Muse

We'll hear argument next in number 86-684, California vs. Billy Greenwood and Diane Van Houten.

Hey everyone, this is Leon from Prologue Projects. On this week's episode of 5 to 4, Peter, Rhiannon, and Michael are talking about California v. Greenwood, a case from 1988 about the Fourth Amendment and trash. What was the last thing you threw away? Maybe it was just an innocent receipt, or maybe it was something more personal, like an empty medication bottle or a bank statement. In the case of Billy Greenwood, his trash contained evidence of illegal drug use. This came to the attention of police, who for weeks coordinated with Greenwood's local garbage men to have his trash separated and held for them to inspect. They did this without a warrant, but used the evidence they found from his garbage to later secure a warrant to search his house, where they eventually found illegal substances and arrested Greenwood on felony charges. Greenwood sued, arguing that the search of his garbage violated his Fourth Amendment right against unreasonable searches and seizures. In a 6-2 decision, the court held that curbside garbage is not protected by the Fourth Amendment. This is 5 to 4, a podcast about how much the Supreme Court sucks.

welcome to five to four where we dissect and analyze the supreme court cases that have debased our civil rights like hosting a ufc fight at the white house is debasing our nation i'm peter i'm

here with michael hey everybody and rihanna hi everybody you know what it's kind of like okay do you believe me now i've been saying like this is america you know trump reveals what america's true nature really is and here you go i don't want to hear a single democrat i don't want to hear a single little righteous annoying little lib online be like oh how america has fallen our image blah blah no this is the most genuine expression of the american id exactly yeah they are doing the

way in at the lincoln memorial baby and that is what we think about our fucking conquest of over

the south this is one of like the unequivocally funny um things that have happened because first of all there's no real material downside we were just talking about this before the show but like the aesthetics are starting to match the american soul you know what i mean yeah no more of like the high-minded oh we're trying to evoke ancient greece with our with our architecture right none of that shit no uh let's get chris angel floating above the washington monument let's get let's put fucking michael phelps in the reflecting pool right duck dynasty guys need to be there need to have a prominent role absolutely uh what other bits can we think of here who else who else who

else vince mcmahon oh yeah yeah yeah joe rogan's gonna be there i'm sure he's gotta be you can't

do the fights without joe rogan now what are they going to do with the mlk memorial it's it's right over there it's right over there balls in your court donald then the washington memorial

you know like america's penis so phallic there's there's something i'm sure yeah um yep world war

memorial sucks too much to have any to do anything fun with uh all right let's move on today's case california v greenwood case from 1988 about the fourth amendment specifically about police going through your trash in this case yep some cops suspected a man named billy greenwood of dealing drugs but they didn't have enough evidence for a warrant so in order to gather evidence they went through his trash. They found evidence of drugs in the trash, and they used that evidence to obtain and execute a warrant, which revealed drugs and ultimately led to Billy's conviction. Billy appealed saying, hey, Fourth Amendment, right? I have an expectation of privacy, and the cops violated that by going through my trash without cause. But the Supreme Court,

in a six to two decision said that that was fine yeah they sure did fourth amendment does not apply to trash they're saying here so let's situate ourselves what happened in the case this is early 1984 a totally different person who was suspected of totally different crimes unnamed person kind of gets the ball rolling here unfortunately for billy greenwood this is a criminal suspect who was being investigated by the DEA, and he told a federal agent that he knew about this big truck full of narcotics that was going to be delivered to a certain address. The federal agent runs the address, and it comes back as the house of Billy Greenwood. So the feds...

