Professional Documents
Culture Documents
Anthony W. Morse*
* Candidate for Juris Doctor, New England School of Law (2008); B.S., Western
Oregon University (2003). This work is dedicated to my father, Roger W. Morse, who has
made far too many contributions to my life for me to attempt to recite in this small space.
NEW ENGLAND LAWREVIEW [Vol. 42:929
I. INTRODUCTION
What does your garbage say about you? 2 Are you comfortable with
the idea of someone rummaging through everything that you put in your
garbage can and set out on the curbside for the trash collector to haul away
for permanent disposal? Would it make any difference to you if you had no
idea that he or she was doing so?
What if the person going through your garbage was a perfect stranger
seeking to obtain information regarding the most intimate details of your
life? What if this person was a police officer? Say he or she had a feeling
(but not a warrant, or a legal excuse for lacking one) that you were up to
something. What if he or she did not even have any feeling, but just wanted
to examine your garbage? What if he or she found something "of interest"
to the government? Could the state use it against you? What if the answer
was yes? Would that bother you?
If your interest is piqued, and especially if you live in Oregon, keep
reading. Lots of stuff gets thrown out, and much of it offers a lurid.
description of the people that throw it away. Your cell phone bill offers
who you talk to, when you talk to them, and how frequently it occurs. Your
bank statements provide how much money you have and where to find it.
What about a discarded tampon; what does that say about you? 5It has your
DNA, right? 4 Does your DNA say anything about anybody else?
1. Brief of Defendant-Respondent at 15, State v. Hoesly, 109 P.3d 383 (Or. Ct. App.
2005) (CA No. A120107) (arguing that a warrantless search of the defendant's garbage can,
during which the police obtained a "blood-soaked" tampon that they subsequently had tested
for DNA, narcotics, and seminal fluid, violated Article I, section 9 of the Oregon
Constitution).
2. "A search of trash, like a search of the bedroom, can relate intimate details about
sexual practices, health, and personal hygiene .... [A] sealed trash bag harbors telling
evidence of the intimate activity associated with the sanctity of [an individual's] home and
the privacies of life." California v. Greenwood, 486 U.S. 35, 50 (1988) (Brennan, J.,
dissenting) (internal quotation marks and citations omitted).
3. See infra notes 12-14 and accompanying text.
4. "DNA can potentially reveal a broad array of personal information." Tracey Maclin,
Is Obtaining an Aresstee's DNA a Special Need Search Under the Fourth Amendment?
What Should (and Will) the Supreme Court Do?, 34 J.L. MED. & ETHICs 165, 169 (2006).
Specifically, "DNA analysis maps immutable, lifelong characteristics of an individual.
Indeed, immutability is what makes DNA such an ideal identifier." Id. at 169 n. 105 (internal
quotation marks and citations omitted).
5. The "information revealed in a DNA analysis is not unique only to that donor.
Information from a donor's genome also reveals the private concerns of the donor's parents,
children, and siblings." Id. (internal quotation marks and citations omitted).
2008] STATE V. HOWARD
What do the police do with your DNA after obtaining it? How is it
stored? Does it become part of a larger database? Do the potential uses of
DNA give the police any incentive to go through your garbage and pick it
apart until they find something that they think might contain your DNA,
even if you are not suspected of doing
6
anything wrong? Do you want your
DNA in a law enforcement database?
To whom, besides the government, would this information become
available? 7 Not impressed? You say that you are a respectable, law-abiding
citizen? 8 You do not have anything to hide from anybody?9 Besides, the
police are not going through garbage very often, are they?'
In February of 2006, the Oregon Court of Appeals decided State v.
Howard.1 In Howard, the Oregon Court of Appeals held that the Oregon
6. Some commentators have suggested that various risks accompany such databases:
The leading privacy concerns about more inclusive DNA forensic
databases are that this powerful information (and the biological samples
from which it is obtained) would be collected on a routine basis without
any individualized suspicion of wrongdoing, that individuals would be
coerced to provide samples in dragnets, that relatives of potential
suspects would be tested, and that the original specimens would be
retained indefinitely.
Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement:
What Role for Privacy?, 34 J.L. MED. & ETHICS 153, 160 (2006) (commenting on the
potential for abuse by law enforcement officials regarding how DNA samples are collected,
stored, and subsequently used).
7. Highly personal information warehoused by the government has recently proven to
be at risk of misappropriation by private individuals. See Tom Zeller, Jr., Link by Link;
93,754,333 Examples of Data Nonchalance,N.Y. TIMES, Sept. 25, 2006, at C5, available at
2006 WLNR 16579327 (discussing a United States Department of Veterans Affairs laptop
that contained the "names, Social Security numbers and dates of birth of 28 million
veterans" when it was lost by a government official in 2006).
8. In late 2002, Mark Kroeker (acting Chief of Police in Portland, Oregon) voiced his
support of the notion that garbage is legally abandoned and thereby becomes subject to the
scrutiny of the police, or anyone else, once it is set out for collection. Two journalists from
Willamette Week, a local Portland newspaper, went to the Chiefs house and took his
garbage. They also collected the recycling from the home of Portland Mayor Vera Katz.
Afterwards, these two journalists met with Chief Kroeker in his office and revealed what
they had done. Chief Kroeker and Mayor Katz were furious. See Chris Lydgate & Nick
Budnick, Rubbish! Portland's Top Brass Said It Was OK to Swipe Your Garbage - So We
Grabbed Theirs, WILLAMETTE WEEK, Dec. 24, 2002, available at http://wweek.
com/story.php?story=3485.
9. If the Mayor and Chief of Police "were each chewing their nails about the secrets we
might have stumbled on, how the hell should the rest of us be feeling?" Id.
10. Portland Police Officers working in narcotics "conduct 'garbage pulls' once or twice
per month." Id.
11. 129 P.3d 792 (Or. Ct. App. 2006).
