The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures. In order to determine whether a search is “reasonable,” courts consider a central question: Does the person have a reasonable expectation of privacy in the place or item searched?
While you might consider someone rummaging through your discarded trash a violation of privacy, most courts don’t. They theorize that once you place that trash on the curb, you’ve relinquished any reasonable expectation of privacy you had in it. To illustrate, it would certainly be illegal for the cops to hop your fence, then sift through a garbage can in your backyard. But if they wait until the night before trash-pickup and search through it after you’ve rolled it out to the curb, they’re probably in the clear. The government can use anything officers find in it to prosecute you.
Interpreting the U.S. and state constitutions, the overwhelming majority of courts have held that garbage that’s located in a place accessible to the public is fair game for law enforcement. But state constitutions in some instances provide more privacy protection than their federal counterpart. Consider the following examples.
Hey, that’s my stuff! In Vermont, a confidential informant tells a police officer that the defendant has been selling marijuana from his apartment and the parking lot of a grocery store. The officer waits for trash collection day at the apartment building, then goes there and grabs several opaque trash bags set out on the curb (five or six feet away from the building). In a couple of the bags, the officer finds information identifying the defendant and marijuana seeds, stems, and baggies. The officer uses the marijuana evidence to get a warrant to search the defendant’s home. In executing the search warrant, officers find four ounces of marijuana. After he's charged with marijuana possession, the defendant moves to suppress all the evidence, arguing it flowed from an illegal search of his trash bags. The Vermont Supreme Court agrees with the defendant, finding that the state constitution provides greater protection than the U.S. Constitution. A person’s trash contains intimate personal information that he or she reasonably expects to remain private. The evidence is inadmissible. (State v. Morris, 165 Vt. 111 (1996).)
Well, you threw it away. In Colorado, a confidential informant tells an officer that the defendant has been manufacturing methamphetamine. The officer arranges with a trash collector to have the police inspect garbage collected from outside the defendant’s home. The police find methamphetamine manufacturing materials in the garbage bags. They use those materials to get a warrant to search the defendant’s home, where they find all kinds of incriminating evidence. The defendant moves to suppress all the evidence, but the Colorado Court of Appeals shoots him down. It finds that neither the state nor federal constitution creates a reasonable expectation in discarded trash. You can’t expect privacy in something you’ve thrown away. (People v. Laurent, 194 P.3d 1053 (Colo. Ct. App. 2008).)