Toronto Criminal Lawyers Blog

In Canada, all powers to search and seize are now subject to section 8 of the Canadian Charter of Rights and Freedoms, which articulates the right not to be unreasonably searched or have one’s possessions seized. As a result, sec. 8 requires that an assessment be made in each case of whether the public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals: most notably, those of law enforcement. In the case of Hunter v. Southam, the Supreme Court of Canada held that, save a few exceptions, and as a means of preventing unjustified searches, the requirement of prior authorization, such as a valid warrant, is a pre-condition for a valid search or seizure. The logical extension of this requirement amounts in principle to the rule that warrantless searches that don’t fall into one or more of the exceptions are unreasonable. This means that in most cases, the police will need a Judge or a Justice of the Peace to issue a search warrant before they can search any place or seize any property.

Reasonable Expectation of Privacy in a Motor Vehicle

Not all private property, however, commands the same level of respect for privacy from a sec. 8 perspective. By that it is meant that the courts will determine the individual’s level of expectation of privacy based on the place that is searched or the property that is seized. The higher the expectation of privacy, the more rigorously the courts will enforce the rule of prior authorization. Generally speaking, an individual will have a greater expectation of privacy in their home than they will in their car, a greater expectation of privacy in their car than in their work-locker, etc… It is without a doubt, however, that individuals do have a reasonable expectation of privacy with regard to their own car, and the contents of therein.

However, the same expectation of privacy is not attributable to persons who are not the vehicle’s owner and who are passengers within it. As the Ontario Court of Appeal held in R v Alkins, the already lesser expectation of privacy in a car is further reduced when the vehicle belongs to someone other than you. To illustrate this point, consider for a moment that you are a passenger in a vehicle which is stopped by the police for speeding. After briefly speaking with the driver, the officer believes that a weak scent of marijuana is coming from within the car. Ordinarily, that would not amount to sufficient grounds to search the vehicle, but say for the sake of example that the officer conducts the search anyway and discovers an ounce of marijuana under the passenger’s seat, where you happen to be sitting. As a result, both you and the driver are arrested for constructive possession of a controlled substance. At his trial, the driver’s lawyer brings an application to exclude the marijuana because it was obtained through an unlawful search of his vehicle, and succeeds. At your trial, your lawyer tries to do the same, but the judge dismisses your application. Why? The reason is because you are deemed to have a lesser, or no expectation of privacy in the car of another, and thus, cannot rely on the sec. 8 right not to be unreasonably searched.

Now say that instead of finding the marijuana under the passenger’s seat, the officer searched through a briefcase that was located in the trunk of the car. After asking who it belonged to, you advised the officer that it was yours, and you were not consenting to a search of its contents. Despite your protests, the officer goes ahead and searches it anyway, discovering the marijuana within it and placing both you and the driver under arrest. The situation has now fundamentally changed from when the discovery of the marijuana was found under the passenger’s seat. This is because you are deemed to have an expectation of privacy in the contents of a briefcase, or an opaque bag of any kind. In R v. Mohamad, the Ontario Court of Appeal held that the owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases. The Court stated that briefcases can often have highly confidential personal and business information and, in a practical sense, can serve as possible portable offices or “keep-safes” for their owners. As a result, when your lawyer files an application to exclude the marijuana at your trial, you will be in a much stronger position and may be successful in having the evidence excluded. The word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.

