[Politech logo]

Politech is the oldest Internet resource devoted to politics and technology. Launched in 1994 by Declan McCullagh, the mailing list has chronicled the growing intersection of law, culture, technology, and politics. Since 2000, so has the Politech web site.

Montana Supreme Court justice warns Orwell's 1984 has arrived


Montana Supreme Court justice warns Orwell's 1984 has arrived
August 5, 2005 12:13 PM PDT

Believe it or not, it's perfectly legal for police to rummage through 
your garbage for incriminating stuff on you -- even if they don't have a 
warrant or court approval.

The Supreme Court of Montana ruled last month that police could conduct 
a warrantless "trash dive" into the trash cans in the alley behind the 
home of a man named Darrell Pelvit. The cops discovered pseudoephedrine 
boxes -- a solvent with uses including the manufacture of 
methamphetamine -- and Pelvit eventually ended up in prison.

Pelvit's attorney argued that his client had a reasonable expectation of 
privacy in his trash, but the court rejected the argument and said the 
trash was, well, meant to be thrown away.

What's remarkable is the concurring opinion of Montana Supreme Court 
Justice James C. Nelson, who reluctantly went along with his colleagues 
but warned that George Orwell's 1984 had arrived. We reproduce his 
concurring opinion in full:



Justice James C. Nelson concurs.

I have signed our Opinion because we have correctly applied existing 
legal theory and constitutional jurisprudence to resolve this case on 
its facts.

I feel the pain of conflict, however. I fear that, eventually, we are 
all going to become collateral damage in the war on drugs, or terrorism, 
or whatever war is in vogue at the moment. I retain an abiding concern 
that our Declaration of Rights not be killed by friendly fire. And, in 
this day and age, the courts are the last, if not only, bulwark to 
prevent that from happening.

In truth, though, we area throw-away society. My garbage can contains 
the remains of what I eat and drink. It may contain discarded credit 
card receipts along with yesterday's newspaper and junk mail. It might 
hold some personal letters, bills, receipts, vouchers, medical records, 
photographs and stuff that is imprinted with the multitude of assigned 
numbers that allow me access to the global economy and vice versa.

My garbage can contains my DNA.

As our Opinion states, what we voluntarily throw away, what we 
discard--i.e., what we abandon--is fair game for roving animals, 
scavengers, busybodies, crooks and for those seeking evidence of 
criminal enterprise.

Yet, as I expect with most people, when I take the day's trash (neatly 
packaged in opaque plastic bags) to the garbage can each night, I give 
little consideration to what I am throwing away and less thought, still, 
to what might become of my refuse. I don't necessarily envision that 
someone or something is going to paw through it looking for a morsel of 
food, a discarded treasure, a stealable part of my identity or a piece 
of evidence. But, I've seen that happen enough times to 
understand--though not graciously accept--that there is nothing sacred 
in whatever privacy interest I think I have retained in my trash once it 
leaves my control--the Fourth Amendment and Article II, Sections 10 and 
11, notwithstanding.

Like it or not, I live in a society that accepts virtual strip searches 
at airports; surveillance cameras; "discount" cards that record my 
buying habits; bar codes; "cookies" and spywear on my computer; on-line 
access to satellite technology that can image my back yard; and 
microchip radio frequency identification devices already implanted in 
the family dog and soon to be integrated into my groceries, my credit 
cards, my cash and my new underwear.

I know that the notes from the visit to my doctor's office may be 
transcribed in some overseas country under an out-sourcing contract by a 
person who couldn't care less about my privacy. I know that there are 
all sorts of businesses that have records of what medications I take and 
why. I know that information taken from my blood sample may wind up in 
databases and be put to uses that the boilerplate on the sheaf of papers 
I sign to get medical treatment doesn't even begin to disclose. I know 
that my insurance companies and employer know more about me than does my 
mother. I know that many aspects of my life are available on the 
Internet. Even a black box in my car--or event data recorder as they are 
called--is ready and willing to spill the beans on my driving habits, if 
I have an event--and I really trusted that car, too.

And, I also know that my most unwelcome and paternalistic relative, 
Uncle Sam, is with me from womb to tomb. Fueled by the paranoia of 
"ists" and "isms," Sam has the capability of spying on everything and 
everybody--and no doubt is. But, as Sam says: "It's for my own good."

In short, I know that my personal information is recorded in databases, 
servers, hard drives and file cabinets all over the world. I know that 
these portals to the most intimate details of my life are restricted 
only by the degree of sophistication and goodwill or malevolence of the 
person, institution, corporation or government that wants access to my data.

I also know that much of my life can be reconstructed from the contents 
of my garbage can.

I don't like living in Orwell's 1984; but I do. And, absent the next 
extinction event or civil libertarians taking charge of the government 
(the former being more likely than the latter), the best we can do is 
try to keep Sam and the sub-Sams on a short leash.

As our Opinion states, search and seizure jurisprudence is centered 
around privacy expectations and reasonableness considerations. That is 
true even under the extended protections afforded by Montana's 
Constitution, Article II, Sections 10. and 11. We have ruled within 
those parameters. And, as is often the case, we have had to draw a fine 
line in a gray area. Justice Cotter and those who have signed the 
Opinion worked hard at defining that line; and I am satisfied we've 
drawn it correctly on the facts of this case and under the conventional 
law of abandonment.

That said, if this Opinion is used to justify a sweep of the trash cans 
of a neighborhood or community; or if a trash dive for Sudafed boxes and 
matchbooks results in DNA or fingerprints being added to a forensic 
database or results in personal or business records, credit card 
receipts, personal correspondence or other property being archived for 
some future use unrelated to the case at hand, then, absent a search 
warrant, I may well reconsider my legal position and approach to these 
sorts of cases--even if I have to think outside the garbage can to get 

I concur.

Posted by Declan McCullagh on Aug 05, 2005 in category privacy

Get a Politech feed through RSS or Atom [RSS] [Atom]

The Politech general information pages and photographs are copyrighted by Declan McCullagh. Original posts distributed to the mailing list are licensed under a Creative Commons License.
Creative Commons License