When Garbage Is Not Trash

HE who steals my garbage steals trash. That may be true in most places, but now two states, Hawaii and New Jersey, place great value on rubbish. Both states require police to obtain a search warrant to rummage through trash when gathering evidence of possible criminal activity.

This raises two interesting issues. The broader one is what is private and what is not. Do individual citizens have a ``reasonable expectation of privacy'' when they throw away their garbage?

Most states - and the United States Supreme Court - say they do not. ``Garbage in; garbage out,'' successfully argued a California prosecutor several years ago. He convinced the court that when a person dumps trash it remains trash and takes on no constitutional protections, no matter who collects it. In California, the incriminating discards of a bookmaker were gathered as evidence by police and used to prosecute him.

The other issue, one which is likely to have growing significance in the next few years, involves the trend of states toward providing citizens greater protection of rights under their state constitutions than is afforded by the United States Supreme Court or federal laws. New Jersey's Supreme Court did just this in its recent garbage case. It spelled out that its highest set of state statutes affords citizens greater privacy rights than those guaranteed by the US Constitution.

This trend is starting to spill over into other issues - abortion, free speech, affirmative action, search and seizure, among them. California, Idaho, Michigan, and Oregon have already out-protected the federal Bill of Rights in several instances.

It may be that it will now be up to the states to shore up individual rights within their borders by strengthening planks in their state constitutions to compensate for the loss of William Brennan Jr., a champion of individual liberties, from the US Supreme Court.

The recently retired Brennan is a strong believer in state constitutions and state protection of rights, sometimes above and beyond federal safeguards. It is not insignificant that his home state of New Jersey is taking a lead in this direction.

New Jersey's edict on garbage is not appealable to the US Supreme Court since it is based on state constitutional law. That is an important point. States that outdo the federal government in protection of individual rights are subject to overrule by the US high tribunal, but only if their statutes are based on federal laws rather than their own state constitutions.

The US Supreme Court had ruled in the California garbage case: ``People lose any reasonable expectation of privacy in their trash by leaving it in bags alongside the street, because such garbage is vulnerable to an unscrupulous person or scavenging animal.''

New Jersey's high court, in its 5-to-2 ruling of two cases where police had seized traces of illegal drugs from the trash of suspects, took a different tack. This state court held: ``Garbage reveals much that is personal. We do not find it unreasonable for people to want their garbage to remain private from the meddling of the state.''

Civil liberties groups were delighted with the New Jersey ruling. A state American Civil Liberties Union spokesman accused the US Supreme Court of eroding individual liberty and privacy by not protecting garbage from warrantless searches. The state attorney general said, on the other hand, that the garbage ruling had ``trivialized'' the search-and-seizure issue. And one dissenting judge held that the state court had no right to reject the US Supreme Court's position.

The fact is that states do have a right to expand on federal protections for citizens.

Garbage, in the abstract, may appear to be trivial. In principle, however, when trash becomes evidence in a criminal trial, it takes on a whole new constitutional aroma.

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