The State of Our Trash in Florida: the Use of Evidence Found in Garbage to Establish Probable Cause to Search
As most of us know, once we carry or drag our garbage to the street for disposal, it is fair game for authorities to snatch and sift through to their hearts delight. Fortunately, most of our trash contains nothing but garbage and applications for new credit lines from companies that think lawyers are good credit risks. However, many of our clients are not aware of the risks involved with placing their garbage out for collection on garbage day.
In many jurisdictions trash pulls have become one of the narcotics squads best resources for obtaining incriminating evidence that provides probable cause for a basis to obtain a search warrant for our clients' homes. However, on occasion, law enforcement officers and agencies don't either understand the law or are too impatient to gather legally sufficient evidence to establish probable cause to search someone's home. Often the agents or officers, after finding some seeds and stems or some cocaine residue, will rush to the courthouse to get a search warrant based upon such evidence they found in a trash pull. They present the facially deficient affidavit, listing evidence of obvious narcotic law violations, to judges who often are very willing to sign a search warrant when the affidavit establishes evidence of illicit drug use. This article is intended to be a brief review of the case law surrounding trash pulls. It does not address omissions from or false information included in the affidavit for search. As you can imagine, the analysis of this issue is extremely fact intensive.
There is no reasonable expectation of privacy with respect to garbage placed out for collection by the garbage man. Stone v. State, 402 1330, 1333 (Fla. 1st DCA 1981)(quoting United States v. Crowell, 586 F.2d 1020, 1025 (4th Cir. 1978)) The act of placing it for collection is an act of abandonment and hence there is no Fourth Amendment protection. Id. at 1333. Whether the garbage seized was readily accessible to the public is a factual determination determined on a case by case basis; there is no bright-line rule to fit all garbage suppression cases. See U. S. v. Segura-Baltazar, 448 F. 3d 1281, 1289(11th Cir. 2006)(citations omitted). The issue of whether the garbage has truly been abandoned therefore making the Fourth Amendment inapplicable, hinges on whether the garbage left for collection is "readily accessible to the public" as to render any expectation of privacy objectively unreasonable. Segura at 1287 (citing California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct.1625 (1988)). In Segura, one of the issues was whether garbage left in open view near the garage in Segura's house in open view to the public was readily accessible to the public even though it was within the curtilage of Sergura's house. The Eleventh Circuit held it did not need to address this issue because the garbage was readily accessible to the public even though it was within the home's curtilage. Segura at 1287.
Probable cause has been defined as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. Schmitt v. State, 590 So.2d 404, 409 (Fla.1991). To establish probable cause to issue a search warrant, an affidavit in a warrant application must set forth two elements: (1) that a particular person has committed a crime and (2) that evidence relevant to the probable criminality is likely located at the place to be searched. Salyers v. State, 920 So.2d 747, 749 (Fla. 5th Dist.2006).
In determining whether probable cause exists to justify a search, "the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L. Ed. 2d 527 (1983). The analysis performed by the trial court when reviewing the sufficiency of probable cause as stated in a search warrant affidavit is confined to the "four corners of the affidavit." Schmitt, supra at 409. A judge or magistrate's determination of probable cause is paid great deference by reviewing courts. State v. Colitto, 929 So. 2d 654 (Fla. 4th DCA 2006)(citing Gates at 462 U.S. at 236).
A single trash pull revealing evidence of drug use is insufficient to establish probable cause that there is a pattern of continuous drug activity or that there is a fair probability drugs would be found inside the home. In Gessell v. State, 751 So. 2nd 104 (Fla. 4th DCA) the affidavit stated that law enforcement's trash pull at Gessel's curbside revealed two (2) one-gallon zip lock baggies with marijuana residue. The search of Gessel's garbage did not reveal any evidence like weighing scales, owe sheets, etc., that might indicate that Gessel was dealing drugs. There was also contained in the affidavit information that an anonymous caller had complained to law enforcement about witnessing some type of alleged drug activity at Gessel's home. The Fourth DCA found that the affidavit contained insufficient probable cause to issue the search warrant for Gessel's home; specifically, that there was nothing found in the contents of the trash that supported a reasonable conclusion that additional contraband would be found in the house. Gessel at 106. Gessel shows us the importance of whether the nature of the contraband found in the trash is evidence of drug use or drug dealing. In Gessel's case, two (2) large plastic baggies with marijuana residue was not enough to establish drug dealing. A small amount of drug residue in a plastic baggie, cocaine or otherwise, is indicative of personal use and that alone will not be a sufficient basis to establish probable cause to obtain a warrant. State v. Gross, 833 So. 2d 777 (Fla. 3d DCA 2002). However, a kilo wrapping which tests positive for cocaine will result in a legal warrant with one trash pull. State v. Paige, 934 So.2d 595 (Fla. 5th Dist.2006).
In Raulerson v. State, 714 So. 2d 536 (Fla. 4th DCA 1998), another often cited case in the genre of "trash pull" case law, the police had received an anonymous complaint that drug activity was occurring in or at Raulerson's home. Law enforcement seized six (6) trash bags from the curb in front of Raulerson's home. They found two (2) partially smoked marijuana cigarettes, stems, seeds, and other pieces of suspected marijuana. Based upon the marijuana evidence and the anonymous caller's information about suspected drug activity, the officers obtained a search warrant for Raulerson's house. The Fourth District reversed the trial court's denial of the Motion to Suppress, finding that although the affidavit contained relevant information that a substance found in the one time trash pull tested positive for cannabis, the affidavit "lacked other sufficient facts" to indicate a fair probability that cannabis would be found in the defendant's home. Id. at 537. The Court further held that the information contained in the affidavit did not suggest a pattern of continuous drug activity. Id. at 537.
