Federal Court Finds Police Trash Search May Have Been Unconstitutional
Garbage collectors aren't the only ones picking up trash in Baltimore. Davon Tate learned that the hard way during a drug investigation in which his trash was used as evidence against him, but his luck with the law may be changing.
Tate's six-and-a-half-year prison sentence for possession of a firearm by a convicted felon was vacated last month in a unanimous decision by the U.S. Court of Appeals for the Fourth Circuit. The court also ordered a new hearing to determine if Tate's constitutional rights were violated when a Baltimore police officer seized trash bags outside Tate's home. Alleged drug evidence found in the trash led to a search of Tate's home, where the handgun was located.
"We hold that Tate has carried the burden of showing that [Baltimore police agent Charles] Manners knowingly and intentionally, or with reckless disregard for the truth, omitted a material statement in the affidavit he ordered in support of the warrant to search Tate's residence," the Fourth Circuit decision stated. "But we hasten to add--indeed we emphasize--that we express no opinion with regard to whether Tate will prevail at the evidentiary hearing."
If Tate does prevail at the upcoming hearing, he most likely will walk out of a federal prison in Virginia, because the entire case against him hinges on whether Manners trespassed onto Tate's property to grab the garbage in the first place.
On Dec. 16, 2005, Manners submitted an affidavit to a Baltimore City Circuit Court judge for a search warrant for Tate's home in the 700 block of North Longwood Street, in West Baltimore's Rosemont section. The only evidence that Manners offered to justify the warrant came from a trash search one day earlier.
According to his affidavit, Manners "retrieved two black trash bags, which were easily accessible from the rear yard" of Tate's home and found "seven zip lock bags containing plant residue suspected [to be] marijuana," along with hollowed-out cigar shells frequently used to smoke marijuana.
After Manners got the search warrant, police officers raided Tate's home, handcuffed him, and read him his rights. Tate told the officers he had a gun in his bedroom, where officers found a Rohm .38 Special revolver loaded with two bullets. No marijuana was found, but "12 vials containing suspected cocaine were recovered in another bedroom," court documents state.
Tate, 22, already had a lengthy rap sheet, including two felony drug convictions, but many of his prior charges were dismissed because of weak evidence or resulted in minor jail time or probation.
This time, prosecutors focused on the gun charge in a federal case in hopes of obtaining a long prison sentence. After being indicted for possession of a firearm by a convicted felon, Tate faced at least 15 years in prison if he was found to be an armed career criminal.
Instead of going to trial, Tate pleaded guilty in a deal. The Maryland U.S. Attorney's Office agreed to recommend a six-and-a-half-year sentence, which was approved in 2006 by U.S. District Judge Andre Davis in Baltimore. However, the plea deal contained one important stipulation. Tate could file an appeal over the seizure of his trash after Davis refused to allow a hearing on the issue. Davis ruled that the vague language used by Manners in the affidavit about the trash bags being "easily accessible from the rear yard" was "literally true," even if Manners had entered Tate's property to seize the bags.
The constitutionality of cops digging through trash has triggered appeals in criminal cases across the country because of the Fourth Amendment's protection against unreasonable searches and seizures. The U.S. Supreme Court tackled the issue in 1988, in California v. Greenwood, setting a precedent that is still binding in federal cases.
In that case, police officers in Laguna Beach, Calif., retrieved trash bags from a garbage collector after they were thrown out by suspected drug dealer Billy Greenwood. Drug evidence in the trash led to a search warrant, the seizure of cocaine and hashish from Greenwood's home, and felony drug charges against him.
Greenwood convinced courts in California that his Fourth Amendment rights had been violated by the trash search, but the Supreme Court shot down that argument in a 6-2 decision. The high court found that anyone, police included, can rummage through garbage left on the street.
"It is common knowledge that plastic garbage bags along a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public," the majority opinion stated.
Justice William J. Brennan Jr. was joined by Justice Thurgood Marshall in a stinging dissent.
"In holding that the warrantless search of Greenwood's trash was consistent with the Fourth Amendment, the Court paints a grim picture of our society," Brennan wrote. "Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests."
Tate's case differs from the Greenwood decision because of evidence that Manners may have trespassed onto Tate's property to seize the trash bags. In his appeal to the Fourth Circuit filed last year, Tate argued that Manners had deceived the Baltimore judge who issued the search warrant by not explaining where he retrieved the trash bags from. The appeal noted that Manners took the garbage bags on a Thursday, two days before the next trash pickup. Tate also submitted affidavits and photos showing that the garbage can was located next to the rear door in his fenced backyard, so someone would have to go through a locked gate or over the fence to reach the trash.
A three-judge panel from the Fourth Circuit overruled Davis in its May 6 decision and ordered the U.S. District Court judge to hold a hearing about the constitutionality of the trash seizure.
When contacted by City Paper, Manners says he hadn't heard about the Fourth Circuit decision. Manners defends his actions and says he didn't enter Tate's yard to seize the trash. "I reached over the fence and I grabbed it," he says.
Even if Manners' version is accurate, it still could torpedo the case because Manners had to reach into Tate's property to take the garbage, which crosses the line set by the Supreme Court.
Baltimore Police Depart-ment spokesman Sterling Clifford had little to say about Manners' actions in Tate's case. "If that's the judge's decision, then that's the law," he says about the Fourth Circuit ruling.
When asked how often Baltimore police officers seize garbage, Clifford says, "I don't think I can even begin to guess how often police officers go through the trash."
Maryland U.S. Attorney Rod Rosenstein says trash searches by police are fairly common in Maryland, but appeals are rare because there usually aren't questions about whether the trash was seized from the street.
"No [search warrant] affidavit is going to include every detail," Rosenstein says. "The issue is going to be whether [Manners] left something out for some improper reason."
The Fourth Circuit decision states that the case against Tate will collapse if the drug evidence from his trash is ruled inadmissible because there will no longer be probable cause to justify the search of Tate's home, so the seized handgun will be inadmissible as well.
One of Tate's attorneys, assistant federal public defender Joseph Evans, says Tate's case raises issues that should concern everyone.
"People's property is protected from police snooping and skulking around where the public is not invited. They can't jump your fence and look through your backyard," he says. "The larger issue is the privacy we all expect and that we're entitled to."
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