Trash Can Wars
Trash Can Wars
Iowa Supreme Court tells the U.S. Supreme Court it got the Fourth Amendment wrong on trash pulls.
Imagine it’s trash day. You look out your window and see your trash cans (along with those of all your neighbors) lined up on the side of the road ready for collection. Then, a police cruiser pulls up outside your house. Two uniformed officers tip your trash can over, rifle through a few of the bags, then throw them in the cruiser’s trunk and drive off.
The officers had neither a warrant nor any particular reason to go through your trash. But unbeknownst to you your teenage son tossed a half-spent joint in the trash before coming in the house last night. And before long he’s in jail and you’re left wondering: Is this constitutional?
In 1988, the Supreme Court said yes in a case called California v. Greenwood. The justices reasoned that, because citizens put their garbage out for a third party (trash collectors) to snag and trash at the roadside is “readily accessible to animals, children, scavengers, snoops, and other members of the public,” you have no reasonable expectation of privacy in garbage you stick out by the street. Thus, the Fourth Amendment doesn’t protect it and police can do with it as they will.
Last week, though, a bare majority of the Iowa Supreme Court came to a very different conclusion.
Laws Are For Thee, Not for We
Even though a city ordinance criminalized going through someone else’s garbage, a police officer in Clear Lake, Iowa, went through Nicolas Wright’s garbage three times in the dead of night. He had no probable cause and was armed, not with a warrant, but with a desire to “obtain information about what Mr. Wright may have been doing inside [his] house.”
The officer, you see, had heard that a man nicknamed “Beef” was selling drugs and lived near a local bar. And Mr. Wright sometimes went by the name “Beef.”
Mr. Wright’s garbage bags were opaque—the officer couldn’t see what was in them (i.e., no “plain view” exception here). So he took them back to the police department where he found some fabric squares with brown stains on them and a few seeds. The seeds, it turned out, were poppy seeds. And the fabric squares tested positive for morphine and cocaine.
After pulling Mr. Wright’s trash three times, with similar results each time, the officer finally asked for a search warrant based on what he found. A search of the house turned up two grams of marijuana and a few capsules of a prescription drug for which Wright had no prescription.
Mr. Wright moved to suppress all the evidence against him, arguing that the trash seizures violated both the Fourth Amendment and a similar section of the Iowa Constitution: Article 7, Section 1. The trial court denied the motion, and Mr. Wright plead guilty on the condition that he be allowed to appeal.
The Lamp of History (and Justices Thomas and Gorsuch)
Four out of seven Iowa justices voted to reverse, but they did not agree completely on the reason why.
Justice McDonald’s opinion focused extensively on the history of Iowa’s state constitution and search and seizure law more generally. After establishing Iowa’s freedom, in interpreting the state constitution, to depart from the Supreme Court’s view of the federal constitution, Justice McDonald headed back in time to the 1700s.
“Unreasonable” in the search and seizure context, he (and the two justices who join him in full) reasoned, means not “reasonableness in a relativistic, balancing sense,” but rather that a search is unreasonable if it is “against the reason of the common law.” Thus, for example, an officer violates the Fourth Amendment when he trespasses on private property without a warrant.
This was the understanding of the Article 7, Section 1, until the Supreme Court held that the Fourth Amendment applied to the states. Then, Justice McDonald argued, Iowa courts began to follow the U.S. Supreme Court’s “reasonable expectation of privacy” reasoning, as explained in Katz v. United States. This, relativistic, view of “reasonableness” was a departure from original understandings.
But in recent years, the plurality continued, Iowa courts have begun to move back in the direction of original understandings. For example, in 2017, one of the Iowa Supreme Court’s decisions focused on the Founding-era concern with prohibiting general warrants. And in 2014, it expressed its concern that the “reasonable expectations” test is too subject to shifting views of members of the Court.
And the U.S. Supreme Court, Justice McDonald pointed out, has done the same in the Fourth Amendment context. For example, in United States v. Jones, Justice Scalia’s majority opinion focused on the physical trespass involved in placing a GPS device on a car. The plurality went so far as to say that this recent shift at the high court was driven by a recognition that “[c]urrent Fourth Amendment jurisprudence is a mess,” citing a number of scholars ranging from Akhil Reed Amar at Yale to Will Baude at the University of Chicago.
