By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A roadside chat on every officer’s dream job, pulling trash. Anthony works through the general rule, the harder scenarios where the can is still on the property, and the rules for community dumpsters. He also gives the best practice that keeps the whole thing out of a suppression hearing.
Do people have a reasonable expectation of privacy in their trash?
Let’s talk about every officer’s dream job, and that’s pulling trash, right. So trash pulls have been around for a very, very long time. As you can imagine, it’s a dirty job, but if done correctly it can produce a massive amount of evidence against the occupants.
All right, our general rule is, look, a person does not have a reasonable expectation of privacy in their trash that’s put out for collection. We’re going to go through the rules, but I want you to know, right, you can, if you’re working in a restrictive state like New Mexico, that does, I think, you, Oregon is another one, but that does put a higher expectation of privacy on trash.
Well, you know, these rules are the Fourth Amendment rules, and this is good for federal task forces and so forth. But under state law sometimes it’s being restricted. The vast majority of states, the vast majority, you know, California, Texas, Florida and so forth, do not put restrictions on trash pulls if these rules are followed.
Is trash abandoned if it is not trash pickup day yet?
All right, so here’s some scenarios. If the trash is on the sidewalk or the street, it’s usually abandoned at that particular time, right, even if it’s not trash pickup day. So if the person leaves their container on the sidewalk, and on Monday they put a bag of trash in it, but the trash does not get picked up until Friday, it’s abandoned. Because the general public and scavengers and, you know, trash collectors, whoever, or police, could have access to that trash can. So there’s access there without violating anybody’s rights. For example, no curtilage issues. And the homeowner is sending a signal that they no longer want an interest in their property, right. So that’s why it’s kind of a game on situation.
So here’s a classic example, those trash cans. But Anthony, what if they don’t have another place to put the trash can, that’s like, you know, it’s like a row house? Well, look, that’s just the way it is. They bought that house with those conditions. If they don’t want to put that trash in the receptacle, they can have some other trash can in the back, then they can move their trash, you know, or they can move that receptacle in the backyard, I don’t know. But the deal is that that is a sidewalk right there. Once they put it in there, it’s abandoned at that particular time, even if not on trash day.
Here is how a court put it. Defendants placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through defendant’s trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it.
So that is sending a signal to the whole world, we no longer want anything to do with it.
What if the trash can is still on the property or the curtilage?
All right, now here’s a little more tricky situation. What if the trash is on the property, like, you know, either their property or curtilage? This one you’ve got to abide by some rules. Here’s what I suggest.
Number one is, I would not consider it abandoned until around the pickup time. So you’re going to have to find this out. You’re going to have to get on the phone, talk to the collection company. But if they say, yeah, we normally collect at that house on Wednesday mornings at 6:00 a.m., right, I mean not to be exact like 6:05, but you know, they say yeah, we come in pretty early in the morning, that’s early on our route, around 6 a.m. And the trash is in there, you know, the people put their trash in there Tuesday night, and cops come around 4:00 a.m. to collect the trash. I think you’re okay. Or the trash company is late, 8 a.m. I think you’re okay. So it’s around that time.
But I do not think that police should go onto people’s property at Tuesday afternoon. That is not good. I do not recommend that, because they can make an argument that they have not abandoned the trash yet, because they know that the trash company does not arrive yet.
And I’m also talking about situations where the trash company goes onto the property to collect the trash. That is actually a common thing out there. You know, many newer neighborhoods, I guess they want the trash put out to the front, but a lot of older neighborhoods around this country, the trash company actually goes onto the property and collects the trash can. That’s the scenario we’re talking about here.
Does it matter if the trash can is visible from the street?
Okay, so we want it around the same time. The other one is, you know, it does help if the trash can is visible from the street. If it’s behind a blocked wall or something like that, that throws a monkey wrench into it, because the Supreme Court said that the fact that it’s visible from the street helps reduce expectation of privacy.
And here, right, where would they pick it up, right? Where does the trash company pick it up? That’s very, very important. If the homeowners have a habit of bringing the trash can towards the front of the property, and let’s say normally it’s held on the side, but the trash company does not normally go up to the side of the house, I would not touch that trash. Let the homeowner put it out for collection. Even if it’s technically on their property, if that’s their normal routine and that’s where they put the trash, and it’s around the same time of the pickup, you should be okay.
What is the best practice for a trash pull?
All right, so best practice is to have the collection company do it, right. Go to them, see if they’ll work with you, get a clean truck. You can ride in the truck if you want to, to make sure you have a chain of custody, right. You’ve seen the trash, it was picked up, no it wasn’t comingled with other people’s trash. So chain of custody is fine. Be in the truck, let them pick it up, throw it back there, go to the station, whatever, collect the trash, and you should be good to go.
