On May 16, the Supreme Court added a new brush stroke to the constitutional delineation of privacy. The subject was garbage. The question was whether the Fourth Amendment, which promises security against unreasonalble searches and seizures, protects the contents of a trash bag put out on the curb for collection. Overturning a California court's contrary view in California v. Greenwood, the Court declined to apply the Fourth Amendment to restrict access of law enforcement agents to discarded material. Under contemporary construction, the Fourth Amendment guarantees no security where none may be reasonably expected, and the Court thought it unreasonable for a citizen to expect that a garbage bag left on the street would be treated as secure by the public at large. Though the Court's latest piece of draft ing fits nicely with history and general judicial perception, itis out of fine with public sensibilities. And ultimately it must be public sensibility, not judicial logic, that defines the right to be secure against unreasonable intrusion.
When property is abandoned as trash, Justice Felix Frankfurtff held nearly thirty years ago, it becomes bona vacantia, material to which no one has any rights of control or secrecy. The case in which Frankfurter wrote this opinion, United States v. Abel, was an odd one. Col. Rudolf Abel, described in the press as a "Soviet masterspy," had been arrested on an administrative warrant by agents of the Immigration and Naturalization Service in his room at the Lathmn Hotel in New York City. Before he was led away, he dropped into a wastebasket a "cipher pad"concealed in a block of wood wrapped with sandpaper, and eighteen microfilms in a hollow pencil. As soon as Abel was removed from the hotel, an F.B.I. agent who had remained on the premises received permission from the hotel to search Abel's vacant room, and he recovered the spy paraphernalia. To Abel's claim that his constitutional rights under the Fourth Amendment were violated by the seizure of his microfilm pencil and code book, the Supreme Court, per Justice Frankfurter, replied in effect: You threw away your rights when you threw away your belongings.
Frankfurter's thesis rests on the assumption that Colonel Abel made a voluntary choice to abandon his personal property . One might wonder how freely the captured colonel, packing and checking out under Federal escort, chose to rid himself of the incriminating items he left behind, but the principle seems right: A person cannot at the same time relinquish all control or hope of future recovery and yet retain a viable claim of interest in property. If you forget your briefcase on the Metroliner, you might protest the official hand examining the contents when the tag hanging from the handle clearly identifies you as the owner. But if you decide the old pouch has had its day and fling it into the public trash barrel, you can hardly complain if a stranger opens it and removes the forgotten $10 bill inside. True abandonment ends legally protected interests in property or security. And that notion is in accord with popular understanding.
Logical as the reasoning in Abel was, however, many people and some courts were unhappy with the result. Not that we feel a durable proprietary interest in our trash as such. Most of the smelly bagful neither we nor anyone else could care less about; from overripe peaches to old breeches, anyone who wants it is more than welcome to it. But we frequently discard revealing bills, letters, notes and sometimes something incriminating-in Greenwood, a residue of narcotics. And many of us assume that by consignmentto the garbage collector, such things are not "abandoned" in the sense of a total relinquishment to the world at large.
Among those clinging to the hope of security in trash was a Californian named Billy Greenwood. The case against him began when a Laguna Beach police officer received information …