In 2005 the Indiana Court of Appeals had the opportunity to address the issue of 'garbology' which is founded upon, in the more common vernacular, dumpster-diving. This is simply a method of analyzing personal habits and lifestyle through the process of examining what one discards in their curbside trash.
There is an expectation of privacy that one has in or about their home. In fact, it is provided for in our state constitution. Article 1, Section 11 of the Indiana Constitution provides, in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated.” This right turns upon who is being protected from whom.
There is no right or expectation of privacy from intrusion by a person. The right protects "the people" from intrusion by the government. The Indiana Supreme Court has observed that the “[s]eizure of trash that is in its usual location for pickup is no intrusion at all on the owner’s liberty or property interests” because the owner of the property wants, and indeed expects, the trash to be taken away. Litchfield, 824 N.E.2d at 363; see also Love v. State, 842 N.E.2d 420, 425 (Ind. Ct. App. 2006). That is, once left at the curb your trash becomes part of the public domain as it is your intent to discard it.
However, “it is not reasonable for law enforcement to search indiscriminately through people’s trash.” Litchfield, 824 N.E.2d at 363. Thus, in some criminal prosecutions the evidence obtained by police searching through trash has been quashed by the courts on the basis that the police did not have probable cause to search the trash.
Still, a child custody hearing is not a criminal prosecution and I am not a government actor. In California v. Greenwood, 486 U.S. 35, 39 (1988), the United States Supreme Court upheld the warrantless search of the defendant’s garbage left at the curb for pickup, holding that there was no violation of the Fourth Amendment to the United States Constitution. When the police cannot be restricted from accessing your trash without a warrant then neither can I.
The case of Leisure v Wheeler has provided a good account of how a garbage inventory is used at trial. In this case the Father hired an investigator to gather garbage from Mother's home for two consecutive weeks. The investigator did so and then inventoried the contents, and then testified at the hearing about what he found. Mother objected to the investigator's testimony on the basis that he was testifying as an expert without a proper foundation. The trial court permitted him to testify over Mother's objection.
Indiana Evidence Rule 702 provides that expert opinion is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable. Mother maintains that the scientific principles underlying "garbology" are not reliable. The appeals court did not reach that issue because his testimony was not opinion testimony.
The investigator testified that he found certain items in the garbage he retrieved from Mother's home. Specifically, he reported that during each of the two separate garbage retrievals he found five bottles of Seagram's 7, eleven packs of Virginia Slims cigarettes, five or six packs of Camel filter cigarettes, and fast-food containers, among the other items in the garbage. He also testified that he recovered Zig Zag rolling papers and a plant stem that he believed was marijuana. He explicitly testified that he was not telling the trial court how Mother and her current husband lived:
A: It just shows that people eat out a lot. That's all I said. I'm not telling you how they live. I'm just telling you that when I see a lot of fast food, it gives me reason to assume that these people eat out a lot.
Q: But you are telling us how they live. You're telling us they consume alcohol, they smoke cigarettes, they don't cook home-cooked meals. Isn't that how they live?
A: I'm not telling you what their home is. I'm not in their home watching them. This is what I get from their inventory ... from their garbage. I can't tell you exactly what I saw them physically drink. I can't tell you that I saw them doing these ... this is what I found in their garbage.
The Court opinion that it would not place its imprimatur on this type of investigative work. The Court went further stating, " . . . the issue before us is not whether we accept garbology as good practice. Rather, the issue we are asked to address is whether this was expert opinion testimony that required a proper foundation before being admitted. In light of the fact that [the investigator] merely testified regarding what he found in the garbage and took strides to explain that he was simply reporting what he found, we find that he did not offer opinion testimony. We cannot say that the trial court erred by permitting [him] to testify over Mother's objection."
Indiana Code 31-17-2-8(6) requires that a court hearing a child custody placement matter consider "[t]he mental and physical health of all individuals involved." There are clear inferences that can be made about the mental and physical health of individuals by what is found in their trash.
So, don't worry about Big Brother that is just me out there hanging off that garbage truck and tossing your trash onto a tarp.
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