# Cops digging used tampons out of the trash to test for drugs? WTF?! **URL:** \ **Category:** The BBQ Pit\ **Created:** [December 10, 2002, 4:05am UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705 "2002-12-10T04:05:47Z")\ **Posts on this page:** 13\ **Page:** 4
**Author:** ![Wikkit](https://avatars.discourse-cdn.com/v4/letter/w/c0e974/32.png) [@Wikkit](https://boards.straightdope.com/u/Wikkit)\ **Post date:** [December 11, 2002, 9:04am UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/61 "2002-12-11T09:04:28Z")
> [@](#): > > \*Originally posted by Blalron \* > **Spitting in a cup is a different matter. Unless you have some medical condition where you produce vast amounts of saliva, it’s not something that is neccesary as a product of your biology.** I’m not talking about spitting in a cup, I’m talking about spit on a cup. It does seem to be pretty common to manufacture saliva while eating. If the police thought you’d raped someone, and had DNA from it, would they be justified in taking a cup or napkin you threw away and analysing the DNA on it? Would that violate your right to trash privacy? And does it matter if it’s in public or in your trashcan on the curb? ---
**Author:** ![Truth\_Seeker](https://avatars.discourse-cdn.com/v4/letter/t/5fc32e/32.png) [@Truth\_Seeker](https://boards.straightdope.com/u/Truth_Seeker)\ **Post date:** [December 11, 2002, 9:21am UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/62 "2002-12-11T09:21:08Z")
> [@](#): > > \*\*The issues here are technology and, most importantly, the special place of the “home” in 4th Amendment law. The interior of a home is a special case, the SCOTUS having determined it deserves extra protection. > > The tampon thing, if it should be challenged that far (and I’d love to see 'ol Rehnquist have to talk about tampons in an opinion, I really would) needs to try to distinguish itself from the case which held trash to have no expectation of privacy, and leave Kyllo alone because it’s really a different issue. \*\* Once again, I’m not so sure. The Supreme Court would have reached exactly the same conclusion – and probably with a bigger majority – had the issue involved non-invasive medical scanning of a person walking down the street – especially if this technology allowed the state to discover particulars of a person’s medical condition. Consider this: > [@](#): > > \*\*The presence of semen would indicate an alternative explanation for the presence of drug residue. Actually, if they hadn’t tested for the presence of semen the whole operation would have been a waste. \*\* In other words, doing these tests _necessarily_ involves gathering information about the woman’s sex life. I think **Kyllo** even applies – and quite easily – to the cigarette butt DNA test. You don’t have a protected privacy interest in your “identity.” The police can take all the pictures of you they want (in public) without a warrant. By the same token, the police can do DNA tests that identify to whom the DNA belongs without a warrant. _However_, the police cannot extend that reasoning to do other warrantless tests on your DNA that will discover information in which you _do_ have a reasonable expectation of privacy, e.g. genetic abnormalities you may have. In other words, we have two levels here. You can’t unreasonably seize physical material. However, even if the material has been properly seized, you still can’t do an unreasonable search. Before you open up a woman’s personal life and medical history to scrutiny by the state, you need to have probable cause, i.e. a warrant. I think that’s what _Kyllo_ is really saying. The zone of privacy protected by the Fourth Amendment has an independent existence. It’s not defined by the limits of the technology the police can use to infiltrate it. Private information is protected by the Fourth Amendment even if the police can discover that information by “non-intrusive” means. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 11, 2002, 4:32pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/63 "2002-12-11T16:32:19Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*I don’t think it’s new or novel at all. \*\* It’s rather amazing to cite _Katz_ - indeed, to cite dicta in _Katz_ - for the proposition that a warrantless search of trash is unreasonable, when there are other Supreme Court cases that are directly on point - and, I might add, not supportive of your position. In _Katz_, the Court excluded recordings made from a telephone booth that was tapped with no warrant. They held that a person has a reaosnable expectation of privacy in a phone booth, and the Fourth Amendment protects not places _per se_, but places in which people have an interest in privacy that society is prepared to recognize as reasonable. I grant that, were this the only case law addressing the subject, you could certainly argue