As a drug lawyer in Minnesota, the phrase, “One man’s trash is another man’s treasure,” comes to mind frequently. Here’s why.
Minnesota police officers and investigators routinely utilize an investigative technique called a “trash pull” to gather evidence when they believe someone is in possession of, or selling, illicit drugs and controlled substances. Police officers routinely conduct trash pulls because they are surprisingly effective and do not require a search warrant under most circumstances.
Although trash pulls are widely allowed in Minnesota, there is still ample room in the current state of the law for a Minnesota drug lawyer to make legal challenges to evidence obtained in that fashion. We’ll discuss more about the legality of trash pulls later on in this article.
How is a Trash Pull Normally Conducted?
A trash pull typically starts with the officer contacting an employee of the garbage company for the suspect’s home. On some occasions, the officer will have the employee sign a confidentiality agreement as well as an informant agreement. Arrangements are then made with the employee at the garbage company to collect the suspect’s garbage in a manner that doesn’t commingle it with trash from other households. Those arrangements can range from taking and replacing the can entirely, to dumping the garbage into the empty “hopper” of the garbage truck and not adding to it prior to meeting with the officer. Then, the officer takes custody of the trash, searches through it, and documents his findings.
A drug lawyer practicing for any significant amount of time will likely have had cases where this process was done appropriately, but also cases where the officer made a mistake in the process. A mistake can range from not taking the necessary safeguards to ensure the integrity of the chain of custody of the garbage, or encroaching upon a constitutionally protected area to obtain the garbage. More on the latter issue will be discussed later on.
What is the Purpose of a Trash Pull?
The purpose in most cases is to obtain additional evidence to establish the probable cause necessary to get a search warrant for the associated residence. In a lot of cases, the officer has information from a confidential informant that someone is in possession of illicit drugs or controlled substances at a particular residence, but that information is not reliable enough to obtain a search warrant in and of itself. So, the officer searches the garbage in hopes of finding two things.
First, the officer wants find contraband in the garbage. Contraband can range from baggies or other packaging with drug residue, byproducts of controlled substances such as marijuana stems, seeds, or roaches, tin foil with burnt controlled substances present, containers with sticky residue from controlled substances, or even sale ledgers.
Second, the officer wants to find things to further establish constructive possession of the contraband found in the garbage. Items such as discarded junk mail or utility bills are the most common that are collected by police officers in that regard.
What Happens if Contraband is Found During a Trash Pull?
In most cases, the officer will apply for a search warrant from a judicial officer. In his application for the search warrant, the officer will detail the information he had prior to the trash pull and then what he found during the trash pull. In many cases, the items found during the trash pull will independently establish probable cause to search the suspect’s home. Once the officer obtains the search warrant, it is executed shortly thereafter. Depending on what is found within the home, the suspect may be arrested immediately and held for formal charging, or he may receive a summons and complaint in the mail with charges at a later date.
What can a Drug Lawyer do to Help?
In any case that begins with a search of someone’s residence based on a trash pull, a drug lawyer’s task is to determine whether it was done properly and legally. A drug lawyer must determine:
- Whether the search warrant established probable cause on the face of the document;
- Whether the search warrant materially misstates or omits material information about the trash pull and what was found; and
- Whether the trash pull was conducted in an unconstitutional manner.
The first two issues are important for a drug lawyer because the Fourth Amendment to the United States Constitution and Article I, Section 10 of Minnesota’s Constitution prohibit searches of homes that are not supported by probable cause. If the application does not establish probable cause in the first place, the search is unconstitutional. If the officer violated the oath he is required to take to submit the search warrant application by making a material misstatement or omitting material information, then a special motion for a Franks hearing must be filed by the drug lawyer. Although much more could be written on the first two issues, but the focus of this article is on trash pulls.
The third issue is important because probable cause for a search warrant cannot be established through unconstitutionally obtained evidence.
How can a Drug Lawyer show that a Trash Pull was Unconstitutional?
A drug lawyer looks to the relevant case law in Minnesota and from the United States Supreme Court to determine how courts view that issue. As you’ll see below, the law is settled on some aspects of trash pulls, but not all. Therefore, it is also necessary for the drug lawyer to look beyond Minnesota law for persuasive authority and guidance where Minnesota courts have left open questions.
