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Montana Supreme Court justice warns Orwell's 1984 has arrived

August 5, 2005 12:13 PM PDT
Believe it or not, it's perfectly legal for police to rummage through your garbage for incriminating stuff on you -- even if they don't have a warrant or court approval.
The Supreme Court of Montana ruled last month that police could conduct a warrantless "trash dive" into the trash cans in the alley behind the home of a man named Darrell Pelvit. The cops discovered pseudoephedrine boxes -- a solvent with uses including the manufacture of methamphetamine -- and Pelvit eventually ended up in prison.

Pelvit's attorney argued that his client had a reasonable expectation of privacy in his trash, but the court rejected the argument and said the trash was, well, meant to be thrown away.

What's remarkable is the concurring opinion of Montana Supreme Court Justice James C. Nelson, who reluctantly went along with his colleagues but warned that George Orwell's 1984 had arrived. We reproduce his concurring opinion in full:

Justice James C. Nelson concurs.

I have signed our Opinion because we have correctly applied existing legal theory and constitutional jurisprudence to resolve this case on its facts.

I feel the pain of conflict, however. I fear that, eventually, we are all going to become collateral damage in the war on drugs, or terrorism, or whatever war is in vogue at the moment. I retain an abiding concern that our Declaration of Rights not be killed by friendly fire. And, in this day and age, the courts are the last, if not only, bulwark to prevent that from happening.

In truth, though, we are a throw-away society. My garbage can contains the remains of what I eat and drink. It may contain discarded credit card receipts along with yesterday's newspaper and junk mail. It might hold some personal letters, bills, receipts, vouchers, medical records, photographs and stuff that is imprinted with the multitude of assigned numbers that allow me access to the global economy and vice versa.

My garbage can contains my DNA.

As our Opinion states, what we voluntarily throw away, what we discard--i.e., what we abandon--is fair game for roving animals, scavengers, busybodies, crooks and for those seeking evidence of criminal enterprise.

Yet, as I expect with most people, when I take the day's trash (neatly packaged in opaque plastic bags) to the garbage can each night, I give little consideration to what I am throwing away and less thought, still, to what might become of my refuse. I don't necessarily envision that someone or something is going to paw through it looking for a morsel of food, a discarded treasure, a stealable part of my identity or a piece of evidence. But, I've seen that happen enough times to understand--though not graciously accept--that there is nothing sacred in whatever privacy interest I think I have retained in my trash once it leaves my control--the Fourth Amendment and Article II, Sections 10 and 11, notwithstanding.

Like it or not, I live in a society that accepts virtual strip searches at airports; surveillance cameras; "discount" cards that record my buying habits; bar codes; "cookies" and spywear on my computer; on-line access to satellite technology that can image my back yard; and microchip radio frequency identification devices already implanted in the family dog and soon to be integrated into my groceries, my credit cards, my cash and my new underwear.

I know that the notes from the visit to my doctor's office may be transcribed in some overseas country under an out-sourcing contract by a person who couldn't care less about my privacy. I know that there are all sorts of businesses that have records of what medications I take and why. I know that information taken from my blood sample may wind up in databases and be put to uses that the boilerplate on the sheaf of papers I sign to get medical treatment doesn't even begin to disclose. I know that my insurance companies and employer know more about me than does my mother. I know that many aspects of my life are available on the Internet. Even a black box in my car--or event data recorder as they are called--is ready and willing to spill the beans on my driving habits, if I have an event--and I really trusted that car, too.

And, I also know that my most unwelcome and paternalistic relative, Uncle Sam, is with me from womb to tomb. Fueled by the paranoia of "ists" and "isms," Sam has the capability of spying on everything and everybody--and no doubt is. But, as Sam says: "It's for my own good."

In short, I know that my personal information is recorded in databases, servers, hard drives and file cabinets all over the world. I know that these portals to the most intimate details of my life are restricted only by the degree of sophistication and goodwill or malevolence of the person, institution, corporation or government that wants access to my data.

I also know that much of my life can be reconstructed from the contents of my garbage can.

I don't like living in Orwell's 1984; but I do. And, absent the next extinction event or civil libertarians taking charge of the government (the former being more likely than the latter), the best we can do is try to keep Sam and the sub-Sams on a short leash.

