[BigV]

Originally Posted by xoxoxoBruce

snip--
Is this a federal law they can't peek in the cans, because I've read several places claiming as soon as it goes to the curb it belongs to the city, so people aren't allow to take anything put out. I think is came about from homeless people looking for aluminum to sell or deposit cans/bottles.

It is from the Washington state constitution. Here's a link that solidifies the decision. The upshot is that in Washington, "private affairs" are not subject to pubilc inspection (my paraphrasing, the brief is very dense reading). It was determined that the laws are written such that garbage being put out for collection is a private affair between the homeowner and the collection company, and not the government. No warrant, no searching.

115 Wn.2d 571, STATE v. BOLAND

CITE: 115 Wn.2d 571, 800 P.2d 1112

STATE v. BOLAND

CAUSE NUMBER: 56666-6

FILE DATE: November 15, 1990

CASE TITLE: The State of Washington, Respondent, v. Bradley
M. Boland, Petitioner.

[1] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Factors. In determining whether the state constitution provides greater protection to individuals than does the federal constitution, a court will examine the following six nonexclusive neutral criteria: (1) the textual language, (2) differences in the texts, (3) constitutional history, (4) preexisting state law, (5) structural differences, and (6) matters of particular state or local concern.

[2] Constitutional Law - Right to Privacy - Interests Protected - In General. Const. art. 1, 7 protects persons from unreasonable governmental intrusions into their private affairs. The privacy interests protected extend to those interests which Washington citizens have held, and should be entitled to hold, safe from governmental trespass without a warrant.

[3] Searches and Seizures - Warrantless Search - Garbage Can. A warrantless police search of a person's garbage contained in a trash can and left on a curb outside a residence for collection unreasonably intrudes into the person's private affairs in violation of Const. art. 1, 7.

[4] Constitutional Law - Right to Privacy - Location of Search - Effect. The location of a search is not determinative of whether it unreasonably intrudes into an individual's private affairs in violation of Const. art. 1, 7.

[5] Utility Services - Garbage - Privacy Interest - Reasonable Expectations. A person who leaves a trash can on a curb for pickup must reasonably expect that a licensed trash collector will remove the contents of the can but would not reasonably expect that governmental employees will search through the trash.

[6] Searches and Seizures - Fruit of Unlawful Search or Seizure - Objectives of Exclusionary Rule - Effect. Evidence obtained as the result of an unconstitutional search or seizure must be suppressed regardless of whether suppression will promote the objectives of the exclusionary rule.

NAMES OF CONCURRING OR DISSENTING JUDGES: Guy, Dore, Andersen, and Durham, JJ., dissent by separate opinion.

NATURE OF ACTION: Prosecution for unlawful possession of legend drugs and two counts of possession of a controlled substance with intent to deliver. The police had obtained a warrant to search the defendant's house based in part on evidence they had obtained from warrantless searches of the contents of the defendant's garbage can.

Superior Court: The Superior Court for Jefferson County, No. 87-1-00037-6, William E. Howard, J., dismissed the charges on November 18, 1987.

Court of Appeals: The court at 55 Wn. App. 657 REVERSED the dismissal and REINSTATED the charges, holding that the state constitution does not recognize a privacy interest in garbage placed outside the curtilage of a residence.

Supreme Court: Holding that the defendant had a protectable state constitution privacy interest in the garbage and that evidence seized from the defendant's house must be excluded, the court REVERSES the decision of the Court of Appeals and REINSTATES the dismissal.

COUNSEL: MICHAEL A. FROST and PETER B. TUCKER, for petitioner.

JOHN F. RAYMOND, PROSECUTING ATTORNEY, and MARK HUTH, DEPUTY, for respondent.

RICHARD HANSEN, KATRINA PFLAUMER, ROBERT H. WHALEY, and BRYAN P. HARNETIAUX on behalf of Washington Association of Criminal Defense Lawyers, Washington State Trial Lawyers Association, and American Civil Liberties Union of Washington, amici curiae.

