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My trash isn't public! [NOT FINAL]

Roger Falk won in State v. Hoffman, No. 99,755 (Kan. App. Nov. 26, 2008), affirming Judge Frederick's suppression order in a Greeley County drug prosecution. The COA majority decided the case turned on whether the owner retained a sufficient expectation of privacy in some trash. Law law enforcement engaged in "trash pulls," where a deputy actually travelled on a trash truck picking up garbage from a suspect's home in a rural area:

Courts in some other jurisdictions have concluded that a person never has a reasonable expectation of privacy in trash left out for collection by a third party. These courts have gone well beyond the holding and rationale of [California v. Greenwood, 486 U.S. 35 (1988)], which emphasized the importance of public accessibility to the trash left out for collection. Given the importance of public accessibility to the rationale of both Greenwood and [State v. Fisher, 283 Kan. 272, 154 P.3d 455 (2007)], we believe that those cases provide the most helpful guidance in reaching the correct result in Hoffman's case. His trash was in no way accessible to the public. Given his rural setting, we conclude that the mere fact that he allowed a third party to haul his trash away did not eliminate his reasonable expectation of privacy in that trash. The district court properly held that the trash pulls at Hoffman's dumpster violated the Fourth Amendment, and that violation requires that the evidence be suppressed because it was obtained by a warrant based on the illegal trash pulls.

It's an interesting question. I bet if a person went through somebody's trash and pulled out financial information and used it fraudulently, the state wouldn't (and shouldn't) hesistate to prosecute that person. No one would say that the person who put that financial information had authorized the use of that information.

Additional kudos to Cal Williams, who won this motion at the district court!

Full post as published by Kansas Defenders on November 29, 2008 (boomark / email).