let local police in Laguna Beach, California know, and the Laguna Beach Police Department start to investigate Billy Greenwood's house, start to set up some surveillance. There had additionally been like a past report by a neighbor of Billy Greenwood that his house often had late night visitors, people who just stay for a few minutes and then leave. You know, the investigator from the Laguna Beach Police Department at one point followed a car that had stopped at Billy Greenwood's house. And that car went to yet another house that had previously been investigated for drug trafficking. Yada, yada, yada. Who fucking cares? Get a job, pigs. Get a real fucking job. Do something that matters. All right. So here at this point, the investigator decides to violate the Constitution. Let's just fast forward. Billy Greenwood's constitutional rights in the trash, as well as, unfortunately, evidence of crime in the trash. This investigator, she asks the trash collector in the neighborhood to collect Greenwood's trash. And instead of putting it with the rest of the neighborhood trash, like all in the same trash truck, investigator says, hey, keep it separate and let me look through it. So the trash collector grabs the bags of Billy Greenwood's trash that are out on the curb, out on the street, and he keeps it separate, hands it over to this investigator, and she looks through it. She finds evidence of drugs, which she then uses to get a warrant to search Billy Greenwood's house. So police search the house. They execute that warrant. There's drug stuff in the house. Greenwood gets arrested and he postponed. So he's released on bail. And while he's out on bail, the police do the same thing again. They search the trash, they get a warrant to search his house, and then they arrest him again on the basis of drug evidence found in the house when they executed the second warrant. Okay, just pausing right here. This is telling in terms of the order of operations here the amount of evidence that they had before searching the trash before violating billy greenwood's constitutional rights right they had you know this sort of like tip that this other guy told the feds that billy greenwood's address might be a destination address for drugs they see cars pulling up to greenwood's address and then leaving after just a few minutes but police don't ask for a warrant at that point with that evidence they only ask for a warrant to search the house after they have looked through the trash and found that evidence of drugs because dear reader dear listener the evidence that they had before violating billy greenwood's constitutional rights

is not enough to get a warrant right the state court of appeals in fact in california holds that to be true they say you wouldn't have gotten a warrant but for the trash search you didn't have probable cause to justify a warrant before you looked through the trash so as peter already said you know billy greenwood charged now with multiple drug offenses goes to trial gets convicted but appeals because he says wait a second this search it happened in violation of my constitutional rights. The Fourth Amendment protects me from unreasonable searches. And this search is unreasonable because I have an expectation of privacy about what goes into my trash. This gets appealed. Actually, state courts in California agree with him. But once we get over into federal court, it goes all the way up to the Supreme Court. And Supreme Court says, Mm, trash? No. No rights.

Yeah. So let's talk about the law a bit. The Fourth Amendment says you cannot be subjected to unreasonable searches and seizures. So obviously the question before the court in these cases is always sort of, well, what's reasonable? And courts have established a rule where the determination for what's reasonable revolves around whether or not you had a reasonable expectation of privacy. If there's no expectation of privacy, the cops can search without a warrant. So the fundamental question here is, do people have a reasonable expectation of privacy in the contents of their trash? Justice White writes for the majority. He says Greenwood did not have a reasonable expectation of privacy in his trash because he had sufficiently exposed it to the public. And I'm going to read a lot of quotes from his opinion. he says it is common knowledge that plastic garbage bags left on or at the side of a public are readily accessible to animals, children, scavengers, snoops, and other members of the public. Ridiculous. Animals.

This is goofy, dude.

What is this analysis? Raccoons go through your trash, so the cops can't? Hold on. Before we get to the raccoons, first of all, he's just doing this analysis wrong. The question isn't how accessible your trash is, right? It's whether it's reasonable to expect it to remain private, right? So, yes, someone could, in theory, scavenge through your trash, but would you expect that to happen, right? Yes. How often do these things happen to most people? We were talking about this, like, in my entire life, I'm 40, once in my life, someone, like, went through my trash and it was like teenagers, like, dumped our trash on the road, right? Like, just to be annoying. They didn't go through it, really, as far as I know. And you guys said it has never happened to you. So our producer also has never had this happen. So a combined like 150 years of living and it's happened once. And a justice of the Supreme Court is being like, well, yeah, of course, of course, of course. Everyone's going through your trash all the time. How often is a child sifting through your trash? He's like, everyone knows. Snoops. Children and scavengers. Yeah, snoops. And snoops are looking through their trash.

Scavengers and snoops, two different categories. Right. You know, like he's just adding to the list. Like, what other word could I use? What other word could I use for someone who might be going through the trash? What about a different species?

But in general, he's just sort of he's conflating these things and doing this analysis wrong. He's saying, well, it's accessible to all of these different people. And it's like, OK, yes, but that is not what the Fourth Amendment protects against. And that's not how the test works. Right. An example we were talking about is like, what if your garage is open or even your front door is unlocked, your garage or even your home becomes accessible to the public. But that doesn't mean it's not protected by the Fourth Amendment. Insane. An insane inclusion. And also, why are you including animals in this? If a raccoon goes through your trash... The raccoon's not like, oh, he's shopping here? Wow. Reading your receipts and being like, hmm, I don't know about that. You're not reading your receipts, bro.

Your constitutional rights have not been violated.

Like, remember when I first moved out to the burbs and raccoons were going through my trash and I was like, fuck. But at no point was I like, they're looking at my bills.

