-----Original Message-----
From: RPM [mailto: ]
Sent: Wednesday, July 01, 2009 6:27 PM
To: Mistletoe Heights Neighborhood Association
Subject: Re: [berkeleybuzz] Re: Garbage Theft

Thanks to T---- D---- for the input she provided.

As noted in the original messages, the issue is not with abandoned "garbage", but with recycling, which are items of value that are not abandoned but presented for transfer to a specific party. The fact that the original message also referred to a grocery sack removed from the trash may have caused this confusion.

The reference to "lazy", while perhaps inartful, was not directed toward the officer's action, but to the advice that was a casual misapplication of reasoning appropriate for one category (trash) to other items (recycling) solely because they might look similar or happen to sit on the curb. This casual assumption that one rationale automatically has wider application is a mistake made occasionally, particularly when legal advice gets relayed from one officer to another. In my experience this usually occurred when a lawyer provided an opinion in one case and then the story spread by word of mouth, sometimes without context or detail.

As one of those lawyers in the past, I share blame for some of those instances. That was the target of the lazy reasoning comment. I'm confidant every FW officer would respond, as this one certainly did, and do his best within the law as he understood it. They don't enjoy ignoring neighborhood intruders any more than residents do. The point here is that he was limited by the advice he was given, and that advice was "lazy reasoning".

More importantly, as noted below, the City of FW has a specific ordinance prohibiting removal from recycling bins. Of course this is not a major offense, but arrest and deterrence are authorized. Similar "recycling" theft ordinances exist in many cities nationwide, based on a brief Google search. These ordinances are obviously necessary to prevent other parties from roaming the streets and emptying recycling carts of the highest value material.

I do not have current access to determine if these ordinances have ever been challenged or altered by any court, but the continued existence of the FW ordinance suggests it remains valid. If T---- or anyone else has other information, that would be welcome.

All of this discussion serves to remind everyone to use shredders or other precautions when disposing of personal papers. However, the need to discourage increased vagrant traffic in the neighborhoods, along with preserving the financial viability of the recycling system, remains the primary issue related to recycling cart "diving".

The following information was provided by Joel Burns' office after their notice of the Berkeley discussion.

Berkeley,

The information below was provided by Joel Burns office after reading the Berkeley email and quizzing city waste folk about whether the officer's info was accurate. There is a specific city ordinance preventing the action observed in Mistletoe. It relates specifically to recycling, because that is material of value.

Garbage is generally fair game because once it hits the curb it will likely be considered abandoned, regardless of the city cart. Loose trash and loose trash bags are clearly fair game for search or removal.

R---- M----

K---- W------

Council Aide to Joel Burns

1000 Throckmorton Street

Fort Worth, Texas

76102

From: M---, K--- A
Sent: Wednesday, July 01, 2009 12:28 PM
To: W----, K----
Subject: RE: Garbage Theft

It is not accurate. Our ordinance says –

Sec. 12.5-824. Preparation of recyclables for collection.

(k) A person commits an offense if that person removes or causes the removal of recyclables from a recycling cart that does not belong to that person when that cart is placed for collection.

This was specifically written to prevent “pearl divers” from taking materials out of the recycling carts. There is not anything specific for the garbage.

K---- M----

Assistant Director, Environmental Management Department

Solid Waste Services Division

-----Original Message-----
From: T---- D----- [mailto: @TarrantCounty.com]
Sent: Wednesday, July 01, 2009 3:23 PM
To: Mistletoe Heights Neighborhood Association
Subject: RE: [berkeleybuzz] Re: Garbage Theft

I can certainly understand the concern that led to this question, but in 1988 the United States Supreme Court said that a citizen does not have a reasonable expectation of privacy in trash, garbage bags, and other refuse placed in a curbside location intended for pick up by the trash collector. California v. Greenwood, 468 US 35 (1988). Therefore, the items are considered abandoned, and there is no standing for a resident to complain of theft of trash items. This “abandoned property” theory is supported by long-standing, well-settled Fourth Amendment case law, both before and after the 1988 case. BTW -- those of us in law enforcement rely on this theory when officers find evidence of a crime in trash. And I am definitely not a defense attorney: I’ve been a prosecutor for more than twenty years. The officer was not being lazy, but was citing correct constitutional law. I hope everyone has a safe holiday weekend.

T---- D-----

-----Original Message-----
From: R--- G---- [mailto: ]
Sent: Wednesday, July 01, 2009 4:24 PM
To: info@mistletoeheights.com; RPM
Cc: R----, M----; Buzz, Berkeley
Subject: Re: [berkeleybuzz] Re: Garbage Theft

Hi R---- and all, I do recall an appellate court opinion denying a motion to exclude evidence that the police had taken from the defendant's trash can, sitting out waiting to be picked up. The court reasoned that the owner did not have a reasonable expectation of privacy in his trash because he had "abandoned" it (the same word the police used here). I can see a difference between a reasonable expectation of privacy in what's in the can, for 4th amendment purposes, and an ownership interest in the trash, awaiting pick up by the intended transferee, for a theft analysis.

This is a special case because the guy admitted a criminal intent. I think that worthy of a police investigation apart from the question of title to the trash (which could get weird). Personally I'm not too interested in stopping someone from looking in my trash for something they can use, so long as they don't make a mess. I guess I'll have to make sure we shred all our receipts--I've been kind of hit-and-miss about that (though most receipts don't have credit card numbers or bank account numbers on them any more). I do value my privacy and don't want the police searching through my things, even on the curb, nor do I want ID thief's going through it.

For what it's worth,

R--- on Park Place