Then, in what may be the most interesting part of the opinion—and certainly the part that makes it most interesting outside of Iowa—the plurality apologetically said: “We would normally be reluctant to voice any such criticism of the Supreme Court’s jurisprudence, but members of the Court also are critical of its jurisprudence.” Justice McDonald then included lengthy quotes from Justices Thomas and Gorsuch criticizing the Katz test. Indeed, Justice Thomas and Gorsuch (often in dissent) are cited repeatedly throughout Justice McDonald’s opinion.
As far as this case is concerned, Justice McDonald said it was obvious (based on original meanings) that the officer seized and searched Mr. Wright’s trash. After all, he took and rummaged through it “for the purpose of finding something”—namely, evidence of a crime. There was no need to consider whether there was a reasonable expectation of privacy at this point, the plurality said, because that test applies only to the question of whether a search or seizure was reasonable.
The majority (a fourth justice joins here) then rejected the State’s argument that Mr. Wright abandoned any interest in garbage in his trash cans. The Court said that Mr. Wright did not abandon “all right, title, and interest” in the trash; by moving the cans to the street, he agreed only to give the property to a licensed garbage collector. Quoting a Virginia Law Review Article, the majority said:
[I]ndividuals who leave garbage on the curb generally do not expect that anyone will be able to take the discarded items but rather, per Greenwood, understand themselves as conveying refuse to a specific party who will function as the next true owner: the trash collector. This understanding seems especially clear in localities with anti-rummaging ordinances, under which all but designated trash collectors are prohibited from tampering with curbside garbage, such that unauthorized “finders” would presumably violate the ordinance by taking possession of garbage. If individuals placing garbage out for collection do not intend to leave the items for random “finders,” placing garbage curbside arguably lacks the requisite “intent to abandon” necessary to qualify as property abandonment.
Only after the bags were collected and commingled with other garbage collected from other houses could Mr. Wright be said to have abandoned title.
By infringing on Mr. Wright’s property interest without a warrant, then, the officer in this case committed a trespass. City ordinances precluded anyone besides garbage collectors to sift through others’ trash. Police are not above that law, and so, without a warrant, the sifting was illegal.
But the majority is careful to say that a search’s constitutionality does not rise or fall “based on a particular municipal law.” So it is unclear whether the same result would follow if Clear Lake ordinances had allowed officers to seize garbage.
If We Must
Begrudgingly, the majority also considers whether the search is unconstitutional under the Katz test (though it did not need to, given that it had already found the search invalid). Here, the majority engages directly with U.S. Supreme Court precedent, calling the holding in Greenwood “unbelievable,” and again quoting Justice Gorsuch at length:
In that case, the Court said that the homeowners forfeited their privacy interests because “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” But the habits of raccoons don’t prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager. Making the decision all the stranger, California state law expressly protected a homeowner’s property rights in discarded trash. Yet rather than defer to that as evidence of the people’s habits and reasonable expectations of privacy, the Court substituted its own curious judgment.
“We believe Justice Gorsuch has the better of the argument here,” the majority said, because “[g]arbage contains intimate and private details of life.” And in this case, Mr. Wright had a reasonable expectation that, if his privacy were going to be lost, it would only be lost in “in a certain, limited way.” The Iowa Supreme Court thus joined state courts in New Hampshire, New Jersey, New Mexico, Vermont, and Washington in rejecting Greenwood’s reasoning and interpreting their state constitutions to provide broader protections than the Fourth Amendment.
Yes to Your Holding, No to Originalism
Justice Appel joined a lot of Justice McDonald’s opinion, but denied him a majority on the parts that focused most heavily on constitutional history. “Although I have a healthy respect for constitutional history and have explored it in some depth in the search and seizure context,” he wrote, “I am not what is generally loosely referred to as an originalist:
The law is never static. It always evolves. And the founders certainly believed that to be the case. And, in the context of search and seizure, Justice Brandeis got it right in his ultimately adopted dissent in Olmstead v. United States, when he urged the Court to view constitutional law as more than simple historical application of common law traditions in light of modern innovations like the telephone. It makes no sense to try to figure out what the founders would have thought about eavesdropping, a heat-measuring device that penetrates the home, or a GPS device slapped onto a vehicle. Instead, our task is to identify the larger constitutional principles at stake, trace their evolution through decades of experience, and apply them in the present context based on contemporary realities.
