[Politech] Montana Supreme Court justice warns Orwell's 1984 has arrived [priv]

Declan McCullagh declan at well.com
Fri Aug 5 12:20:34 PDT 2005


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.
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