That’s the best practice, it’s to let them do it, because then it’s really hard for the homeowners to make this argument that you somehow stole their property. No, the trash company was going to do it anyway.
So here is a case where the cops picked up trash near the side of the house on pickup day. So think about the things that I talked about, right. I spoke about around the same time of the pickup, visible from the street if possible, and in the same manner.
Whether there was a reasonable expectation of privacy in the trash left at the left side of the residence near the garage is a closer question. It certainly is. It’s not the easy one, what’s on the street. The obvious distinction between that, trash left near the curb is more exposed to the public than his trash left closer to the house. The defendant urges that the trash near the garage was within the curtilage of his home and therefore well within the protections of the Fourth Amendment. The district court here found that the trash was sufficiently exposed to the public to defeat a reasonable expectation of privacy, because it was left in a location where, listen, the sanitation workers regularly would on Wednesdays remove it along with trash left by the street. Indeed, nothing was done to prevent the removal of the garbage, and the garbage remained within the public view.
So it’s all matching what I said. Around the same time, visible from the street, the trash company collects trash there. All right, that’s good.
Can police pull trash from an apartment dumpster?
Now let’s talk about community trash cans. The general rule here is that they are abandoned property, unless the area of the trash can is closed to the public.
So look at that picture right here. Not in this case, I just pulled some internet. But here the cops pulled trash for 12 days in a row from an apartment dumpster. 12 days in a row. Did we violate some of these rights? Absolutely not, right. Absolutely not.
To begin with, this dumpster accommodated several apartments, therefore many people living in the building would conceivably have occasion to look in it and scavenge about in the collective heap. Secondly, all municipal pickups were made from this dumpster, therefore any tenant in the complex could be sure that periodically a group of third persons would look into the dumpster and possibly scavenge items therefrom, right.
So however, though, if the dumpster is behind some kind of lock and key, or let’s say that the dumpster is only opened up on Wednesdays, and but it’s locked the other days and people have to throw the trash over, don’t. I would not jump the fence, the gate, to get into that receptacle. I would wait till it’s opened for the sanitation company, right. Not saying that’s a winning argument. I’m not saying that, because especially for a community trash can, right, I’m not saying it’s winning. But you can avoid it, and avoid these arguments, by just waiting.
What happens if officers climb a fence to reach a locked dumpster?
So here was a case where cops climbed over a wall because the trash can was behind a locked gate. They then got, basically this was a business, and the accusation was that the business was engaged in illegal disposal of paint, right. So environmental crime. And they jumped the gate, they looked in the trash, sure enough there’s these paint containers not disposed of properly. Environmental crimes.
However, we got a problem. Defendant in the instant case took affirmative steps to protect his privacy interest in the dumpster. He installed gates at either end of the fence alley and kept them closed until the waste hauler arrived. In these circumstances the judge was warranted in concluding that the defendants demonstrated their subjective expectation of privacy in the contents of the dumpster, and that further this expectation was one which society would accept as reasonable.
The best case here is not to jump the fence, even on trash day. You’re going to have to work with the collection company, see if they’ll collect it with a clean truck, right. I use that word clean loosely. A clean truck, get the trash out of there, go deliver it to the police station, and you go from there.
The short version
- A person does not have a reasonable expectation of privacy in their trash that’s put out for collection.
- If the trash is on the sidewalk or the street, it’s usually abandoned at that particular time, even if it’s not trash pickup day.
- If the can is still on the property or the curtilage, I would not consider it abandoned until around the pickup time.
- I do not think that police should go onto people’s property at Tuesday afternoon. That is not good.
- It does help if the trash can is visible from the street. If it’s behind a blocked wall, that throws a monkey wrench into it.
- Where does the trash company pick it up? That’s very, very important. Confine yourself to how the collection company does business.
- Community trash cans are abandoned property, unless the area of the trash can is closed to the public.
- If the dumpster is behind some kind of lock and key, I would not jump the fence.
- Best practice is to have the collection company do it. Get a clean truck, ride along, and your chain of custody is fine.
- Some states put a higher expectation of privacy on trash. These are the Fourth Amendment rules, and your state law can be more restrictive.
So big takeaway. If the trash is set out for collection, it’s usually abandoned right, and offers no Fourth Amendment protection. However, if it has not been set out, or it’s on the person’s property, you’ve got to basically confine yourself to how the collection company does business.
All right, hopefully that helps. So go out there and go get that trash.
Related from Blue to Gold
This article is an edited transcript of Roadside Chat Ep. #226. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
