State Con Law Case of the Week: Positive Law for a Trespass
A question that repeatedly arises in search and seizure cases is whether the police can, without a warrant, search through the garbage you leave at the curb. Would it be like the police coming in and searching your own home? Or have you “abandoned” the trash, and the police, at least as a constitutional matter, are within their rights to dig into the “papers and effects” you’re throwing away?
You don’t have to be a trained law enforcement officer to know you can find out all kinds of things about a person by looking through their trash. And, as a bonus, if the police can grab and look through a bag of trash without a warrant, they don’t need “probable cause” like they would if they did get a warrant. But what they find in the trash might provide probable cause to get a warrant to search somewhere else, like your house.
That’s exactly what happened to Nicholas Wright of Clear Lake, Iowa. An officer looked through his curbside trash on a couple of occasions, found what seemed to be evidence of drugs, obtained a search warrant for his home based on that evidence, and then found a small amount of marijuana and prescription drugs for which he lacked a prescription. In the following prosecution, he asked for the trash and drugs to be thrown out as evidence because the initial search violated his rights under Article I, Section 8 of the Iowa Constitution, specifically its guarantee against “unreasonable” searches and seizures. The provision is almost identical to the Fourth Amendment to the U.S. Constitution. Iowa’s version reads: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.”
The lower courts ruled against Mr. Wright. Based on its precedent, the U.S. Supreme Court would have done the same in applying the Fourth Amendment. But last week the Iowa Supreme Court said that under its state constitution the answer is different.
The result is not just interesting as a state constitutional law issue, but under some cutting-edge developments in Fourth Amendment law concerning its relationship with property rights. Let’s take the two in turn.
The Iowa Constitution is Not the U.S. Constitution
As we’ve explored on the blog before, state constitutions are separate legal documents from the U.S. Constitution that do not depend on the latter for their meaning. Further, state courts are separate tribunals from federal courts, capable of making their own interpretations of language. But if a state constitution has similar or identical language to the federal version—as is often the case with state provisions that mirror the Fourth Amendment—it usually will be interpreted the same as the U.S. Supreme Court interprets the equivalent clause. And that’s not surprising; after all, it’s the same words in the same English language.
However, as is often the case in law and especially in hard or novel cases, judges may disagree with each other on the meaning of words and phrases. Sometimes this can be because a provision was adopted at a different time from the U.S. Constitution and with a different history. For example, the Iowa Constitution was adopted in 1857, while the Fourth Amendment was in 1791. But it also can just be because smart people with robes disagree with each other. A majority of the U.S. Supreme Court may interpret the phrase “unreasonable” in relation to search and seizures one way, while other judges elsewhere may interpret it another way. When it comes to the Fourth Amendment, the U.S. Supreme Court’s interpretation becomes binding precedent for state courts. But when it comes to the same language in a state constitution, what is the effect of that U.S. Supreme Court ruling?
Many state supreme courts have said the effect is a heavy presumption, if not an irrebuttable presumption, that their own equivalent provision should be interpreted the same way. This is called the “lockstep” doctrine. It’s commonly applied to various parts of state constitutions, especially when it comes to equivalents to the Fourth Amendment. Its proponents give various reasons, such as the value of uniformity and essentially not wanting to reinvent the wheel on hard legal questions. But what the justifications all have in common is a lack of two things: faithfulness to the state constitution as an independent source of law and confidence in the state judges’ ability to interpret that law in the face of the U.S. Supreme Court.
In State v. Wright, the Iowa Supreme Court lacked neither independence nor confidence. The court’s majority firmly rejected any presupposition that what the U.S. Supreme Court has said about the U.S. Constitution should take a special place in interpreting the Iowa Constitution, other than as a respected sister court whose views should be considered but not necessarily followed. And they said that the Iowa Constitution, and its 1857 founding, is what they must interpret, not what the justices in Washington, D.C. have said about a similar provision.
The Iowa court ruled 4-3 that the search of Mr. Wright’s trash violated Article I, Section 8 of the state constitution, with some of the majority opinion being a plurality because one justice did not join some of its reasoning (although he concurred in the general sentiments of state judicial independence). The plurality stated that, “While we give respectful consideration to the decisions of the United States Supreme Court in its interpretation of parallel provisions of the Federal Constitution, we have a duty to independently interpret the Iowa Constitution.” Further, quoting an Iowa case from 1868, it reaffirmed that “[o]n questions of state constitutional law, the [U.S.] Supreme Court ‘is, in law and in fact, inferior in authority to the courts of the States.’” And, pointing out something that is often overlooked in state constitutional discourse, it explained that its duty to interpret the state constitution is so independent that a state constitution can be interpreted to provide less protection than the U.S. Constitution on a given issue. (Practically speaking this usually doesn’t matter, as there’s a federal right (a “floor”) to also protect the person involved, but it’s conceptually important as it demonstrates that the state constitution doesn’t somehow depend on the federal for its meaning.) The question isn’t “whether the Iowa Constitution should be interpreted more stringently or less stringently than its federal counterpart” but, simply, what the state constitution means.
