No privacy in your trash, Minnesota Supreme Court rules

Rejecting a dissenting justice who said the nature of trash has changed, the Minnesota Supreme Court today ruled that you should have no expectation of privacy when putting your trash at the curb, saying the Minnesota Constitution does not provide greater privacy protection of trash than the U.S. Constitution.

The court ruled in the case of David McMurray of Hutchinson, whose trash was searched by police after their daughter told a mandated reporter she saw her mother with a pipe used for drugs.

They found several plastic bags containing white residue, which later tested positive as methamphetamine, drug paraphernalia and documents belonging to McMurray and his wife. Armed with a search warrant for the home, police discovered meth inside.

McMurray argues that the search of the trash violates the Minnesota Constitution, which says “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.”

Today, the Supreme Court upheld a Court of Appeals ruling denying the search was unconstitutional. It said the U.S. Supreme Court has ruled consistently that trash is public. But the Minnesota court considered whether Minnesota’s Constitution affords greater protection than the U.S. Constitution on the matter.

It doesn’t, Justice Wilhelmina Wright wrote in today’s opinion (pdf).

“Garbage is placed at the curb with the expectation that a third-party trash collector will take it, and the trash collector could sort through the garbage or permit others to do so,” she said. “It is not reasonable to expect the contents of garbage bags placed on the side of a public street for collection to remain private.”

But Justice David Lillehaug disagreed and says the Minnesota Constitution affords greater privacy rights than its U.S. counterpart. “Our basic rights and liberties are at risk if government can seize and search Minnesotans’ household waste without a search warrant and, apparently, without even a reasonable articulable suspicion of wrongdoing,” he wrote in a dissent.

Household waste contains a great deal of personal information that most of us expect will remain private. As the New Jersey Supreme Court put it, “Clues to people’s most private traits and affairs can be found in their garbage.”

One who examines garbage carefully can learn about the household members’ physical and mental health, sexual activities, financial status, consumer preferences, political affiliations, and personal relationships.

At different times, people dispose of drug bottles, birth control devices, sanitary products, printouts of emails, check registers, photos, and whatever they have recently read or eaten. It is the very privacy—the intimacy—of this personal information that makes it of great interest to others, ranging from law enforcement officers to private investigators to neighborhood snoops. Until a person’s garbage “ ‘ha[s] lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere,’ ” we “ ‘can readily ascribe many reasons why residents would not want their . . . telltale refuse and trash to be examined by neighbors or others.’ ”

Lillehaug said the nature of our trash has changed and ” so has government’s ability to analyze it. Investigative tools are much more sophisticated and their probing capacity now extends well beyond the curtilage,” he said.

And, besides, he said, there’s no alternative for most people than putting it by the side of the road because “burying it on the back forty is no longer a viable option.”

Justice Wright was unmoved by what she described as Lillehaug’s assertion that “this is not your grandfather’s garbage.”

If, as the dissent contends, the nature of household waste has changed, as well as the “dented metal garbage cans” that were once set out at the curb, so too have Minnesotans’ disposal habits. A misplaced bank statement, an improperly discarded hard drive, or poor judgment when interacting with others via social media leaves an individual vulnerable to consequences ranging from embarrassment to identity theft and fraud. We do not minimize that certain negative consequences have arisen from technological developments, but we also consider the practical reality when determining whether changed circumstances justify a change in the law. Minnesotans are well aware of potential threats to their privacy and security and have prudently altered their conduct in response.

  • MrE85

    For those unfamiliar with the term “mandated reporter,” it refers to professionals who care for children, such as doctors, teachers and ministers. All are required by law to report any suspected child abuse or neglect they hear about in the course of their jobs.

    • joetron2030

      Thanks! I was wondering about that.

    • Carol S.

      It also includes coaches who are not teachers (I know because I am one), and may include people like Girl/Boy Scout troop leaders, tutors, etc.

  • Postal Customer

    Fans of “The Burbs” know that garbage is public domain. Particularly those of us who have watched the movie hundreds of times.

  • jon

    “So what do you do for a living?”
    “Well this week I wrote a 30 page opinion on garbage. I also did a write up of how much you need to look like a hunter, before you ARE a hunter.”

    • Justine Parenteau Wettschreck

      Okay, that made me laugh. Technically, Lillehaug’s dissent was only about 14 pages, and an alarming amount of that was footnotes. And nobody likes an unethical hunter. Unless he’s really shooting coyotes. We dislike coyotes more.

  • LifebloodMN

    It’s a little confusing still. what if my trash is put out “by” the curb but lets say 10 feet onto my property? will that qualify as the public domain? I hardly think so. Additionally, whats to stop third parties, private groups, and even disgruntled individuals from rummaging around looking to build an advertising profile or something more devious (blackmail, enticement, profiling). I think this type of gross infringement of personal privacy puts the general public in danger from not only the gov’t(without cause) but other private parties that take interest in our habits.

    • BJ

      There are laws about blackmail.

      But there is nothing against this. That was a point made in the ruling.

      • LifebloodMN

        I see thanks, I’ll look into the case a little more. What if I wanted to start a facebook page for Gov. Daytons(or others) trash bin, weekly updates, photos included?

        • Doug Duwenhoegger

          No one is required to put their trash on the curb.

          • No, that’s true. You can take it to the landfill yourself.

          • tboom

            But then Big Brother can just stake-out the landfill and search every residential drop-off, just because.

  • One thing that’s interesting is there’s no ownership of trash, and yet it’s illegal for me to take someone’s recyclihg in my town.

    • Doug Duwenhoegger

      Are you kidding? Trash and recycling are vastly different things. Trash has no intrinsic value while recycling has value. My opinion of you have dropped to zero.

      • From a legal standpoint trash and recycling are the same thing for purposes of this ruling. Settle down, now

  • Jim in RF

    I remember the NY Times going through H Kissenger’s trash when he was SoS, and someone having to write a story about the brand of wine he bought.

  • a_tribe_called_chris

    Interesting how this only works one way. Why no presumption
    of innocence since the trash has now been placed in public domain and could
    easily have been contaminated by some third party. The amount of leeway granted
    to law enforcement is frightening. How many times do you suppose they have
    added items to someone’s trash to gain a rubber stamped search warrant?

    • One aspect of Justice Wright’s disagreement with the dissent — “Minnesotans are well aware of potential threats to their privacy and security” — seems to be that the case itself shows that clearly one couple wasn’t.

      • BJ

        Aware, sure. Smart enough to not throw out drug stuff, No.

  • Jack Ungerleider

    This begs the question: Would the report of the girl been enough to get a search warrant for the house? If it was then the outcome would have been the same even if the process was flawed.

  • Thomas Mercier

    Searching through other people’s trash to gain an understanding of their life is an entire profession. It’s called archaeology. Most of the field works with old trash, some folks work like trash haulers and are chronicling modern life. Although they typically deal in aggregate and offer confidentiality as would be prudent in reporting findings in most professions.