NEW ENGLAND LAWREVIEW [Vol. 42:929
Constitution does not prohibit the police from obtaining your garbage with
the assistance of a private third party. 12 Moreover, the court held that
whatever is found may be admitted into evidence for the purpose of
prosecuting a criminal case against you. 13 In April of 2007, the Supreme
14
Court of Oregon affirmed the decision of the Oregon Court of Appeals.
When Howardwas decided by the Oregon Court of Appeals, the court held
that the manner in which the police procured the defendants' garbage was
permissible, because it did not infringe any constitutionally protected
privacy or possessory interests in the garbage. 5 The Supreme Court of
Oregon, however, affirmed only on the ground that the police did not
infringe the defendants' privacy interests when they acquired the
defendants' garbage. 16 The Supreme Court of Oregon, therefore, did not
address whether the police infringed the defendants' constitutionally
protectedpossessory interests in the garbage. 17
This question, that the Supreme Court of Oregon left unanswered, is
the subject of this Comment. This Comment asserts that State v. Howard
was erroneously decided 8 because the actions undertaken by the police
violated the rights of the defendants under Article I, section 9 of the
Oregon Constitution. Specifically, this Comment argues that the
investigatory methods employed by the police violated the defendants'
constitutionally protected possessory interests in their garbage.
This Comment addresses the threat that Howardposes to Oregonians'
right to privacy. 19 This Comment does so, however, by examining how the
Oregon Court of Appeals analyzed whether the defendants' possessory
interests in their garbage was infringed by the police. The precedent set
12. See State v. Howard, 129 P.3d 792, 793 (Or. Ct. App. 2006).
13. Id. In 2005, however, the Oregon Court of Appeals held that the Oregon
Constitution prohibited the police from unilaterally seizing garbage that had been placed in
front of a residence for collection by the garbage collector. State v. Galloway, 109 P.3d 383,
383 (Or. Ct. App. 2005). Galloway holds that individuals, under the aforementioned
circumstances, retain a constitutionally protected possessory interest in their garbage until
collection by the garbage collector takes place. Id.
14. State v. Howard, 157 P.3d 1189, 1190 (Or. 2007).
15. Id.
16. Id.at 1192.
17. See id.
18. Since the Supreme Court of Oregon did not address whether the defendants'
possessory interests were violated-and because this precise issue is the focal point of this
Comment-the analysis that is set forth herein focuses on the decision of the Oregon Court
of Appeals. That said, this writer still respectfully disagrees with the conclusion of the
Supreme Court of Oregon.
19. The right to privacy within the meaning of the Oregon Constitution is known as the
right to be free from governmental scrutiny. See State v. Campbell, 759 P.2d 1040, 1047
(Or. 1988).
2008] STATE V HOWARD
20. The constitutionally protected possessory interest in garbage was recognized by the
Oregon Court of Appeals in State v. Galloway, 109 P.3d 383, 383 (Or. Ct. App. 2005).
21. Cf Ricardo J. Bascuas, Fourth Amendment Lessons from the Highway and the
Subway: A Principled Approach to Suspicionless Searches, 38 RUTGERS L.J. 719, 770
(2007) ("[T]he Fourth Amendment protects privacy by protectingproperty.").
22. State v. Purvis, 438 P.2d 1002, 1006 (Or. 1968) (Sloan, J., dissenting). Moreover,
allowing such use of a private party by the police in Oregon is analogous to what was
allowed under the now abandoned "silver platter" doctrine. Cf Robert Post, Federalism,
Positive Law, and the Emergence of the American Administrative State: Prohibitionin the
Taft Court Era, 48 WM. & MARY L. REV. 1, 34 n.l 13 (2006) ("Federal use of evidence
gathered by state actors in violation of constitutional norms applicable to the federal
government later became known as the 'silver platter doctrine."'). The rule was recognized
by the United States Supreme Court in 1927. Byars v. United States, 273 U.S. 28, 33 (1927).
The rule, however, has since been abrogated by the Court. 29 AM. JUR. 2D Evidence 608
(2006). The doctrine was expressly overruled in 1960. Elkins v. United States, 364 U.S.
206, 223-24 (1960).
23. See discussion infra Part II.A.
NEW ENGLAND LAW REVIEW [Vol. 42:929
Comment remains on the law of search and seizure, but shifts to Article I,
section 9 of the Oregon Constitution.2 4 Specifically, this Comment will
examine the manner in which Article I, section 9 protects individual
possessory interests.2 5 Part II will also consist of a thorough discussion of
the Oregon Constitution's protection of possessory interests in garbage.2 6
Afterwards, Part III examines the Oregon Court of Appeal's opinion
in State v. Howard,detailing both the factual circumstances of the case, and
the reasoning behind the court's decision.27 Part IV explains why the
Howard court should have suppressed the evidence that was obtained from
the defendants' garbage can. 28 Specifically, Part IV asserts that the police
infringed the defendants' constitutionally protected possessory interests in
the contents of the can. 29 Finally, Part V concludes with some reasons why
the precedent that the30 Oregon Court of Appeals created in Howard is
socially undesirable.
II. BACKGROUND
IV; see Kelly A. Brouchers, Mission Impossible: Applying Arcane Fourth Amendment
Precedent to Advanced CellularPhones, 40 VAL. U. L. REV. 223,230 (2005).
34. See Chris Blair, Illinois v. Caballes: Love Affair with a Drug-Sniffing Dog, 41
TULSA L. REV. 179, 182 n.36 (2005); Brouchers, supra note 33, at 231.
35. See 68 AM. JUR. 2D Searches and Seizures 1 (2000) (citations omitted).
36. Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995); 68 AM. JUR. 2D
Searches and Seizures 11 n.48 (2000) ("To analyze whether a law enforcement action was
'reasonable' under the Fourth Amendment, the governmental interest at stake must be
measured against the individual's right to be free from unwarranted governmental intrusion
into personal freedom and liberty.") (citation omitted).
