John Bolton’s Garbage & The Right To Privacy

Michael Schmidt has an interesting story in his new book about the scramble to learn what was in John Bolton’s unpublished book during the impeachment of President Trump, Axios reports.Writes Schmidt: “I received a call from a man I had never heard of. He said that several years earlier he had sat next to my father on a train and he had followed my work. The man said that he worked as a private investigator of sorts in the Washington area and he had been trying to figure out what Bolton had written in his book.”He continued: “A friend had told him at a Rotary Club meeting that Bolton was taking sections of his book and sending them out to friends to review and comment on.The friends were then mailing them back to him, and he was throwing them in his trash. Bolton had apparently done this because he did not want to create an electronic record of his correspondences. The man said that he had been scouting Bolton’s wife’s office and their house on the nights he put his trash out. After Bolton moved the trash onto the street, he went through it. … He said Thursday morning was trash pickup day in Bolton’s neighborhood.” In California v. Greenwood, 486 U.S. 35 (1988), the United States Supreme Court held that the warrantless search and seizure of garbage bags left at the curb would violate the Fourth Amendment only if the defendant manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable (how convoluted is that?).Although Justices Brennan and Marshall dissented, that has remained the law (mostly). Justice White, writing for the majority, did say that individual states might decide the issue differently. So perhaps John Bolton might have an expectation of privacy but I don’t know which state he lives in. In 2015, the Minnesota Supreme Court rejected an opportunity to decide that the Minnesota Constitution should afford greater privacy rights. Justice David Lillehaug wrote in his dissent, “Minnesotans have a reasonable expectation of privacy when they put their household waste in opaque bags and do what the government requires: place the bags in closed containers for collection, compaction, and conveyance to a lawful disposal site. I respectfully disagree with the majority that the Minnesota Constitution does not require a search warrant before law enforcement may seize and search such household waste… Since the 1980s, when Oquist and Greenwood were decided, the nature of household waste has changed. This is not your grandfather’s garbage. Vastly more household waste is being recycled and the digital revolution is in full flourish. For good public policy reasons, government encourages and often requires citizens to segregate and set out or deliver for recycling.”So, how would you feel if the local newspaper sent a reporter out to look at your garbage? Sound outlandish? Well, it happened in Portland, Oregon. To see the reaction go here.There is a  cynical view of the United States Supreme Court (and perhaps some state supreme courts), that in order to apply the 4th Amendment, the justices just ask, “Could this happen to me?” Well, it could—someone might just decide after searching John Bolton’s garbage it is time  to go through the justices’ garbage.

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