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New section:
§ 13.10. Reasonable expectation of privacy in shredded
trash
VOLUME 1
Chapter 1 Introduction
Chapter 2 The reasonable expectation of
privacy
Chapter 3 Probable cause
Chapter 4 History and purpose of
the exclusionary rule
Chapter 5 Applying the exclusionary
rule
Chapter 6 Standing to object to
a search
Chapter 7 The fruit of the poisonous tree doctrine
Chapter 8 Consent searches
Chapter 9 Plain view, hearing, smell,
and touch
Chapter 10 Open fields
§ 10.4, Add fn. 30.1 to section heading:
Brendan Peters, Fourth Amendment Yard
Work: Curtilages's Mow-Line Rule, 56 Stan. L. Rev. 943 (2004).
Chapter 11 Searches in other
areas
Chapter 12 Private searches
Chapter 13 Abandonment
§ 13.9 n. 122
This is now covered in new § 13.10.
§ 13.10. Reasonable expectation of privacy in shredded
trash [New] [fn123]
Shredding of personal documents is promoted
on television advertizements[fn124] as a secure method of protecting
oneself from identity theft. There are two types of personal or
small office shredders, strip and confetti.[fn125] (Strip cut shredders
are essentially useless and create a false sense of security because
the documents can be put back together, as will be seen below.)
Commercial shredders include these types and also microcut
that cut the paper into even smaller confetti and disintegrators
that effectively convert the paper to pulp. Mobile
shredder companies will come to the source of the paper,
shred or disintergrate it, and carry it off for disposal in a secure
vehicle.[fn126] Businesses shred documents to prevent industial
or commercial espionage,[fn127] and law firms do it to protect confidentiality.
It has become a big business.[fn128]
One would think that on the surface that
shredding would satisfy the Katz[fn129] requirement that
the person shredding the document "exhibited an actual (subject)
expectation of privacy" and that "the expectation be one that society
is prepared to recognize and 'reasonable.'"[fn130] The cases thus
far do not support such a conclusion, and logically so, because
the shredded or torn papers were reclaimable, as in United States
v Scott,[fn131] and United States v Hall.[fn132] As
far as they go, one cannot really quarrel with those cases because
the person shredding the document did not shred it completely enough
to prevent it from being put back together again, and, thus, did
not exhibit an actual expectation of privacy. It may have been subjective,
but not to the degree that society would recognize as reasonable
if a government agent with enough time on his or her hands could
put the pieces back together again.
So, what is the practical effect? The cases
draw for us the line of demarcation: if the government can put it
back together, there is no reasonable expectation of privacy under
Katz. If the government can't, there will be no issue to
even litigate because the document was not used against the person
shredding it in the first place. Thus, it is submitted that the
shredded document cases are really just a matter of the defendant
being too cheap to get an adequate shredder or hire a commercial
shredder to make it impossible for the government to put the pieces
back together again.[fn133] It should be noted, however, that there
is computer software available to aid in shredded document reconstruction.[fn134]
123. See generally Gordon
J. MacDonald, Stray Katz: Is Shredded Trash Private?
79 Cornell L. Rev. 452 (1994).
124. Almost entirely by Fellowes®,
often on CNN.
125. Fellows states that
its strip cut machines leave pieces between 1/4" and 5/32"
wide, but as long as the paper is long. The confetti cut leaves pieces
between 5/32" x 1-1/2" and 5/32" x 4/5".
Fellowes admits on its website that the strip
cut pieces provide less security. It is apparent that strip cut pieces
can be put back together, if the enough time is spent doing it. See,
e.g., Hall v Scott (1992, CA1 Mass) 975 F2d 927, 929:
"Appellee was suspected by the Internal Revenue
Service ('IRS') of involvement in a scheme to defraud the United States
through the filing of false income tax returns. IRS agents systematically
seized and combed through garbage bags left for collection in front
of appellee's house. Their search revealed numerous shredded documents
reduced to 5/32 inch strips, which when painstakingly pieced together
produced incriminating evidence. The agents then used this evidence
as the basis for establishing probable cause to request various search
warrants. The search warrants were issued and executed, and the searches
garnered additional evidence used to secure appellee's 47 count indictment
for violation of 18 U.S.C. § 287. Appellee moved to suppress the reconstructed
documents as well as the evidence seized pursuant to the search warrants.
Appellee argued that by shredding the documents he had manifested
an objectively reasonable expectation of privacy in the shredded remnants
which was protected by the Fourth Amendment, a contention that convinced
the district court."
See also United States v Hall (1995, CA11
Fla) 47 F.3d 1091, where government agents seized the shredded trash
and pieced the documents back together.
HP says in a 2002
internal report that it is possible to even link a shredded
document to a particular shredder from the cutting method (similar
to bullet markings) to the constitution of the paper dust in the shredder
bin.
126. Shred-Tech's website
(hyperlinked text) states:
"The trend [toward commercial shredding] is
fueled by fears of identity theft and 'Dumpster diving'–plumbing
competitor's trash bins for corporate secrets. Recent legislation
that requires health-care and financial institutions to protect consumer
privacy also has increased demand. Several investment banks even shred
newspapers discarded by employees, after discovering that some of
them jot down notes in margins and circle stocks... One recent entrant
to the market estimates that shredding services generate annual revenue
of about 1.5 billion..."
127. Id.
128. Id.
129. Katz v United States
(1967) 389 US 347, 351-52, 19 L Ed 2d 576, 88 S Ct 507, discussed
in Ch. 2.
130. See §§ 2.6-2.7,
discussing Katz, 367 US at 361 (Harlan, J., concurring).
131. Cited in note 125, supra.
132. Also cited in note 125,
supra.
See also the invasion of privacy case of Danai
v Canal Square Asso. (2004, DC App) 862 A2d 395, where a torn letter
was removed from trash and used in litigation. The D.C. Court of Appeals
held that there was no privacy right in a torn letter left in a common
trash bin.
133. See Back
Together Again, NY Times (July 17, 2003) (also describing
how strip shredding was abandoned by the U.S. government after documents
from the Iranian embassy were recreated in 1979).
134. http://www.naidcanada.org/conference_bio_ford.asp,
describing a Canadian conference on the software.
Chapter 15 Stop and frisk
Chapter 16 Search incident to arrest
Chapter 17 Seizure of vehicles
Chapter 18 Vehicle searches
Chapter 19 Searches and seizures
of premises
Chapter 20 Searches of offices
of lawyers, doctors, and other professionals
§ 20.7 n. 75
U.S. Attorney's Manual §
9-13.420 is unchanged. The form for U.S. Attorneys to
use in requesting authority to conduct a law office search is in
Criminal
Resource Manual 265.
U.S. Attorney's Manual §
9-13.410 governs the process for obtaining subpoenas
to lawyers.
Chapter 21 Searches involving
First Amendment Rights
§ 21.5 n. 62
U.S. Attorney's Manual §
9-13.400 also limits government activities in searching
for evidence from the news media.
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