37. See H. Brendan Burke, Comment, A "Special Need" for Change: Fourth
Amendment Problems and Solutions Regarding DNA Databanking, 34 STETSON L. REV.
161, 167 (2004).
38. U.S. CONST. amend. IV; see also Blair, supra note 34.
39. 68 AM. JUR. 2D Searches and Seizures 12 (2000). "[T]he traditional exceptions to
the warrant requirement, which arise in the context of ordinary police work ... include:
[s]earches incident to a lawful arrest, exigent circumstances, later expanded to include the
automobile exception, hot pursuit, or plain view." Siegel, supra note 32, at 287 n.7 (citations
and internal quotation marks omitted).
40. See Loly Garcia Tor, Mandating Exclusions for Violations of the Knock and
Announce Rule, 83 B.U. L. REV. 853, 857 (2004).
41. Id. ("The exclusionary rule provides that evidence seized by the police in violation
of the Fourth Amendment may not be used in the criminal prosecution of the victim of the
unreasonable search or seizure."). In addition, a Fourth Amendment violation can also give
rise to a civil rights claim against the responsible government officials. See 68 AM. JuR. 2D
Searches and Seizures 7 (2000).
NEWENGLAND LAW REVIEW [Vol. 42:929
the state and federal governments.4 2 One purpose of the exclusionary rule is
to deter the police from engaging in illegal investigatory practices.4 3
The underlying purpose of the Fourth Amendment is readily
apparent," but the scope of its protection is not.45 In addition to protecting
the ambiguous right to privacy, the Fourth Amendment recognizes and
protects property rights.46 This recognition, however, is subject to some
limitation.4 7 For example, garbage placed outside for collection is not
subject to Fourth Amendment protections.48
In California v. Greenwood, the Supreme Court of the United States
held that the Fourth Amendment does not prohibit law enforcement
officials from conducting a warrantless search and seizure of garbage that
has been placed on the curbside for collection.49 In reaching its conclusion,
the Court focused on whether there existed a reasonable expectation of
privacy in the garbage. 50 Although this question was answered in the
negative, the Court did not completely foreclose the possibility of garbage
receiving the Fourth Amendment's protection in the future. 51 The Court
42. Mapp v. Ohio, 367 U.S. 643, 655 (1961) ("[AIll evidence obtained by searches and
seizures in violation of the Constitution is . . . inadmissible in a state court."); Weeks v.
United States, 232 U.S. 383, 398-99 (1914) (stating that obtaining evidence in violation of
the U.S. Constitution by a federal official is inadmissible in a prosecution in federal court).
43. See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2672 (U.S. 2006). Another
common argument made in favor of the exclusionary rule is the "imperative of judicial
integrity" justification. Garcia Tor, supra note 40, at 858.
44. See supra note 32 and accompanying text.
45. See Richard G. Wilkins, Defining the "Reasonable Expectation of Privacy": An
Emerging Tripartite Analysis, 40 VAND. L. REv. 1077, 1088 (1987) ("[T]he fourth
amendment applies whenever government activity infringes upon a 'reasonable expectation
of privacy."'). This standard makes it difficult to accurately predict what is actually within
the purview of the Fourth Amendment because "[t]he factual variables arguably relevant in
determining whether a given situation involves an 'expectation of privacy' that society is
prepared to recognize as 'reasonable' are well-nigh limitless." Id. at 1089.
46. Soldal v. Cook County, II1., 506 U.S. 56, 62 (1992) (holding that "seizure" within
the meaning of the Fourth Amendment occurred when owners were dispossessed of their
mobile home by police, despite no invasion of privacy having occurred).
47. Id. at 63 n.7 ("[T]he Amendment does not protect possessory interests in all kinds of
property.").
48. California v. Greenwood, 486 U.S. 35, 37 (1988) ("[T]he Fourth Amendment [does
not] prohibit[] the warrantless search and seizure of garbage left for collection outside the
curtilage of a home."). But see 68 AM. JUR. 2D Searches and Seizures 24 (2000) ("A
warrantless search or seizure of the items deposited in a trash receptacle on private premises
generally is not justified.") (citing United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994)).
49. Greenwood,486 U.S. at 37.
50. See id. at 39.
51. See id ("The warrantless search and seizure of the garbage bags left at the curb
outside the Greenwood house would violate the Fourth Amendment only if respondents
2008] STATE V. HOWARD
did, however, signal to the states that garbage could receive such protection
under individual state constitutions.5 2 The following section examines
search and seizure under the Oregon Constitution.
B. Search and Seizure and the Oregon Constitution
A search within the meaning of Article I, section 9 of the Oregon
Constitution"3 "occurs when a person's privacy interests are invaded. ' 54 A
seizure, by contrast, does not occur unless the police cause "significant
interference with a person's possessory or ownership interests in
property., 55 Thus, Article I, section 9 protects individuals from
unreasonable searches and seizures
56
of property in which they hold a
possessory or privacy interest.
There are three sets of circumstances in which the police may execute
a search or seizure under Article I, section 9.57 First, as Article I, section 9
explicitly states, the police may execute either a search or a seizure with a
warrant. 58 Second, if the police acted without a warrant-the search or
seizure will still be constitutional if the police executed the search or
seizure with a valid exception to the warrant requirement.5 9 Third, the
police may execute a search or seizure without a warrant, or an exception
to the warrant requirement, if probable cause was not required because the
defendant had no possessory or privacy interests in the property that is
searched or seized.6 Under this scenario, "[t]he State bears the burden of
would warrant a belief by a reasonable man." WAYNE R. LAFAVE & JEROLD H. ISRAEL,
CRIMINAL PROCEDURE 140 (2d ed. 1992).
61. Galloway, 109 P.3d at 385.
62. See id.
63. State v. Hall, 115 P.3d 908, 919 (Or. 2005) (emphasis added).
64. See Galloway, 109 P.3d at 385.
65. "Abandoned property" is "[p]roperty that the owner voluntarily surrenders,
relinquishes, or disclaims." BLACK'S LAW DICTIONARY 1253 (8th ed. 2004).