I'm going to sue.

They're eating your rotting leftovers, bro. Nothing. What does this have to do with privacy? Right. Also, like mice can get into your house. right so the fourth amendment doesn't apply it's like we all know mice can get into the home and if if mice can get there cops can go there too those those are the rules yeah oh god it's it's just so weird not only does it get the test wrong but it just fundamentally misunderstands the average person's expectations about what would happen with their trash yeah does anyone actually expect that people are going through their trash are you telling me that if you looked outside and you just saw a local a local snoop going through your trash that you're just like another day in the neighborhood oh that that snoop so annoying always looking through my trash this is of course what we all know happens when you put your trash out no you get the fuck out of my trash and i think

what we're getting at is like everybody does actually have a reasonable expectation of privacy in their trash and these examples are like either so few and far between in their incidents in real life or literally not relevant do not pose a legal problem because he's talking about other species he's talking about animals not people um that they're getting this like really really upside down i think the footnotes in this section just like this this quote about everybody knows animals and snoops and everybody else can look through your trash. There's footnotes here which are very telling. So footnotes, of course, you know, a citation to another case. The majority, Justice White, you know, trying to like support the argument with like, oh, there are other cases that say this or, you know, reports or studies or, you know, what have you. Okay, after animals, the word animals, there is a citation, there's a footnote. It is to a North Dakota case.

about a dog bro you know they were you know those clerks were scrambling if they they come back with

a case from north dakota north dakota this isn't a supreme court case it's not even a federal case

he's like we have nothing in illinois no sir this is a north dakota case that is about a dog going through someone's trash and dragging the trash to a neighbor's yard the neighbor puts that trash in his own trash can and then later when police have whatever suspicion about the trash that neighbor gives consent for police to search

the trash so that is a hilarious sequence of events by the way that sounds like a law school hypothetical i i truly do not believe that happened no absolutely that sounds like such like oh sorry the reason that's in my trash can is because um my dog like a light bulb going off his head he's like yeah my dog was going through the neighbor's trash dragged it into my yard

and then i put it into my trash can how would the cops even know to ask the neighbor if any of the guy's trash happens to be in your trash can this is so ridiculous it doesn't even make sense no

It's a defense. The cops went through a guy's trash and he came up with a story about how it wasn't his.

It's the neighbor, actually. This is the neighbor's trash, not mine. It's absolutely ridiculous and it also is not the factual sequence that happened here.

It also has nothing to do with this. Right.

It has nothing to do with this and also does not establish in any way that it is a regular expectation that animals go through your trash. And therefore, you don't expect privacy from people with regards to your trash. It doesn't establish anything. All right. The next footnote about scavengers, a citation to information about scavengers. This isn't even a citation to a case. Justice White just says homeless people often go through trash. Basically, just bald assertion. That's it.

Dropping knowledge, dude. Taking judicial notice of the unhoused.

And then also throws in a random reference to like a seedy culture of dumpster diving and literally cites to like a dumpster diving coupon finding handbook. So, again, this is not supportive evidence or resource or reference. that supports any piece of this argument last footnote here that's really really telling and michael you actually brought this up that like there's an example like um in the 1970s henry kissinger like a paparazzi or somebody went through his trash and it actually ended up being not only like embarrassing to kissinger and his wife which fuck them everything they did and everything they lived was humiliating right but it ended up being like a huge public scandal because everybody was like that's too far that's ridiculous people expect privacy even in their trash everybody like rejected this and was like no absolutely not nobody should be allowed to do that leave that poor man alone yeah this um paparazzo or whatever was wrong but note justice white citing this yeah after snoops saying and and in the citation in the footnote white says Even prominent people apparently like don't have this like really strong privacy, right? Because look, this paparazzo went through the trash. This reference shows the opposite of what you were arguing in the majority. It shows actually that this was a huge scandal. The public by and large in a massive way rejected this, was like this is ridiculous. This is a violation of this person's privacy. See, this is a violation of this person's basically like home property, you know, personal privacy.

Yeah, they're like, this is gutter journalist gross. And we don't like it.

And it's one instance.

Yeah.

And the Supreme Court citing this as an example of, number one, that this happens in any kind of widespread way. Right. And number two, that society does not have an expectation of privacy in trash. This is ridiculous.

Yeah, it's insane. It's insane.

