier!), and a long article by Jonathan Kozol about the retrenchment of school segregation (now allowed by the Constitution, in case you hadn't noticed). Best. Harper's. Ever.

Nice post Gordo...

However, the house just passed the Patriot Act without modification and if it were to pass in its current form... there is no judicial restraint what so ever!

It abolishes the fourth amendment protections entirely by removing judicial oversight for search and seizure. The Senate removed those sections from the renewal, but now they have to resolve the two acts.

People were so focused on Rove at the time that they hardly seemed to care about it. I dispise the Johnny-come-lately whiners.


Do you know anything about the claim by Grumpy Physicist that private trash collections are exempted from California vs. Greenwood? Reading a summary of the opinion doesn't give me that impression.

Indeed, primers about how to protect your privacy always mention that you must burn sensitive documents or shred them multiple times (regular shredding is reversible). These primers are generally concerned with criminal identity theft more than with governmental fascism, but still, if you value your privacy, don't just throw important documents away.

I like the decision. Its one of the best ways union organizers can get information on employers.

Time to ditch old political affilations and vote Libertarian.

Time to tune in, turn on, drop out.


Thomas Kukura outlines Greenwood and subsequent decisions that clarified it:

It seems that the act of placing your trash in an area that is publicly accessible forfeits any expectation of privacy. If you place your cans or bags in an enclosed area not visible from the street (inside a closed garage, in a fenced area not visible from the street, etc), you still maintain expectation of privacy, even if you get the garbage company to agree to retrieve your garbage from that spot.

I think this might be what Grumpy is talking about. You probably can't get the public garbage collector to pick up from any location other than the curb, but a private company might agree to it.

Good link. Appreciate it Gordo. If you keep the trash on your property it is a little harder for the police to get it.

I'm pretty far to the right economically and in terms of having a big military and I even supported the war. If the administration is telling me that by being in Afghanistan and Iraq that we are fighting terrorists and making America safer, then, why do we need to suspend civil rights at home. We don't.

I actually tried to explain this to the Free Republic and was suspended. I even pointed out that if Hillary wins, the right will rue the day they handed government that much power. What if the Hillary's FBI starts sending members of various Militias to Gitmo? Civil rights and limited government apply to all political parties, not just Democrats.

So screw the far right and the far left. I'm voting libertarian, even if it means that it splits the Republicans.

The Supreme Court decided similarly many years ago. You'd be surprised at all the places where they've already decided that we "don't have an expectation of privacy".


You're right, there's too many people who think that unlimited power is just dandy, as long as our guy's in charge. In 1973, Arthur Schlesinger pointed out that every president in history has sought to expand the power of the executive branch. Nothing has changed in the intervening 32 years.

You and I read very different sources, so you probably missed Mike McCurry's bleating in The Washington Monthly (this was just after McCurry left his job as Clinton's press secretary--sorry, but I don't recall the date and can't find it online).

Essentially, McCurry said that the law prohibiting the USIA (the agency in charge of disseminating American propaganda abroad) from "giving information" directly to the American public was outdated, and should be scrapped.

I could hardly believe what I was reading. A major news publication was actually calling for the establishment of a Ministry of Truth. I can't imagine the Washington Monthly publishing a similar article by Ari Fleischer today.

I'm pretty sure that was the last edition of The Washington Monthly I ever bought. If I can find it in this giant stack of The Nation issues, I'll let you know which edition McCurry's article appeared in.

A some have mentioned this has been the law from the U.S. Supreme Court for a while now.

“It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Having deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded."

California v. Greenwood 486 U.S. 35, 40-41 (1988)

Hmmmm. . . How to put this tactfully? If you are surprised by this, then you just don't know anything about the law. This has nothing to do, for example, with the Patriot "Facist Joke" Act or terrorism. Constitutional jusiprudence prompted by the FBI sifting through Mobster's trash and tabloid journalist going through Movie Star trash prompted the unstartling doctrine that if you throw something - esp. using public waste disposal - it's no longer private. I'm not thrilled to contemplate people sifting through my garbage either, but the decision is hard to disagree with.

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