Antonio J. Sanchez, MSM, CFS, CLET, Captain, Village of Biscayne Park, Florida, Police Department; and James K. Rubin, Esq., Legal Advisor, Village of Biscayne Park, Florida, Police Department
aw enforcement officers all have received calls about “that house”: a house generally associated with multiple reports of suspicious activity, but responding officers never find evidence of anything criminal. Officers have gone by “that house” many times and have discovered nothing to support any suspicions. They yearn to conduct surveillance of the house, but their agency is understaffed in patrol and is busy responding to calls for service.
Sometimes, though, an officer does not need to walk away empty-handed. Sometimes, something can be done—“dumpster diving.” What many law enforcement officers may have forgotten is that once trash or garbage is moved from a house and to the street for disposal, it is considered abandoned. Once the garbage is at the street, it is fair game for anyone—even the police—to take it away for inspection.
Surprisingly, most less-than-law-abiding citizens do not give much thought to their garbage and are unaware that they are placing potential incriminating evidence out for collection. There is no legal or practical reason that a “trash pull” cannot be a meaningful method for initiating a narcotics investigation.
Trash pulls are a method for obtaining incriminating evidence that often provides legal grounds to obtain a search warrant of a home. However, as with every aspect of law enforcement, officers need to think and plan before acting. In particular, officers need to understand the law and gather legally sufficient evidence to establish probable cause before attempting to have a search warrant issued. Often, officers are in such a rush to arrest a suspect that immediately after finding marijuana seeds, stems, or cocaine residue in a trash pull, they rush to the courthouse to get a search warrant.
In many instances, though, a single trash pull is insufficient. It is important to remember that to obtain a search warrant, the officer needs probable cause to believe that evidence will be located inside the residence, and not just that evidence was in the residence in the past.
There is no reasonable expectation of privacy for trash after it has been placed out for pickup.1 It is common knowledge that once garbage bags are left on the side of the road, they are readily accessible to animals, children, scavengers, snoops, and other members of the public.2 It is important to establish that garbage seized by the police was readily accessible to the public. Courts have recently upheld the warrantless seizure of garbage from within the curtilage of a home.3 In this case, the court engaged in a very fact-specific analysis that the garbage left near the garage of Mr. Segura’s house and in open view was readily accessible to the public, even though it was within the curtilage of Segura’s house. Although the court upheld this seizure, investigators should consult with their department legal advisors or units prior to seizing trash within the curtilage of a home.
Establishing Probable Cause
When applying for a search warrant based on a trash pull, investigators must establish probable cause that two separate elements exist: (1) that a crime has been committed, and (2) that relevant evidence is likely located at the place to be searched. Probable cause is a sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected to a crime.4
When judges or magistrates review applications and affidavits for search warrants, they must make practical, commonsense decisions whether, given all the circumstances set forth in the application, there is a fair probability that contraband or evidence of a crime will be found in the target location. If the property owner or occupant challenges a search warrant, the reviewing court must ensure that the magistrate had a substantial basis for concluding that probable cause existed at the time the warrant was issued.5 The review conducted to determine the validity of probable cause in a search warrant affidavit is limited to the information provided by the officer within the “four corners of the affidavit.”6
Evidence of Personal Use or of Distribution?
In order to obtain a warrant to search someone’s home, officers must have probable cause that there is a pattern of ongoing drug activity or an honest probability that controlled dangerous substances could be found inside the home. An alert from a K9 can be probable cause for obtaining a warrant.7
Depending on the jurisdiction, a single trash pull revealing evidence of drug use may be insufficient to establish probable cause. For example, consider the ruling in Gesell v. State. A detective with the St. Lucie County Sheriff's Office, Fort Pierce, Florida, received an anonymous phone call. The caller advised that there was a high volume of vehicular traffic at the suspect’s residence between 4:00 p.m. and 12:00 midnight. Because the visitors only stayed for a short period, the caller suspected that the resident was selling drugs at the house. The detective drove to the house at 2:00 a.m. and picked up a garbage bag from the curb. Inside the bag, he found a small amount of marijuana. As a result, a search warrant was obtained and numerous illegal substances were recovered from the house. The defendant moved to suppress the evidence.
On review, the appellate court ruled that there was insufficient probable cause for the issuance of the search warrant. They held that a one-time trash pull in conjunction with an anonymous tip does not support a reasonable conclusion that additional contraband would be found in the house.8
Significantly, the search of Gessell’s garbage did not reveal any evidence that indicated drug distribution. The court found a lack of probable cause to issue the search warrant for Gessell’s home, finding that there was nothing in the trash to indicate there would be additional contraband within the residence.9 This case demonstrates the importance of analyzing whether the trash evidence supports narcotics use or distribution. Essentially, a small amount of drug residue in a plastic bag or other small container may indicate personal use that, by itself, is insufficient to show probable cause that additional drugs are contained within the residence.
However, the same Florida court came to a different conclusion when the trash pull produced evidence of drug dealing.10 In that instance, packaging from a large quantity of cocaine was found in a single trash pull, resulting in a valid search warrant.11
Probable Cause through Corroboration
A one-time trash pull may be sufficient to obtain a search warrant supported by probable cause, if evidence from the pull is combined with other incriminating evidence.