All right, let's continue. The opinion also says, quote, 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. Which, like, again, yeah, your trash guy might go through your trash, but does anyone actually expect that he will, right? That's what you're supposed to be trying to figure out. Does anyone expect that they're trash guy? Well, I would sort of assume that they're not going to. Yeah. Considering they're just picking up tons of trash all day. It doesn't seem like particularly likely. Also, I would assume, and I bet I'm right about this, even though I'm just guessing and forgot to look this up. That.

Most of these companies and municipalities have policies that tell the trash dudes don't go through the trash. Don't go through people's trash. Yeah.

And it might just be like a CYA policy for the city or the company. Like you're increasing your own vulnerability to police questioning and investigation if you're looking through people's trash and you see stuff. And now the police want to know what you got into and what you saw, you know.

Also, if you are like – a lot of trash companies are private. And if you're trying to compete in the marketplace, you might want to be the company that doesn't look through your customers' trash. Yeah.

You might not want to be the creeps who are rejected by society.

He continues to do this thing where it's just sort of like, look, other people could be going through your trash. And it's like, yeah, I know.

That doesn't mean I expect it. In fact, I expect the opposite. Yeah. This really bugs me because, like, the third party thing, not all third parties are the same and not all instances of handing things over to third parties are the same, right? And the court just treats it as, like, this bright line thing. Like, once you convey something to a third party, you have no more expectation of privacy in it. And that's just not true.

Yeah, they treat it like a rule. Once you hand something over to someone, all privacy rights are waived. Yeah. That's not how anything works.

I mean, I think just the facts of this go to the point that, like, no, you actually do expect your trash to be very anonymous and private.

I expect them to do a very specific thing with my trash, and that's bring it to the dump.

Yeah, and the cops had to ask them to segregate the trash, right? It wasn't like they just could go up to the trash person at the end of the route and be like, all right, we want to find Billy Greenwood's trash because it's all mixed in with a mess of shit and probably compressed multiple times. And so, like, literally the trash collector has to do something they wouldn't normally do and segregate it to keep it, like, identifiable, right? Like, the very facts of this sort of defeat the idea that your privacy expectations are evaporated once you hand it over. Like, if anything, you expect it to immediately become anonymized, to just get in with a bunch of other people's trash, get intermingled and no longer identifiable to you before it even gets to the dump. Right. Right? Like, that's what you expect.

And the idea that when you hand something over to a third party, you just no longer have a reasonable expectation of privacy. I mean, think about how much, like, data and information you hand over to third parties with the expectation that you're handing it over for a limited use.

And courts have weighed in on this and said, in many instances, you hand over information, personal information, you give up your property, even physical property objects, right? You might give over to a third party in so many situations. Your mail, right? There are court cases that say sealed mail is protected by the privacy interest and therefore protected by the Fourth Amendment. I mean, the data on your phone, the content of your emails, all of this stuff, right? The Fourth Amendment applies.

yeah yeah and when you hand over your trash to the trash guy you're not being like hey it's yours now dude do whatever like that's not like that's not the message that we all believe that we're conveying when we hand over the trash like yo this is for a little treat for you whatever you feel like doing it's like go wild take this to the fucking landfill yeah mix it in with the massive pile of trash that way no one ever sees it again the entire premise of the the white majority seems built around like, look, we all know everyone's going through our trash all the time. So, right. And that's just the way things are. And it's like, no, I don't think that's true.

I don't think that's correct at all. Yeah. Yeah. There's also a very convenient for the majority kind of mixing up confusion about where the expectation of privacy applies. The Fourth Amendment, the Constitution, is about government action. The Fourth Amendment protects you from government intrusion from unreasonable searches and seizures by the government meaning of course in most situations law enforcement here justice white is talking about all of these examples of not government parties right individuals who are not law enforcement other species that might have access to your trash and you might not have a expectation of privacy from Okay. So even assuming that we as a society do think that neighbors and whoever, it's not our trash isn't private from them. We don't expect it to be to be private from all of these other parties. That's still not the analysis because your expectation of privacy in terms of the Fourth Amendment is about what the state does. It doesn't matter if you think something is not private in terms of action by somebody else, a non-state actor. The Constitution is about this.

