The State of Our Trash in Florida: The Use of Evidence Found in Residential Garbage to Establish Probable Cause to Search a Citizen’s Home
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 lines of credit from companies that think lawyers are great credit risks. However, many of our criminal clients are not aware of the risks involved with placing their garbage out for collection.
In many jurisdictions, trash pulls have become one of the narcotics squads’ best resources for obtaining incriminating evidence that provides grounds for search warrants of our clients’ homes. However, on occasion, law enforcement officers and agencies either do not 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 marijuana seeds and stems or cocaine residue in a trash pull, will rush to the courthouse to get a search warrant based upon clearly insufficient evidence. They present the facially deficient affidavit listing evidence of clear-cut narcotic law violations to judges who are often 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.
Whose Trash is it Anyway?
There is no reasonable expectation of privacy with respect to garbage placed out for collection by the garbage man.1 The act of placing trash outside for collection is an act of abandonment and hence, there is no Fourth Amendment protection.2 Whether the garbage seized was readily accessible to the public is a factual determination decided on a case-by-case basis; there is no bright-line rule that applies to all garbage suppression cases. The 11th Circuit has recently addressed this issue in United States v. Segura-Baltazar, 448 F.3d 1281 (11th Cir. 2006), and found that the applicability of the Fourth Amendment hinges on whether the garbage left for collection is “readily accessible to the public” as to render any expectation of privacy objectively unreasonable.3 In Segura, one of the issues was whether garbage left near the garage of Segura’s house and in open view to the public was readily accessible to the public even though it was within the curtilage (generally the land or yard adjoining a house) of Sergura’s house. The 11th Circuit, after citing several cases addressing the issue by other federal circuits, held it did not need to address the curtilage issue because the garbage was readily accessible to the public even though it was within the home’s curtilage.4 The court also noted that in Segura’s case, the sanitation workers would pick up the garbage even if it was not taken completely to the curb for pick-up. So, it appears, in some factual scenarios, if the court finds that the garbage is “readily accessible” to the public to rummage through, even if it has not been taken to the street for pick-up, the garbage may be considered legally abandoned, allowing law enforcement officers to search it.
Determination of Probable Cause and Standard of Review
Probable cause has been defined as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in his or her belief that the suspect is guilty of the offense charged.5 To establish probable cause sufficient to issue a search warrant, an affidavit in a warrant application must set forth two elements: 1) a particular person has committed a crime; and 2) evidence relevant to the probable criminality is likely located at the place to be searched.6
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.7
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.”8 A judge or magistrate’s determination of probable cause is paid great deference by reviewing courts.9
Single Trash Pulls
In order to obtain a warrant to search someone’s home, law enforcement must enumerate probable cause in their affidavit that establishes a pattern of continuous drug activity or a fair probability drugs would be found inside the home. A single trash pull revealing evidence of drug use is insufficient to establish probable cause. In Gessell v. State, 751 So. 2d 104 (Fla. 4th DCA 1999), the affidavit stated that law enforcement’s trash pull at Gessel’s curbside revealed two 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. The affidavit also asserted 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 a 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.10 Gessel illustrates 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 large plastic baggies containing marijuana residue were 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.11 However, evidence found from a trash pull that suggests the home owner is distributing drugs, such as the wrapping typically associated with a large quantity of narcotics, such as a kilo of cocaine, which also tests positive for cocaine, will result in a legal warrant with one trash pull.12
In Raulerson v. State, 714 So. 2d 536 (Fla. 4th DCA 1998), another often cited case addressing “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 trash bags from the curb in front of Raulerson’s home. They found two 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 stated that a substance found in the one-time trash pull tested positive for cannabis, the affidavit “lacked other sufficient facts” to indicate afair probability that cannabis would be found in the defendant’s home. The court further held that the information contained in the affidavit did not suggest a pattern of continuous drug activity.13
Legally Sufficient Search Warrants Involving Trash Pulls
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, they need to obtain additional incriminating evidence before asking a judge 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, as well as “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….”14 Similarly in Scott v. State, 559 So. 2d 269 (Fla. 4th DCA 2002), 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 suspicious 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.”15
Sometimes law enforcement officers obtain evidence of suspicious activity prior to performing a trash pull. 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 wherein 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. Two days before the issuance of the search warrant, a single trash pull at his residence revealed the presence of marijuana and bags which appeared to be the type of bags used in the sale of cocaine.
