RIGHT TO SEARCH GARBAGE ARGUED

MD. High Court Eyes Case Where Trash Led To Police Warrant

The trash bags went out at night within arm's reach of the sidewalk for
routine trash collection in Cambridge on the Eastern Shore. The next
morning, they were gone. But six times in 1997, police, rather than the
trash collector, took them without a search warrant. In a long established
law enforcement practice commonly used in drug and espionage cases, the
police sifted through the garbage, hunting for evidence of illegal drugs.
They used the cocaine residue they found to get a search warrant for the
house.

The legality of that method of collecting evidence is at the heart of the
state's first trash-seizure case to reach the state's highest court, a case
being closely watched by prosecutors and police across Maryland.

On one side is the notion that the trash bags are abandoned property, that
whoever discards them has no right to privacy in what he threw out, making
trash bags fair game for police. On the other side is the idea that police
collection and search of trash is an unreasonable government intrusion that
violates constitutional rights.

Trash seizures are a common and useful investigative tool, in part because
they area potential gold mine for authorities who have a hunch but not
enough information to get a search warrant. In these cases, search warrants
are obtained on the strength of what shakes out of the trash.

Private investigators, nosey neighbors, journalists, scavengers and animals
also hunt through trash, but only police seizure of garbage is at issue in
this case.

Police can ask a trash collector to turn over the bag without a search
warrant, according to a 1988 Supreme Court ruling. The nation's highest
court concluded that anyone who puts trash out on the curb, in a public
spot, forfeits a privacy claim to it, and police seizure of it from the
trash collector does not violate Fourth Amendment protections against
unreasonable search and seizure. A string of Supreme Court cases said that
there is no expectation of privacy in things that can be readily observed,
such as marijuana fields seen from a police helicopter.

But Donna L. Sampson placed her trash on the private property she rented in
Cambridge, two feet from a public sidewalk. And police did not get it from
the trash collector -- two key distinctions, her attorney, Stephen Z.
Meehan, said during yesterday's oral arguments before the Court of Appeals.

"Our position is that it doesn't matter where it is set out, as long as it
is accessible to the public and it is out there with the purpose of being
collected as trash," Gary E. Bair, chief of criminal appeals for the
Maryland attorney general's office, said in an interview this week.

But judges wondered yesterday how a police officer would decide how far into
private property a trash bag could be and still be considered accessible to
the public. Is it how far they can stretch their arms from a public
sidewalk, or does it extend to trash cans by the side of a house, they
asked.

"How is the cop supposed to know what to do under your test? That is my
problem with the readily accessible test," Judge Irma S. Raker told Bair.

They also wanted to know if the type of container mattered -- a backpack or
a dark green plastic bag -- and if there was a point in time when people who
put trash out could change their mind and take things back, part of the
larger issue of when garbage is considered abandoned property.

Once garbage is located where anybody can take it, courts should not place
police in a worse position than a member of the public for taking it, Bair
contended.

University of Baltimore law professor Jose F. Anderson said this week that
he thinks many people would be surprised to realize that police can sift
through their trash without a warrant.

"From a defense perspective, I can imagine few things reveal more about the
life of a family or an individual than a search of their garbage. It raises
privacy issues of almost any household," he said.

"This case is about the expectation of privacy that the people of Maryland
have in closed containers observed in their yards and ultimately, in their
homes, Sampson's lawyers argue in their brief.

Her attorneys wrote that the area around her house is her zone of privacy,
demanding the same treatment from police as her home. They would need a
warrant or an invitation to enter it.

Prosecutors disagree. "I don't feel too sorry for the guy who's throwing
out his drug paraphernalia in the trash. I don't think our forefathers were
thinking about that person," said Frank R Weathersbee, Anne Arundel County
state's attorney and former head of the state association of prosecutors. "I
think they were thinking about his house?'

Potentially complicating the matter are other nuances, legal experts said.
Among them:

* While Marylanders might approve of a warrantless search of someone else's
residential trash that could lead to ridding a neighborhood of a drug haven,
the same approach would not bar random trash searches through the
neighborhood.

* Police have easier access to curbside disposal in poor and middle-class
neighborhoods than in gated communities and neighborhoods where haulers take
the trash from the side of the house, leading to questions of whether they
would unfairly target lower income residents.

The case started in 1997 when a merchant told Cambridge police that Sampson
paid for an auto repair with about $3,000 in cash.

On six dates in October and November, police arrived before dawn and
retrieved the dark green trash bags she set out on her property.

Based on what officers found in the trash -- including plastic bags with
cocaine residue -- police obtained a warrant to search Sampson's home.
Fingerprints of Sampson's boyfriend were found on the little bags; hers were
not.

On Nov. 22, 1997, police entered her home and took crack cocaine from atop a
dresser containing men's clothes and $3,700, most from a man's boot under
the bed she and her boyfriend sometimes shared.

A Dorchester County jury found her not guilty of possession with intent to
distribute but convicted her of simple possession of drugs and maintaining a
common nuisance. In November 1998, she was sentenced to eight years in
prison. She appealed.

A three-judge panel of the Court of Special Appeals erased the conviction,
saying search and seizure of Sampson's trash violated the Fourth Amendment.
Chief Judge Joseph F. Murphy Jr. wrote that "police were not entitled to
search [her] trash bags simply [she] had consented to a pickup by the trash
collectors"