state action as to you. I was thinking about this as like, you know, if I want to withdraw more

money than I can at an ATM, I have to go to the bank and I have to like put in my little pin and a teller gets to look at my bank account and see what my balance is. And if he or she wants, probably look at all like my recent transactions. There is a moment where that information is being revealed to a third party. I don't expect that person to actually go through all my shit right then and there and be like oh what has he been up to and i certainly do not expect him to print it out and hand it over to a cop right right because hey i'm a third party i can see this so therefore you have no privacy interest in it at all anymore like what the fuck are you talking about like and this is something where like it's not just like they have the receptacle right they're looking into my bank account they're looking at my transaction history and i still have an expectation of privacy in that that they're not just going to disclose it to whoever it's bizarre how disconnected the analysis is from how people think and behave yeah he he also says furthermore as we

have held the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public and it's like bro yeah avert their eyes the cops fully coordinated with the garbage man dude right they they fully talked to the garbage man and were like preserve this guy's trash and then give it to us set it aside not just once it's not like they were strolling by and there was paraphernalia on the ground outside this dude's house i i think that white is alluding to the plain view doctrine which basically means that like if something is in plain view if it's in plain sight it's fair game for police so if a cop like walks up to your car and sees drug paraphernalia plainly visible in the front seat right the fact that it's in the car doesn't prevent the cop from being like hey that's drugs you're you've committed a crime right right yeah but this isn't anything like that right there's nothing in plain sight here yeah the cops are just going through his trash like rats like raccoons They're actively taking steps to coordinate with other people to get this man's trash that has nothing to do with averting their eyes. Like, averting, what are you fucking talking about? What are you fucking talking about? At this point, I was like, what's going on here? Like, what's going on with this decision, right? Yeah. Oh, the police cannot be expected to avert their eyes. Avert their eyes, dude. Yeah. Yeah. They had a full scan, dude. Yeah, they did a search.

They took action to reveal this to themselves.

Bro, they turned a garbage man into a CI. Like, what are you talking about? What's going on here? It's so, it's like, what, I got to vert my eyes now? It's like, what do you do? You fucking had his trash set aside and then opened it up and went through it. Right. Like, yeah, it's what is going on at the end of the day. This is just so disconnected from like the normal human experience and normal human expectations in a situation where the court's goal, like the legal test revolves around figuring out, like, what would a reasonable person expect here? And I just refuse to believe that, like, if I had popped outside Justice White's house and just started, like, going going through his trash, that he would be like, nothing going on here, like nothing going on here.

Yeah, I didn't expect that to be private anyway.

This is a standard part of the human experience.

I was handing that over to the world.

Yes. Enjoy, sir. Enjoy my trash. I just don't believe that is what Justice White actually thinks.

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Brennan has a descent joined by Marshall. It's pretty good. He opens with a point that we haven't made yet, but it's worth making, which is not just that they had this scheme to set aside the trash, right? But that it wasn't like it was the first time. Like, they got a bag of trash and were like, oh, here's drug paraphernalia. It took two months. They did it every week for two months before they found evidence of a crime. like it was intrusive it was extremely extended surveillance and intrusive repeated searching of his trash which i think again goes to a lot of what we're saying the averting the eyes thing like what are you talking about right yeah what are you talking about we once again for the sixth time in the last two months refuse to avert our eyes from the trash that we have set aside and collected surreptitiously. Yes. He also, you know, talks a lot about what we talked about with the paparazzi and Kissinger. He writes very well about it. And I think it's something that justices don't do much anymore, but I wish they did. Because it's sort of like, why are we doing this sort of philosophical jerk off exercise here about like what people would think? We can just look at how people reacted to Kissinger, right? Like it's very, there's something very tangible about this sort of analysis where he's like, people were upset. Like, what are we talking about? Like, you want to know whether there's a reasonable expectation of privacy? People were unhappy with the reporter, the tabloid reporter who did this. Like, you know, like, we don't need to do a thought exercise here. We can just look at how people reacted. There's something very appealing to me about that. He took an interesting tack, though, that I think is worth describing. He talked a lot about, like, containers and conveyances and the idea, like, there's a line of cases that's like a very sort of small d democratic approach to the fourth amendment about like how you carry things and the idea of being like well yeah sure you have an expectation of privacy and stuff you keep in like a locked box right if you have like a safe or something like a locked box that's very secure only you know the then the code yeah like yeah you have an expectation of privacy in that but why should someone who can't afford that right maybe who can't afford a fancy lockbox maybe can't afford a car to drive it around and it has to walk and carry something why should they have less of an expectation of privacy in their things and so yeah also if you have an opaque plastic bag and you're carrying your stuff in that you also have an expectation of privacy in that like it's your stuff it's closed it's opaque yeah just because it's less secure doesn't mean you have no expectation of privacy in it and he's like sealed containers man he used opaque trash bags he sealed them like right of course he has an expectation of privacy in this this is like black letter law that we've