that society should recognize personal garbage cans as private, and protected by the Fourth Amendment. However, to your dismay, as well as the dismay of Billy Greenwood, the Court has spoken more definitively on the issue of garbage. Suspecting that ol’ Billy was involved in narcotics, and lacking probable cause for a warrant, the Laguna Beach police asked the garbage collectors to save Billy’s trash for them. Finding a lot of drug-related items, the police obtained a warrant based on the garbage evidence, searched Mr. Greenwood’s home, and found cocaine and hashish. Greenwood was arrested, tried, and convicted. California’s appeals courts overturned his conviction, claiming that the Fourth Amendment protected garbage. In _California v. Greenwood_, 486 U.S. 35 (1988), the Court held that Billy was out of luck. > [@](#): > > It may well be that [Greenwood] did not expect that the contents of [his] garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable. > . > . > . > It is is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. . . . Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,” _United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981)_, [Greenwood] could have had no reasonable expectation of privacy in the inculpatory items that [he] discarded. - Rick ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 11, 2002, 4:59pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/64 "2002-12-11T16:59:32Z")
> [@](#): > > \*Originally posted by Snooooopy \* > \*\*I wonder how long it’ll be before “Law & Order” includes a tampon-as-evidence in one of its “ripped from the headlines” stories. \*\* Already been done (well, close). A few years back, in a multipart episode about the murder of a Hollywood movie executive, the police went through the trash to find a bandage worn by a suspect, to get a blood/DNA sample to test against the crime scene. Sua ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [December 11, 2002, 5:44pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/65 "2002-12-11T17:44:33Z")
and that was a special three parter, with a road trip to CA! (not that I would know this, I got my law degree from L&O U 😃 ) ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [December 11, 2002, 6:14pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/66 "2002-12-11T18:14:57Z")
BLALRON – > [@](#): > > The fact is, it is in an opaque, closed container. You don’t reasonably expect people to dig through it. Digging through another persons trash is generally considered outside the realm of appropriate behavior. Since when is “appropriate behavior” a yardstick for law enforcement? I’m not being snarky about cops here, but they routinely do things that are not “appropriate behavior” for regular citizens, from stopping cars to shooting people. Investigation of criminal activity is not grounded in _politesse_. The fact that garbage is in “opaque containers” is irrelevant; it’s in “opaque containers” you leave on the curb, surrendering all control over, for anyone to root through and for total strangers to pick up. You see, the rationale is that if you desired to keep a certain thing private, you wouldn’t surrender control of it wholly to someone else, over whom you have no control. Those to actions are logically inconsistent. > [@](#): > > If a person came up to me and said “I dug through your trash last night…who do you think you are, getting newsletters from the ACLU? Lefty!” I would feel terrified and violated. That sort of behavior is usually attributed to stalkers, not professional law enforcement officers. Only by those who don’t know that going through your garbage is a legitimate and legal means of invesigation for law enforcement. > [@](#): > > You suggest burning. What you are saying is, that women have to undergo undue hardship in order to keep police from legally snooping on a very personal mattter. Yes. Exactly. If you want to keep your “very personal matters” out of the hands of “snoopers,” be they police or otherwise, you’ll have to “undergo undue hardship” to do it. If you want to keep your “very personal papers” away from “snoopers,” undergo the hardship or shredding them. If you want to keep your “very personal pictures” away from “snoopers,” undergo the hardship of burning them. As others have said, the fact that we’re talking about tampons here is largely irrelevant – if you leave it out there, someone can pick it up and look at it, or through it. > [@](#): > > Just because it is accessible to a third party doesn’t take away the expectation of privacy. A sealed letter in the mail is protected from unreasonable search even though several strangers may handle it. Is your garbage sealed? Is it in the Federal mail system? You’re right; accessibility by others does not take away the expectation of privacy, but it certainly can indicate you have no such expectation in