Broad Case Law Principles on Trash Pulls
The Fourth Amendment to the Constitution of the United States and Article I, Section 10 of the Minnesota Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. Article I, Section 10. Warrantless searches are presumed to be unreasonable unless one of “a few specifically established and well delineated exceptions” applies. Katz v. United States, 389 U.S. 347, 357 (1967).
The United States Supreme Court has determined that an individual does not have a reasonable expectation of privacy in garbage left at the curb. California v. Greenwood, 486 U.S. 35, 39-41 (1988). In line with Greenwood, the Minnesota Supreme Court has determined that the Minnesota Constitution does not afford greater protection than the United States Constitution for garbage set out for collection on the side of a public street. State v. McMurray, 860 N.W.2d 686, 695 (Minn. 2015). In McMurray, the Minnesota Supreme Court found that a warrantless search of garbage set out for collection on the side of a public street did not violate Article I, Section 10 of the Minnesota Constitution and a fortiori, did not violate the Fourth Amendment to the United States Constitution.
In reaching this conclusion, the McMurray majority noted important underpinnings and a caveat to their decision. First, it noted that the recent United States Supreme Court decision in Jardines clarified that the reasonable expectation of privacy analysis articulated in Katz added to, and did not substitute, the traditional property-based understanding of the Fourth Amendment. McMurray, 860 N.W.2d at n. 4. However, the McMurray court explained, “Because the police procured the garbage without trespassing on the curtilage of McMurray’s premises, the traditional property-based understanding of the Fourth Amendment is not at issue in this case.” Id. (emphasis added). The McMurray court also explained, “We are mindful that the United States Supreme Court’s recent decisions reflect an expansion of, rather than a retrenchment on, the protection against warrantless searches.” Id. at n. 5. The McMurray court explicitly rejected the notion that its opinion would reach a search that involved a trespass to property:
Some courts have rejected warrantless searches of garbage seized by police from within the curtilage. See, e.g., Commonwealth v. Ousley, 393 S.W.3d 15, 25–26 (Ky.2013) (distinguishing Greenwood because it did not deal with garbage within the curtilage). And we previously have emphasized that police may not trespass to search a person’s garbage. See Oquist, 327 N.W.2d at 591. But here, the garbage was on the curb—not within the curtilage—and police could have accessed the garbage directly without trespassing on McMurray’s property. The parade of overreaching investigative activities that the dissent invites us to rely on to decide this case is not presented here. We do not supply opinions in anticipation of unsubstantiated predictions of future law enforcement conduct. See State v. Colsch, 284 N.W.2d 839, 842 (Minn.1979).
In applying the additional reasonable expectation of privacy analysis, the McMurray majority relied on the Greenwood analysis and recognized that a person does not have a reasonable expectation of privacy set out at the curb for collection for two primary reasons: (1) members of the public have access and therefore could rummage through the garbage, and (2) the person expects that the trash collector will take their garbage and the collector could possibly sort through it. Id. at 691.
Jardines is particularly instructive on the traditional property-based understanding of the Fourth Amendment. “The [Fourth] Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When the Government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the Fourth Amendment has undoubtedly occurred.” Florida v. Jardines, 569 U.S. 1, 5 (2013) (internal quotations omitted) (citation omitted). The rationale for the property-based understanding of the Fourth Amendment was explained in Jardines in the following manner:
But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.
Expounding on this rationale, the concept of curtilage – the area immediately surrounding and associated with the home – is also considered part of the home for Fourth Amendment purposes. Id. The association can be either physical or psychological. Id. at 7.
“[A]n officer’s leave to gather information is sharply circumscribed when he steps off those [public] thoroughfares and enters the Fourth Amendment’s protected areas.” Id. Still, an intrusion into a constitutionally protected area can be lawful under the Fourth Amendment if the physical intrusion was authorized implicitly or explicitly. Id. The notion of authorization to step foot on a constitutionally protected area is analyzed under the concept of license principles:
“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKee v. Gratz, 260 U.S. 127, 136, 43 S.Ct. 16, 67 L.Ed. 167 (1922) (Holmes, J.). We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria, 341 U.S. 622, 626, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King, 563 U.S. ––––, ––––, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011).
Importantly, the scope of a license is not limited by physical location alone. Instead, a person’s purpose for being present is also limited: “The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.” Id. at 9. “[N]o one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.” Id. at n. 4.
