Searching trash put out for the garbage collector without a warrant may not violate the 4th Amendment, but an Oregon judge finds that under Oregon's stricter constitution, it's not acceptable without a warrant. A few rules apply: You have to put your trash out in your own bin, not a collective bin in which it is comingled with other people's garbage. And it can't be in a transparent bag. If in a garbage can, it should be covered to visually conceal its contents.

"A Multnomah County, Oregon judge threw out felony drug charges against Portland Officer Gina Hoesly, ruling Tuesday that police unlawfully rifled through her garbage in March. "

"Circuit Judge Jean Kerr Maurer said Hoesly did not abandon her garbage when she placed her filled 32-gallon trash can, covered with a lid, outside her home for collection. The so-called police "garbage pull," conducted without a warrant, violated her rights under Article 1, Section 9 of the Oregon Constitution, Maurer said. "

"The defendant did not abandon all of her possessory and privacy rights," Maurer said. "I am finding that the search was unlawful. I am likewise suppressing the evidence."

"Maurer stressed that her ruling was a narrow opinion based on the facts of Hoesly's case, in which her metal garbage can -- opaque, covered with a lid and contained -- was placed outside her house for collection. Her opinion, she said, does not extend to community garbage bins or disposal of trash in transparent plastic bags or open containers. "

"Maurer's ruling marks the second trial court decision in Oregon this year knocking down a warrantless police garbage pull as unconstitutional. On May 16, a Columbia County judge threw out evidence that a multi-agency narcotics team obtained from a similar garbage pull in a marijuana grow case. "

The state plans to appeal both rulings. Until then, the cops in these two jurisdictions aren't happy but they are going to abide by the new rules.

A little more about the defendant police officer:

"As Maurer announced in court that she was granting the defendant's motion, Hoesly quietly turned to her lawyer, Stephen Houze, and mouthed, "Does that mean we won?"

"Houze nodded, and a wide grin spread across Hoesly's face. Hoesly, 34, is a 12-year veteran of the Police Bureau who has been out of work since May 2000 on a disability claim. She was indicted in June on one count of first-degree possession of a controlled substance and six counts of second-degree possession of a controlled substance. "

"The garbage pull turned up "minute trace" amounts of cocaine and methamphetamine on what police call short "snort straws," methamphetamine from a plastic bag and marijuana from a pipe and jar. Police also removed a tampon from the trash, which tested negative for drug residue or semen but gave police Hoesly's DNA profile."

"Mark McDonnell, a Multnomah County senior deputy district attorney, argued that Hoesly, like the suspect named Purvis in the another case, had
"abandoned" her trash and lost her "reasonable expectation of privacy" once she placed it on the sidewalk in a public right of way."

"But Maurer identified several factors that distinguished Hoesly's case from the Purvis case, noting that the renter of the hotel room left the trash in plain sight, did not try to conceal it and left it in a location that was not his but rented temporarily. Hoesly's garbage, in contrast, was covered with a lid."

"The steps she took by purchasing a metal container with its lid fitted to its top reasonably suggests that she intended that its contents be seen only by the employees of the garbage company with whom she had contracted to collect her waste," Maurer wrote. "It is not reasonable to conclude on these facts that she abandoned all rights to the property."

Many state constitutions offer stricter privacy protection than the federal 4th Amendment counterpart. We pass the ruling along in hopes of getting more state courts to rule this way.

Robert Prather of Neolibertarian News Portal defends the writ of Habeas Corpus today. Thanks, Robert!

A few bloggers (see Bo Cowgill, for example, who graciously has posted a clarifying addendum) thought our post on who's to blame for allowing our civil liberties to be infringed upon labeled Bill Clinton as an enemy of the Consitution. Not so.

Just to set the record straight, we admire Clinton. We voted for him, we wish he were president now and we'd vote for him again. What we criticized were his and his administration's policies on civil liberties, privacy and criminal justice--admittedly, areas of great importance to us.

We didn't say and we don't believe that Clinton was "an enemy of the Constitution. " We said he was too centrist and not liberal enough for us on privacy issues like wiretapping and on criminal justice issues. But we also pointed out that we admired his accomplishments in other areas.

We were striving to make a point with our criticism--the point being that it's the centrists we need to watch out for when it comes time for democrats to nominate a presidential candidate for 2004-- they are the real danger. Clinton was centrist in these areas, as is Bush (if he were a true conservative, he'd support privacy rights.) The left (among them the ACLU and many criminal defense lawyers) and the libertarians and the right have more respect for civil liberties and privacy rights than do centrists.