66. See State v. Cook, 34 P.3d 156, 159-60 (Or. 2001).
67. Id. at 160.
68. 1d.
69. See State v. Owens, 729 P.2d 524, 530-31 (Or. 1986).
2008] STATE V. HOWARD 939
person's possessory interest in that 'effect."' 70 Accordingly, even seizures
of the briefest duration must conform to Article I, section 9 or any evidence
obtained therefrom can be challenged by the defendant as inadmissible.71
A property owner need not be in actual possession of his or her
property, or even know of its location, in order to qualify for the
protections of Article I, section 9.72 State v. Pidcock7 3 is illustrative of this
point. In Pidcock, a woman and her daughter discovered a briefcase close
to the mailbox in front of their house.74 Because the briefcase had a
somewhat lavish appearance and "something heavy inside" shifting about,
they took it inside their house and called the police.75
The briefcase was later opened by a Deputy Sheriff that responded to
the call.76 The briefcase contained quantities of both cocaine and
methamphetamine, $9000 in cash, and a fully loaded .45-caliber automatic
pistol.77 After these events had taken place, a local newspaper received a
call about placing a classified advertisement about a lost briefcase.78
Subsequent to this phone call, the Sheriffs office held a press conference
about the briefcase. 79
Sometime after the press conference concluded, the newspaper
received another call-this time the caller sought to cancel the
advertisement. 80 The caller gave the name, address, and phone number of
the defendant to the paper for the advertisement bill. 81 The defendant
moved to suppress the drugs, but the motion was denied, and the defendant
was subsequently tried and convicted. 2
Two appeals followed the defendant's conviction, in which the
Oregon Court of Appeals and the Supreme Court of Oregon both affirmed
the trial court's decision to deny the defendant's motion to suppress. 83
According to the Supreme Court of Oregon, the rationale behind the Court
of Appeal's decision was that the defendant relinquished his possessory
interests in the briefcase after he learned that it was found by the police.84
The Supreme Court of Oregon, however, rejected this analysis, and
held that the defendant did have possessory interests in the briefcase when
the police seized and opened it, because the "defendant was still actively
attempting to recover that property."85 In spite of this, the Supreme Court
of Oregon went on to affirm the Court of Appeal's decision, because the
police did not open the briefcase in pursuit of any incriminating evidence,
but did so only in an attempt to discover the briefcase owner's identity.86
The intent of the police officers notwithstanding, Pidcock stands for the
proposition that lost or "mislaid property ' 87 is protected by 88 Article I,
section 9, so long as its owner manifests an intent to recover it.
This principle is also observable in State v. Belcher,89 a companion
case to Pidcock.90 The defendant in Belcher had participated in a bar fight,
and fled before the police arrived at the scene. 9 1 When the police arrived,
they found a backpack that belonged to the defendant, and discovered that
it contained stolen jewelry.92 The defendant was convicted of burglary in
the first degree after losing his motion to suppress the jewelry.93 The trial
court's ruling on the motion was affirmed
94 by the Oregon Court of Appeals
and the Supreme Court of Oregon.
Since the police searched the defendant's backpack without a warrant,
or valid warrant exception, the admissibility of the jewelry depended on
whether the defendant had abandoned his backpack. 95 In its discussion, the
Supreme Court of Oregon framed the issue as "whether the backpack and
its contents were abandoned and whether the police could conduct a
warrantless search of... the backpack., 96 The court held the defendant had
abandoned his backpack because97
he manifested "no indication" that he
would attempt to recover it.
98. Id.
99. See id.;
State v. Pidcock, 759 P.2d 1092, 1094 (Or. 1988).
100. See State v. Morton, 953 P.2d 374, 376-77 (Or. 1998).
101. Id.
102. Id.at 375.
103. Id. at 375-76.
104. Id. at 376.
105. Id.
106. Morton, 953 P.2d at 376.
107. See id.at 375.
108. Id.at 376.
109. Id.
NEW ENGLAND LAW REVIEW [Vol. 42:929
interest vested in the property, and this requirement was clearly satisfied. 0
The Supreme Court of Oregon shifted focus to whether the defendant
had actually abandoned the container, and whether her arrest was lawful."'
The court determined the arrest warrant was invalid, and that the defendant
separated herself from the container after the police initiated an illegal
arrest. 1 2 In spite of all of the evidence that the defendant had abandoned
her possessory interests in the container, the court nevertheless held that it
was obtained in violation of Article I, section 9 and that the trial court
properly granted the defendant's motion to suppress the evidence of the
container and its contents." 13 Morton, therefore, stands for the proposition
that abandonment of the property in question does not terminate the
defendant's ability to controvert its admissibility under Article I, section 9
if the abandonment occurred14 during, and only because of, effectuation of an
illegal arrest by the police.'
The issue of explicit denial of ownership of property was again
examined by the Supreme Court of Oregon when it decided State v.
Cook. 15 In Cook, two police officers, while checking an apartment
complex's parking area for potential theft from parked cars, took notice of
the defendant, who was putting clothes into a duffel bag that he had with
him."l 6 The officers approached the defendant because, according to one of
the officers, "'it seemed reasonable to believe that the actions that [the
defendant] was doing would be something 17
consistent with somebody who
had committed a theft from a vehicle.""'
The police asked the defendant about his activities, and the defendant
recounted to the officers that "'he had been out for a walk when he
discovered a pile of clothing there and he thought he may be able to use
some of the clothing and so he was going through the clothing to find items
which he may be able [to] use.""'1 8 The defendant denied ownership of the
bag, and all articles of clothing in the immediate area, save for a "'green
army jacket.""'19
One of the officers told the defendant to "'step out' of the area where
110. See id The Supreme Court of Oregon stated, "the uncontradicted evidence in this
case showed that this defendant had, in fact, been in personal possession of the container in
question only moments before it came into the possession of the police." Id.