…
History is not granular, and it rarely points only in one direction. Even if historical truths can be discovered by judges writing opinions in a matter of weeks (and, alas, sometimes days), the historical truths are very difficult even for trained historians to discover and are often inconsistent and contradictory. And, historical cherry-picking can be a tool to hide preferences and biases behind a veneer of objectivity. At most, and when best used, history informs and shapes the inquiry but does not demand results in cases presenting fact situations or modern technology that the founders could not possibly have anticipated.
Justice Appel then expressed his concern about the U.S. Supreme Court’s departure from “the warrant-preference approach that appeared for decades in the United States Supreme Court.” The need to cabin arbitrary and intrusive searches drove the Founders to adopt the Fourth Amendment, he reminds us. And the ability to “conduct searches in seizures at any time of day or night” contributed to the ability of the German government to hunt for Jewish refugees during the 1930s and 40s—a fact that Justice Appel says had a particular impact on Justice Robert Jackson, who also served as the chief prosecutor at the Nuremburg trials. Warrants and the warrant requirement prevent these sort of abuses.
Plus, the focus of law schools, law students, and lawyers on federal law and precedent obscures the role state law and courts can play in protecting rights, Justice Appel argued. And it also would have concerned the Founders, because “the very purpose of the federal system was to preserve the autonomy of the states,” not to create a system in which “state supreme courts should generally follow precedent of the United States Supreme Court.” State courts “have a constitutional responsibility to think for” themselves:
State courts are, of course, overburdened, and the resources available to the average state court judge, in Iowa and in many states, pales in comparison to the federal judiciary. The parties’ briefings on state constitutional issues are often less than thorough. It is easy to simply grab a flying federal case asteroid, drop the smoldering object into our opinion book, close it quickly to cut off any legal oxygen that might cause a flare-up, and go home for supper. But the Iowa courts are an independent state judiciary operating under an independent state constitution.
Justice Appel then gave his reason for departing from federal precedent in this case: “Until very recently, the Supreme Court has tended to embrace rights-restricting radical pragmatism, where the perceived needs of law enforcement are consistently permitted to overwhelm the libertarian principles behind search and seizure law.” And he provides any number of examples. Iowa, Justice Appel argued, should not follow that trend and the police violated Mr. Wright’s rights here.
Conclusion
The holding here drew three separate and lengthy dissents from the other three justices on the Iowa Supreme Court, which are worth reading in their own right. But an email newsletter can only be so long. And it is the opinions on the majority side that have the most implications for a newsletter that focuses mostly on federal appeals (with apologies to Justice Appel for that).
Given the newly-minted 6-3 majority on the U.S. Supreme Court, it is interesting that the Iowa Supreme Court cites so heavily to opinions from Justices Thomas and Gorsuch. In Greenwood, Justices Brennan and Marshall dissented, and it seems likely the three liberal members of today’s Court would have, too. Does this mean Greenwood is an endangered precedent? Or did the Iowa justices misread their federal counterparts’ writings?
An Iowa Supreme Court decision can’t answer those questions, of course. But Iowans, at least, can now rest assured that their secrets are safe while sitting by the curb. And defense advocates have strong ammunition in the fight to convince other state courts to follow the Iowa Supreme Court’s lead.
The case is State of Iowa v. Wright, No. 19-0180.
The majority included Justices McDonald (lead author), Oxley, McDermott, and Appel (only in part).
Justice Appel filed a concurring opinion.
Chief Justice Christensen filed a dissent, which Justices Waterman and Mansfield joined.
Justice Waterman filed a separate dissent, which Chief Justice Christensen and Mansfield joined.
Justice Mansfield filed a separate dissent, which Chief Justice Christensen and Waterman joined.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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