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Oregon Supreme Court Announces State Constitution Prohibits Cops From Digging Through Residents’ Trash Without a Warrant

by Mark Wilson

Departing from 50 years of precedent, the Supreme Court of Oregon held that Oregonians retain a constitutionally protected privacy interest in garbage that they leave at the curb for pickup under the state’s constitution. The Court also held that police improperly invade that privacy interest when they search a resident’s garbage without a warrant.

Lebanon, Oregon, Police Detective McCubbins received information about possible drug activity in the home of Tracy Lien and Travis Wilverding. McCubbins decided to secure and search their trash without a warrant.

Republic Services is a private sanitation company under contract with the City of Lebanon to provide garbage collection services to city residents. Neither Lien nor Wilverding had a separate written garbage service agreement with Republic.

McCubbins asked Republic to collect the Lien/Wilverding garbage bin separately from other residences and allow police to search it. Republic’s manager agreed. On the normal garbage pickup day, Republic’s manager drove to the Lien/Wilverding residence in a pickup truck before the larger mechanical sanitation truck arrived to collect their garbage. The manager placed their full trash bin in the back of the pickup and replaced it with an empty plastic trash receptacle. The manager then delivered the Lien/Wilverding trash bin to police who searched it, finding evidence of illegal drug activity.

Lien and Wilverding were then charged with various drug offenses. Both filed pretrial motions to suppress the evidence, arguing that the warrantless garbage bin search violated Article I, section 9, of the Oregon Constitution. The trial court denied the motions, and both defendants entered conditional guilty pleas, reserving the right to appeal the denial of their suppression motions.

Noting that Oregon’s search and seizure provision “imposes more stringent constraints than the federal constitution,” the Oregon Supreme Court reversed, concluding that “based on social and legal-norms, ... for purposes of Article I, section 9, defendants … had privacy interests in their garbage that had been placed within a closed, opaque container and put out at curbside for collection by the sanitation company.”

This conclusion was based on the Court’s belief that “most Oregonians would consider their garbage to be private and deem it highly improper for others—curious neighbors, ex-spouses, opponents in a lawsuit, journalists, and government officials, to name a few—to take away their garbage bin and scrutinize its contents.” By way of example, the Court cited the indignation expressed by the Portland police chief, mayor, police commissioner, and district attorney when a small weekly newspaper published a story about items found in their curbside garbage.

“Most Oregonians would be outraged were their garbage subject to such examination,” the Court observed.

An individual does not “lose” their “privacy interests in their garbage when the police direct a private actor to facilitate the government’s search by picking up garbage bins left at curbside for regular trash “pick-up day,” the Court declared. Acknowledging that it was departing from 50 years of precedent, the Court expressly overruled State v. Purvis, 438 P.2d 1002 (Ore. 1968), and State v. Howard, 129 P.3d 792 (Ore. 2006).

“The state lacked a warrant when its agent, having taken defendants’ garbage bin, turned it over to the police, who then searched its contents,” the Court explained. Given the prosecution’s failure to meet its burden of proving the validity of the warrantless search, the Court concluded that the State violated defendants’ Article I, section 9, rights, and ‘‘the trial court erred in denying their motions to suppress the evidence obtained as a result of the unlawful search of their garbage.” State v. Lien, 441 P.3d 185 (Ore. 2019). 

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