111. See id. at 376.
112. See Morton, 953 P.2d at 376.
113. See id. at 376-77.
114. See id.; see also State v. Cook, 34 P.3d 156, 159 (Or. 2001).
115. 34 P.3d 156 (Or. 2001).
116. Id.at 158.
117. Id. (quoting testimony of officer).
118. Id. (quoting testimony of officer).
119. Id. (quoting testimony of officer).
2008] STATE V HOWARD
the bag and other items were. 120 The bag was subsequently searched by an
officer and was found to contain a syringe, two spoons (one of which
"'contained a white powder substance"'), and a clear plastic baggie.' 2'
After the search was complete, the defendant claimed ownership of the
bag. 122 The defendant was later convicted of possession 123 of
methamphetamine, after the trial court denied his motion to suppress.
The Oregon Court of Appeals affirmed
24 before the matter was reviewed by
the Supreme Court of Oregon.1
The Oregon Court of Appeals affirmed the trial court, holding that the
defendant's "'disclaimer of ownership"' constituted abandonment of the
property and effectively terminated his protected possessory interests in the
bag. 125 On appeal before the Supreme Court of Oregon, the defendant
argued that his denial of ownership had no such effect on his Article I,
section 9 interests. 126 In its analysis of Cook, the Supreme Court of Oregon
framed the issue as follows: "whether the defendant's statements and
conduct demonstrated that he relinquished all constitutionally protected
interests in the articles of property, so that both the warrantless seizure of
the property and the resultant search by the police were reasonable under
Article I, section 9.,,127 Importantly, the court also stated that principles
128
of
property law were relevant components to this constitutional analysis.
The Supreme Court of Oregon concluded that it was reasonable for
the officers, based on the statements that the defendant made prior to
execution of the search and seizure, to draw the inference that the bag and
clothes did not belong to the defendant. 129 The court, however, held that
these same statements did not allow the police "to conclude that [the]
defendant intended to relinquish all his constitutionally protected interests
130
in those items.' Thus, the court concluded that the only reason that the
defendant stepped away from the property in question was because he was
ordered to do so by one of the officers, and acting as per the instructions of
the police is not sufficient to constitute abandonment within the meaning of
Article I, section 9.131 Accordingly, the court held that it was an error to
146. Id.
147. Id.
148. Kendall, 24 P.3d at 916.
149. Id.
150. Id.
151. Id.
152. Id. at 918.
153. Id. at 916.
154. Kendall, 24 P.3d at 916.
155. Id. at 917.
156. Id.
157. Id.
158. Id. at 916-17 (the defendant's property was not abandoned because: (1) it was left on
private property; (2) it was a vehicle, which gave the defendant a reasonable expectation
that it would be left undisturbed; and (3) the officer who seized it stated that he planned to
NEW ENGLAND LAW REVIEW [Vol. 42:929
59
was decided with the companion case of State v. Dickson.1
In Dickson, police officers served a search warrant on a home. 160 As
the police approached the house in a convoy of vehicles, the defendant was
observed walking out of the front door with a backpack. 16' The defendant
saw the vehicles approaching the house and began to run.1 62 The police
exited their vehicles, identified '1themselves
63
as police officers, and shouted
"that they had a search warrant."
The defendant was chased by at least one of the police officers, and
when he was somewhere between fifteen and twenty feet from the house,
he discarded his backpack. 64 The defendant, and the backpack, were both
subsequently apprehended and seized by the police.' 65 Afterwards, "one
officer asked [the defendant] about the backpack; [but he] indicated that he
was declining to make any statements. The officers took [the] defendant
into the house and gave Miranda warnings to him and to the other
occupants.' 66
The defendant successfully moved the trial court to suppress the
backpack and its contents, arguing that the police had obtained them in
violation of both Article I, section 9 of the Oregon Constitution, and the
Fourth Amendment to the United States Constitution. 67 The Oregon Court
of Appeals reviewed, and reversed the trial court's order to suppress the
marijuana. 68 The Dickson court focused on the defendant's conduct at the
time that he discarded his backpack, and immediately thereafter. 69
182. See id
183. Id. at 601.
184. Id.
185. See id.
186. Stafford, 57 P.3d at 601.
187. Id.
188. Id.
189. Id.
190. Id.
191. Id.
192. See Stafford, 57 P.3d at 601.
2008] STATE V. HOWARD
other than discarded trash."'1 93 Accordingly, the Stafford court affirmed the
trial court's
94
decision to admit the paper bag and its contents into
evidence. 1
In sum, the aforementioned cases provide a basic framework for
determining whether an individual has abandoned his or her 95
constitutionally cognizable possessory interests in an article of property.'
None of the cases examined in this section, however, address whether it is
possible to retain possessory interests in garbage, or garbage cans, within
the purview of Article I, section 9 of the Oregon Constitution. 196 The
question of whether someone retains cognizable possessory interests in
their garbage within the meaning of the Oregon Constitution is examined
and answered in the following section.
193. Id.
194. Id.
195. See discussion supra Part Il.B. 1.a.
196. See discussion supra Part I.B. 1.a.
197. State v. Galloway, 109 P.3d 383, 383-84 (Or. Ct. App. 2005) (holding that the
garbage was protected by Article 1, section 9 of the Oregon Constitution).
198. Id. at 383. The cases, respectively, were State v. Hoesly and State v. Galloway. Id at
383-84.