The right continues to lack credibility in areas other than privacy issues. For example, they are simply medieval in their views on crime--they always want to punish longer and lock more people up while refusing to address the root causes of crime or make an attempt to reduce recidivism through rehabilitation and treatment. With Clinton, drug offenders got overly harsh ten year mandatory minimum sentences, but if it were up to Bob Barr or Newt, they'd all be getting life--if not death.

We think the Democratic party needs to return to its true liberal roots of decades ago and the values our parents and grandparents embraced. Like individual freedom and privacy, fair treatment of immigrants, meting out just but not excessive sentences while stressing rehabilitation--and providing every child with an equal opportunity to succeed.

Update: Kip Manley over at Long Story, Short Pier goes further with the left/right distinction and asks, Would people support the same powers in the hands of a Democratic administration?

Law Professor Jeff Cooper of Cooped Up makes an eloquent case for the righteousness of last week's federal court ruling in Glassroth v. Moore banning a monument to the Ten Commandments in an Alabama Courthouse. The decision was written by U.S. District Court Judge Myron H. Thompson and held that the Ten Commandments monument in the Alabama Judicial Building violates the establishment clause and must be removed.

Jeff distinguishes this case from the one earlier this year involving the Pledge of Allegiance. He argues that we cannot accept political expediency or backlash as a justification to abdicate from the clear meaning of such a central provision of the Bill of Rights:

"The monument in question is newly-installed, at the instigation and under the authority of the Chief Justice of the Alabama Supreme Court. And Chief Justice Moore made it clear, in his public statements and in his trial testimony, that his purpose in placing the monument prominently in the courthouse rotunda was to acknowledge the sovereignty of God—the Judeo-Christian God—over the state. As such, Chief Justice Moore's actions represented a clear and powerful governmental endorsement of a particular family of religions. They amount to a frontal assault on the Supreme Court's establishment clause jurisprudence by the most prominent judicial officer in the state."

"There are growing forces seeking to advance a radically different vision of the First Amendment than the one that currently prevails in Supreme Court jurisprudence and to bar contrary voices from the courts. Chief Judge Moore's monument is an important part of this effort. Here we have a religious document, prominently placed in an important government building, for an express religious purpose. If the establishment clause is to retain meaning beyond barring government endorsement of one particular Christian denomination, this action cannot be allowed to pass unchallenged. "

For those who haven't looked at the First Amendment lately, since it has become a daily staple of the media, we thought we'd reprint it:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances

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"Son of Sam" laws prohibit criminals from receiving payments for their stories. The Supreme Court ruled in 1991 that the laws violate protected speech under the First Amendment.

California thought its law, enacted in 1983 and later revised, passed constitutional muster. The state courts disagreed and today the Supreme Court let stand the state court's ruling that the ban is unconstitutional.

"The U.S. Supreme Court let stand on Monday a ruling that a law that bars felons from cashing in on their crime stories violates free-speech rights, in a case stemming from Frank Sinatra Jr.'s 1963 kidnapping."

"The justices declined to review a California Supreme Court ruling that struck down as unconstitutional the law that requires convicted criminals to give all money earned from book, movie or other deals to their victims or to the state."

"The Supreme Court last addressed the issue in 1991, when it unanimously ruled that a New York law that bans payments to accused or convicted criminals for books about their crimes violates the First Amendment."

"The New York law was known as the "Son of Sam" law because it was adopted after disclosures that serial killer David Berkowitz had been offered large sums of money for the rights to his story. It was the nation's first such law."

Calling them "America's Funniest Home Constitutional Interpretations," SouthKnoxBubba reprints some of Attorney General John Ashcroft's remarks on the extent of the President's constitutional powers ...and on the limits on the powers of Congress.

Professor Jeff Cooper of Cooped-Up responds to Lean Left's inquiry on how Law Professors Glenn Reynolds, Jeff Cooper and TalkLeft would respond to the White House Lawyers' conclusion that the President can invade Iraq without prior approval of Congress.

