Legal scholar David Sklansky discusses California v. Greenwood, a landmark Supreme Court case that decided whether Americans throw out their expectation of privacy along with their garbage.
BRIAN: Anthropologists aren’t the only ones who appreciate how much garbage has to tell us about the people who create it. The police know that as well. Which is why, back in 1984, a trash collector in an LA suburb was conscripted into saving some of the trash set out by a guy on his route.
NEWS REPORTER: In Laguna Beach, California, the local trash man became an arm of the law.
BRIAN: This is from an ABC News report a few years later.
NEWS REPORTER: Police had a tip Billy Greenwood was dealing drugs. Not enough evidence to get a warrant to search his home. So they got the garbage man to turn over Greenwood’s trash, and there they found receipts for drug sales and drug paraphernalia.
BRIAN: Police used the garbage to get a search warrant for the house, where they found enough evidence to indict Greenwood and his girlfriend on drug dealing charges. Not so fast, said Greenwood. He challenged the indictment, saying the garbage search violated his right to privacy. The California Supreme Court agreed and the case eventually found its way to the US Supreme Court. Here’s anchor Peter Jennings covering that court’s decision in May of 1988.
PETER JENNINGS: Court has now decided that once your garbage is as far as the curb, if the police want it, they don’t need a warrant to look through it.
BRIAN: It was a 6-2 decision, with Justice Byron White writing the majority opinion. For decades, the Court had interpreted the Fourth Amendment as protecting people’s privacy. When, that is, they have a quote, “reasonable expectation of privacy.” And Stanford University legal scholar David Sklansky says this was also the nut of the debate in California v. Greenwood.
DAVID SKLANSKY: Justice White said if you put your garbage out on the curb, it’s liable to be pawed through by animals, scavengers, children, snoops.
BRIAN: [LAUGHS] Right.
DAVID SKLANSKY: So it’s not reasonable to say that you can expect privacy in something like that. That was one argument. And the second argument was you can’t really have a reasonable expectation of privacy in something that you’ve voluntarily given to a third party. The third party here was the garbage collector.
And the Court’s theory was since Greenwood and Van Houten had voluntarily conveyed this stuff to the garbage collector, they couldn’t really say that they had a reasonable expectation of privacy anymore. Because when you give something to somebody else, you don’t know what they’re going to do with it.
BRIAN: Who knows what those garbage collectors– I’m sure they’re just prying through people’s trash all day.
DAVID SKLANSKY: That was the theory.
BRIAN: OK, so that’s the decision. What did the dissent say?
DAVID SKLANSKY: So the dissent was written by Justice Brennan, joined by Justice Marshall. And they essentially were incredulous. They said, we can’t believe that the Court really thinks that it’s not an invasion of privacy to paw through somebody’s garbage to find out what they’re doing inside their house.
Justice Brennan said he thought any ordinary American would be outraged to find out that people were pawing through his or her garbage. And the fact that it might happen to you shouldn’t mean that it’s OK for the police to do it to you.
BRIAN: OK. So David, when we go back to the actual items that really helped convict Greenwood, those items are things like plastic straws and plastic baggies that were tinged with cocaine. That’s what the police officer found who was investigating. I don’t think we’d find that kind of trash in 19th century garbage. Has the nature of trash changed a lot?
DAVID SKLANSKY: Yeah, I think the history of trash searches as an investigative tool is kind of all bound up with advances in technology. Partly because trash itself is bound up with advances in technology. I mean, we didn’t have disposable straws and disposable razor blades–
DAVID SKLANSKY: In the 19th century. We didn’t have weekly curbside trash collection in the 19th century, because people didn’t generate enough trash.
So I mean, part of what makes trash searches a valuable investigative tool is that we all today regularly discard so much. We’re constantly shedding evidence of what we’ve been up to that wasn’t as much the case in the 19th century.
BRIAN: Makes me wonder about the technology of the 21st century. For instance, I’ve got this cute little icon on my desktop of a trash can. And I’m wondering where do my emails go when I put them into the quote, “trash?”
DAVID SKLANSKY: Well, where they go is a really interesting question. Whether the police can get to them is another interesting and more practical question.
And the short answer to the second question is yeah, the police can get to them in a variety of ways. And we know, for example, that when you put something in the trash can of your computer, it doesn’t necessarily wipe out all electronic traces of that file on your computer. We know that sophisticated techniques can be used to recover the file.
So how does the Fourth Amendment think about that stuff? One of the Court’s theories was that anything that you do that other people can potentially see or look at is not something you can claim a reasonable expectation of privacy in. The advances in electronic surveillance technology, including drones, including GPS tracking, have made the Court more and more uncomfortable with that idea, the idea that just because it’s out in public you can’t claim a privacy interest in it.
Also at least one member of the Court– Justice Sotomayor– has said on the record that she thinks it’s time for the Court to reexamine the idea that you lose Fourth Amendment protection in anything that you voluntarily give to a third party. Which was the other basis for the Supreme Court’s decision in Greenwood.
BRIAN: Right. Giving that garbage to the trash man was giving it to a third party.
DAVID SKLANSKY: So the Supreme Court is in a position of thinking we can’t keep saying that anything you give to a third party automatically doesn’t get the protection of the Fourth Amendment. And we can’t keep saying that anything that is potentially open to snoops or other members of the public is something that you can’t complain if the police choose to examine. But they don’t know exactly how to move forward from that.
BRIAN: David Sklansky is a professor at Stanford University Law School.