Searching Garbage Requires Warrant, Appeals Court Rules

By Ashbel "Tony" Green | The Oregonian | March 31, 2005

Summary: The ruling says police can't use items found in the trash as evidence in two drug cases

The Oregon Court of Appeals ruled Wednesday that Portland police officers were wrong to search the curbside garbage can of a fellow officer for evidence of drug abuse, saying police must first get a search warrant.

The ruling involved both the Portland police case and an unrelated drug investigation of a Columbia County couple.

The U.S. Supreme Court ruled in 1988 that the U.S. Constitution does not require police to get a warrant before searching curbside garbage because people could not reasonably expect no one to go through trash left in a place accessible to anyone.

Portland attorney Stephen Houze, who handled the two Oregon drug cases, said Oregon's constitution provides greater protections of privacy concerning garbage. Houze said Washington and Indiana courts recently came to the same conclusion.

"I think there is an increasing awareness among courts that police rummaging through garbage without a warrant is an outrageous practice," Houze said. "I think the federal standard finally may be in jeopardy."

John Kroger, a professor at Lewis & Clark Law School and former federal prosecutor, disagrees.

"The basic principle that you don't have a right to control what happens over things you throw away is rock solid," Kroger said.

Kevin Neely, spokesman for the Oregon Department of Justice, said the state is looking into whether to appeal the ruling, which upheld lower court rulings dismissing drug charges.

Multnomah County Circuit Judge Jean Kerr Maurer in 2002 dismissed felony drug charges against Portland Officer Gina Hoesly, who was accused of using drugs in after-hours clubs.

"The defendant did not abandon all of her possessory and privacy rights" by placing her covered metal garbage can at the curb, Maurer ruled.

A Columbia County judge the same year threw out a similar "garbage pull" from Thad and Amy Galloway of Clatskanie.

On appeal, the state argued that the defendants had abandoned their garbage when they put it on the curb. As a result, the police did not need a warrant.

The Court of Appeals noted that in each case that the garbage was in a covered can owned by the homeowner and left out on a specific day to be picked up by a garbage collector.

"Garbage cans, like bicycles or cars, are commonly left on or near the street by individuals and, even if those individuals do not take the precaution of securing such items with locks, we would not infer from their unlocked state that the individuals who placed them there intended to abandon them," Judge Rick T. Haselton wrote for a three-judge panel of the court.

"Defendants did not implicitly authorize anyone else to paw through their garbage and view or take items of garbage. Rather, they placed their garbage in cans by the curb with the understanding that the garbage collection company -- and only the garbage collection company -- would remove the bags from the cans and carry the bags away."

Judges Virginia L. Linder and Darleen Ortega also signed the opinion.

Hoesly, 36, is a 12-year veteran of the Police Bureau who was indicted in June 2002 on one count of first-degree possession of a controlled substance and six counts of second-degree possession of a controlled substance.

The charges were partly based on evidence seized by two Portland narcotics officers from Hoesly's garbage after getting unverified secondhand information from an informant that Hoesly had been seen using drugs in after-hours clubs.

The garbage pull, which occurred about 2:07 a.m. March 13, turned up "minute trace" amounts of cocaine and methamphetamine on what police call short "snort straws," methamphetamine from a plastic bag and marijuana from a pipe and jar. Police also removed a tampon from the trash, which tested negative for drug residue but gave police Hoesly's DNA profile. The evidence helped police obtain two warrants to search Hoesly's home, car and person.

Hoesly has been out of work since May 2000 on a disability claim.