There are many cases in which a one time trash pull, combined with other incriminating evidence included in the affidavit, suggests a pattern of continuous drug activity sufficient to support a finding of probable cause to search.
Although trash pulls are done on occasion to gather additional evidence of drug activity after incriminating evidence has already been obtained, often times it is the first effort at obtaining evidence to support a search warrant. If law enforcement officers are properly trained they should know that after pulling the trash and finding contraband indicating use of illicit substances at the beginning of an investigation, they need to obtain additional incriminating evidence before they approach a judge asking for a warrant. They will often set up surveillance on the suspect's home to watch the comings and goings of vehicular traffic and suspicious looking characters. For example, in State v. Mayes, 666 So.2d 165 (Fla. 2d DCA 1995), the affidavit contained not only information of a one-time trash pull leading to the discovery of marijuana seeds, stems, rolling papers and roaches, but also of "the officers' observation of and the 'concerned citizen's' report of traffic to and from the [defendant's] home at all hours of the day and night...." Id. at 165. Similarly in Scott v. State, 559 So.2d 269 (Fla. 4th DCA 1990), the affidavit contained not only information of a one-time trash pull leading to the discovery of cocaine residue in a number of baggies, but also "information concerning activities at the [defendant's] residence observed during surveillance by a Broward County sheriff's deputy ... and information furnished to the sheriff's office by one of the appellant's neighbors concerning his observations of activities at the residence." Id. at 272. In State v. Carbonell, 816 So.2d 1169 (Fla. 4th DCA 2002) officers had observed substantial "short-term traffic" entering and leaving defendant's residence during the month prior to the issuance of the search warrant, officers observed people smoking what appeared to be marijuana on the front porch of Carbonell's residence and others leaving the residence with baggies that appeared to contain cocaine, and two days before the issuance of the search warrant, a single trash pull at his residence revealed the presence of marijuana and bags cut similar to officer's observations of other drug investigations. (Mr. Carbonell may need to be more careful in choosing his friends).
Also, if evidence exists of the suspect's involvement with drug use or dealing, even in the past, this evidence, combined with contraband found in the trash pull, can be sufficient probable cause on which to base a valid search warrant. In State v. Gross, 833 So.2d 777 (Fla. 3d DCA 2002), the defendant's prior drug offense history was one factor considered by the court to establish probable cause using a totality of the circumstances evaluation. In Merrill v. State, 849 So.2d 1175, (Fla. 3rd DCA 2003) the Third District considered the fact that Merrill had been involved in a prior undercover sale of marijuana immediately before the trash pull even though it occurred at a different location. The court found that the totality of the circumstances established probable cause. Id. at 1178. In Paige, supra, the Court even factored into the totality of the circumstances evaluation the criminal histories of the visitors of the house can even be considered a factor to establish probable cause. Paige at 600. Although prior convictions or arrests of the occupants of the house may be factored into the totality of the circumstances evaluation in determining whether there is a fair probability that there are currently drugs in the home, if a prior arrest or conviction is remote in time to the search being executed, it can be argued that drug arrest is too remote to be relevant. State v. Young, 917 So. 2d 415, 416 (Fla. 2d DCA 2006). But Cf. United States v. Jiminez, 224 F.3d 1243, 1249(11th Cir. 2000)(an arrest one (1) year prior is not too remote if the affidavit contains information that updates, substantiates or corroborates the stale arrest).
The "good faith exception" of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L. Ed.2d 677 (1984) does not apply where an affidavit is deficient in indicia of probable cause that it fails to manifest the objective good faith standard required by Leon. See Gessel, supra, at 106; Brown v. State, 561 So. 2d 1248 (Fla. 2nd DCA 1990); St. Angelo v. State, 532 So. 2nd 1346 (Fla. 1st DCA 1988); State v. Van Pieterson, 550 So.2d 1162 (Fla. 1st DCA 1989).
A case that may be cited by prosecutors for the proposition that the Leon good faith exception does apply to cases where there is a finding of insufficient probable cause in a search warrant is Edmonds v. State, 919 So. 2d 681(Fla. 2d DCA 2006). Edmonds, published without a majority opinion, upholds a denial of a motion to suppress. The concurring opinion states that in cases where probable cause is insufficient and the magistrate still issues a warrant, it is the magistrate's not the police officer's error and therefore the officer's reliance on the magistrate's probable cause determination was objectively reasonable. Id. at 682. This concurring opinion seems to ignore the long line of case holdings in Florida as well as Leon itself which unequivocally hold that the good faith exception will not apply in situations where the affidavit is so lacking in probable cause it is objectively unreasonable. The policy behind Leon is to deter police misconduct and if law enforcement agencies are inadequately training their officers about how to go about finding probable cause to search a citizen's home how can law enforcement be said to acting in good faith?
Gessell and Raulerson remain viable case law supporting the proposition that a single trash pull revealing illicit narcotic usage, combined with an anonymous tip or other minimal, vague information suggesting narcotic activity is occurring at someone's home, is simply insufficient probable cause for the issuance of a search warrant of citizen's residence. In our county and city, due to a series of these motions involving trash pulls being granted, the legal departments of these agencies are retraining their officers about what is necessary to establish probable cause to search a residence using evidence obtained from a trash pull. Once you start winning a couple of these motions officers may become more careful in drafting affidavits and more thorough with their investigation in obtaining probable cause. However, memories fade and with human nature being what it is, some law enforcement officers have little patience to do it the right way even if they know what the right way is.
Bio of me:
Jim Jenkins graduated from Florida State Law School with honors in 1985. He handles criminal cases in state and federal court in Pensacola. He is a former state prosecutor, Assistant State Public Defender and Assistant Federal Defender. He is past president of the Northwest Florida Chapter of FACDL and a graduate of Gerry Spence's Trial Lawyer's College in Dubois, Wyoming