Secret Garbage
New Mexico's Court of Appeals strikes a blow for trash privacy.
So, how do you feel about your trash? No, seriously. When you put your trash in the big black trash bag and put the bag in the dumpster or rolling container in the alley or at the curb for pick-up, what do you think? Is it YOUR trash, or is it now anybody's stuff if they want it?
Okay, so you think I have finally gone all the way around the bend. Maybe so, but this is a serious column about a serious subject.
Let's say you are, for example, a young woman. Your menstrual period is late so you buy one of those "home pregnancy test" kits. Once you do the test, I assume you throw the test stick away. What else would you do with it? It won't fit in the paper shredder, even if you have your own shredder. But maybe you still think it's nobody's business whether you are pregnant or not or even whether you are sexually active or not.
Or, say you are a diabetic or have some other chronic health condition. When you have injected yourself with your insulin, or tested your blood sugar level, what do you do with the medication container or the blood test stuff? It is all disposable, and who wants to keep that stuff? So you throw it away. There is nothing shameful about being a diabetic or having another chronic illness, but does that mean anyone/everyone should be able to find out about it without your consent?
Or, when you throw your trash out, have you impliedly "consented" to it no longer being your private stuff? It isn't your private property anymore—because you are getting rid of it. But don't you have a reasonable expectation of privacy—that your trash is still private?
Where am I going with this rant? Well, someone made a "court case" out of it. And our New Mexico State Court of Appeals recently decided you do have a reasonable expectation of privacy in your garbage even after you throw it away.
Kevin Granville was criminally prosecuted by the Lea County Drug Task Force for possession of crack cocaine and of marijuana. The District Court Judge suppressed the evidence against Granville because of the warrantless search of his garbage, and the Court of Appeals agreed. (Warning, our State Supreme Court has the last word on these things, so the Court of Appeals' decision may not stand.)
But now everyone knows what was in Granville's garbage: The narcotics officers retrieved the garbage bags from the trash containers located in the alley behind Kevin Granville's brother's home. The narcs took the garbage to their office and searched the contents, all without a search warrant. They found items the narcs say they know are used by drug traffickers—plastic bags with the corners removed, small pieces of burnt aluminum foil and a small plastic bag containing trace amounts of a white powdery substance that field-tested positive as a "cocaine-based substance." They also discovered a gas bill in Kevin Granville's name with the address of the residence and two other documents with the same address but in the names of two other persons.
So, what do you think? Most all of us want the police to catch and prosecute drug dealers. But how do we feel about the police going through our garbage? Some will say if you have not done anything wrong, why should you care? You have nothing to hide.
I go back to the sense of personal privacy. Are we willing to give up our privacy? After all, it's just garbage, and he was throwing it away.
But should the police or your neighbor be allowed to go through your trash and see your credit card bill or pregnancy test stick or whatever?
If you want to read more about Kevin Granville's criminal case, the decision is State v. Kevin Granville, No. 25,005, filed June 9, 2006.
An interesting side issue in the Granville case is that our Court of Appeals relied on our State Constitution rather than the Federal Constitution. This is because the US Supreme Court years ago said the Federal Constitution does not give you a reasonable expectation of garbage privacy. But, as long as you are in New Mexico, your garbage is a secret from the police, except from the federal police (who are not bound by the State Constitution—just the Federal Constitution).
Next month is Catron County property rights month at The People's Law. See you then!
Robert (Tito) Meyer practices law in Las Cruces, representing people who have been injured in accidents and the families of people who have been killed in accidents. Contact him at tito@zianet.com, (505) 524-4540,
(800) 610-0555, or PO Box 1628, Las Cruces, NM 88004. This column is not intended to provide legal advice to any specific person, or with respect to any particular problems or situations. To find a lawyer, call the State Bar of New Mexico referral service, (800) 876-6227.