Before or after finding incriminating evidence in the trash, an officer can set up surveillance on the suspect’s home to watch the comings and goings of vehicular traffic and occupants acting in a suspicious manner. The investigator making the observations must be able to articulate the nature of the suspicious behavior. When describing suspicious activity, the investigator must describe a nexus between the activity and the criminal conduct and must cite previous experience with similar activity and its link to criminal conduct.
For example, making mention that a subject is always standing near a location where drugs are believed to be sold is likely insufficient and will perhaps be deemed irrelevant by a judge or magistrate reviewing an affidavit in support of a search warrant. However, specifically describing the actions of that subject under surveillance and explaining the link between the specific activities, establishing that this type of activity is commonly seen at locations where drugs are being sold, are material. Thus, this specific and well-articulated information can be included in the search warrant application to assist in establishing probable cause.
Special Risk Factors to Consider
Taking trash from a curb is one issue. Going inside the premises to arrest suspects is another matter. Law enforcement agencies in various jurisdictions have different policies and procedures governing the manner in which to execute search warrants. In cases in which the premises have already been secured and the investigators are waiting for the warrant to arrive to conduct the search, officers usually reasonably deem that the risk has been managed; thus, it is not a high-risk entry at that point.
However, most investigations present circumstances in which the premises are entered and secured only at the time when the search warrant is executed. For this reason, it is important to note whom the police will encounter upon entering. Prior to applying for a warrant, an investigator should learn who resides at the residence, and how many people may be present. One way to accomplish this is by locating names and identifiers from the trash, running vehicle tags, and checking local property records, along with other investigative techniques. Once the residents and frequent visitors are identified, a criminal history should be run on each individual. In the event any of these people have prior histories of drug involvement, that information should be detailed in the application and affidavit. The inclusion of this information furthers the probable cause for the warrant as it specifically goes to the “totality of the circumstances.”12 Additionally, obtaining this information about the people involved at the target location is vital to the planning and execution of the search warrant.
The most important goal of every police operation is to ensure, to the extent possible, the safety of the officers involved and to protect innocent people from being hurt. Many jurisdictions throughout the United States have adopted the practice of executing search warrants with a SWAT team only. Many other jurisdictions, however, do not use SWAT teams to execute search warrants. Such a practice can have a potentially dangerous outcome.
Some jurisdictions use SWAT teams for search warrants only when certain risks are present. Intelligence gathered through the course of a good investigation may provide the basis for command staff to determine whether a search warrant should be executed by a SWAT team or a team of investigators without equivalent training or equipment.
The intelligence should detail the criminal history; the probability of suspects being armed; previous arrests for violent crime and weapons violations; and other risk factors that, if present, clearly establish that use of SWAT teams is the most prudent way to go.
When possible, officers using trash pulls to obtain probable cause for the issuance of a search warrant should either conduct multiple pulls or should use other investigative techniques to obtain evidence that corroborates what was discovered in a trash pull. When inspecting the trash obtained, investigators should use critical thinking and analysis in a search for evidence, taking care not to disregard garbage that may actually be evidence of a crime. This practice ensures that trash pulls are constitutional, effective, and viable crime-fighting tools. ■
1California v. Greenwood, 486 U.S. 35 (1988).
3United States v. Segura-Baltazar, 448 F.3d 1281 (11th Cir. 2006).
4Coolidge v. New Hampshire, 403 U.S. 443; 91 S.Ct. 2022 (1971); “Must demonstrate probable cause when seeking a warrant,” citing Warden v Hayden, 387 U.S. 294, 307 (1967); and “Warrants must describe the things to be seized and the place to be searched,” citing Stanford v. Texas, 379 U.S. 476, 485 (1965).
5Illinois v. Gates, 462 U.S. 213, 238 (1983).
6U.S. v. Martin, 297 F.3d 1308, 1309 (11th Cir. 2002).
7U.S. v. Place, 462 U.S. 696 (1983); Florida v. Royer, 460 U.S. 491 (1983); and Illinois v. Caballes, 543 U.S. 405 (2005).
8Florida Department of Law Enforcement “Case Law Update 00-01: Single Trash Pull Coupled with an Anonymous Tip Is Insufficient for a Search Warrant,” summarizing Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999), http://www.fdle.state.fl.us/Content/getdoc/e896b2d8-8d16-46f0-8256-09f1d9dd69c0/00-01--Single-Trash-Pull-Coupled-with-an-Anonymous.aspx (accessed May 5, 2010).
10State v. Paige, 934 So.2d 595 (Fla. 5th DCA 2006).
12Gates, 462 U.S. at 230.
Please cite as:
Antonio J. Sanchez and James K. Rubin, "Chief's Counsel: The Use of Garbage to Establish Probable Cause for Granting Valid Search Warrants," The Police Chief 77 (June 2010): 12–13,
http://www.nxtbook.com/nxtbooks/naylor/CPIM0610/#/12 (insert access date).