Trash Trespass and Positive Law
A recent development in Fourth Amendment law has been a move toward incorporating common law notions of trespass back into search and seizure jurisprudence. Although the full story is much more complicated (as this piece by Professor Orin Kerr explains), in broad brushstrokes it’s the following: From the time of the Founding into the twentieth century, basic property law principles, including notions of trespass, were often (not always, but often) used to define legitimate law enforcement activity under the Fourth Amendment and its state analogues. If an officer trespassed without a warrant, even in the course of his official duties, the property owner frequently could later sue the officer for damages. Federal courts applied this understanding to the Fourth Amendment, and state courts did to their equivalents, including, claims the plurality in Wright, in Iowa. But the Supreme Court adopted a narrow view of what counted as a “trespass” in a Prohibition-era case about wiretapping, Olmstead v. United States. As modern technologies grew, Olmstead’s narrow view of what constituted a trespass, and therefore a search under the Fourth Amendment, provided people with insufficient protections. So the U.S. Supreme Court jettisoned the trespass model in favor of something called the “reasonable expectation of privacy” standard. Under it, a search drew constitutional scrutiny only if the search invaded what society deemed to be a reasonable sphere of privacy.
Most people then assumed this was the standard under Fourth Amendment law. But in the last decade, led by the late Justice Scalia in a case called Jones, the U.S. Supreme Court stated that actually the trespass view had never fully gone away, there just were two standards—two ways to win, you might say—for assessing whether a search had occurred. The bottom line on the trespass standard, then, is that it probably reflects the best understanding of the Fourth Amendment’s original meaning and, as a matter of federal law, it sits comfortably alongside the reasonable expectation of privacy test.
That leaves a lot of questions, of course. What do we mean by “trespass” in the twenty-first century? Do we look to traditional common law, statutory law, state law, federal law, or something else? The federal courts have not answered these questions, but many scholars have had a go. One, by scholar Professor Richard Re in his 2016 article The Positive Law Floor, suggests that we should essentially treat the police like ordinary citizens. If they have a right to be in a certain place or seize a certain item—such a trash—as a private person, then that isn’t a search. But if it’s a violation of “positive law” (such as a trespassing statute or ordinance, a common law rule, or even a contract) then it’s a search that the government must justify. There’s much more nuance than that, but that’s conceptually how to think about it. Instead of worrying about what is a “reasonable expectation” (which can be a terribly subjective process) we look to the positive law that applied to who was involved and where the search or seizure took place.
Citing similar work that Professors Will Baude and James Stern have published, the Wright plurality endorsed some form of a “positive law model,” at least as it includes trespass law, for the Iowa Constitution, and not just whether a “search” occurred but whether the search was constitutional. It stated that an “officer engaged in general criminal investigation acts unreasonably under article I, section 8 when the peace officer commits a trespass against a citizen’s house, papers, or effects without first obtaining a warrant.” It also said that “trespass” is not tied down to what that term meant when the state constitution was adopted. What was a trespass under property and positive law principles in 1857 might very well be different in 2021, especially given all the statutes, ordinances, and common law evolution that has occurred since then.
And the government’s trespass, as the Iowa Supreme Court noted, tripped one very important positive law: A city ordinance that made it a crime for anyone to take garbage that has been left out for collection other than a licensed garbage collector. The officer who took and rummaged around in Mr. Wright’s garbage indisputably violated this law. Further, the court made a point that at any time up until the garbage truck took Wright’s trash, it would have been perfectly lawful for Wright to dig into his trash and take anything he wanted back inside, as it was still his garbage.
The Iowa Supreme Court’s decision in Wright places it at odds with the U.S. Supreme Court, which ruled that the police can search through curbside trash in a 1988 case, California v. Greenwood. That was a reasonable expectation of privacy case, and the Court concluded that there was no societal expectation that others won’t look through your garbage after you leave it out for collection. The Iowa court disagreed with Greenwood in its trespass analysis, but also determined that the officer’s garbage rummaging was unconstitutional under the reasonable expectation of privacy standard. In other words, the court disagreed with the U.S. Supreme Court’s conclusion in Greenwood. And the court’s conclusion has good company: A recent opinion by Justice Gorsuch called Greenwood’s conclusion “unbelievable,” in part because California positive law protected trash just as did the ordinances of Mr. Wright’s town.
Because much of the lead opinion in Wright is a plurality, it remains to be seen how much of an impact it will have. At a minimum police officers need to be politer with their citizens’ trash. And there are huge questions about how far-reaching the trespass standard applies. For example, does it mean the “open fields doctrine,” which allows police officers to go on private property as long as it’s not close to a home, is no longer valid in Iowa, or at least significantly narrowed?
But whatever its full impact in Iowa, the declarations of state judicial independence and engagement, plus the embrace of basic property law principles in place of the nebulous “reasonable expectation of privacy” standard, may have a sizeable effect across the country. As more state judges gain the courage to assert their primacy in interpreting their own constitutions, we will likely see more of what those constitutions are primarily intended for—the protection of individual liberty. The Wright opinion is part of a larger, and very welcome, trend. I’m hoping to have many more posts on similar opinions as State Con Law Cases of the Week.
Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice.