Justice Boehm has written a pretty interesting opinion for a unanimous court in the ongoing trouble with searches of trash under Article 1, Section 11 of the Indiana Constitution: Litchfield v. State, Supreme Court No. 50S03-0408-CR-382 (Ind. March 24, 2005). The result is a little surprising: no searches of trash, even if it has been put out for collection, unless the police have Terry-type reasonable suspicion of illegal activity and the suspicion is such that evidence might reasonably be found in the trash searched.
At the same time, the fact that trash has not been put out where the public would have access does not protect it. And my only real immediate objection to the opinion on its face arises from the following snippet:
If the trash is located in the place where it is normally picked up, the trash collection agency, whether public or private, is invited onto the property to the extent necessary to gather and empty the trash. Police officers can perform the same acts with no greater intrusion.
It seems to me absolutely a greater intrusion into privacy to have the uninvited enter private property, even if it is to do what someone else has been invited to do. If I read the opinion correctly, as long as they have reasonable suspicion to justify a trash search, the police can pretty much go where they will, subject, of course, to the Fourth Amendment.
It is quite a complex opinion needs some study, especially because of the interaction, I think it creates between the Fourth Amendment and Article 1, Section 11.
Litchfield also makes quite interesting reading together with a split decision of the Court of Appeals today about a police officer walking up to a basement window, trying to discover the source of an ether odor: Holder v. State, Court of Appeals No.87D02-0306-FC-107 (Ind. Ct. App. March 24, 2005).