Montana Supreme Court Rules Trash Diving Legal - (Identity Theft, Police Powers, Search and Seizure Law)
by Rick David
We've all seen commercials warning us of identity theft depicting a thief rummaging through an unsuspecting persons garbage looking for discarded social security numbers, credit card numbers etc. But did you know that trash diving is legal in many places? It certainly is in Montana.
According to the Montana Supreme Court in a recent decision, trash diving is legal if the garbage cans are on public property such as the street or a public alley.
The case involves a Montana resident named Darrell Pelvit who was suspected of running an illegal meth lab. Police searched his trash without warrant and found drug paraphernalia. On the basis of this discovery, they obtained a warrant to search the rest of his property and found incriminating evidence. Pelvit sued saying that the evidence was obtained illegally and should be thrown out. (Presumably back into the garbage.) The case went to the Montana Supreme Court and they said in part,
"The State counters that Pelvit abandoned his trash, and as a result, he had no actual or subjective expectation of privacy in it. In support of this argument, the State points out Pelvit took no steps to secure the trash; rather, he placed it in an unlocked garbage can set out in a public alley for collection." (Read entire decision - pdf) ...Don't forget to lock your garbage can.
Reversal of Fortune
How do you think public officials, who believe that a citizen's trash is open game, would feel if someone went through their trash? Well someone did. And the officials didn't like it very much.
In a hysterically ironic story entitled, "RUBBISH!" The Willamette Week Newspaper reported, "Portland's top brass said it was OK to swipe your garbage--so we grabbed theirs."
The Multnomah County District Attorney's Office investigated police officer Gina Hoesly by going through her trash without warrant, and using what they found, including blood from a tampon, to file charges against her. She was later indicted for possessing ecstasy, cocaine and methamphetamine.
Prosecutor Mark McDonnell said, "once you set your garbage out on the curb, it becomes public property. There were no signs on the garbage, 'Do not open. Do not trespass', There was every indication...she had relinquished her privacy, possessory interest."
So since the public officials in Portland firmly asserted that trash on public property was open game, some reporters from the Willamette Week Newspaper did some trash diving of their own, - into the garbage of the officials who promoted this policy.
Police Chief Kroeker's trash was taken, along with Mayor Vera Katz, and District Attorney Mike Schrunk, all because they defended the proposition that garbage is up for grabs.
When the reporters questioned Chief Kroeker, and asked him again about the right of police to go through a citizen's trash, he reaffirmed, "Things inside your house are to be guarded. Those that are in the trash are open for trash men and pickers and--and police. And so it's not a matter of privacy anymore."
The reporters then spread out a sample of what they found in his trash. They showed him a receipt with his credit-card number, a summary of his wife's investments, an email about his job application to be police chief of Los Angeles, a well-chewed cigar stub, a very personal handwritten note scribbled in pencil on a napkin, and a newsletter from Focus on the Family, addressed to "Mr. & Mrs. Mark Kroeker."
When they questioned him about whether he belonged to the conservative political action group, what do you think he said? If you guessed, "It's none of your business!" you would be right. He soon stormed off saying, "we're done".
Mayor Katz demanded that reporters come to her chambers with their lawyer. The reporters brought some of her recyclables because her garbage can was kept off the street on her private property. But after being confronted with samples of the magazines and newspapers she subscribes to along with a TV guide with her favorite shows circled, she also stormed out, later issuing this statement: "I consider Willamette Week's actions in this matter to be potentially illegal and absolutely unscrupulous and reprehensible, I will consider all my legal options in response to their actions."
They told District Attorney Schrunk that they intended to report that his garbage contained mementos of his military service. "Don't burn me on that, the Marine Corps will shoot me!" he begged.
So that old golden rule, "Do unto others what you have them do unto you." still seems to hold.
But in light of the Montana Supreme Court decision, which will no doubt be appealed to the U.S. Supreme Court, what do you think? Should the contents of your trash be legal for anyone to take once it's placed on a pubic street for pick-up?
By the way, Judge James Nelson of the Montana Supreme Court had some misgivings over his own ruling and added a warning,
"...if this Opinion is used to justify a sweep of the trash cans of a neighborhood or community; or if a trash dive for Sudafed boxes and matchbooks results in DNA or fingerprints being added to a forensic database or results in personal or business records, credit card receipts, personal correspondence or other property being archived for some future use unrelated to the case at hand, then, absent a search warrant, I may well reconsider my legal position and approach to these sorts of cases--even if I have to think outside the garbage can to get there.
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