I was under the mistaken impression that garbage only became searchable once it was loaded up into the garbage truck. sigh, that’s what I get for watching a cheaply made movie with some legal themes. I extend my apologies.
One question is: Since the proper way to dispose of a tampon is by throwing it in the trash, how is it possible for a woman to maintain the privacy of not having her blood tested for drugs, while at the same time not messing with the sewer system? Unlike condom use, menstruation is not really avoidable.
Okay, so, if the trash I take out to the sidewalk becomes searchable by authorities without warning or warrant, how long will it be before trash collection services are federalized and rolled up into Homeland Security?
She can dispose of it herself, by burning it or burying it or (yuck) shredding it or what have you. The point being that if you leave something out on your curb for someone else to pick up, and maybe pick through, you cannot expect whatever you have left out to be sacrosanct from prying eyes. The fact that we’re in this case dealing with something icky is beside the point.
If you want to keep something private, don’t leave it out on the curb.
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.
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.
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.
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.
Just because it is accessible to the public doesn’t take away the privacy expectation either. Most mailboxes can be opened by anybody. I doubt police can search through your mailbox without a warrant and rip open your love letters, can they?
So Jodi, can I dig through your trash? You wouldn’t mind would you? Or at least, you shouldn’t mind.
I really don’t buy the argument that there is no reasonable expectation of privacy in trash cans. Most people would be furious if some stranger dug through their trash looking for personal items. The police are no exception to this rule.
I dunno, WRING. I haven’t been thinking through the ramifications of used tampons per se, due to the high Ick Factor. But I’d guess there’d be some difference between finding cocaine residue in a testable blood sample and cocaine residue from, say, a napkin – the chemical trace or “print” of an ingested drug versus the presence of the drug itself. I assume we’re not talking about a woman who dragged her used tampon through her cocaine (Where’s the puking smiley?) but rather one who was using the drug.
So to me it would be akin to the potential contamination problem that you’d get with a gun that was tossed away, discovered by someone and turned in, and found to have the suspect’s fingerprints on it. Sure, in theory someone could have “placed” the fingerprints on the gun, but how easy is that to do, and how likely, really? Similarly, how would one go about “contaminating” a blood sample from a sanitary product? How could you simultaneously have the blood sample be from the suspect (based on DNA) and containing drug traces, and argue that the suspect didn’t do the drugs? They’d be in her blood, right?
mail is most emphatically not “Open to the public”
there’s quite a few laws that specifically address that issue. even postal persons aren’t generally allowed to open up your mail (unless it’s leaking, ticking, ripped open and they’re trying to determine if it’s dangerous or where it needs to go etc.)
If you read the article in the OP, the search of the trash revealed probable cause for a search warrant of the premises-
A subsequent search of the premises revealed “cocaine, methamphetamine and Ecstasy.”
The garbage pull was done based on information from an informant.
The SCOTUS has said that this is OK- ref. the cases quoted above. It was widely reported back when the SCOTUS made that decision. If you are at all worried about what can and cannot be legally searched you better read up on the current state of “reasonable expectation of privacy,” and don’t dispose of incriminating items so carelessly.
well, I’m not a seriologist (is that the correct term? well anyhow), but wrt urinalysis, we absolutely had to prove chain of evidence that no one could have potentially added or adaulterated or contaniminated the specimin prior to testing. So, if it’s similar (and I’d think that it would be, since the urine products are subsequent to the blood products as it were), then yea, you’d have to determine that some one else didn’t have access to the item.
with the gun, the person would have to already ‘have’ the person’s fingerprints, vs. ‘having’ cocaine.
All I’m saying is that I’m lucky I’m not a woman. As a matter of biology, I do not produce a waste product which needs to be disposed of on a regular basis that can so readily be used to incriminate me.
accessible to the public, when? when it’s in the mailbox? well, unless they destroy the mailbox (a crime), the ‘public’ cannot open your mail. in your mailbox? well, again, unless they commit a crime, they cannot open your mail.
a garbage container, however, is open to the public as well as accessible to the public. it’s not locked, there are no laws forbidding access (as there is w/mail boxes), and there’s legal decisions indicating that when you dispose of something in a trash can, you’ve lost the expectation of privacy.