There are four relevant factors to determine whether an area falls within the curtilage: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. State v. Chute, 908 N.W.2d 578, 584 (Minn. 2018) (internal citations and quotations omitted).
In Chute, the area in question was the dirt driveway of a home. At the outset, the Chute court recognized:
The backyard and driveway of a home are often considered to be within the curtilage of a home. See, e.g., State v. Lewis, 270 N.W.2d 891, 897 (Minn. 1978) (holding that “the driveway to a house is part of its curtilage for purposes of executing a search warrant”); Crea, 233 N.W.2d at 739–40 (recognizing that the driveway of a home was within the curtilage); see also United States v. Carter, 360 F.3d 1235, 1241 (10th Cir. 2004) (recognizing the backyard as part of the curtilage of the home); Dow Chem. Co. v. United States, 749 F.2d 307, 314 (6th Cir. 1984), aff’d, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (“The backyard and area immediately surrounding the home are really extensions of the dwelling itself.”); State v. Walker, 154 Wis.2d 158, 453 N.W.2d 127, 138 (1990) (holding that a backyard was within the curtilage of the home), abrogated on other grounds by State v. Felix, 339 Wis.2d 670, 811 N.W.2d 775, 790 (2012).
The Minnesota Supreme Court has recognized that, “[T]he diversity in factual settings involving private searches mandates an individual case-by-case analysis in which precedent plays but a small part… final determination of whether the government’s involvement was such as to transform a private search into a governmental search subject to the constraints of the Fourth Amendment is a question of fact to be resolved by the trial court.” State v. Buswell, 460 N.W.2d 614, 618 (Minn. 1990). In distinguishing the conduct at issue in the case before it, the Buswell court cited favorably to a Ninth Circuit opinion that found a private citizen acted as a government agent when the person, “[H]ad been a paid Drug Enforcement Agency informant for at least five years before the search and expected compensation for the search there at issue.” Id. at 619. The Buswell court found two factors to be helpful in the overall analysis: (1) whether the government knew of and acquiesced in the search and (2) whether the search was conducted to assist law enforcement efforts or to further the private party’s own ends. Id. at 618. When the evidence demonstrates that a private person was really acting as an instrument or agent of the state when conducting the search, the search is subject to Fourth Amendment constraints. Id.
Drug Lawyer Legal Challenges to Trash Pull Evidence
How does a drug lawyer use the legal principles above to protect his client’s rights? First, he determines whether the police officer encroached upon a constitutionally protected area, the curtilage of a home, to conduct the trash pull. If the officer was not physically present, the lawyer will determine whether the employee of the garbage company was a de facto agent of law enforcement, and therefore imputed with the same constitutional restrictions as a police officer.
If there is reason to believe that one of those conditions is present, then there may be a viable legal challenge to be made to the trash pull and subsequent search warrant. It is important to note that each case is unique and events that occurred in the case cannot be viewed in isolation. It is necessary to look at the facts and circumstances as a complete picture to determine whether there are viable defenses and legal challenges that can be made for a particular case. Of course, the best way to come to the right conclusion in that regard is to contact an experienced drug lawyer to evaluate your case.
The decision of which lawyer to hire, and how that lawyer will handle your case if you’re facing drug charges, is particularly important in light of the significant penalties that can be imposed for a drug crime conviction. Moreover, since the law is not settled in Minnesota with regard to trash pulls that are conducted away from the curb and closer to the home, it is especially important for the drug lawyer to be aware of case law from other states that is persuasive and supports his client’s position.
Trash Pull Case Law from Secondary Sources and Other States
The lawyers at Lundgren & Johnson leave no stone unturned when it comes to making persuasive legal arguments on their clients’ behalf. In litigating trash pull issues, our drug lawyers have identified the undecided issues left open by our state appellate courts and have identified persuasive authority to litigate those undecided issues. We are committed to defending our clients to the greatest extent possible under the law.
For example, one need only look to a persuasive law review article dedicated to the topic of trash pulls: Tanner M. Russo, Garbage Pulls Under the Physical Trespass Test, 105 Va. L. Rev. 1217 (2019). Among other cases discussed in that law review, it identifies a Court of Criminal Appeals of Tennessee case titled State v. Weatherly (2018), where the court “concluded that it ‘need not decide whether the officers’ investigation’ of the defendant’s trash violated his ‘reasonable expectation of privacy’ because a Fourth Amendment search occurred when officers ‘entered the curtilage of the Defendant’s home and approached his trash can’ for the ‘express purpose’ of gathering evidence.” Id. at 1255–56, citing State v. Weatherly, 2018 WL 2263566, at slip op. 5-6 (Tenn. Crim. App. May 17, 2018).
