California v. Greenwood

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• 0:00Speaker 00

  We'll hear argument next to number 86, 684, California versus Billy Greenwood and Diane Van Houten.

• 0:07Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, 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 man 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

• 0:50Speaker 01

  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 Five to Four, a podcast about how much the Supreme Court sucks.

• 1:18Peter Shamshiri?

  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.

• 1:32Michael Liroff?

  Hey, everybody.

• 1:33Peter Shamshiri?

  And Rhiannon.

• 1:34Speaker 04

  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?

• 1:41Michael Liroff?

  Yes.

• 1:42Speaker 04

  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, blah. No, this is the most genuine.

• 1:59Michael Liroff?

  Expression of the American id.

• 2:02Speaker 04

  Exactly.

• 2:03Michael Liroff?

  Yeah. They're doing the way in at the Lincoln Memorial, baby, and that is what we think about our fucking... Conquest of over the South.

• 2:11Peter Shamshiri?

  This is one of like the unequivocally funny 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?

• 2:27Speaker 04

  Yeah.

• 2:27Peter Shamshiri?

  No more of like the high minded, oh, we're trying to evoke ancient Greece with our, with our architecture.

• 2:34Michael Liroff?

  Right.

• 2:34Peter Shamshiri?

  None of that shit, no.

• 2:35Speaker 04

  No.

• 2:36Peter Shamshiri?

  Uh, let's get Criss Angel floating above the Washington Monument. Let's get, let's put fucking Michael Phelps in the reflecting pool.

• 2:43Speaker 04

  Right. Duck Dynasty guys need to be there, need to have a prominent role.

• 2:48Peter Shamshiri?

  Absolutely.

• 2:51Peter Shamshiri?

  What other bits can we think of here?

• 2:54Speaker 04

  Who else? Who else? Who else?

• 2:57Michael Liroff?

  Vince McMahon.

• 2:58Peter Shamshiri?

  Oh, yeah, yeah, yeah.

• 3:00Speaker 04

  Joe Rogan's gonna be there, I'm sure.

• 3:02Peter Shamshiri?

  He's gotta be. You can't do the fights without Joe Rogan.

• 3:04Speaker 04

  Mm hmm.

• 3:05Peter Shamshiri?

  Now, what are they going to do with the MLK Memorial? It's, it's right over there. It's right over there. Ball's in your court, Donald.

• 3:14Speaker 04

  Then the Washington Memorial, you know, like America's penis, so phallic. There's, there's something, I'm sure.

• 3:21Peter Shamshiri?

  Yeah.

• 3:22Michael Liroff?

  Yeah.

• 3:22Peter Shamshiri?

  Yep. World War II Memorial sucks too much to have any, to do anything fun with. 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.

• 3:41Speaker 04

  Yep.

• 3:42Peter Shamshiri?

  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.

• 4:20Speaker 04

  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.

• 5:03Speaker 04

  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?

• 5:43Speaker 04

  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 a trash collector grabs the bags of Billy Greenwood's trash that are out on the curb,

• 6:26Speaker 04

  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 posts bond. 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

• 7:08Speaker 04

  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,

• 7:51Speaker 04

  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.

• 8:17Speaker 04

  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, goes all the way up to the Supreme Court and Supreme Court says, trash? No, no rights.

• 8:56Peter Shamshiri?

  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

• 9:41Peter Shamshiri?

  in the, 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 street are readily accessible to animals, children, scavengers, snoops, and other members of the public."

• 10:07Speaker 04

  Ridiculous.

• 10:08Michael Liroff?

  Animals.

• 10:09Speaker 04

  This is goofy, dude.

• 10:10Peter Shamshiri?

  What is this analysis?

• 10:12Michael Liroff?

  Vaccoons go through your trash, so the cops can't?

• 10:14Peter Shamshiri?

  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?

• 10:37Speaker 04

  Yes.

• 10:37Peter Shamshiri?

  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, 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.

• 11:12Speaker 04

  Yeah.

• 11:12Peter Shamshiri?

  How often is a child sifting through your trash? He's like, everyone knows.

• 11:17Michael Liroff?

  Snoops.

• 11:17Peter Shamshiri?

  Children and scavengers.

• 11:19Michael Liroff?

  Yeah, snoops.

• 11:19Peter Shamshiri?

  And snoops are looking through their trash.

• 11:23Speaker 04

  Scavengers and snoops, two different categories.

• 11:26Peter Shamshiri?

  Right.

• 11:27Speaker 04

  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?

• 11:37Peter Shamshiri?

