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Dumpster Diving

Posted: September 27th, 2009 Author: Full Disclosure

COPYRIGHT (C) 1991 BY FULL DISCLOSURE. ALL RIGHTS RESERVED.

In light of the recent debates regarding the various activities of the hacking community and it various methods of collecting and distributing information the following legal opinion by the Detroit, Michigan Police Department is presented to give some insight on the activity refered to as Dumpster Diving.

Not only does this opinion show that such an activity can be legal but that it is not exclusive to the hackers, but is a investigative procedure of law enforcement agencies:

SEARCH OF ABANDONED REFUSE
A recent Michigan Court of Appeals decision concerns searches of rubbish and garbage without a search warrant. Although courts in other states have addressed the legality of such searches, no Michigan appellate court has ever been confronted with the question.

People v Richard Whotte aka Richard Breathour

QUESTION: Is it ever legal to search rubbish and refuse for evidence if the rubbish or refuse has not been set out for or picked up by trash collectors if I do not first obtain a search warrant?

ANSWER: Such searches without search warrants are permissible if they meet the standards listed in People v Whotte.

DISCUSSION:
In People v Whotte, Mich App (Feb 1982), a Grosse Pointe Park detective was investigating a hold-up of a bar when he had occasion to speak to a possible subject at a two-family apartment. The detective noted that there was domestic rubbish scattered in the backyard of a two-family flat and it appeared that dogs, cats, or other animals had strewn the litter about the yard in searching for foodstuffs. The detective noted credit card receipts within the refuse in the name of the suspect. The next day, the detective returned, re-examined the credit card receipts, and looked inside one of the torn open bags in the yard, finding the suspect's wedding license and a wallet of one of the victims. This information was elicited in testimony at the circuit court. Upon this and other evidence, defendant was found guilty and eventually appealed his conviction, unsuccessfully.

Other states have addressed the issue of whether or not a search warrant is needed to examine trash and have generally decided that such searches are legal if the garbage has been left at a spot where the garbage is collected by the collection service or if the garbage has lost its identity by being mingled with other people's trash. The Michigan Court of Appeals has adopted the Alaska rule, which attempts to determine if the search violates the trash owner's reasonable expectations of privacy. That determination is made considering these factors:

1. Where the trash is located;

2. Whether the dwelling is a multiple or single family unit;

3. Who recovered the trash;

4. Where the search of the trash takes place.

Based on these standards, a search warrant is probably needed if the rubbish is stored immediately outside a rear door of a single family dwelling and only placed outside the back fence on trash collection day. However, trash thrown onto a common heap in the backyard of a large apartment building where roaming dogs strew it about would not require a warrant. Further, although the test might indicate otherwise, trial courts will probably not allow searches of trash inside of buildings even if there has been indication of intent to abandon the trash.

The test announced in this new case adopts a common sense approach as to whether the trash has been abandoned or just removed from inside the house to a more convenient location. Common sense would also dictate, though, that in questionable circumstances, discretion favors obtaining a search warrant. This case appears to be the state of the law in Michigan today, but is subject to reversal by a superior court.

Members having questions about this case are requested to contact the Legal Advisor Unit at Centrex 4-4426 or Police Dial 346.

The above is reprinted from Full Disclosure Newspaper.

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