Privacy of Your Trash Can Upheld by Appellate Court

A trash can placed on the curb for collection may not legally be searched by police without a warrant, an appellate court ruled Tuesday, tossing out critical evidence in two Laguna Beach narcotics cases.

Most states and eight federal appeals courts have ruled that evidence obtained through searches of trash cans is legal. But in 1972, the California Supreme Court found that residents have a privacy right to expect that their trash cans will not be searched, even when placed on the street. In his decision Tuesday, Justice Edward J. Wallin, of the state Court of Appeal in Santa Ana, said the state high court decision rules.

Lawyers from the Orange County district attorney’s office who were involved in the case were unavailable for comment, but criminal defense attorney Michael I. Garey, who won the case, said he expects prosecutors to appeal.

Garey acknowledged that most other states allow such police searches. “But it means the police can go through your personal trash without any cause--they don’t have to go to a judge or anything,” he said.

“Nobody would be safe unless they owned a personal paper shredder or a personal incinerator, and nobody should have to go that far to maintain privacy,” Garey said.

Prosecutors had urged the appellate court to adopt the doctrine held by other states that residents have no reasonable expectation of privacy when it comes to trash that has been abandoned in cans on the street. Prosecutors also argued that Proposition 8, the so-called truth-in-evidence measure that went into effect in 1983, required a change in the rule. The proposition, passed by California voters, wiped out the right of defendants to have evidence thrown out that had been seized in violation of state, but not the federal, law.

Raid Judged Illegal

In the case, a Laguna Beach man and a companion were arrested in 1984 for possession of 17 grams of cocaine and 436 grams of hashish after police raided their home. Both posted bail. One month later, police raided the home again and arrested one of the original defendants on more drug charges.

In a lower court decision on the case, then-Superior Court Judge David O. Carter ruled that the search warrants were based solely on a police search of trash collected at the house, which contained evidence of narcotics. The raid was found to be illegal, and the narcotics seized were barred from use as evidence, effectively ending the prosecution.

On the broader issue of searching trash cans, Carter ruled that only the state Supreme Court can change its own decisions. Carter said then that he found it “distasteful” to be bound by the rule, adding, “quite frankly, I hope this is the one time the (appeals court) overturns this trial court.”

While eight out of the 10 federal appellate courts have rejected the current California rule, the U.S. Supreme Court has never decided the question.

Therefore, according to Wallin’s state appeals opinion, only a decision by the California or U.S. Supreme Courts on the trash issue can change the existing rule.

But in another decision handed down Tuesday involving a privacy claim, the appellate court affirmed a conviction.

A burglar, Steven Rhone, was placed alone in a police car with an accomplice shortly after they were arrested outside an Irvine warehouse in 1984. The two were left alone, but police had hidden a tape recorder in the car. The two then talked about their participation in the burglary, and Rhone talked about how he forced a door with a knife. The recording turned out to be the key evidence in Rhone’s conviction for second-degree burglary.

Rhone’s lawyers claimed he was fooled into thinking his conversation was private, and that the tape recording violated his rights. The opinion, by Justice Thomas F. Crosby Jr., found nothing in the case to “prevent criminals from being lulled into incriminating themselves by trickery.”