the first place. If you leave your diary out on the curb, do you have an expectation that no one will read it? > [@](#): > > So Jodi, can I dig through your trash? You wouldn’t mind would you? Or at least, you shouldn’t mind. Would I _mind_, or would I think you were doing something illegal? > [@](#): > > I really don’t buy the argument that there is no reasonable expectation of privacy in trash cans. \*:: Shrug ::[/i The Supreme Court disagrees with you. I see people digging through the trash every day (unfortunately), for cigarette butts, aluminum cans, or food. People around here leave funiture or household goods out on the curb by the garbage with the _expectation_ that total strangers will come pick them up. So while you might think the current law is wrong and should be changed, you may also want to keep in mind that it _is_ the law, and shred those ACLU letters before your stalker has a chance to see them. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 11, 2002, 7:21pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/67 "2002-12-11T19:21:03Z")
**Blalron** : As I have suggested elsewhere, it’s not really relevant to the state of settled law whether you “buy” into garbage having a reasonable expectation of privacy, unless you’re Ruth Bader Ginsburg posting under an alias. What does matter is the Supreme Court’s interpretation, and they have decided the issue against your view. Of course, as was mentioned earlier in the thread, the state constitution in Oregon may offer more substantial protections than the federal constitution does. The US Supreme Court has no say in whether the Oregon constitution or laws prohibit the practice; that’s up to the Oregon courts. - Rick ---
**Author:** ![teela\_brown](https://avatars.discourse-cdn.com/v4/letter/t/d9b06d/32.png) [@teela\_brown](https://boards.straightdope.com/u/teela_brown)\ **Post date:** [December 11, 2002, 10:18pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/68 "2002-12-11T22:18:09Z")
Why in the world would “evidence of semen” be of importance to their investigation? ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [December 11, 2002, 10:21pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/69 "2002-12-11T22:21:53Z")
**pug** - the concept was: the tampon would contain suffient matter from the woman to show existence of drug use. It could be assumed to be hers, only if there was an absence of semen (which would indicate another potential source of drugs in the sample) unless I misread. ---
**Author:** ![Rilchiam](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rilchiam](https://boards.straightdope.com/u/Rilchiam)\ **Post date:** [December 12, 2002, 12:55pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/70 "2002-12-12T12:55:15Z")
They did a blood test on her without her consent. Is that or is that not legal? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 12, 2002, 1:22pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/71 "2002-12-12T13:22:47Z")
> [@](#): > > \*Originally posted by Rilchiam \* > \*\*They did a blood test on her without her consent. > > Is that or is that not legal? \*\* I didn’t see that in the article. If you are referring to testing the blood on the tampon, that blood test is legal (again assuming the Oregon Constitution does not give greater rights in this regard than the federal one). Cops don’t need a court order to test blood; they need a court order to _draw_ blood. Drawing blood is the invasive procedure that requires court approval. If the blood is just lying around, no invasion of the person is involved, and the police can have at it. Sua ---
**Author:** ![Rilchiam](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rilchiam](https://boards.straightdope.com/u/Rilchiam)\ **Post date:** [December 12, 2002, 1:26pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/72 "2002-12-12T13:26:26Z")
Well, that’s what I meant, **Sua**. They tested her blood without having to get consent to draw it. Neat little loophole. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 12, 2002, 2:10pm UTC](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705/73 "2002-12-12T14:10:14Z")
The bottom line is that garbage is… well… garbage. You’ve thrown it away. You can hardly claim it’s intensely private or personal. We shred mail at the Bricker household, and use the shredded paper to light kindling in the fireplace. We do so not because we’re worried about law enforcement’s interest, but out of the recognition that anyone could easily grab our trash and answer one of the numerous 0-APR-for-6-Months-And-Then-Fees-That-Will-Impoverish-You credit card offers. I simply know my garbage is not private, and takes steps to avoid suffering problems because of that. - Rick [Previous page](https://boards.straightdope.com/t/cops-digging-used-tampons-out-of-the-trash-to-test-for-drugs-wtf/141705.md?page=3)