Appeals Court Keeps the Lid on Garbage Cans

A trash can placed on the curb for collection may not legally be searched by police without a warrant, a state appellate court has ruled, 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 takes precedence.

Orange County Deputy Dist. Atty. Randell L. Wilkinson said his office will appeal the ruling.

Criminal defense attorney Michael I. Garey, who won the case, 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.

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 wiped out the right of defendants to have evidence thrown out that had been seized in violation of state, but not federal, law.

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.

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 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.