Beware the Garbage-Can Snooper

AS if businesses don't have enough problems to contend with - hot checks, burglaries, shoplifting, vandalism - then consider yet another. Scavengers rummaging through trash bins placed outside a commercial establishment. The sight of the homeless and destitute digging through trash receptacles is common. But when scavengers sift through garbage with the criminal intent of finding checks to counterfeit and forge signatures upon, then businesses need to study seriously what they place out as garbage. This is especially true since the United States Supreme Court appears to have created a more inviting environment for scavengers to operate, ruling in 1988 that police inspection of garbage placed at curbside does not violate an individual's Fourth Amendment ban on unreasonable searches.

A case set for trial in California involves a couple charged with counterfeiting checks and forgery to bilk businesses, including General Dynamics, a huge defense contractor. Police think the defendants gained access to the checks by picking them from the trash.

It's troubling to know that some people may have discovered that trash has far more value than businesses imagine. Troubling, too, is the fact that sophisticated laser-beam copying equipment is available to those who wish to abuse technology through counterfeiting. Most troubling, though, is that the Supreme Court has given no guidance on whether the public might also rummage through trash without invading a person's privacy.

Justice Byron White Jr., author of the majority opinion, has written that privacy rights do not extend to garbage. ``It 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,'' Justice White wrote. If the trash can be picked up by dogs or scavengers, Mr. White said, it cannot be considered private. As is often the case, the court's decision raises new questions. Chief among them is whether people other than police can search through someone's garbage placed outside the home without violating that person's right to privacy.

The ruling does not give police a right to inspect trash that is placed next to a house. White's opinion refers only to trash that is ``left for collection outside the curtilage of the house.'' The court generally has defined curtilage to include the areas immediately adjacent to a home and perhaps a fenced-in yard. But what about trash placed in bins behind a business? The court offers no guidance.

The majority opinion ignores the fact that sorting through someone's garbage hits very close to home, where search warrants are required for police to enter. Warrants to search private property were fundamental to the drafters of the Bill of Rights, but the Supreme Court has created several controversial exceptions.

For example, students enjoy the fewest Fourth Amendment rights, as the courts have allowed school officials to search lockers and purses without warrants and even without probable cause. The court has even approved police use of aerial searches of private property from designated heights. Police can also take blood samples from a suspect and can search luggage and other packages in a car without warrants.

One unfortunate effect of the court's ruling is that it gives police more discretion on when they should seek a warrant. The court specifies that police must search garbage only after all other leads have been exhausted. Overzealous officers, though, may choose to ignore that mandate. Thus the decision places less reliance on a judge's determination about whether a search is an unwarranted invasion of privacy.

Of course, it is arguable whether police have enough tools at their disposal not to have to resort to digging through garbage to find evidence. What is not arguable, however, is that while we await a court case to test just how far privacy rights extend to garbage placed outside homes and businesses, the criminal mind does not rest.

Constitutional questions aside, businesses should destroy sensitive documents such as checks before placing them in the trash. Otherwise, no one knows what manner of scavenger digs through trash or even whether the scavenger has a constitutional right to do so.

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