State v. McMurray, Minn.S.Ct., 3/11/2015. Mr. McMurray set out his garbage one morning in a container proscribed by the local government for that purpose. He set the garbage out on the day that the local government designated for pick up at Mr. McMurray’s location. Unbeknownst to him, the local drug task force intercepted the garbage truck at a prearranged location, took custody of Mr. McMurray’s garbage and examined it. The task force officers found methamphetamine. A magistrate then issued a search warrant for Mr. McMurray’s home where more methamphetamine turned up. The state charged Mr. McMurray with third degree possession of a controlled substance.
Mr. McMurray moved to suppress the narcotics. He said that the officers’ warrantless search of his garbage violated Article I, Section 10 of the state constitution, and so the search warrant could not survive that unconstitutional trash search. The state said, and both the trial court and the court of appeals agreed, that this trash talk was just that: trash. The United States Supreme Court, and the Minnesota Supreme Court had long ago held that an individual had no reasonable expectation of privacy in trash that was set out in a location that could be examined without trespassing on that person’s premises. California v. Greenwood, 486 U.S. 35 (1988); State v. Oquist, 327 N.W.2d 587 (Minn. 1982).
Justice Wright, with Justices Lillehaug and Page dissenting, said that there was no “principled basis” for providing greater protection under the state constitution than under the federal one. To sort of see just what a “principled basis” might look like Justice Wright listed some factors:
(1) the text of the state Constitution, (2) the history of the state constitutional provision, (3) relevant state case law, (4) the text of any counterpart in the U.S. Constitution, (5) related federal precedent and relevant case law from other states that have addressed identical or substantially similar constitutional language, (6) policy considerations, including unique, distinct, or peculiar issues of state and local concern, and (7) the applicability of the foregoing factors within the context of the modern scheme of state jurisprudence.
Kahn v. Griffin, 701 N.W.2d 815 (Minn. 2005). She went on to say that the court would extend greater protection under the state constitution only:
(1) when the United States Supreme Court “ ‘has made a sharp or radical departure from its previous decisions’ and we ‘discern no persuasive reason to follow such a departure’ ”; (2) when the Court has “retrenched on a Bill of Rights issue”; or (3) when the Court precedent “ ‘does not adequately protect our citizens’ basic rights and liberties.’ ”
Rew v. Bergstrom, 845 N.W.2d 764 (Minn. 2014). The court then examined each of these possibilities and rejected them.
Justice Lillehaug – who knew of this libertarian streak? – railed against the government tyranny of trash collection. The government sets the date for trash pickup. The government dictates the container into which citizens’ trash must be deposited. The government requires that the container be placed just so in order to be collected. And so on. Garbage, he goes on to suggest, is a low tech smart phone:
At different times, people dispose of drug bottles, birth control devices, sanitary products, printouts of emails, check registers, photos, and whatever they have recently read or eaten. It is the very privacy—the intimacy—of this personal information that makes it of great interest to others, ranging from law enforcement officers to private investigators to neighborhood snoops.
So get a warrant. Until an individual’s garbage has become so intermingled as to lose its identity and meaning, there remains a reasonable expectation of privacy in the contents of an individual, government mandated, trash barrel.
Now, that’s trash talk.
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