Why Courts in an Oregon Case Affirmed Warrantless Garbage Searches are Legal

Time and again, criminal courts throughout the country hear cases where defendants claim that police officers, acting without a warrant, ran roughshod over their constitutional rights by searching their garbage cans and gathering incriminating evidence.

Almost 30 years ago, the U.S. Supreme Court ruled that under the Fourth Amendment of the U.S. Constitution, which outlaws unreasonable searches and seizures, no warrant was necessary to search trash left in a public area because an individual had no reasonable expectation of privacy in it. California v. Greenwood, 486 U.S. 35 (1988). The Court believed it to be “common knowledge” that garbage left at streetside is readily accessible to “animals, children, scavengers, snoops and other members of the public.” Moreover, the can had been put there expressly so that the trash collector, a stranger, could take it. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," the opinion said.

A state court interpreting the search-and-seizure provisions of its own constitution may provide more protection than is afforded by the federal Constitution but not less. Still, the majority of state courts have ruled that warrantless garbage searches need only meet the standard in the Greenwood case.

Tracy Lien and Travis Wilverding shared a house in Lebanon, Ore. Over several months, the local police received information that the couple’s residence was a source of possible drug activity. Investigating further, a detective contacted Republic Services, which, under contract with the city, regularly collected garbage from private residences. The detective asked Republic to collect the contents of the house’s garbage cart separately from the garbage of other households Republic served so that the garbage could be searched by police officers.

On the regular collection day at 7:00 a.m., the police parked down the street to observe Republic's collection of the Lien and Wilverding trash. They noticed that the garbage cart had already been placed by the sidewalk. An hour later, a manager for Republic arrived at the suspects’ house in a company pickup truck ahead of the packer serving the neighborhood. After grabbing the suspects' cart and placing it in his truck, the manager then removed a similar but empty cart from his truck and put it where the other one had been. He transported the suspects’ cart and garbage to a Republic lot. There, he handed it over to the police who searched it and found, among other things, evidence of illegal drugs.

Lien and Wilverding were separately indicted on charges of unlawful delivery of drugs. At their respective trials, they each filed motions to suppress evidence obtained from the garbage and from a subsequent search warrant. The probable cause for the warrant was based on evidence the police found in their earlier warrantless search of the garbage. The defendants argued that the police, by conducting a search with no warrant, had violated their rights under the Oregon Constitution. However, the trial court concluded that the defendants, having abandoned their interests in the garbage after Republic collected it, did not have any rights to be violated.

Following the trial court’s denial of their motions to suppress, the defendants entered conditional guilty pleas. (A conditional plea permits a defendant to plead guilty or no contest while reserving the right to have an appeals court decide whether the trial judge ruled incorrectly on a critical issue in the case. If the higher court determines that the judge was wrong, the defendant can withdraw the plea.) Following the entry of separate judgments against them, their cases were consolidated on appeal.

A three-judge panel of the Oregon Court of Appeals upheld the lower court rulings denying the motions to suppress, finding these cases controlled by prevailing state law that a warrantless garbage search and seizure did not necessarily violate a provision of the Oregon Constitution substantially similar to the Fourth Amendment of the U.S. Constitution.

To satisfy constitutional standards under Oregon law, whenever the police undertake a search or seizure without a warrant, the state must demonstrate by a preponderance of the evidence that the defendant had neither a protected privacy nor possessory interest in the property. Lien and Wilverding contended that they retained their privacy and possessory interests in the garbage until it was picked up by the garbage company in the regular course of business and not by a different method requested by the police.

Citing a ruling by the state supreme court, the appellate panel noted that the defendants had no possessory interest after the sanitation company picked up the garbage. “Before the sanitation company collected the defendants' garbage, the defendants maintained a possessory interest in the contents of their garbage cart,” the panel said. “But after it was collected, they did not; they had relinquished those interests to the sanitation company.”

The panel soundly rejected the contention that a slight deviation from an ordinary collection routine was constitutionally significant.

“The fact that the garbage was collected by a small or large truck or one minute or one hour before the normal routine is of no constitutional moment in the analysis of whether defendants lost their possessory interest in their garbage when it was otherwise ordinarily collected by the sanitation company on the regularly scheduled collection day,” the court stated. “The possessory interest in the garbage is lost in either case upon retrieval by the sanitation company on the regularly scheduled day. * * * The defendants point to nothing in the record giving them a contractual right to demand their garbage be picked up by a particular truck, method, or at a particular time, nor do they point to a  contractual right to demand return of their garbage after collection if it is not collected in that manner.”

The appeals court, again citing the state high court decision, was equally dismissive of the defendants’ contention that the police unconstitutionally interfered with the privacy of their garbage by asking the sanitation company to retrieve defendants' garbage cart and hand it over to the police for a search: “[T]he defendants ... abandoned their privacy rights when they turned the garbage over to the sanitation company without any restriction on its disposition because a person retains no constitutionally protected privacy interest in abandoned property.”

State v. Lien / Wilverding, 283 Or App 334 (Or. Ct. App. 2017).