The Sixth Circuit Panel of the Supreme Court has made a precedence level ruling against providing home search warrants based on what is in the residents trash.
In United States v. Abernathy the Supreme Court upheld the opinion that evidence obtained from trash does not justify probable cause for a warrant, at least not without other evidence to substantiate suspicions.
Law enforcement agents raided the Abernathy home after agents searched the contents of the homes trash and found “several Marijuana roaches with Marijuana residue inside…several plastic vacuumed packed heat sealed bags consistent to those used to package marijuana for resale containing marijuana residue [with] a known strain of marijuana.”
Abernathy’s defense was that the evidence in the outside trashcan did not constitute an acceptable reason for probable cause, and therefore evidence gained during the later search was inadmissible against him in court. In a split ruling, the Supreme Court panel agreed.
After a thorough review of the record and relevant case law, we agree with Defendant that the evidence recovered from the trash pull here did not create a fair probability that drugs would be found in Defendant’s home. Our conclusion stems from two considerations.
First, a finding of probable cause here would be inconsistent with [United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006)]. In McPhearson, the defendant had crack cocaine in his pocket, and the police arrested him and searched his pocket immediately after he stepped outside of his home and onto his porch. 469 F.3d at 520. These facts were included in the affidavit submitted to the magistrate. Id. at 521. The police thus had indisputable proof that drugs had recently been inside the defendant’s residence: the drugs were in his pocket, and he was inside the residence. Id. We nonetheless rejected the government’s argument that “an individual arrested outside his residence with drugs in his pocket is likely to have stored drugs and related paraphernalia in that same residence,” because there was no additional evidence that the defendant was or had been involved in drug crimes. Id. at 524–25.
The same reasoning is even more applicable here. The trash pull evidence Detective Particelli recovered from Defendant’s garbage suggested that a small quantity of marijuana might have recently been in Defendant’s residence. The connection between the recovered drugs and the residence is much more attenuated here than it was in McPhearson; while the officers could be absolutely certain that drugs had recently been in the McPhearson residence, there is no way of knowing with certainty that the trash pull evidence here: (i) came from Defendant’s residence at all; or (ii) if it did, that it was in the residence recently. If the crack cocaine found in the McPhearson defendant’s pocket did not create a fair probability that more drugs would be found in his home, a fortiori the trash pull evidence here did not create a fair probability that drugs would be found in Defendant’s residence. Cf. United States v. Brown, 828 F.3d 375, 382– 84 (6th Cir. 2016) (holding that police lacked probable cause to search home even though drug dog alerted to defendant’s car, defendant had recently been detained for drug trafficking, and defendant had prior drug convictions, because there was an insufficient nexus between defendant’s drug activities and his home). Moreover, as in McPhearson, the critical missing ingredient from the Affidavit was evidence that Defendant had been involved in past drug crimes. McPhearson, 469 F.3d at 525. Although Detective Particelli knew of Defendant’s criminal history, he did not include those facts in the Affidavit, and therefore they could not have contributed to the magistrate’s probable cause finding. Brooks, 594 F.3d at 492.
Second, the connection between the small quantity of marijuana paraphernalia recovered from Defendant’s garbage and his residence is too logically attenuated to create a fair probability that more drugs were in the residence. Although the trash pull evidence certainly suggested that someone in the residence had smoked marijuana recently, that fact alone does not create an inference that the residence contained additional drugs. Drugs by their very nature “are usually sold and consumed in a prompt fashion,” Frechette, 583 F.3d at 378, and so the more probable inference upon finding drug refuse is that whatever drugs were previously in the residence had been consumed and discarded. Further, it is impossible to tell when the marijuana roaches and plastic bags were put into the garbage. Depending on the household, the trash pull evidence could have been put in the garbage anywhere from one day to several weeks earlier. The inability to tell when drugs were last in the home diminishes any inference that drugs were still in the home.
Is anybody else disturbed that cops go through your trash in order to criminalize you for a plant in the first place? Hopefully this will, for the most part, put an end to that. But just in case I am going to start dropping a duke in every bag of trash I take out to the trashcan. Probably should wait until just before you take it out, if you decide to do that too. Or not. It is your life. Live it up.