Exceptions to the Rule of Prior Authorization

At the start, I mentioned that there existed a few exceptions to the rule requiring prior authorization for searches and seizures. One of the most common exceptions to the rule is what is known as the “search incident to arrest” power. A search incident to arrest occurs when the police search your person, objects on your person, your car, and/or the surrounding area as a result of your arrest for an alleged crime. For example, if the police see you engage in a drug transaction from within your motor vehicle, they will have the right to search you and your vehicle for any drugs. Any other unlawful objects, materials or supportive evidence that is found in the process of the search may also be seized.
However, police need to be careful how they use their power to search incident to arrest. A prerequisite to a search incident to arrest is that the arrest itself must be lawful. This means that if the police do not have reasonable and probable grounds to make the arrest in the first place, then the arrest is unlawful. As such, any incriminating evidence that they find on you, or in your car, may be excluded at your trial. Again, the word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.
Moreover, even if the arrest itself is lawful, the search which the police conduct subsequent to your arrest must be connected to the crime you are being arrested for. For example, if you are arrested for driving while impaired, generally speaking, a search of your vehicle would not be connected with what you are being charged with. What reason would the police have to search your car? The crime of driving while impaired has to do with you being impaired by drugs or alcohol while operating a motor vehicle. A search of your car is not required to prove the elements of the crime, and does little to further the police’s investigation. Conversely, in the drug-transaction example above, the search of your car is logically connected to your arrest. Since the police saw you sell drugs out of your car, it is not illogical to believe that there may be more drugs within the car. What constitutes a logical connection between the arrest and the search will be determined by the specific context of each individual case.

Other, less known, exceptions to the rule requiring prior authorization are contained within the Criminal Code itself. The most notable of those exceptions, for present purposes, is located in sec. 487.11, which states the following:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant

In the case of R v. Grant, the Supreme Court held that exigent circumstances exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Generally speaking, whether exigent circumstances exist on the occasion in question will be a question of law for the judge to decide. The “exigent circumstances” exception is one that is rarely used, since in most cases the police will gain control of the location that they intend to search, and then apply for a search warrant to permit them to enter, if they haven’t already applied for one.

Contact Kostman & Pyzer, Barristers, for your best defence.

It is very important for every Canadian to understand, not only his or her rights under the Canadian Charter of Rights and Freedoms, but also how those rights can be enforced in a court of law. Once the court has determined that your rights under the Charter have been infringed, what remedies are available to redress the wrong you have suffered? Criminal defence lawyers and other legal professionals refer to the legal results of enforcing a Charter right as “remedies”. Under law, judges have the power to prescribe certain remedies when an individual’s rights have been breached.

There are a wide variety of remedies available under the law (declarations, damage awards, restitution, specific performance, etc.) Sometimes a Charter remedy could be as simple as a declaration that the government did in fact breach the individual’s Charter rights. In rare cases, the court may order the government to pay the individual damages. However, remedies like this are rarely available in criminal trials. When criminal defence lawyers argue the Charter in the context of a criminal trial, they have a very specific goal: to exclude evidence or obtain a stay of proceedings. Criminal defence lawyers will argue that specific rights have been infringed and apply for a remedy that will advance their client’s position.

There are two main ways a criminal defence lawyer may use the Charter in the context of a criminal trial: (1) to argue that the law his or her client has been charged with breaking is unconstitutional or (2) to argue that the investigation or arrest of his or her client was carried out in an unconstitutional manner. There are various remedies available to the Court that respond to these two lines of argument, and further the defence lawyer’s ultimate goal avoiding a client’s conviction. These remedies can be found in sections 52, 24(1), and 24(2) of the Constitution Act of 1982 (which contains the Charter).

In situations where the criminal defence lawyer is arguing that his or her client was charged with breaking a law that is itself unconstitutional, he or she will seek a remedy under s. 52 of the Constitution Act of 1982. Section 52 states that “the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” If a law is declared “… of no force or effect” by the court, the law is no longer operational and the offence it created no longer exists in Canadian law. Naturally, a court cannot find an individual guilty of an offence that does not exist. Thus, if the criminal defence lawyer successfully convinces the court that the law is unconstitutional and it chooses to render the law inoperable under s. 52, the accused must be acquitted.

The s. 52 remedy is uncommon in criminal proceedings and criminal defence lawyers will only seek it in exceptional circumstances. That said, it has been used successfully in the past. When a remedy is granted under s. 52, it not only ensures that the accused individual goes free, it also changes the state of Canadian law. One famous example is the decision in R. v. Morgantaler. Henry Morgentaler is a Canadian doctor and pro-abortion activist. He was arrested in 1983 for performing illegal abortions. During the course of his trial he argued that the law against performing abortions violated the Charter. In 1988, the Supreme Court of Canada agreed, declaring the law of no force and effect and acquitting Mr. Morgentaler. The decision of the Supreme Court effectively prevented the government from creating any statutory restrictions on abortion in Canadian law. This controversial ruling had a strong and lasting effect on Canadian society.

