Garbage Pulls Under the Physical Trespass Test

64 Pages Posted: 6 Nov 2019

See all articles by Tanner Russo

Tanner Russo

United States Court of Appeals - First Circuit

Date Written: October 28, 2019


By reintroducing the physical trespass test to the Fourth Amendment search inquiry, United States v. Jones (2012) and Florida v. Jardines (2013) supplemented the Katz privacy test with a property-based trespassory inquiry. Jones asks courts to consider whether police have physically trespassed on a personal effect with an investigatory purpose, and Jardines asks courts to consider whether police have engaged in an unlicensed physical intrusion into a constitutionally protected area, such as the curtilage of a home. This Note addresses one area of doctrinal uncertainty in the wake of Jones and Jardines: garbage pulls, a practice the Supreme Court found in California v. Greenwood (1988) did not constitute a Fourth Amendment search where garbage awaits collection on the curb.

This Note assesses the status of garbage pulls under the physical trespass test. First, it argues that under Jones, household garbage could qualify as an effect because of its status as personal property and its close connection to domestic intimacy. Second, it presents arguments that under Jardines, police likely exceed the boundaries of the implied license by entering the curtilage of a home to seize or investigate garbage. Here, the Note highlights a series of federal and state appellate court decisions that have historically dismissed the importance of the curtilage in cases involving garbage pulls. Ultimately, this Note demonstrates how the physical trespass test as articulated in Jones and Jardines could significantly restrict the permissible scope of garbage pulls.

Keywords: Fourth Amendment, garbage, garbage search, garbage pull, curtilage, effects, Jardines, physical trespass test, search and seizure

Suggested Citation

Russo, Tanner, Garbage Pulls Under the Physical Trespass Test (October 28, 2019). Virginia Law Review, Vol. 105, No. 6, 2019. Available at SSRN:

Tanner Russo (Contact Author)

United States Court of Appeals - First Circuit ( email )

United States

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