Also, if evidence of the suspect’s involvement with drug use or dealing exists, 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 of the suspect’s home. 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. 3d DCA 2003), the Third District factored into its probable cause determination the fact that Merrill had been involved in a prior undercover sale of marijuana, even though it occurred at a location other than his residence, which was subsequently searched. That court found that the totality of the circumstances established probable cause.16 In State v. Paige, 934 So. 2d 595 (Fla. 5th DCA 2006), the court went so far as to consider the criminal histories of the visitors to the house to establish probable cause.17 Although prior convictions or arrests may be factored into the totality of the circumstances evaluation, 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.18
No Good Faith Exception
In United States v. Leon, 468 U.S. 897(1984), the U.S. Supreme Court held, subject to several qualifications, the exclusionary rule does not apply to evidence acquired in reasonable reliance on a search warrant later ruled invalid.19 This is a very narrow exception to the exclusionary rule, one that rests on the “detached scrutiny of a neutral magistrate, which is a more reliable safeguard than the hurried judgment of a law enforcement officer.”20 The Florida Supreme Court has recognized that the Leon “good faith” exception is limited to cases involving search warrants.21 However, the “good faith exception” of Leon does not apply where an affidavit is so deficient in indicia of probable cause that it fails to manifest the objective good faith standard required by Leon.22
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.23 This concurring opinion seems to ignore the long line of case holdings in Florida as well as Leon itself, which unequivocally holds that the good faith exception will not apply in situations where the affidavit is so lacking in probable cause that it is objectively unreasonable.24 The policy behind Leon is to deter police misconduct.25 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 be 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 to base the issuance of a search warrant of a citizen’s residence. In some areas, due to a series of successful motions to suppress evidence obtained through trash pulls, the legal departments of these agencies are retraining their officers about what is necessary to establish probable cause to search a residence. Once a few of these motions are won, law enforcement agencies may train their officers to become more careful in drafting affidavits and more thorough with their investigation in obtaining probable cause. A thorough review by defense counsel of the search warrant affidavit in a trash pull case may result in a positive outcome for your client and more effective law enforcement by ensuring that law enforcement obtains sufficient probable cause before requesting a warrant to enter and search a citizen’s home.
1 Stone v. State, 402 1330, 1333 (Fla. 1st D.C.A. 1981)(quoting United States v. Crowell, 586 F.2d 1020, 1025 (4th Cir. 1978)).
2 Id. at 1333.
3 Segura, 448 F.3d at 1287 (citing California v. Greenwood, 486 U.S. 35, 41 (1988)).
5 Schmitt v. State, 590 So. 2d 404, 409 (Fla.1991).
6 Salyers v. State, 920 So. 2d 747, 749 (Fla. 5th D.C.A. 2006).
7 Illinois v. Gates, 462 U.S. 213, 238-239 (1983).
8 Schmitt, 590 So. 2d at 409.
9 State v. Colitto, 929 So. 2d 654 (Fla. 4th D.C.A. 2006)(citing Gates at 462 U.S. at 236).
10 Gessel, 751 So. 2d 104 (Fla. 4th D.C.A. 1999).
11 State v. Gross, 833 So. 2d 777 (Fla. 3d D.C.A. 2002).
12 State v. Paige, 934 So. 2d 595 (Fla. 5th D.C.A. 2006).
13 Raulerson, 714 So. 2d at 537.
14 Mays, 666 So. 2d 165.
15 Scott, 559 So. 2d. at 272.
16 Merrill, 849 So. 2d. at 1178.
17 Paige, 934 So. 2d at 600. (See also State v. Ward, 935 So. 2d 1287 (Fla. 5th D.C.A. 2006), a companion case to Paige, in which the Fifth District stated that passage of time must be considered in the context of the specific facts, including the nature of the unlawful activity alleged and the length of the activity. Because police surveillance in Ward continued over several months and reflected persistent drug activity, the staleness claim relating to the trash pull lost any efficacy.)
18 State v. Young, 917 So. 2d 415, 416 (Fla. 2d D.C.A. 2006). But Cf. United States v. Jiminez, 224 F.3d 1243, 1249(11th Cir. 2000) (an arrest one year prior is not too remote if the affidavit contains information that updates, substantiates, or corroborates the stale arrest).
19 Leon, 468 U.S. at 921-22.
20 Id. at 913-14 (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977)).
21 State v. Peterson, 739 So. 2d 561, 564 (Fla. 1999) (“The ‘good faith’ exception becomes applicable only upon finding that the affidavit for a search warrant was insufficient to establish probable cause.”).
22 Gessel, 751 So. 2d 104; Brown v. State, 561 So. 2d 1248 (Fla. 2d D.C.A. 1990); St. Angelo v. State, 532 So. 2d 1346 (Fla. 1st D.C.A. 1988); State v. Van Pieterson, 550 So. 2d 1162 (Fla. 1st D.C.A. 1989).
23 Edmonds, 919 So. 2d at 681.
24 See Peterson, 739 So. 2d 561.
25 Johnson v. State, 660 So. 2d 648 (Fla. 1995) (the exclusionary rule is meant to deter abuses by law enforcement, not to use law enforcement as the whipping boy for the magistrate’s error).
Jim Jenkins graduated from Florida State University College of Law with honors in 1985. He practices 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.
This column is submitted on behalf of the Criminal Law Section, Ann E. Finnell, chair, and Georgina Jimenez-Orosa, editor.