decided like why is it different when he's if he was like carrying this home then if he's leaving it out to be immediately anonymized in with a bunch of other people's trash and disposed of seem for presumably forever right to never be tied to him or thought about again like why would your expectation of privacy disappear right in that moment as you are like conveying it away yeah i think it's a it's a sharp way to think about it and sort of like highlights if you take this analysis seriously then then maybe uh the majority's analysis seriously then it seems like maybe rich people get more privacy more reasonable like right like oh you live in a gated community you have an HOA you use like a very you know tony private trash collector no scavengers no snoops we kill raccoons on site no scavengers no snoops no cops yeah like yeah do homeless people as

justice white asserts they go through people's trash do homeless people go through trash in justice white's neighborhood i doubt it i doubt it right so you're just saying that if you're poor You must have a lower expectation of privacy. And unfortunately for the Constitution, that means a lower expectation of privacy from the state, that you are more exposed as a poor person, which, of course, we know, in fact, to be true. But that's what this ruling is saying. And it is a really sharp point in the dissent, I think.

So, yeah, actually, I was going to say, so my one complaint about the dissent would be that I don't think he, he like teases this idea out with this line of cases, but he doesn't explicitly say it. And I feel like he should, which is that the practical outcome of this is that like, yeah, you live in a pricey apartment building where the trash is inside your, you know, parking garage that's attached to your building. You got an expectation of privacy that someone who has to take their trash to the curb does not. Moneyed interests get more privacy than poor people under this rubric.

One thing I keep thinking of here is that, like, I feel like your expectation of privacy in your trash is even greater than a lot of the situations where the law does give you a lot of privacy protection. Like, cars get, like, you know, a medium amount of privacy protection. Not as much as a home, but a good amount, right? Cops just can't pop into your car.

Certain containers, like Michael is saying. Right. Like, your bag, your suitcase. Right. These kinds of things.

Just off the dome, talking to the listeners, ask yourself, would you rather have a stranger search your car or your trash? I'm not – in my mind, it's pretty – I'd rather have them search my car. The shit that you throw into the trash, like your receipts, your bills, right? My fucking pin number is probably on some piece of trash I threw out at one point, right?

Yeah. And, you know, as someone who takes a lot of medication, your prescriptions, you know, your prescription bottle can be in your trash. Like, there's just so much personal information in your trash.

That sort of stuff is just inherently private, and I think people expect that they'll remain private. And it's bizarre that he just sort of imagines that you're forfeiting it. And you compare that with something like a car where there's no, like, inherent reason. There's no, like, particularly abstract reason why you'd think that's ultra private. It's just that he's like, well, we all sort of, we all, you don't want people going through your car, right? It's your space.

Yeah, yeah. There's sort of like a normative analysis. Well, like the police shouldn't be able to just go through your car whenever they want,

you know? If you're going to boil it down to one reason why the car would be protected from the police, it's, well, because your shit is in there, right? Yeah, exactly. My shit's in the trash too.

Yeah, yeah. I think this is a really good point, Peter, about like, just ask, like, take a survey of the public and ask, do you want a police officer right now to go through your car or to go through your trash? And yeah, I agree. I think most people would be like, go through my car, don't go through my trash, you know, if given the choice. And this really exposes the really problematic improper test that white is applying in the majority. Like the test here is there's supposed to be a test applied about whether or not, you know, there's an expectation of privacy in this trash, for example. And the test is like it's supposed to be a sort of like objective standard. The question is, does society at large have a reasonable expectation of privacy in this area, in the trash, in the car, you know, et cetera? And Justice White says early on, like, we are not prepared. It's like this really strong.

