Court refuses to trash warrant based on garbage can mining
The court determines if evidence from a warrantless trash search is admissible for attaining a search warrant
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UNITED STATES V. HANSEN, 2022 WL 619204 (8th Cir. 2022)
Edward Hansen lived with his girlfriend, Jessica Proskocil. An officer, reviewing recent gun purchase records, saw a record indicating Proskocil had purchased a shotgun. She listed her address as the home she shared with Hansen on the purchase form. The officer knew Hansen had a prior felony conviction. The officer arranged for a trash pull at Hansen’s residence and rode to the property in a garbage truck.
When the officer arrived on the garbage truck, he saw a trash container on the east side of the garage, retrieved it and emptied the contents into the garbage truck. Officers sorted through the trash and found gun catalogs, a plastic baggie containing marijuana and a transaction history documenting Hansen’s purchases of various gun parts.
The officer prepared a warrant application and affidavit summarizing the circumstances and the findings of the garbage search. A judge issued a search warrant and officers searched Hansen’s residence, discovering guns and ammunition. Hansen was charged with being a felon in possession of a firearm.
Hansen asked the trial court to suppress the evidence. He asked the court for a “Franks” hearing, alleging the officer omitted material information from the warrant affidavit when he failed to state that the garbage can was located on private property. In Franks v. Delaware (438 U.S. 154 (1978)), the Supreme Court held that a criminal defendant may challenge a facially sufficient affidavit with substantial preliminary showing that a false statement (or omitted material statement) was included in the warrant affidavit, knowingly and intentionally or with reckless disregard for the truth. The defendant must provide a detailed offer of proof to support the motion for a Franks hearing. Additionally, the defendant must show that the false (or material omitted) information was essential to the judge’s finding of probable cause to search. If the defendant can meet both these tests, he is entitled to a hearing at which the allegations must be proven by a preponderance of the evidence.
Hansen claimed he had an agreement with the garbage pickup company not to pick up his trash unless he moved the container “to a public property location” 200 feet from his garage. Hansen claimed he told the garbage company not to use the “driveway” leading to his house. He argued that, if the judge reviewing the affidavit had been aware of the precise location of the garbage can when the officer took his can and emptied it into the garbage truck, the judge would have known the garbage can was on private property. Therefore, Hansen claimed, the judge would have concluded that the warrantless seizure of the garbage can from the curtilage of his home on private property was improper and would not have issued the search warrant.
The trial court denied the motion and sentenced Hansen to three years. The appellate court affirmed, holding it was not clear whether the trash was beside a private driveway or a public street and that the officer had no way of knowing about any agreement Hansen might have had with the sanitation company. The court concluded Hansen had not shown that the officer “must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information.” One wonders whether Hansen never thought to do what someone I know does when he doesn’t want his wife to know another liquor bottle is empty; just sneak it into the neighbor’s trash when no one is looking. But take care. As another recent case shows us, it may be safe to use your neighbor’s trash can, but not your neighbor’s Wi-Fi signal.