Searching Trash? Get a Warrant
By Charles D. Brunt
Journal Staff Writer
One man's trash may be another man's treasure, but if the treasure hunter in New
Mexico is a police officer, he had better have a search
warrant.
While acknowledging that the U.S.
Constitution doesn't protect an individual from a warrantless search of
his garbage, the New Mexico Court of Appeals has ruled that state law
provides greater privacy protections.
Two agents
with the Lea County Drug Task Force didn't have a warrant when they
searched trash bags set out for pickup behind a suspected drug dealer's
house.
Therefore, the court ruled, the items the
officers found in the garbage didn't give them grounds to get a warrant to
search the house.
As a result, evidence seized when
the house was searched which included crack cocaine and marijuana
couldn't be used by prosecutors in the suspect's
trial.
Noting that a person's trash can reveal
intimate details ranging from finances to DNA the Appeals Court said,
"New Mexico's strong preference for warrants supports the protection of an
individual's expectation of privacy in his refuse and ensures that any
governmental invasion of inarguably private affairs is
reasonable."
The agents took several bags of trash
from garbage containers in the alley behind a home where suspected drug
dealer Kevin Granville was living in January 2004.
Inside the bags, agents found pieces of burnt foil, plastic baggies with
the corners cut off and another baggie containing crack cocaine residue
items commonly used by drug users and dealers.
Based
on those items and tips from three unidentified informants police
obtained a search warrant for the house, which was owned by Granville's
brother. During that search, police found crack cocaine and marijuana.
Granville was arrested and charged with two counts of
possession.
Defense attorneys argued the search of
Granville's trash was invalid because the defendant had a reasonable
expectation that the content of his trash was
private.
The defense also argued the informants'
statements were insufficient support for the search warrant, and that the
evidence seized should be disallowed. District Judge Gary L. Clingman
agreed, but prosecutors appealed the decision.
Writing for the appellate court, Judge Celia Foy Castillo emphasized the
ruling doesn't prevent police from searching through your
garbage.
But in the absence of exigent
circumstances, she wrote, "We merely conclude that a search of an
individual's garbage must be supported by probable cause and a
warrant."
Sam Thompson, a spokeswoman for the state
Attorney General's Office, said Tuesday the state Supreme Court has agreed
to review the appellate court's opinion.
Donald
Gallegos, president of the N.M. District Attorney's Association, said the
ruling, if it stands as written, will make prosecutions more
difficult.
"Anytime we get a ruling from our
appellate courts that provides more expansive protection than federal laws
do, then it can really hamper our ability and law enforcement's (ability)
in particular to investigate cases, especially drug cases," Gallegos said
Tuesday.
Gallegos said he was pleased the Supreme
Court opted to review the ruling.
"One of the things
that law enforcement in the past would look at is what drug dealers, and
even people that manufacture meth, are discarding that could lead to clues
that they're up to something no good," he said.
If
it's illegal to act on those leads, he said, it could make it harder to
compile evidence needed to prosecute cases.