AUTHOR OF MAJORITY OPINION: Dolliver, J.-

MAJORITY OPINION: Sometime in September 1986, both the office of the Prosecuting Attorney for Jefferson County and the Port Townsend City Police Department received anonymous letters alleging defendant Bradley Boland was distributing legend drugs. Legend drugs are drugs of which federal law prohibits distribution without a prescription from a physician. The anonymous letter was accompanied by a brochure containing the names of Health West Products and Brad Boland. Shortly after receiving the letter, the investigating officer attempted to order legend drugs from the defendant through the mail. When defendant received the letter, he responded with a letter stating he did not understand the inquiry. The letter, however, was returned to defendant with a notation stating the addressee did not live at the address given.

In October 1986, the investigating officer applied for a search warrant (based on the letter and brochure) in order to gain access to defendant's power records for the purpose of verifying his address. The warrant was served on November 6, 1986, and defendant's address was subsequently verified.

On March 18, 1987, the police began a series of four warrantless searches of defendant's garbage hoping to locate sufficient evidence to obtain a warrant to search his residence. The other three searches occurred on March 25, April 1, and April 8. Before each of the searches, police officers would observe defendant take his trash out to the corner for collection where he would place his trash can in approximately the same location. The lid of defendant's trash container fit securely on the can, and each time defendant took the can out, he would place a heavy piece of wood on top of the lid. On each occasion, the officers returned to defendant's residence during the night, emptied the contents of the trash can into a plastic bag and transported it to the police station. Once there, the trash was made available to state and federal agents who would examine its contents for evidence of drug-related activities. On at least three of these occasions, such evidence was uncovered.

After inquiring with the Washington State Board of Pharmacy in order to verify defendant did not hold a license to dispense legend drugs, the investigating officer applied for a warrant to search defendant's home. The warrant was issued based on the evidence obtained from defendant's trash and the letter and brochure received from the informant. On April 8, 1987, the police searched defendant's house and seized a large quantity of legend drugs as well as a card of tablets and a bottle containing controlled substances. Defendant was charged with unlawful possession of legend drugs (RCW 69.41.030) and two counts of possession of a controlled substance with intent to deliver (RCW 69.50.401(1)(i) and (ii)).

Defendant filed a motion to suppress the evidence gathered during the search of his house. Defendant argued the evidence was the fruit of the warrantless search of his garbage which violated the fourth amendment to the United States Constitution and Const. art. 1, 7. The trial court granted the motion, stating that in light of Const. art. 1, 7,

"it is clear that a law enforcement officer's examination
of the contents of a garbage container placed curbside
for collection is an unconstitutional intrusion into a
person's private affairs, particularly when the city ordinance
requires the container to be removed from the person's
property and placed at the side of the street for ease
of collection.

The trial court also ordered suppression of the evidence seized in defendant's home since, without the evidence taken from the garbage, no probable cause existed upon which to base the search warrant. The trial court subsequently ordered the charges against defendant be dropped.

The State appealed the trial court's ruling to the Court of Appeals, which reversed the trial court. STATE v. BOLAND, 55 Wn. App. 657, 659, 781 P.2d 490 (1989). Defendant appeals the Court of Appeals decision to this court. We reverse the Court of Appeals and affirm the trial court.

We note at the outset that the United States Supreme Court has held under the fourth amendment to the United States Constitution that no reasonable expectation of privacy exists in garbage which has been left on the curbside for collection. CALIFORNIA v. GREENWOOD, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988). Consequently, our review of the privacy interest at issue in this case is limited to an examination under our state constitution. Given that the fundamental purpose of the state constitution is to govern the relationship between the people and their government rather than to govern the relationship between private parties, SOUTHCENTER JOINT VENTURE v. NATIONAL DEMOCRATIC POLICY COMM., 113 Wn.2d 413, 780 P.2d 1282 (1989), it also follows that we concern ourselves only with the reasonableness of governmental intrusion into a private individual's garbage and not the reasonableness of such intrusions by private individuals.