  And 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, okay, yes, but that is not what the Fourth Amendment protects against. And that's not how the test works, right? You know, example we were talking about is like, what if your garage is open? Or even your front door is unlocked?

• 11:57Speaker 04

  Yeah.

• 11:58Peter Shamshiri?

  Your garage or even your home becomes accessible to the public. But that doesn't mean it's not protected by the Fourth Amendment.

• 12:04Michael Liroff?

  Yeah. Insane, an insane inclusion.

• 12:07Peter Shamshiri?

  And also, why are you including animals in this? Whoa, if a raccoon goes through your trash.

• 12:14Michael Liroff?

  The raccoon's not like, oh.

• 12:16Peter Shamshiri?

  They're not violating your privacy.

• 12:17Michael Liroff?

  He's shopping here? Like, wow, reading your receipts and being like, hmm, I don't know about that.

• 12:24Peter Shamshiri?

  They're not reading your receipts, bro.

• 12:27Speaker 04

  Your constitutional rights have not been violated.

• 12:30Peter Shamshiri?

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

• 12:43Speaker 04

  I'm gonna sue.

• 12:45Peter Shamshiri?

  They're, they're eating your rotting leftovers, bro. Like,

• 12:48Michael Liroff?

  Nothing.

• 12:49Peter Shamshiri?

  What does this have to do with privacy?

• 12:52Michael Liroff?

  Right.

• 12:53Peter Shamshiri?

  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.

• 13:05Speaker 04

  Yeah.

• 13:06Peter Shamshiri?

  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.

• 13:17Speaker 04

  Yeah.

• 13:17Peter Shamshiri?

  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, oop, another day in the neighborhood?

• 13:30Michael Liroff?

  Oh, that, that Snoop, so annoying, always looking through my trash.

• 13:35Peter Shamshiri?

  This is of course what we all know happens when you put your trash out.

• 13:38Michael Liroff?

  Get, get the fuck off my property. Yeah, get out of here.

• 13:41Peter Shamshiri?

  Get out of my trash.

• 13:43Speaker 04

  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,

• 14:27Speaker 04

  you know, trying to like, support the argument with like, oh, there are other cases that say this, or, or, you know, reports or, 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.

• 14:46Speaker 04

  About a dog.

• 14:48Peter Shamshiri?

  Bro, you know, they were, you know, those clerks were scrambling if they, they come back with a case from North Dakota.

• 14:54Speaker 04

  North Dakota, this isn't a Supreme Court case. It's not even a federal case.

• 14:57Peter Shamshiri?

  He's like, we have nothing in Illinois? No, sir.

• 15:02Speaker 04

  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.

• 15:22Peter Shamshiri?

  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.

• 15:28Speaker 04

  No, absolutely.

• 15:29Michael Liroff?

  That sounds like such.

• 15:30Peter Shamshiri?

  He's like, oh, sorry. The reason that's in my trash can is because, um, my dog, like a light bulb going off in 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.

• 15:46Michael Liroff?

  How would the cops even know to ask the neighbor if any of the guy's trash happens to be in your trash can?

• 15:51Speaker 04

  This is so ridiculous.

• 15:53Peter Shamshiri?

  It doesn't even make sense. No, it's a, it's a defense. The cops went through a guy's trash and he came up with a, with a story about how it wasn't his.

• 16:01Speaker 04

  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.

• 16:08Peter Shamshiri?

  It also has nothing to do with this.

• 16:10Speaker 04

  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.

• 16:46Peter Shamshiri?

  Dropping knowledge, dude.

• 16:47Michael Liroff?

  Taking judicial notice of, of the unhoused.

• 16:52Speaker 04

  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.

• 17:08Speaker 04

  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 is an example, like 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.

• 17:43Michael Liroff?

  Right.

• 17:44Speaker 04

  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.

• 17:59Michael Liroff?

  Leave that poor man alone.

• 18:00Speaker 04

  Yeah. This paparazzo or whatever was wrong. But note, Justice White citing this after Snoop's saying, 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, this paparazzo went through the trash. This reference shows the opposite of what you are 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. This is a violation of this person's basically

• 18:44Speaker 04

  like home, property, you know, personal, personal privacy. And

• 18:49Michael Liroff?

  Yeah, they're like, this is gutter journalism. It's gross.

• 18:51Speaker 04

  Yeah.

• 18:52Michael Liroff?

  And we don't like it.

• 18:53Speaker 04

  And it's one instance.

• 18:54Michael Liroff?

  Yeah.

• 18:54Speaker 04

  And the Supreme Court citing this as an example of number one, that this happens in any kind of widespread way.

• 19:04Michael Liroff?

  Right.