Generally speaking, criminal cases that deal with s. 52 remedies are lengthy and complicated. Often, if a defendant wishes to pursue a remedy under s. 52, they do so because they feel that more than just their own liberty is at stake. Defendants in these cases are often crusaders who want to change what they perceive to be an unjust law. Other examples of s. 52 cases include R v. Malmo-Lavine where the defendant, a self-proclaimed “marijuana/freedom activist”, successfully argued that the laws against possession of marijuana for medical purposes were unconstitutional, and R. v. Zundel where infamous holocaust denier, Ernst Zundel, successfully argued that the law against “spreading false news” in the Criminal Code was unconstitutional. In both cases the defendants were facing criminal charges (possession of marijuana and “spreading false news” respectively) and were able to avoid criminal conviction by invoking the protection provided in s. 52 of the Charter. However, they also had political motivations for pursuing a s. 52 remedy. Finally, they were accused with crimes which dealt with morally and politically controversial issues  (abortion, legalization of marijuana, freedom of speech). Recently. the prostitution laws have been challenged under the same provision. This recent challenge deconstructs the present anomoly that while it is illegal to solicit sex in a public place it is perfectly legally to advertise escort agencies that offer sexual services.

Unlike the remedy in s. 52, which is available where the defendant seeks to challenge a statute or law, the remedies in s. 24 are available where a defendant seeks to challenge an action taken by the government during the course of an investigation or prosecution. Section 24 creates specific remedies for defendants whose rights have been infringed by a specific act that can be attributed to the state. It is far more common for criminal defence lawyers to apply for a remedy pursuant to s. 24 than attacking the constitutionality of a law. Section 24 of the Charter applies to situations where the investigation or prosecution is manifestly unreasonable or unfair. Section 24 contains two remedies. Under s. 24(1), the defendant can apply to the court for any remedy the judge considers appropriate if his or her Charter rights have been breached. Under s. 24(2) an individual whose rights have been breached can apply to the court to have evidence excluded from his or her trial. Both of these remedies are key tools to aid defence lawyers in securing a successful result for their client.

According to s. 24(1), “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. This provision gives the judge a lot of discretion in deciding what remedy to use. However, for an individual facing criminal charges the most advantageous remedy ordered under s. 24(1) is a “stay in proceedings”. The s. 24(1) “stay” remedy effectively puts an end to the trial against the defendant. Although, technically the prosecution may be reinstituted within a one year period, generally speaking, it rarely is.  The Crown would only reinstate the proceedings if the police found new and extremely compelling evidence against the accused. Otherwise, a stay effectively ends the trial. Though the accused is not technically acquitted, the Supreme Court of Canada stated in R. v. C.I.P. that a stay of proceeding is “for all intents and purposes, an acquittal”. A “stay of proceedings” does not constitute a criminal record and is viewed by  defence lawyers as a successful ending to the prosecution.

A remedy may be granted under s. 24(1) for a breach of the accused’s legal rights found in ss. 7 through 14 of the Charter. Practically speaking, the remedy is only really applicable to breaches of ss. 7, 8, 9, 10 or 11.

If any of these rights have been interfered with to such a degree that the administration of justice would be brought into disrepute if the court were to continue in the proceedings against the defendant, the court will impose a stay of proceedings under s.24(1). Such behaviour on the part of the state constitutes an abuse of process and the courts will not allow the trial against the accused person to continue.

There are several alternate remedies the court may apply under s. 24(1) if the abuse of process does not meet the threshold required for a stay. The nature of the remedy is left to the trial judge to determine. The judge must consider the following factors when crafting an appropriate remedy.

The judge must fashion a remedy that promotes both the purpose of the right being protected and the purpose of s. 24(1).