wrong pronouncement saying that, like, we could only rule that there's an expectation of privacy in trash if society is ready to make that pronouncement. And we don't agree. We don't think society is ready. You know, it's like this. One day, maybe, Justice White. Yeah. Yeah. I guess, like, I guess in our barbarian society, we're not ready to have privacy. We haven't achieved the level of enlightenment necessary. Yeah, it's very, very strange. You know, there are lots of conditions that have to be met if you look at other exceptions to the warrant requirement, right? The Fourth Amendment requires a warrant for searches and seizures. That's what makes most searches and seizures reasonable. And if something is an unreasonable search or seizure, obviously, that's a violation of your Fourth Amendment rights. But there are some legal exceptions to the warrant requirement, where the Fourth Amendment, where it's been ruled by courts over decades, that it still is a reasonable search or seizure, even without a warrant. And there's categories of exceptions. Peter mentioned plain view doctrine. If something's in plain view, yeah, the cop doesn't have to get a warrant for it. Consent. If the cops come to your house and say, can I search your house? And you say, yes, you can search my house. You've consented. The cops don't have to get a warrant. That's not an unreasonable search. So there are these like big categories, but note how specific they are and like what conditions have to be met. It's not just like this vague thing. There's also exceptions sometimes to the warrant requirement that are about like what you do with pieces of property. This is like the concept in property law of like abandonment. Like if you truly intend to let something go and actually intend to give meaningful legal ownership of a piece of property to somebody else, then maybe you have less of an expectation of privacy there or like curtilage. Curtilage is a property concept that's like not just the building of your house or the structure of your house, but there's an area around it, your yard, up to the fence, this kind of idea that is also protected by the Fourth Amendment. And there are these vague references in the majority here to like, oh, well, trash is abandoned or, oh, well, trash is placed out on the street that's outside the curtilage of the home. And both of these, I just want to make explicit, like as a reference to supporting the holding are ridiculous because there are multiple Supreme Court cases that say that property law concepts like abandonment and curtilage do not override the constitutional protection around things that human beings have an expectation of privacy in, right? For abandonment, like the Supreme Court has recognized in other cases that even if somebody abandons some piece of property, they might still retain

a privacy interest. Even if you intend to give ownership of something to somebody else and let it go, you might still retain a privacy interest in some important things, right? For curtilage, This is a super outdated standard. And there's obviously there's there's an important case, which, Michael, I think you're about to talk about called Katz, which sets this privacy standard. And Katz says that the Fourth Amendment protects people, not places. So the Supreme Court has ruled that things outside of the curtilage of a home obviously involve an expectation of privacy in tons of situations. And sometimes like the flip, of course, some things inside the curtilage of the home don't involve an expectation of privacy. So, you know, just sort of like these vague references to like, oh, well, you know, there's these property law concepts, abandonment, curtilage, this kind of thing, which also weigh in favor of Billy Greenwood not having a reasonable expectation of privacy in his trash. This is really, really insufficient legal argument.

Yeah. It reminds me – you remember Florida v. Riley, the case about airborne surveillance? Yes. Where the court basically held it's okay for, like, the police without a warrant to—

Hover in a helicopter.

Observe your yard from the sky as long as they're in a place that the public could legally be. And it's predicated on the same fallacy, the same misunderstanding of the standard here by saying, like, well, if it's technically accessible to the public, then it's fine. Right. It's like, no, the question is, do you expect, do you reasonably expect that you will be spied on from the sky? That is the question you need to be answering.

It's your privacy that is the concern of the Fourth Amendment.

Do you reasonably expect that someone will go through your trash, right? Our producer pointed out, if you're doing this accessibility idea, well, the trash is accessible to scavengers and snoops and children and raccoons. Isn't it just as accessible as your mail? Yeah. Can they go through it? Can other people go through it? Right? Like, what does the law expect there? This standard just does not make sense. It's just a way for them to dodge the actual standard.

Yeah. And so it's worth talking about the standard in this case, Katz, because Katz was like a, it was a win for privacy rights, right? Like before Katz, the Fourth Amendment was very much tethered in what's called like trespass doctrine. And the idea was, like, the police couldn't trespass your person or your property. They couldn't go on to your property without your consent. They couldn't, like, physically, like, remove your coat and go through your pockets and things. Those are trespasses to your person, trespasses to your property. And those things implicate the Fourth Amendment, those sorts of trespasses. And that was, like, the sort of long and short of it. And Katz was like, no, that was a case where there was no trespass because the cops just tapped like a public phone, like a payphone, and then just listened to this one guy who regularly used the payphone, right? And listened to his conversations. And Katz was like, no, you have a reasonable expectation of privacy that your phone calls, even on public payphones, are not being listened to by police or anybody for that matter. So this was supposed to expand the sphere of your privacy, right? The realm of your personal life that is safe from government intrusion. And instead, it has been sort of perverted in a lot of ways and used as like a lever to open up more of your private life to inspection by saying like, yeah, no, raccoons can go through your trash. So why can't police? A 747 might fly over your house at 30,000 feet. So why can't cops hover over it at 50 feet with binoculars?