• 19:04Speaker 04

  And number two, that society does not have an expectation of privacy in trash. This is ridiculous.

• 19:12Michael Liroff?

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

• 19:14Peter Shamshiri?

  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."

• 19:32Michael Liroff?

  Hmm.

• 19:33Peter Shamshiri?

  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 their trash guy will? I would sort of assume that they're not going to.

• 19:47Michael Liroff?

  Yeah.

• 19:48Peter Shamshiri?

  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."

• 20:06Michael Liroff?

  Don't go through people's trash, yeah.

• 20:08Speaker 04

  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, like...

• 20:24Peter Shamshiri?

  Also, if you are like, there are 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.

• 20:34Speaker 04

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

• 20:38Peter Shamshiri?

  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."

• 20:47Michael Liroff?

  That doesn't mean I expect it. In fact, I expect the opposite.

• 20:51Speaker 04

  Yeah.

• 20:52Michael Liroff?

  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. Like...

• 21:10Peter Shamshiri?

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

• 21:20Michael Liroff?

  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.

• 21:27Peter Shamshiri?

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

• 21:32Michael Liroff?

  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 identifiable, right? Like, that's the, 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

• 22:17Michael Liroff?

  even gets to the dump.

• 22:18Peter Shamshiri?

  Right.

• 22:18Michael Liroff?

  Right? Like, that's what you expect.

• 22:20Peter Shamshiri?

  And the idea that when you hand something over to a third party, you just no longer have a reasonable expectation of privacy. And 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.

• 22:34Speaker 04

  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, you know, 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.

• 23:03Peter Shamshiri?

  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, no, go take this to the fucking landfill, mix it in with a massive pile of trash, that way no one ever sees it again. The entire premise of the white majority seems built around, like, look... We all know everyone's going through our trash all the time. So

• 23:36Michael Liroff?

  Right.

• 23:37Peter Shamshiri?

  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.

• 23:42Speaker 04

  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.

• 24:14Michael Liroff?

  Right.

• 24:14Speaker 04

  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.

• 24:50Michael Liroff?

  Right, right.

• 24:51Speaker 04

  It doesn't matter if you think something is not private in terms of action by somebody else, a non-state actor.

• 24:58Michael Liroff?

  Right.

• 24:58Speaker 04

  The Constitution is about the state action as to you.

• 25:02Michael Liroff?

  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, ooh, what has he been up to? And I certainly do not expect them to print it out and hand it over to a cop.

• 25:33Peter Shamshiri?

  Right.

• 25:33Michael Liroff?

  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.

• 26:07Peter Shamshiri?

  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, bro, avert their eyes? The cops fully coordinated with the garbage man, dude. They, they fully talked to the garbage man and were like, preserve this guy's trash and then give it to us.

• 26:32Speaker 04

  Set it aside.

• 26:33Michael Liroff?

  Not just once.

• 26:35Peter Shamshiri?

  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?

• 27:05Michael Liroff?

  Right.

• 27:05Peter Shamshiri?

  But this isn't anything like that, right? There's nothing in plain sight here. The cops are just going through his trash like rats, like raccoons. They're, they're, they're actively taking steps to coordinate with other people to get this man's trash. It has nothing to do with averting their eyes, like averting, what are you fucking talking about? What are you fucking talking about?

• 27:35Peter Shamshiri?

  At this point, I was like, what's going on here? Like, what's going on with this decision?

• 27:39Michael Liroff?

  Right.

• 27:40Speaker 04

  Yeah.

• 27:40Peter Shamshiri?

  Oh, the police cannot be expected to avert their eyes. Avert their eyes, dude?

• 27:44Speaker 04

  Yeah.

• 27:44Michael Liroff?

  Yeah.

• 27:45Peter Shamshiri?

  They had a full

• 27:46Speaker 04

  They did a search.

• 27:48Michael Liroff?

  Yeah.

• 27:48Speaker 04

  They did a search. They took action to reveal this to themselves.

• 27:52Peter Shamshiri?

  Bro, they turned a garbage man into a CI. Like, what?

• 27:57Peter Shamshiri?

  What are you talking about? What, what, what's going on here? It's so, uh, it's like, play. What, I gotta avert my eyes now? It's like, what are you, you, you

• 28:09Peter Shamshiri?

  you fucking had his trash set aside and then opened it up and went through it.

• 28:13Michael Liroff?

  Right, like, what?

• 28:14Speaker 04

  Yeah.

• 28:15Michael Liroff?

  It's

• 28:16Peter Shamshiri?

  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?

• 28:41Speaker 04

  Yeah. I didn't expect that to be

• 28:43Peter Shamshiri?

