By Jeralyn | Talk Left | The Politics of Crime | December 11, 2002
Searching trash put out for the garbage collector without a warrant may not violate the 4th Amendment, but an Oregon judge finds that under Oregon's stricter constitution, it's not acceptable without a warrant. A few rules apply: You have to put your trash out in your own bin, not a collective bin in which it is comingled with other people's garbage. And it can't be in a transparent bag. If in a garbage can, it should be covered to visually conceal its contents.
"A Multnomah County, Oregon judge threw out felony drug charges against Portland Officer Gina Hoesly, ruling Tuesday that police unlawfully rifled through her garbage in March. "
"Circuit Judge Jean Kerr Maurer said Hoesly did not abandon her garbage when she placed her filled 32-gallon trash can, covered with a lid, outside her home for collection. The so-called police "garbage pull," conducted without a warrant, violated her rights under Article 1, Section 9 of the Oregon Constitution, Maurer said. "
"The defendant did not abandon all of her possessory and privacy rights," Maurer said. "I am finding that the search was unlawful. I am likewise suppressing the evidence."
"Maurer stressed that her ruling was a narrow opinion based on the facts of Hoesly's case, in which her metal garbage can -- opaque, covered with a lid and contained -- was placed outside her house for collection. Her opinion, she said, does not extend to community garbage bins or disposal of trash in transparent plastic bags or open containers. "
"Maurer's ruling marks the second trial court decision in Oregon this year knocking down a warrantless police garbage pull as unconstitutional. On May 16, a Columbia County judge threw out evidence that a multi-agency narcotics team obtained from a similar garbage pull in a marijuana grow case. "
The state plans to appeal both rulings. Until then, the cops in these two jurisdictions aren't happy but they are going to abide by the new rules.
A little more about the defendant police officer:
"As Maurer announced in court that she was granting the defendant's motion, Hoesly quietly turned to her lawyer, Stephen Houze, and mouthed, "Does that mean we won?"
"Houze nodded, and a wide grin spread across Hoesly's face. Hoesly, 34, is a 12-year veteran of the Police Bureau who has been out of work since May 2000 on a disability claim. She was indicted in June on one count of first-degree possession of a controlled substance and six counts of second-degree possession of a controlled substance. "
"The garbage pull 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 or semen but gave police Hoesly's DNA profile."
"Mark McDonnell, a Multnomah County senior deputy district attorney, argued that Hoesly, like the suspect named Purvis in the another case, had "abandoned" her trash and lost her "reasonable expectation of privacy" once she placed it on the sidewalk in a public right of way."
"But Maurer identified several factors that distinguished Hoesly's case from the Purvis case, noting that the renter of the hotel room left the trash in plain sight, did not try to conceal it and left it in a location that was not his but rented temporarily. Hoesly's garbage, in contrast, was covered with a lid."
"The steps she took by purchasing a metal container with its lid fitted to its top reasonably suggests that she intended that its contents be seen only by the employees of the garbage company with whom she had contracted to collect her waste," Maurer wrote. "It is not reasonable to conclude on these facts that she abandoned all rights to the property."
Many state constitutions offer stricter privacy protection than the federal 4th Amendment counterpart. We pass the ruling along in hopes of getting more state courts to rule this way.