COVERED BY GARBAGE MAN-HOMEOWNER PRIVILEGE

Russell Stephen Patrick would have been well advised to be mindful of
the old cliche: One man's garbage is another man's treasure.

In 2003, the former member of Canada's national swim team was under
investigation for drug infractions. Problem is the police didn't have
enough evidence for a search warrant.

So, the police patiently waited for Patrick to put his garbage bags
out for collection in an open container at the back of his property.
All anybody, including the police, had to do was reach over the
invisible property line and remove the garbage bags.

From the garbage, police found evidence of an ecstasy pill lab. Now
there was sufficient evidence for a search of Patrick's home. The
evidence obtained during that search convicted Patrick on charges of
producing, possessing and trafficking in a controlled substance.

The legality of that search was considered by the Supreme Court of
Canada and in a 7-0 decision released this month the search was
declared legal and the convictions affirmed.

The Supreme Court concluded Patrick had abandoned the garbage when he
"placed his garbage bags for collection in the open container at the
back of his property adjacent to the lot line ... The bags were
unprotected and within easy reach of anyone walking by in a public
alleyway, including street people, bottle pickers, urban foragers,
nosey neighbours and mischievous children, not to mention dogs and
assorted wildlife, as well as the garbage collectors and the police."

The Criminal Lawyers' Association argued the information to be
gleaned from the garbage was confidential, intended only for the
municipal garbage collectors. This was sort of like trying to create
a garbage collector-home owner privilege analogous to the
solicitor-client privilege. No sale at Canada's top court.

Yet, there is still something slightly discomforting in having police
or anybody rooting through your garbage. A bag of garbage is really a
bag of information and your trash likely contains a lot of
confidential information you'd rather not have revealed.

I don't like the idea of anybody, including the police, searching
through my garbage without good reason. That's why I prefer the
approach of one the Supreme Court justices who argued before "the
state can rummage through the personal information ... there should
be . a reasonable suspicion that a crime has been or is likely to be
committed."

In the meantime remember that old cliche and protect your treasures.