Your body's covered in bacteria and microscopic organisms, so clearly the police can search your person. This is just basic, basic science, folks.

The fact that this is what has happened with this test is especially, like, problematic now where in an age of, like, digital surveillance and just massive compilations of our data being out everywhere, right? And handed over to third parties, oftentimes without our knowledge and without any real meaningful consent, right? Like maybe some click rat bullshit. But, you know, your devices are listening to you and serving you customized ads based on what you're talking about. Your doorbell is videoing you in your neighborhood. And if you are unlucky, handing that over to the police when they ask for it. Like the world is becoming less private in general. And so this attitude about like what is and isn't reasonable to expect to be private that the courts have taken, which has been one that's very permissive of cops violating your privacy, has become a problem for how society functions generally.

Yeah, that's totally right. Katz was supposed to be expansive, was supposed to expand the scope of what is protected by the Fourth Amendment by creating that standard about the expectation of privacy. And then what you see after Katz, and you see it so clearly in this case, is the Supreme Court using the standard about the expectation of privacy to shred it and to make sure that an expectation of privacy is like something that is just like so bare bones and not the more expansive view that Katz was

proposing. Yeah. There's one more thing I want to talk about. Rhiannon talked about this in prep, and I think it's worth saying. There's like a sort of a kill the cop in your head idea that we should tease out here because we have talked at length about how people, we believe people would respond, how we would respond if you saw just like your neighbor going through your trash, right? You'd be upset. And how people responded to like paparazzi going through Kissinger's trash, they were upset, right? They didn't like it. And I think all that's true. At the same time, in popular media, cops are regularly depicted as going through people's trash and it's depicted heroically, right? And it's depicted favorably and people like it. They like watching the cops find a shredded document and piece it together bit by bit until they've like, revealed this secret, you know, smoking gun. The murderer. Right. Yeah.

It's a savvy detective move.

Right, exactly. Someone's trash. There's a segment of the public that enjoys watching the cops do things they would not accept from their neighbors, right? And that's important for a couple reasons. I think, one, it's what allows the majority to get away with shit like this. Right. Two, like the test isn't, you know, the reasonable expectation of privacy isn't just like, well, it's OK if cops do it. Yeah. The whole point that Justice White is making is that cops are being held to the same standard as everyone else. If you don't think your neighbors should be going through your trash, then the cops can't either. If you don't expect your neighbors to go through your trash, then your expectation of privacy in your trash is reasonable and the cops can't violate it. They don't get to do things other people don't get to do. They don't get to violate your privacy in ways that other people don't get to. That's what makes it a reasonable expectation. I don't expect my neighbor to go through my trash. Therefore, the cops cannot go through my trash, right? That's the test. And that disjunction is like doing a lot of work here in the majority. And I think it does a lot of work in general in what people accept and don't accept from the police.

Well, and the proliferation of this police practice, which now means that people accept this and just hear that like, oh.

Right. That's a normal part of police work. Yeah.

Right. Like police are allowed to do that. It's not a violation of your rights. And people just kind of internalize that, accept it wholeheartedly. Like that's because of this case.

Right. I'll also add, throw me in as counsel, oral argument here. I clean up. 9-0 for the good guys. I would just show up. They'd start asking questions. I'd say, I'm going to stop you. I brought a bag of each of your trash that I had someone take, and you can either give me this win right now, or I'm going to read it all into the public record. We're just going to go through the contents, folks. Let me know. Let me know where you side.

We're going to do some forensic analysis right here, right now.

Anthony and Scalia's trash, just a pile of oyster shells.

Just a single meat sweat drop going down his temple as you present this offer to him.

Would have won. Would have won. Yeah. They don't put free thinkers like me in front of the Supreme Court for that reason.

Too powerful, too effective.

Yeah. i would do the same thing for no matter what the case was about by the way give me the win or i'm gonna redo the contents of your trash into the record

that's how absolute this expectation of privacy is yeah that's right until you

overturn california v greenwood i am going to be using this tactic all right folks next week patreon episode mailbag episode send us any questions you have preferably about the law and not about like our favorite food or some stupid shit like that you know you guys know i love to disparage our listeners questions and i'll be doing it in advance this time follow us on social media at five four pod subscribe to our patreon patreon.com slash five four pod all spelled out for access to premium and ad free episodes special events our slack all sorts of shit see you next week bye everybody adios five to four is presented

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