Section 24(2) follows some of the same principles as s. 24(1); however, it applies specifically to Charter breaches that occur during the collection of evidence. If evidence is collected in a manner that infringes the Charter, the defendant can apply to the court to have that evidence excluded from the trial under this section. Section 24(2) does not contain an automatic exclusionary rule corresponding to every Charter breach. The court will only exclude evidence under s. 24(2) where, to do otherwise, would bring the administration of justice into disrepute. When evidence is excluded from trial, it cannot be used by the Crown to prove the accused guilty. It will not be shown to the jury (if there is one) and the trial judge cannot consider it when making his or her decision.

Generally speaking, there is no need for a causal connection between the Charter infringing conduct and the discovery of the evidence. In other words, the defence does not have to prove that the Crown could not have obtained the evidence without breaching the Charter. It is sufficient for the defence to prove that there is a temporal connection between the collecting of the evidence and the Charter breach.

Section 24(2) states that “where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.  Once the defence has established that the Charter was breached and that the breach was temporally connected to the piece of evidence in question, the defence lawyer must argue that the evidence ought to be excluded under s. 24(2). Generally speaking, the court must be satisfied that admitting the evidence at trial would undermine the reputation of the justice system in the mind of a reasonable member of the community who is dispassionate and fully apprised of all the circumstances.

Recently, in R. v. Grant, the Supreme Court of Canada set out a test to determine whether to admit the evidence at trial. According to the court, when a judge is faced with a Charter application for exclusion under s. 24(2) the court must consider and balance the following factors:

1. The seriousness of the Charter-infringing state conduct

2. The impact of the breach on the Charter-protected interests of the accused, and

3. Society’s interest in the adjudication of the case on its merits.

At the first stage, the court must ensure that the admission of the evidence does not send the message that the justice system condones serious state misconduct. At stage two, the court must be sure not to admit the evidence if it will send the message that the court will countenance police conduct which deliberately ignores individual rights and liberties. At the final stage the court is asked to consider society’s interest in having the trier of fact consider all of the evidence in determining an individual’s culpability.

The section 24(2) remedy is often used to exclude physical evidence, confessions, and bodily samples (DNA, fingerprints). The purpose of the remedy is to maintain the reputation of the administration of justice in the eyes of the Canadian community. It is imperative that the justice system actually upholds the principles underlying the Charter and protects the specific rights enshrined in the Charter. Through application of the s. 24(2) remedy, the court ensures that individuals are not convicted of a crime in a situation where the government or their agents has deliberately ignored the principles enshrined in the Charter.

At Kostman and Pyzer, Barristers we have made successful applications for Charter remedies available pursuant to sections 24(1) and (2). Proceedings have been stayed and evidence excluded on the basis that our client’s rights have been infringed.

The police may approach you for questioning in a variety of situations. You may be walking down the street, hanging out at school or even driving in your car. It is important to know when the police can lawfully detain you for questioning. Section 9 of the Charter of Right and Freedoms protects your right to be from arbitrary detention.

Although you may think you’re being detained every time an officer stops you, not every stop will legally amount to a detention. Therefore, it is important to know what constitutes “detention”. The Supreme Court of Canada in 2009 defined detention as a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention arises when the individual has or reasonably believes they have the legal obligation to comply with restrictive requests or demands of an officer. In that case, three Toronto police officers were patrolling a high crime school area when they saw Mr. Grant acting suspiciously.  A uniformed officer approached him and asked for identification and what was going on. Mr. Grant continued to behave suspiciously. Worried about their safety the officers asked him to keep his hands in front of him.  Two other officers arrived and obstructed Mr. Grant’s ability to walk forward. The court found Mr. Grant was psychologically detained when he was told to keep his hands in front of him and when the other officers moved into a position preventing him from walking forward. 

What if you are pulled over by the police while driving your car? The police can pull you over for either a routine safety check or for a Highway Traffic Act violation.  These are the types of stops that occur when you are speeding, you have a broken tail light or the police have set up a check-stop to ensure all drivers are licensed and insured.  When you are stopped in this situation the driver must surrender all appropriate documents and identification to the officer.  However, the driver and occupants are not compelled to provide any additional information to help the officers’ investigation. The occupants of the vehicle, including the driver, have the right to refuse to answer any investigative questions. Canadian citizens have no duty to assist the police in their investigation of crime.