As another example, in People v. Nelson, the Court of Appeals of Michigan held in an unpublished opinion that Jardines prohibited a trash pull conducted within the curtilage of a home. 2014 WL 4088087 (Mich. Ct. App. August 19, 2014). That court summarized the basis for its holding:
Moreover, the search of the container was unreasonable because Smith did not have a warrant, there were no exceptions that applied, and the search was accomplished “through an unlicensed physical intrusion.” Jardines, 133 S Ct at 1415. In this case, Smith acted within the implied license enjoyed by the general public at large when he approached defendant’s residence, walked onto his front porch, and knocked on his front door. Additionally, even assuming that walking around defendant’s house, onto defendant’s back porch, and knocking on the back door fell within the scope of the implied license, once Smith learned that nobody was home, the scope of the implied license did not extend to opening a closed trash container and rummaging through the container in search of contraband. “There is no customary invitation to do that.” Id. at 1416 (emphasis in original). This is because the “background social norms that invite a visitor to the front door do not invite him there to conduct a search….” Id.
There are still more examples. In Commonwealth v. Ousley, 393 S.W.3d 15 (Ken. 2013), the Kentucky Supreme Court found that a trash pull conducted within the curtilage of a residence violated the Fourth Amendment. Prior to Jardines, the Ousley court recognized:
When faced with the question of “what protection it [the Fourth Amendment] affords … [g]enerally … the answer to that question requires reference to a ‘place.’ ” Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). But, while the U.S. Supreme Court has recently backed away from the Katz conception of “reasonable expectation of privacy’ ” as the exclusive Fourth Amendment test, it has again emphasized that location matters in Fourth Amendment analysis. See generally United States v. Jones, –––U.S. ––– , 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).
In this case, as with all Fourth Amendment warrantless searches, we are obligated to first ask where the item to be searched was located before evaluating the nature of that item. Here, this means that we must first decide whether the trash cans were in the curtilage of the house, not whether they were closed or open. Having concluded that the trash cans were indeed in the curtilage of Ousley’s home and the police improperly invaded it, no more analysis is needed. It makes no difference whether they were open or closed unless plain view applies. The warrantless search of those trash cans violated Ousley’s Fourth Amendment rights.
In State v. Hoffman, 40 Kan.App.2d 894 (Kan. Ct. App. 2008), the court analyzed whether a law enforcement officer climbing into a garbage truck, entering the property of a rural homestead, remaining in the truck while trash was collected, and then bringing the trash back to a landfill to search through it, violated the Fourth Amendment. Id. at 894-95. In that case, because it was decided prior to Jardines, the court analyzed the Fourth Amendment issue as needing to determine both the curtilage issue and reasonable expectation of privacy issue in favor of the defendant in order to find the trash pull unlawful. Id. at 894. It found both were violated. Id. at 898. Central to the Hoffman holding was that the dumpster was on the defendant’s curtilage and was not made accessible to the public. Id. at 897. The circumstances brought it beyond the rationale of Greenwood that permits trash pulls conducted when the container is curbside and readily accessible to the public. Id.
Two years later, the Court of Appeals of Kansas issued an unpublished opinion that went one step further than Hoffman. In State v. Wheeler, 227 P.3d 1010 (Kan. Ct. App. 2010) (unpublished opinion) the Kansas state appellate court determined that an officer making arrangements with the trash company for a trash hauler alone to retrieve the defendant’s trash from his curtilage and then deliver it to law enforcement was a violation of the Fourth Amendment. Id. slip op. 7-8. The court relied on Hoffman to find the Fourth Amendment violation after it determined that the trash hauler was an agent of the government. Id. The agency analysis was similar to Minnesota’s, and it was determined the hauler was an agent of the government.
As evident in the Minnesota Supreme Court’s decision in McMurray leaving the curtilage trash pull question open, but with critical language implying it would view such activity as a trespass and an overreaching investigative activity, the case law cited above from other states would be particularly persuasive to a Minnesota appellate court tasked with deciding that issue.
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