Overlawyered Watch – Appellate edition

A post on Overlawyered claims that “Washington Supreme Court holds that police can't arrange to search dumped garbage without a warrant, and invalidate a meth-dealer's conviction.”  One slight problem: It was not the Washington Supreme Court.  Oh, and this is the law in Washington.

In fact, under Washington State law, there is nothing too startling about this.  Contrary to the implications of  Overlawyered: 1) both the trial court and the Court of Appeals Division III  relied on rather established precedent; and 2) the court did not reverse the trial court.

The case that they are talking about is State of Washington v. Thomas Allen Sweeney and you can read it here.

The facts at issue are thus:

As part of this investigation, Detective Knechtel contacted the City of Spokane Refuse Department and expressed his desire to obtain the garbage collected at Mr. Sweeney's address.  The detective requested that this garbage be placed in an empty truck hopper so that he would be able to inspect the garbage. Peter Borg, a city refuse collector, was assigned to assist the detective by obtaining the garbage to be searched.  Mr. Borg usually worked as a floater, but on this date he was assigned to collect garbage from Mr. Sweeney's address and three other houses.  Mr. Borg was instructed to use a semi-automated truck.  This type of truck does not automatically mix all of the garbage; instead, the driver must push a lever.  In contrast, the automated trucks automatically dump all collected garbage into a common container.

So, it seems that Mr. Borg did not assimilate the trash in the way he normally did.

The Court of Appeals Division III, in interpreting Article I, section 7 of the Washington Constitution, held that "article I, section 7 provides greater protection of a person's privacy interest in his or her garbage than its federal counterpart, the Fourth Amendment."  This is one of the beautiful things about federalism.  You can choose to live in a state like Washington which accords its citizens lots of privacy.  Or you can live in one like Virginia, which despite being the home of a famous guys who wrote the constitution figures that: 1) gays are bad; 2) gays should not be allowed to have sex; and 3) there is no reason to provide anyone with any more rights than are found in the US Constitution.  For better or worse, states like Virginia have concluded that it is better an safer to accord people less privacy.

The court applied State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990) in which it was held that garbage “... in his can and sitting on the curb in expectation that it would be picked up by a licensed garbage collector.”  So, in Washington state, the inquiry isn’t “did the person hold his trash out to the public” but rather “What do people think will happen to their trash?”  Now, the court ads that if the trash wasn’t in a bag, then the “usual exceptions” to the warrant would apply, and the state could obtain them under the plain view doctrine.

Maybe it is time that the people of Washington honestly consider reducing their rights to privacy.  Maybe they could have an open debate about the issue.  For instance, some people might want to give up their right to, say, contraceptive devices in order to stop terrorism and earthquakes.  Maybe they could take Virginia's view, and decide that the federal government (with its Congress and Supreme Court) knows best what rights its individuals should have.  But, until then, people will expect that their trash will be handled by a trashman.

Comments

[Allan Agbayani]

I used to agree with what was posted on that other blog. However, after reading your corrections and the posts on the other blogs, I see why they rarely post direct links to the cases they talk about, and why your blog always does. It is a shame that you do not have a tip jar, because I want to thank you for showing me the way.

Are you really a law student?

[Butte Fore]

Mr. Cotus: This decision is radical, proceduralist garbage in furtherance of lawyer rent seeking and welfare job creation. It neither serves to protect the public, nor does it serve to exonorate the innocent, the respective aims of criminal law and procedure.

The court reads the criminal's mind as to "expectation." I personally have no expectation that my trash will be picked up by a professional sanitary engineer. If a pedestrian sees something he likes in my trash, I say, enjoy, give it a good home. That is normal.

Then, this court decision enables running a closet meth lab.

http://www.doh.wa.gov/ehp/ts/CDL/
cdl-in-neighborhood.pdf

BF'7

[David Behar, 2L]

Did the defendant follow these procedures for disposing of solvents needed to make meth?

http://www.doh.wa.gov/ehp/ts/CDL/
cdldangerouswasteguidelines.pdf

Including,

"DISPOSAL PROCEDURES FOR CHEMICALS UNDER 220 POUNDS:
• Inspect containers for leaks and loose fitting lids
• Place chemical containers in plastic buckets making certain to separate them by using one bucket for each container
• Secure buckets for safe transport to hazardous waste facility
• Provide completed paperwork to disposal facility"

If not, he has to answer to the Washington State Dept. of Health.

David Behar, 2L