When you are stopped in this situation the police officers may check the exterior of the vehicle to ensure compliance with the Highway Traffic act. They can check for visual appearance, brake and headlights, signals, meter seal, cleanliness, seat belts, ect.   In the absence of a warrant these types of check do not permit the officers to search the inside of your vehicle. During a traffic violation stop or a routine check the police may only search the inside of your vehicle if they have reasonable and probable grounds to arrest, and the police have a search warrant. 

How can the police form the grounds to arrest you during a routine check or a traffic violation stop? If a prohibited or suspicious item is visible to the officers in their plain view they will form the required grounds to conduct a search of the interior of your vehicle.  Items such as drug paraphernalia, weapons, break and enter tools or anything resembling them may permit the police to search the inside of your vehicle, in the absence of a warrant.  Neutral items, such as pagers and phones or items which could be found in any car for any legitimate reason will not justify a search of your vehicles interior or trunk.

What if you are walking down the street and the police stop you for questioning? The police have a limited power to stop you in this situation. They are allowed to stop you for investigative purposes. However, this is only permitted when an on duty officer can put a reason into words why he/she believes you are implicated in current or recent criminal activity. Discriminatory reasons do not amount to an articulable cause for detention. This means, they may not stop you on the sole reason of your race, gender, or membership in a group. This detention is very limited. The police may ask for your name, identification and reason why you are present at the scene.  The police may only search you in this situation if the officer has reason to believe his safety is at risk. They may not search for evidence or drugs, they may only search for weapons or anything that may jeopardize their safety. The Supreme Court of Canada has directed that one can only be detained for investigative purposes in circumstances wherein the police have a reasonable suspicion that the person is involved in specific criminal activity. A suspicion or hunch is not enough.

The Supreme Court of Canada made headlines earlier this year when they released their decision in R. v. Patrick (“Patrick”) which confirmed, for the first time ever, that the police can legally search a suspect’s garbage without a warrant.

Section 8 of the Charter guarantees that every Canadian is free from unreasonable search or seizure. This means that a government agency cannot search an individual’s personal property unless that search is “reasonable”. In most circumstances, before the police search an individual’s property (their home, car, office, or person) they will obtain a warrant. A warrant is like a permission slip that authorizes the search of a place or thing. Without a warrant, it is generally against Canadian law for the police to search any individual’s person (unless incidental to arrest) or property.

However, in Patrick, the Supreme Court of Canada (“SCC”) ruled that the police may legally search an individual’s garbage without a warrant if source of the garbage puts it out to await collection.

The Calgary Police Department suspected Mr. Patrick of producing the drug ecstasy in his home; however, they did not have enough evidence to secure a warrant to search Mr. Patrick’s property. Instead, the police rifled through his garbage on several occasions until they discovered enough incriminating pieces of evidence to obtain a search warrant. They then forcibly entered Mr. Patrick’s home where they found evidence of an ecstasy lab and over 2,500 pills of ecstasy.

At trial, Patrick argued that his constitutional right to be free from unreasonable search and seizure had been violated by the warrantless search of his garbage. The SCC unanimously agreed that his rights had not been violated. The majority stated that when Mr. Patrick placed his garbage by the curb to await collection he had effectively abandoned all reasonable expectation of privacy in the contents of his garbage.

There are several problems with the decision in Patrick.

The first is that the garbage awaiting collection was still situated on Mr. Patrick’s property. Ostensibly, Mr. Patrick has control over who enters and exits his private property. While garbage collectors may have Mr. Patrick’s implicit permission to reach over the property line and collect the garbage he had put out for them, it is safe to say that Mr. Patrick could not reasonably have expected police officers to trespass on his property to obtain the garbage. On the contrary, it seems much more reasonable for Mr. Patrick to assume that police officers would respect the law and refrain from trespassing on private property. In fact, in Calgary, where Mr. Patrick lived, it was against municipal by-laws to scavenge through another individual’s trash. However, the SCC were not convinced that this by-law was sufficient to create a reasonable expectation on the part of a home-owner that the police would not rifle through their garbage — or in other words, the fact that there was a by-law in place does not translate into a reasonable belief that the police would respect that by-law.