199. Id.
200. Id. at 384.
201. See, e.g., Lydgate & Budnick, supra note 8.
202. See id.
203. See id.
950 NEW ENGLAND LAW REVIEW [Vol. 42:929
Galloway's garbage.2 17
A warrant authorizing the search of the Galloways' home was sought
and obtained by the officer.2 18 The warrant was executed, and the search
yielded discovery of methamphetamine in addition to evidence that
indicated the Galloways were growing marijuana. 21 9 The Galloways were
both charged with drug offenses.22
Each of the aforementioned defendants moved for suppression of the
evidence that was seized from their garbage cans, in addition to the
corresponding derivative evidence. 22 1 Each defendant averred that the
police acted without probable cause, and that the search and seizure of their
garbage was an invasion of their constitutionally protected interests.222 The
state conceded at each suppression hearing that no probable cause existed,
but asserted that no such constitutional violation occurred because each
defendant had relinquished any cognizable right of privacy once they
placed their garbage along the roadside for collection.2 23
Neither trial courts were persuaded by the state and both accordingly
held that each defendant "had a constitutionally protected interest in their
garbage cans and the contents of those cans. 22 4 The evidence was
suppressed in each case, and the state appealed the order of both trial
courts.225 On appeal, the state argued that the contents of the garbage cans
were abandoned by each of the defendants when they placed the cans on
the curbside for collection.22 6
Confronted with the foregoing facts and legal arguments, the Oregon
Court of Appeals framed the precise issue on appeal as "whether
individuals retain interests protected by Article I, section 9 of the Oregon
Constitution in garbage that they have left in garbage cans outside their
homes for curbside collection., 227 Additionally, because the state's
argument was based on the proposition that the garbage in each case was
abandoned property, the Galloway court examined the facts relevant to the
217. Id.
218. Id.
219. Id.
220. Id.
221. Id. Derivative evidence "is discovered as a result of illegally obtained evidence and
is therefore inadmissible because of the primary taint." BLACK'S LAW DICTIONARY 596 (8th
ed. 2004).
222. Galloway, 109 P.3d at 384-85.
223. Id. at 385.
224. Id.
225. Id.
226. Id.
227. Id. at 383.
NEW ENGLAND LAW REVIEW [Vol. 42:929
abandonment analysis. 228 According to the state, however, the proper focal
point of the abandonment inquiry was the garbage itself.229 This contention
was not embraced by the court.23
The approach urged by the state, according to the court, ignored the
fact that the defendants held possessory interests in the garbage cans at the
time the searches and seizures occurred.231 In each case, "the searches of
[the] defendants' garbage involved at least incidental infringements on their
possessory rights in their garbage cans, as the police opened and moved
those cans in order to obtain the garbage located inside. 232 Additionally,
the court concluded that a natural consequence of holding possessory
interests in the garbage cans was retention of possessory interests in the
contents of garbage cans.233
This conclusion was arrived at by the court in spite of the state's
assertion that the defendants manifested no intention to maintain control
over what was inside the cans, or the cans themselves. 23 4 The court
228. Galloway, 109 P.3d at 386. The Galloway court, citing State v. Cook, stated that
determining "[w]hether a person has relinquished a constitutionally protected interest in
property involves both factual and legal questions." Id.(citation omitted). The court focused
on a set of three factual findings made by the trial courts:
(1) Defendants contracted with garbage collection companies to collect
their residential garbage at the curbs in front of their homes at specific
times. (2) Defendants left their residential garbage at the curbs in front
of their homes, pursuant to their agreements with garbage collection
companies, inside opaque, closed garbage cans that were owned by
defendants, from which the garbage collection companies were to
remove the bags of garbage. Defendants' garbage cans, however, were
not to be removed by the garbage collection companies. (3) The
contents of the garbage cans were, in fact, refuse, i.e., items that the
defendants intended to discard.
Id.
229. Id. at 387 ("The state's focus on appeal is on whether defendants retained a privacy
or possessory interest in garbage, given that they manifested an intent to have it hauled
away.").
230. See id.
231. Id.
232. Id.
233. Id at 387-88. The Galloway court, however, made it clear that they were not
deciding whether the defendants retained a constitutionally cognizable privacy interest in
the contents of the cans. Id.at 388 n.3.
234. Galloway, 109 P.3d at 389. Specifically, the court said:
By securing garbage inside a closed, opaque container such as a trash
can, contracting with a garbage collection company to take it away, and
placing the cans, with their contents, at the specified collection point in
anticipation of collection, defendants manifested an intent to maintain
2008] STATE V HOWARD
emphasized that an objective third party could reasonably infer from the
fact that the garbage cans had been placed in front of the defendants'
residences, that the contents of the cans were designated for collection only
by a preordained person or organization.2 35 Therefore, the "defendants
retained protected possessory interests in the contents of their garbage cans
until that collection occurred.,236 Accordingly, 23 the
7
Oregon Court of
Appeals affirmed the suppression order in each case.
Thus, Galloway stands for the proposition that a garbage container
and its contents are protected by Article I, section 9 of the Oregon
Constitution when the container has been placed by an individual in front
of his or her residence for the garbage collector. 238 Specifically, Galloway
establishes that the individual retains constitutionally cognizable
possessory interests in the can and its contents. 239 Finally, a careful reading
of Galloway reveals two important points: (1) the possessory interests
retained by the individual do not terminate until the garbage collector has
taken possession of the garbage in the course of collection; and (2) the
police cannot lawfully acquire possession of the contents of the can directly
from the can's owner. 240 The contents of the can must first be obtained by
the garbage collector.24 1 The chain of possession that begins with the
individual and ends with the police must be interrupted by the garbage
collector. 242 These two final points from Galloway are critical to a thorough
understanding of State v. Howard,243 which is discussed in the following
section.
control over the contents until such time as the garbage company took it
away.
Id.
at 389.
235. Id.
236. Id.(emphasis added).
237. Id.
238. Id.
239. Id.
240. See Galloway, 109 P.3d at 389.
241. See id
242. See id
243. 129 P.3d 792 (Or. Ct. App. 2006).
244. Id.at 793-94. The defendants were both convicted of manufacturing a controlled
substance, possession of a controlled substance, and frequenting a place where controlled
substances are used. Id.at 793.