We're flattered to be included in this intellectual group and will try to respond soon. In the meantime, please read Professor Cooper's detailed response, it's excellent. It concludes:

"A straightforward consideration of the Constitution and prior resolutions of Congress, then, suggests that the administration needs to obtain congressional approval before initiating a war against Iraq. A clever lawyer, no doubt, could formulate counterarguments in support of presidential action without congressional approval. But on a matter as serious as war, it would be inappropriate to rely on clever lawyering rather than an act of Congress.

The Wall Street Journal Online is running a poll today where you can vote and post comments on the question:

Should a jury be able to reject laws it considers unjust?

Hamster today takes us to YellowTimes.Org and Political Science 101: Shredding the Magna Carta by John Brand. John Brand is "a Purple Heart, Combat Infantry veteran of World War II. He received his Juris Doctor degree at Northwestern University and a Master of Theology and a Doctor of Ministry at Southern Methodist University. D.Minn."

Dr. Brand includes the following:

"A benumbed Congress passed the USA Patriot Act the month following 9/11.

Many clauses of this Act deny constitutional rights. Under a Supreme Court guided by Constitutional principles rather than dogmatic ideologies, the Act would most likely be adjudged unconstitutional but with our current Supreme Court, all bets are off.

The fact that this administration would not think twice to deny civil liberties to citizens who stand in the way of its agenda is not earthshaking news - it is troublesome news, but not totally unexpected, since it does not seem to be out of character for this administration. After all, the appointment of an Attorney General who takes his marching orders from the moralism of his personal religion rather than the Constitution also foreshadows the direction of things to come."

The only thing we can think of to add is the online link to the Magna Carta--it doesn't seem to make the news much anymore.

Ruling that the Florida state consitution provides more stringent standards than its federal counterpart, a Florida judge today struck down the states' voucher law.

The Judge held that the Florida Constitution is "clear and unambiguous" in preventing public money from going to churches or other "sectarian institutions."

Instapundit has a long, very cerebral post on the 9th Amendment, of which he says he is a big supporter. That got us thinking about our position.

For those of you who haven't focused on this Amendment in a while, it's the one near the end of the Bill of Rights that says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

One of the early and central issues raised by the Amendment was does the 9th Amendment actually grant rights or does it only protect us from having them taken away by the Government?

Using the 9th Amendment, the Supreme Court found its way to declaring a constitutional right to privacy in Griswold v. Connecticut. That didn't sit well with those on the right.

But they got their due with the Senate's rejection of Robert Bork as a Supreme Court Justice. Bork, once a supporter of 9th Amendment rights, switched horses at his confirmation hearing and claimed the 9th Amendment was unimportant and Griswold was wrongly decided. He said there was no right to privacy in the Constitution.

Moderate New York Democratic Senator Daniel Patrick Moynihan explained his decision to vote against Bork by saying that "it is his restricted vision of privacy which troubles me most. I cannot vote for a jurist who simply cannot find in the Constitution a general right of privacy.... Its importance is such that I cannot support anyone for a Supreme Court appointment who would not recognize it" (Congressional Record, 1987:14011-12).

Things quieted down for the 9th Amendment for a while, or perhaps it just seems that way since we haven't been following it. In any event, its getting play now.

The 9th Amendment is being used as a litmus test at new judge confirmation hearings--and even at the candidate selection stage. Current chief Jeb Bush legal counsel (and Former Florida Rep) Charles Canady flat out asked candidates about their views on the Ninth Amendment during state judicial selection interviews in Florida a few months back. (Broward Daily Business Review February 7, 2002 )

We have no problem with this at the confirmation hearings. We want to know whether a judicial nominee is likely to become an activist and improperly assert their private beliefs in their judicial decisions. We want Judge Prisiclla Owens to be questioned on her anti-abortion views.

The 9th Amendment is also used in other arguments---to argue for (and against) gay rights legislation; to argue for the right to use drugs and the right to be free from intrusion into one's personal computer files and email at work; and as a basis to recover for civil rights violations in racial-profiling cases. It's also been relied on heavily by Second Amendment supporters. We can't cite any great judicial wins based on it though. (If you can, feel free to note them in the comments section.)

So while we don't think the 9th Amendment is likely to result in any critical criminal rulings in the near future, we're going to keep an eye on it anyway.

Robert A. Levy, Senior Fellow at the Cato Institute explains in Bearing Arms in D.C. why the gun laws in the District of Columbia are likely to present the first test case before the U.S. Supreme Court on the Second Amendment and the individual's right to bear arms since 1939.

We found the article, which is described as commentary, very informative, easy to follow and thorough.