Most individuals would be shocked to think that nosy neighbors, reporters, private investigators, ex-spouses, and any other member of the public may legally rifle through an individual’s trash as it awaits collection. However, according to the SCC in Patrick garbage awaiting collection at the curb has been abandoned and an individual has no privacy interest in it. This means that any member of the public would be within their rights to snoop through your garbage. Most Canadians would likely be shocked to know that current Canadian law allows this type of behaviour. Though the average Canadian does not object to their trash being collected by garbage collectors or rifled through by bottle-collectors and the like, these activities are less objectionable because they tend to preserve the home-owner’s anonymity. It seems counterintuitive that police officers and private individuals can legally cross the property line to seize trash from an individual’s property in order obtain information about their private and personal habits against a homeowner’s wishes and without a warrant.
Another major problem with the SCC’s decision in Patrick is that it seems to directly contradict their earlier decision in Stillman. In Stillman, Mr. Stillman was accused of murdering a young girl and brought into RCMP headquarters for questioning. Mr. Stillman was seventeen years old and his lawyer provided the RCMP with a fax instructing them that Stillman was not, under any circumstances, to provide any bodily samples to the police. Nonetheless, the RCMP took several samples from him including bodily fluid samples taken from discarded Kleenex he threw out in the bathroom. On the abandonment argument, the SCC concluded that while in custody, providing bodily samples was “simply the inevitable consequence of the normal functioning of the human body”. They conclude that a person in custody cannot reasonably be said to have abandoned the bodily sample because the accused person has no choice other than to discard the samples in proximity of the police. It would be virtually impossible for an accused person in custody to “destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from ‘retrieving’ this ‘potentially useful waste’”. Thus, the SCC concluded that Mr. Stillman retained a privacy interest in his bodily samples even after the Kleenex was thrown out.
On that logic, individuals should retain a privacy interest in the biographical information contained in their garbage after the garbage itself is discarded. As was the case with Mr. Stillman, it would be virtually impossible for an individual out of custody to retain control over all trash to keep from providing possibly incriminating evidence to the police. Individuals living in the city of Toronto and the Greater Toronto Area are prohibited by law from burning their garbage. In Calgary (where Mr. Patrick lived), Toronto and the Greater Toronto Area, it is illegal to dispose of household garbage in any way other than by surrendering it to municipal trash collection. It seems that out-of-custody suspects are as powerless as in-custody suspects when it comes to trying to dispose of garbage in a private manner. According to the principle in Stillman, individuals who put garbage outside for collection should retain some sort of privacy interest in their garbage. However, Patrick tells us that this is not the case.
The major concern for both criminal defence lawyers and the general public post-Patrick is that police officers will be able to search through garbage as it awaits collection in order to obtain DNA, fingerprints, and other biographical information. The SCC in Patrick recognized the vast amount of personal information contained in an individual’s garbage. They acknowledge that “[r]esidential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.)…a garbage bag may more accurately be described as a bag of “information”, and its contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle”. Yet, despite this observation, the SCC rejected the view that household garbage should be considered private until it becomes anonymous, saying it was “too extravagant to contemplate” that an individual should have a privacy interest in their garbage until “the last unpaid bill rots into dust”.
Is it really so far-fetched to suggest that an individual has a privacy interest in their garbage until it becomes anonymous? One of the reasons we throw things out is to have them mixed with other refuse until they become so mixed they can no longer reasonably be connected back to us. Many people go so far as to shred important documents before disposing of them so as to hasten the intermixing process and achieve anonymity. It seems that individuals at least believe that they have a privacy interest in their garbage as it awaits pick-up since this is one of the few occasions where the garbage can properly be identified as belonging to them.
The best course of action for those who are concerned about the decision in Patrick is to store garbage in a locked receptacle, far within the property line until pick-up to clearly indicate your intention to keep the contents of your garbage private. In Patrick the majority notes that “until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it, particularly if it is placed on a porch or in a garage or within the immediate vicinity of the dwelling”. Keep your garbage close to your home and only put it out at the time of collection and you may retain some form of privacy interest in any personal information contained therein.