NEW ENGLAND LAW REVIEW [Vol. 42:929
A. Facts
The investigation that ultimately led to the convictions of Howard and
Dawson was initiated by police officers in Linn County, Oregon, after they
were informed that an individual had been making regular purchases of
iodine from a local feed store.248 Included in this information was the
license plate number of the car used by the purchaser. 249 The police
determined that the car was registered to co-defendant Sharon Howard.2 50
The police obtained Ms. Howard's address, and determined that both she
and co-defendant Dawson were living at the same residence in Sweet
Home.2 5 1
The police contacted the manager of the area garbage collection
company to investigate whether illegal drug activities were occurring at
Howard and Dawson's residence.252 The officers asked the manager if they
could examine the garbage that the defendants placed on the curbside for
collection.253 The manager agreed to work with the police, and on the next
day scheduled for collection, accompanied them and the garbage collection
crew to the co-defendants' residence.254
The garbage collection crew took the regular collection truck to the
residence, but the manager drove separately in a pickup truck.2 55 When they
arrived, a police detective was present, and the defendant's garbage can
was on the curbside awaiting collection.25 6 The detective watched as,
pursuant to the agreement made previously between the police and the
245. Id. Howard and Dawson were living together at the same residence in Sweet Home,
Oregon. Id.
246. Id. at 793-94.
247. Id. at 793.
248. See id. Iodine can be used to manufacture methamphetamine. Id.; see also Affidavit
for Search Warrant at 13, State v. Howard, 129 P.3d 792 (Or. Ct. App. 2006) (CA No.
A121011).
249. Howard, 129 P.3d at 793.
250. Id.
251. Id.
252. Id.
253. Id.
254. Id.
255. Howard, 129 P.3d at 793.
256. Id.
2008] STATE V. HOWARD
manager, "a sanitation employee placed the trash can into the manager's
pickup truck, rather than dump the contents into the regular 25
garbage
collection truck, and left a replacement can at the curbside.
When this procedure was complete, the manager was followed by the
detective to an isolated location where the detective examined the garbage
that had been placed inside the can.258 During the course of the search, the
detective found "several items relating to the possession and manufacture
of controlled substances, along with mail addressed to co-defendant
Dawson.,, 259 Two months after this occurred, the entire procedure was
repeated, and the police260
"discovered several additional items relating to
illegal drug activity."
The police used the items that they took from the defendants' garbage
to obtain a warrant that authorized the search of Howard and Dawson's
residence. 26' The warrant was executed, and the "police found and seized
evidence of the use and manufacture of methamphetamine and possession
of marijuana." 262 After the trial court denied the defendants' motion to
suppress, both of them were convicted by a jury for multiple drug
crimes.26 3
B. Opinion of the Oregon Court of Appeals
On review, the Oregon Court of Appeals framed the issue as "whether
[the] police invaded [the] defendants' protected possessory or privacy
rights under Article I, section 9, of the Oregon Constitution by searching
their garbage after the sanitation collection service collected it and
voluntarily turned it over to [the] police. 2 64 The court began with the
question of whether the police infringed the defendants' possessory interest
in the garbage.265 Citing Galloway as precedent, the court decided that they
did not.266 According to the Howard court:
Explicit in our reasoning in Galloway is the acknowledgement
that, once garbage is collected by a sanitation or other refuse
company, the analysis changes. At that point, the original
"owner" of the garbage relinquishes his or her possessory
257. Id.
258. Id.
259. Id.
260. Id.
261. Howard, 129 P.3d at 793.
262. Id.
263. Id. at 794.
264. Id.at 793 (emphasis added).
265. Id. at 794.
266. Id. at 795.
NEW ENGLAND LAW REVIEW [Vol. 42:929
278. Howard, 129 P.3d at 793-95; see also Galloway, 109 P.3d at 389.
279. State v. Purvis, 438 P.2d 1002, 1006 (Or. 1968) (Sloan, J., dissenting).
280. See discussion infra Part IV.A.
281. See supra Part II.B.1.
282. State v. Galloway, 109 P.3d 383, 389 (Or. Ct. App. 2005); see also supra notes 238-
39 and accompanying text.
283. Galloway, 109 P.3d at 389; see supra notes 240-42 and accompanying text.
284. See discussion infra Part IV.A.2. The use of an agent by the police is
constitutionally significant because Article 1, section 9 protects individuals "against
unreasonable searches and seizures by police and their agents." See State v. Enoch, 536
P.2d 460, 461 (Or. Ct. App. 1975) (emphasis added).
285. See State v. Hall, 115 P.3d 908, 919 (Or. 2005).
NEW ENGLAND LAW REVIEW [Vol. 42:929
286. RESTATEMENT (SECOND) OF AGENCY 1 (1958). The "principal" is "[t]he one for
whom action is to be taken," and the "agent" is "[t]he one who is to act." Id.
287. Id.cmt. b.
288. Id. These requirements can be satisfied through an informal agreement between the
principal and the agent. See id.
289. See id.; Note, Warrantless Searches and Seizures, 35 GEO. L. J. ANN. REv. CRIM.
PROC. 37, 91 (2006) ("Even if a third party is acting as an informant or ... agent of the
government....").
290. See U.S. v. Pierce, 893 F.2d 669, 673 (5th Cir. 1990) ("[T]he Fourth Amendment
can be violated by a search conducted by a private party acting as an agent or instrument of
the government.").
291. See State v. Enoch, 536 P.2d 460, 461 (Or. Ct. App. 1975).
292. See Checkley v. Boyd, 107 P.3d 651, 665 (Or. Ct. App. 2005).
293. See supra notes 291-92 and accompanying text.
294. See State v. Howard, 129 P.3d 792, 793 (Or. Ct. App. 2006); RESTATEMENT
(SECOND) OF AGENCY 1 cmt. b (1958).
295. See Howard, 129 P.3d at 793.
2008] STATE V HOWARD 959
296. Id.
297. Id.
298. See id
299. See RESTATEMENT (SECOND) OF AGENCY 1 cmt. b (1958). An agency relation can
result from something as minor as "ask[ing] a friend to do a slight service ... such as to
return for credit goods recently purchased from a store ...." Id.It naturally follows, a
fortiori,that what occurred between the police and the garbage collector in Howard created
an agency relationship. See id.