  This is a standard part of the human experience.

• 28:47Speaker 04

  I was handing that over to the world.

• 28:49Peter Shamshiri?

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

• 28:59Michael Liroff?

  No, no, it's, it's absurd.

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• 29:40Peter Shamshiri?

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• 29:48Michael Liroff?

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• 29:49Speaker 04

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• 29:53Peter Shamshiri?

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• 30:48Michael Liroff?

  Brennan has a dissent joined by Marshall. It's pretty good. He opens with a point that we haven't made yet, but it's worth, worth making, which is not just that this, they had this scheme to set aside the trash, right? But that it, it wasn't like it was the first time. Like, they, 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.

• 31:23Speaker 04

  The averting the eyes thing, like one-

• 31:25Michael Liroff?

  What are you talking about?

• 31:27Peter Shamshiri?

  Right.

• 31:28Michael Liroff?

  Yeah. What are you talking about? We once again, for the sixth time in the last two months, refused 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. Yeah. 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?

• 32:11Michael Liroff?

  Like, you want to know where 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. Yeah. 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 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 lockbox that's very secure.

• 32:56Michael Liroff?

  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 in and 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.

• 33:23Speaker 05

  Yes.

• 33:23Michael Liroff?

  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.

• 33:39Peter Shamshiri?

  Right.

• 33:40Michael Liroff?

  Of course, he has an expectation of privacy in this. This is like black letter law that we've decided. Why is it different when he's, if he was like carrying this home than if he's leaving it out to be immediately anonymized in with a bunch of other people's trash and disposed of 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?

• 34:09Speaker 05

  Yeah.

• 34:09Michael Liroff?

  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 the majority is analysis seriously. Then it seems like maybe rich people get more privacy, more reasonable, right? Like, oh, you live in a gated community, you have an HOA, you use like a very, you know, Tony, private trash collector.

• 34:31Peter Shamshiri?

  No scavengers, no snoops. We kill raccoons on sight.

• 34:34Michael Liroff?

  No scavengers, no snoops, no cops.

• 34:36Speaker 05

  Yeah.

• 34:37Michael Liroff?

  Like.

• 34:37Speaker 05

  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?

• 34:45Michael Liroff?

  Right.

• 34:45Speaker 05

  I doubt it. I doubt it.

• 34:47Michael Liroff?

  Right.

• 34:47Speaker 05

  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.

• 34:59Michael Liroff?

  Right.

• 34:59Speaker 05

  That you are more exposed as a poor person.

• 35:02Michael Liroff?

  Right.

• 35:02Speaker 05

  Which of course, we know in fact to be true, but that's what this ruling is saying.

• 35:06Michael Liroff?

  Right.

• 35:07Speaker 05

  And it is a really sharp point. Um, in the dissent, I think.

• 35:11Michael Liroff?

  So, yeah, actually, I was gonna 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, 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. Moneied interests get more privacy than poor people.

• 35:39Peter Shamshiri?

  Yeah.

• 35:39Michael Liroff?

  Under this rubric.

• 35:41Peter Shamshiri?

  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.

• 35:54Speaker 05

  Yeah.

• 35:54Peter Shamshiri?

  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.

• 36:03Speaker 05

  Certain containers, like Michael is saying.

• 36:05Peter Shamshiri?

  Right.

• 36:05Speaker 05

  Like your bag, your suitcase.

• 36:07Peter Shamshiri?

  Right.

• 36:07Speaker 05

  Those kinds of things.

• 36:08Peter Shamshiri?

  Just off the dome, talking to the listeners, ask yourself, would you rather have a stranger search your car or your trash?

• 36:17Michael Liroff?

  Right.

• 36:18Peter Shamshiri?

  I'm not, in my mind, it's pretty, I'd rather have them search my car. The shit that's, that you throw into the trash, like your receipts, your bills, right? My fucking PIN, PIN numbers probably on some piece of trash I threw out at one point, right?

• 36:33Michael Liroff?

  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.

• 36:44Peter Shamshiri?

  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. Then you compare that with something like a car where There's no like inherent reason, there's no, there's no like abstract, 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.

• 37:14Speaker 04

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

• 37:22Peter Shamshiri?

  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?

• 37:29Speaker 04

  Yeah.

• 37:29Peter Shamshiri?

  My shit's in the trash too.

• 37:31Speaker 04

  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, a, 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, a sort of like objective standard.

• 38:14Speaker 04

  The, the question is, does society at large have a reasonable expectation of privacy in this area, in your, 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 pronouncement, uh, 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-

• 38:49Peter Shamshiri?

  One day, maybe, Justice White.

