I wonder how long it’ll be before “Law & Order” includes a tampon-as-evidence in one of its “ripped from the headlines” stories.
And Sydney’s “ocean outfalls” are almost as famous as it’s beaches.
Well, I decide to take a break from writing up my Criminal Procedure outline, and browse the SDMB, and what do I get? A criminal procedure question!!
In this case, there is neither a warrant nor probable cause. However, that’s OK since it isn’t a search at all. Since the SCOTUS ruling in Katz, 4th amendment rights have been tied into “reasonable expectation of privacy.” There is no reasonable expectation of privacy in trash, that issue is firmly settled. Therefore, the police’s rummaging through the trash can and taking the tampon is neither a search nor a seizure of objects governed by the 4th amendment. As such, it requires neither probable case, reasonable suspicion, or a warrant.
This one should be a slam dunk…except that states are allowed to go further in protecting individual’s rights that the federal constitution requires, if the state court feels that it’s own constitution extends further protection. It can do this even if the state’s equivalent to the US 4th Amendment is absolutely identitcal in language to the language of the US constitution. So perhaps Oregon will take the lead and distinguish this case somehow.
If I’m reading what you just posted Rex, that means the police could randomly go through any person’s garbage without any reason whatsoever, just hoping to find some evidence which might possibly link someone to a crime - even though they had no reason to believe that particular garbage can might contain evidence of a crime and might not have even known whose garbage they were searching.
Exactly. It’s not a “search” under the 4th Amendment, so they don’t need any reason at all.
Now, keep in mind, that a state might have a statute regarding this (I’m not aware of any, though), or the police department might have regulations of their own about this (to prevent rummaging through garbage by officers on private vendettas against citizens, for instance.) But there’s no constitutional issue, since it’s not considered a “search”, so yes indeed they can do so even without any reason at all beyond personal whimsy. It’s treated no differently than simply standing at a street corner all night looking around, which isn’t considered a “search” either.
Oh, I forgot to note one thing. If your garbage can is inside some sort of fenced-in enclosure, near your house, there’s a chance the court wouldn’t allow the warrantless, causeless search. Homes are the only thing in which 4th amendment rights are still contingent on property interests, and there’s some stupid rule about the “curtilage” around your home (whatever the heck that is), the area near your home that is enclosed, or otherwise should be considered part of your home (fenced-in gardens adjacent to the house, perhaps.)
Garbage at the curb gets none of those protections though.
Just out of interest Rex, presumably your car parked on the street could be subjected to a similar kind of “search” - even though it’s your property, it isn’t your home.
No, you have a “reasonable expectation of privacy” in your car, even parked on the street, even if unlocked. In part, the reason you don’t have one in your trash is that you are putting out fully expecting (in fact hoping) that people will be along to take it from you.
4th Amendment rights aren’t tied to property, excepting the home, but very often one’s “reasonable expectation of privacy” and one’s property interests coincide. The car is an example of where they do coincide, the trashcan an example of where they do not.
The only situation in which a cop can search your vehicle without even a reasonable suspicion of finding contraband or evidence of a crime is the “inventory search” they are allowed to make of a car’s contents when it’s impounded. (They can also search the passenger compartment, but not the trunk, if you are pulled over on the roadway and arrested, citations don’t count – it’s a search incident to arrest, no independant probable cause or reasonable suspicion needed.) If it’s just sitting there, so as long as you don’t park it in front of a fire hydrant, you should be ok.
Oh, but anything the cop sees through your car’s window, in plain view, that’s fair game. He is entitled to any such observations, and may use them to form probable cause to justify a full search of the car and seizure of the objects he sees in the car, but he’d probably have to get a warrant at that point unless one of the specific exceptions to the warrant requirement applies.
OK - why can’t they search the trunk if you’re arrested?
Short answer: the search incident to arrest is theoretically allowed to make sure that you have no weapons, and it’s scope is limited by what is in the arrestee’s “immediate control.” The trunk is out of the person’s immediate control, there’s little chance he could get to the trunk from the passenger department before the officer could stop him, so it’s not searchable in that context.
I’m just amazed that they did a DNA test on a tampon just to get a warrant hoping for a drug conviction.
Forensic Tampologists?
Would it make any difference if you made it clear that you didn’t want people to trawl through your garbage?
Let’s hope the police haven’t messed with the evidence, or the press gets a field day with “tampered tampon” comments.
RexDart - good summary on search and seizure law.
Blalron - you are, of course, absolutely entitled to your opinion of what the law should be, but until you’re appointed to the federal bench, it might be prudent to preface your commentary with the disclaimer that you’re opining, not describing the actual, real law of the land as it exists today.
- Rick
Ha Ha ha! I get it! “Waste”! Ha Ha Ha! 
The toilet blew up yesterday afteroon
The plumber, he said, never flush a tampoon
This great information cost me half a week’s pay
And the toilet blew up later on the next day…
– Frank Zappa
Thanks Bricker…I wish I could have forwarded this thread to my Crim Pro professor! I just got out of the final exam, and somehow things seemed much clearer on this board then they did in the exam room today 
Oh well, I’ve got four more finals in the next two weeks, can’t dwell on one too long 
forget the issue of lack of a warrent, they didn’t need one.
what may work, however, is that if the trash container is open to the public (ie not in a locked back yard), even w/a DNA match to the individual, you’ll have (IMHO) a devil of a time proving that there was no potential for tampering or contamination of the item.
If, for example, the woman involved had sealed her tampon in a plastic bag, with a tamper proof seal across, we can assert that the cocaine or what have you, had to have come from her, and not, say, the used napkin next to it.