300. BLACK'S LAW DICTIONARY 1201 (8th ed. 2004).
301. See supra notes 294-99 and accompanying text.
302. 73 C.J.S. Property 52 (2004) ("Property in the hands of an agent or servant is in
the possession and control of the principal or employer, the agent or servant having only
custody, since the possession of the agent or servant is the possession of the principal or
employer.") (citations omitted); cf Springer v. Durette, 342 P.2d 132, 136 (Or. 1959) ("The
rule is clear that the possession of the agent is the possession of the principal for the purpose
of acquiring title by adverse possession.") (citing Strom v. Hancock Land Co., 140 P. 458,
461-63 (Or. 1914)).
303. See supra note 302 and accompanying text.
304. See State v. Howard, 129 P.3d 792, 793 (Or. Ct. App. 2006); see also supra notes
302-03 and accompanying text.
305. State v. Galloway, 109 P.3d 383, 387 (Or. Ct. App. 2005); see also supranotes 240-
42 and accompanying text.
306. See State v. Hall, 115 P.3d 908, 919 (Or. 2005).
NEW ENGLAND LA W REVIEW [Vol. 42:929
V. CONCLUSION
When Howard and Dawson's garbage can sat on the curbside
awaiting collection, the car. and its contents were protected by Article I,
section 9 of the Oregon Constitution.3 7 As such, the police were prohibited
from seizing the can and searching its contents, unless they were able to
satisfy the requirements of Article I, section 9.308 The police infringed the
defendants' protected possessory interests by using the garbage collectors
to obtain the contents of the garbage can. 30 9 The evidence, therefore,
should have been suppressed.31 0
The Howard decision authorizes the police to obtain privately owned
property without first acquiring a warrant from a removed and impartial
magistrate. The most dangerous aspect of Howard goes well beyond the
state's ability to use in court evidence that was obtained through odious
means from an individual's garbage can. This decision's concomitant
social peril derives from giving the government unrestricted access to the
highly personal information contained in our garbage cans. This access
extends to the garbage cans of the criminal and law-abiding alike. Whether
this is desirable social policy is beyond all serious debate. Enhancing the
state's ability to monitor the innocuous daily activities of its citizens is
extraordinarily dangerous. 3 1'
It must be remembered that "if [the] police have good reason to
believe that the garbage will yield the fruits, evidence, or instrumentalities
of crime, then they can obtain lawful authority to search by... [acquiring]
a warrant from a neutral and detached magistrate. 3 12 But if probable cause,
reasonableness, and warrants are no longer a part of the investigatory
process, the only safeguard against arbitrary governmental intrusions that
we are left with is the personal discretion of the individual agent of the
State.313 Allowing this to happen is nothing short of an abdication of our
right to be free from unwarranted governmental scrutiny, and is wholly
307. See Galloway, 109 P.3d at 389; see also supra notes 238-42 and accompanying text.
308. See Galloway, 109 P.3d at 385, 389; see also supra notes 238-42 and accompanying
text.
309. See discussion supra Part IV.A.
310. See Hall, 115 P.3d at 919.
311. See, e.g., Rita F. Aronov, Privacy in a Public Setting: The Constitutionalityof Street
Surveillance, 22 QuINNIPIAc L. REV. 769, 809 (2004) ("[E]xcessive surveillance abridges
one's liberty by stripping away its key components - autonomy, anonymity, and
independence."). Similar concerns have resonated throughout literature for some time. See,
e.g., GEORGE ORWELL, NINETEEN EIGHTY-FouR 1 (Penguin Group ed., Penguin Books 2003)
(1949) ("BIG BROTHER IS WATCHING YOU....").
312. State v. Howard, 129 P.3d 792, 802 (Or. Ct. App. 2006) (Schuman, J., dissenting).
313. See id.
2008] STATE V. HOWARD
inconsistent with
314
the underpinnings of a constitutional society governed by
the rule of law.
Your garbage often contains very telling things about you.31 5 The
mere prospect of the State being able to freely sift through garbage cans in
order to assemble dossiers on who buys what at which stores, who is at a
genetic predisposition for which diseases, and who is having sexual
intercourse with whom, 3 16 is abhorrent to any reasonable sense of dignity,
and ostensibly detrimental to the collective peace of mind.31 7 Hopefully the
precedential effect of Howard will be abrogated in the future-lest
Oregonians suffer the injurious consequences that inextricably accompany
all increases in unrestrained governmental scrutiny.31 8 The ceaseless
evisceration of our privacy has become too distressing-the evidence
should have been suppressed.
314. See Todd J. Zywicki, The Rule of Law, Freedom, and Prosperity, 10 SuP. CT. ECON.
REV. 1, 4 (2003) ("The first value of the rule of law is the notion of constitutionalism,
comprising procedural and substantive limitations on the exercise of governmental
authority.").
315. For instance, it may offer:
[Y]our social security number, your bank account numbers, your credit
card account numbers, your diet, where you shop, what you buy, what
medications you take (birth control pills? Viagra? Rogaine? Prozac?),
what cosmetics you use, what congenital diseases your DNA might
disclose, what periodicals you read, what the discarded drafts of your
reports or correspondence say, whom you telephone, how much alcohol
you drink ....
State v. Howard, 129 P.3d 792, 800 (Or. Ct. App. 2006) (Schuman, J., dissenting).
316. Recall Galloway, where the defendant's "blood-soaked" tampon was seized from
her garbage can and tested for the presence of seminal fluid. State v. Galloway, 109 P.3d
383, 384 (Or. Ct. App. 2005); see also supra note 1 and accompanying text.
317. See Aronov, supra note 311, at 769-70 ("[T]he government's close observation of
... people engaged in legal activities is nothing if not troubling.").
318. See Aronov, supra note 311.