• 38:51Speaker 04

  Yeah. Yeah. I guess like, I guess in our barbarian society, we're not ready-

• 38:56Peter Shamshiri?

  We haven't, we haven't achieved the level of enlightenment necessary.

• 39:00Speaker 04

  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, it'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, you know, courts over decades, that it still is a reasonable search or seizure even without a warrant. And there's categories of exceptions.

• 39:41Speaker 04

  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, if some, 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

• 40:22Speaker 04

  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 the, as, as a reference to supporting the, the holding

• 41:04Speaker 04

  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.

• 41:19Speaker 04

  Around things that human beings have an expectation of privacy in.

• 41:23Peter Shamshiri?

  Right.

• 41:23Speaker 04

  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 CATS, which sets this privacy standard. And CATS 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.

• 42:08Speaker 04

  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, this is really, really insufficient legal argument.

• 42:34Peter Shamshiri?

  Yeah. It reminds me, you remember Florida v. Riley, the case about airborne surveillance?

• 42:40Michael Liroff?

  Yes.

• 42:40Peter Shamshiri?

  Where the court, the court basically held it's okay for like the police without a warrant to

• 42:47Michael Liroff?

  Hover in a helicopter.

• 42:48Peter Shamshiri?

  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. And it's like, no, the question is, do you expect? Read, do you reasonably expect that you will be spied on from the sky? That is the question you need to be answering.

• 43:15Michael Liroff?

  Right.

• 43:15Speaker 04

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

• 43:18Michael Liroff?

  Yeah.

• 43:18Peter Shamshiri?

  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?

• 43:35Michael Liroff?

  Yeah.

• 43:36Peter Shamshiri?

  Can they go through it? Can other people go through it? Right? Like, what is the law expect there? This standard just does not make sense. It's just a way for them to dodge the actual standard.

• 43:46Michael Liroff?

  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

• 44:30Michael Liroff?

  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

• 45:08Michael Liroff?

  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?

• 45:20Michael Liroff?

  A 747 might fly over your house at 30,000 feet. So why can't cops hover over it at 50 feet with binoculars?

• 45:28Peter Shamshiri?

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

• 45:38Michael Liroff?

  The fact that this is, 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 rap 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.

• 46:19Michael Liroff?

  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, for how society functions generally.

• 46:42Peter Shamshiri?

  Yeah.

• 46:42Speaker 04

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

• 47:20Michael Liroff?

  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.

• 48:02Michael Liroff?

  They like watching the cops find a shredded document and piece it together bit by bit until they've like revealed the secret, you know, smoking gun. The murderer. Right.

• 48:13Peter Shamshiri?

  Yeah, it's a savvy detective move.

• 48:15Michael Liroff?

  Right, exactly. Yeah, yeah. 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 of 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 okay 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.

• 48:46Peter Shamshiri?

  Right.

• 48:46Michael Liroff?

  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. Yeah. 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 in that disjunction is like doing a lot of work here.

• 49:22Speaker 04

  Yeah.

• 49:22Michael Liroff?

  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.

• 49:29Speaker 04

  Well, and the proliferation of this police practice, which now means that people accept this and

• 49:35Michael Liroff?

  Right, that's a normal part of police work. Yeah.

• 49:37Speaker 04

  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.

• 49:45Michael Liroff?

  Right.

• 49:46Peter Shamshiri?

  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 gonna stop you. I brought a bag of each of your trash. And I had someone take, and you can either give me this win right now, or I'm gonna read it all into the public record.

• 50:11Peter Shamshiri?

  We're just gonna go through the contents, folks. Let me know. Let me know where you side.

• 50:15Speaker 04

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

• 50:17Michael Liroff?

  Mm-hmm.

• 50:18Peter Shamshiri?

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

• 50:23Speaker 04

  A single meat sweat drop.

• 50:28Michael Liroff?

  Goes down Scalia's cheek.

• 50:31Speaker 04

  Down his temple, as you, as you present this offer to him.

• 50:38Peter Shamshiri?

  Would've won. Would've won.

• 50:41Speaker 04

  Yeah.

• 50:42Peter Shamshiri?

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

• 50:46Speaker 04

  Too powerful, too effective.

• 50:49Michael Liroff?

  Yeah.

• 50:50Peter Shamshiri?

  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.

• 51:02Speaker 04

  That's how absolute this expectation of privacy is, y'all.

• 51:06Peter Shamshiri?

  Until you overturn California v. Greenwood, I am going to be using this tactic.

• 51:17Peter Shamshiri?

  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 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

• 51:49Michael Liroff?

  Bye, everybody. Adios. Five to Four is presented by Prologue Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.