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Well, I dunno, Rexdart, I think you could apply the rationale in U.S. v. Kyllo to reach a different conclusion. (Kyllo is the U.S. Supreme Court case that concluded that police need a warrant to use infrared scanners on someone’s house. Here’s an article on the case.
The idea that a women doesn’t have a reasonable expectation of privacy in her used tampon doesn’t really pass the, you should pardon the expression, sniff test. Under Kyllo, you could argue that, just like the homeowner has a reasonable expectation that no one will invade his privacy by scanning his house with an infrared scanner, a women has a reasonable expectation of privacy that no one will essentially run medical tests on her without her consent by digging a used tampon out of her trash and running a battery of sophisticated tests on it.
This argument has particular weight in that reasonable women don’t flush tampons, they throw them in the trash. A person is required to take reasonable steps to protect their privacy, not extraordinary ones.
I’m not neccesarily thinking about trash here, but specifically the used tampon issue. I think that a reasonable woman would not expect her used tampon to be subjected to sophisticated laboratory tests in the same way should could expect somebody to simply dig out a crack pipe from the trash.
Unfortunately, Kyllo would have little to do with this. Kyllo is a remnant of bygone days, a Scalia opinion naturally, that is tied inexplicably to the concept of the “home.” Pre-Katz, when property interests governed the application of the 4th amendment, the home was the most protected of all interests. Scalia’s majority opinion in Kyllo simply takes that old protection and extends it. The reason the infrared scanner was considered intrusive and a search, and not “plain view”, was that it was directed at the home. To quote from the opinion:
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. I think there’s a good argument that the nature of female physiology compels a situation in which their blood is readily available to police under the current law, and that conflicts with interests of privacy. If a court wants to remedy this it might have to go so far as to require a search warrant for any seizure of a bodily fluid, no matter how acquired. If a woman has a right to keep her used tampons private, doesn’t a football player have the right to keep his urine private from the public school, or a murderer the right to keep his blood private even though it ends up on the victim’s clothes? You can see where this leads, and it isn’t pretty.
As usual, the best solution is statutory, not constitutional or otherwise a matter for courts. Simply pass a statute in your state forbidding the police from doing this. The federal and state constitutions only set forth what minimum protections the citizenry has, a statute may extend more protections to the people. I think remedying the situation with a statute is a far better solution that attempting to find some 4th amendment justification or other constitutional issue in this.
But in determining the propreity of the search does not depend on WHAT was found, but upon the search itself. It doesn’t matter if it was a crack pipe or a used tampon, they were both in the garbage. It would be a completely novel argument to say, Well, I didn’t have a reasonable expectation of privacy in ALL the garbage, but I did have a reasonable expectation of privacy in that one used tampon. It’s the “search” that is at issue, not what was found.
Joyous news: The judge found in favor of the defendent, and excluded the evidence.
The prosecutor is appealing the case of course, of course.
I too would be interested in a Supreme Court decision where Rehnquist talks about tampons. LOL.
No, lots of women won’t/can’t use birth control for some reason or another. Health reasons, not enough money to afford it, single and doesn’t have the need to take them, religious beliefs to the contrary, etc.
In this situation, the woman is being penalized for NOT being able to afford BC, while the male gets privacy benefits from not using condoms.
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.
Collecting from unwitting males using urinals? There’s still the reasonable expectation of privacy. You expect the urine to go down the drain unless there’s a big sign that says urine will be collected. I think most of us would be a little nervous if we knew that every time we took a piss, it could be scrutinized for drugs.
Blalron, the SCOTUS decided on the basis of Katz that trash left at the curb was not anything a person was seeking to keep private, at least he could hardly expect to keep privacy in such things. I think the issue being raised in the previous half-dozen posts or so is whether some parts of the trash might be considered to be protected by a reasonable expectation of privacy, though some other parts are not. Clearly, that sort of situation would be rather novel, you must admit. “I figured someone might be able to root through my trash, but I never figured they’d actually look at that!”
From wiretapping to tampons…what a long and disturbing road.
BTW, on what basis did the judge exclude the evidence? Presuming this was in state court, did he decide that the state constitution of Oregon went further than the U.S. Constitution in protecting citizens from unreasonable searches? It’s the easy way out. If this thing is in federal court, the state will win. The magic words of the legal profession: stare decisis.