As our Opinion states, search and seizure jurisprudence is centered around privacy expectations and reasonableness considerations. That is true even under the extended protections afforded by Montana's Constitution, Article II, Sections 10. and 11. We have ruled within those parameters. And, as is often the case, we have had to draw a fine line in a gray area. Justice Cotter and those who have signed the Opinion worked hard at defining that line; and I am satisfied we've drawn it correctly on the facts of this case and under the conventional law of abandonment.

That said, if this Opinion is used to justify a sweep of the trash cans of a neighborhood or community; or if a trash dive for Sudafed boxes and matchbooks results in DNA or fingerprints being added to a forensic database or results in personal or business records, credit card receipts, personal correspondence or other property being archived for some future use unrelated to the case at hand, then, absent a search warrant, I may well reconsider my legal position and approach to these sorts of cases--even if I have to think outside the garbage can to get there.

I concur.

Vanishing Point: How to Disappear in America 05.Aug.2005 16:41

Fredric L. Rice frice@skeptictank.org

The Judge is so correct in all aspects of his Opinion.


That URL contains a living document titled, "Vanishing Point: How to Disappear in America" and it was started as the result of an anonymous upload to The Skeptic Tank. Within the Vanish document there's discussions about people's purchasing habits being used to track or otherwise locate people who the government might want to locate.

The Montana Judge notes that "discount cards" are used to track people to their purchases however data processing speeds and other technologies make tracking people by their purchases without cards an acceptable probability; purchasing habits can narrow down possible cities of where wanted individuals are likely to be residing after they go underground or attempt to disappear, and it's predicated on what they buy.

I'm a vegitarian, I purchase a lot of hot sauce, I like habenero chilies, corn tortillas, Morning Star "Griller" fake meat, sunflower seeds. I don't purchase diapers, tobacco, beer, wine, newspapers, dog food. I pucrhase camp stove fuel, water resistant matches, candle wax. I don't purchase tea, milk, cheese, eggs, lawn furniture, white bread.

At the end of the day, a tally of data flowing into any system registering purchases of 300 million Americans could yield a couple of thousand possible cities where Fredric L. Rice might be residing based on my known, observed purchases -- some information of which is yielded through my trash (though I shred and burn a great deal of my papet trash.)

Geographically the locations of 1000 likely cities can easily be narrowed down by other known or suspected information about me: I won't live in large cities, near factories, near airports. As further information is applied, the number of suspect cities declines and eventually one or two most likely grocery stores which have someone with my purchasing habits, my usual dollar amounts spent, my time it takes to shop (shopping backets are having RFID installed to track how long consumers spend in each isle in front of what products) and eventually a probability figure yields what day I'll shop, and where.

It's going to happen. The only thing keeping it fdrom happening now is the probability factors yielding far too many false positives that it would take a _really_big_ motivation for some government agency to check all the likely stores where a buyer over the course of a period of time yields a reasonable liklyhood of being the main store that provides a wanted individual with his or her goods.

Wrong 06.Aug.2005 03:13


Not "a _really_big_ motivation".
Just a bored spook with access to a free-to-him government computer.

Terrorism is not about finding dangerous people.
It is about finding people who can be made to look dangerous.

Create secret networks of thousands of databases.
Ask enough random questions.
Somebody will match.

Nelson has defended civil liberties quite a bit.... 06.Aug.2005 10:30


This isn't the first time I have heard about Justice Nelson.

Here are a few other cases that have had a dramatic effect on civil liberties in this
country that Nelson authored.

Gryczan vs. The State of Montana

Found anti-sodomy laws (homophobic laws) unconstitutional. Pretty much the first
state to do so. YEH MONTANA!

The State vs. Siegal

Found that if the police where going to use thermal imaging equipment it constitued a seach and therefor
required a warrent. Years latter the US supreme court agreed in Kyllo vs. U.S.

Quotes from:

Yours, Mine or Ours: Legal Issues Related to Genetic Testing


Hon. James C. Nelson
Justice, Montana Supreme Court

....Not unlike mankind's entry into the atomic age, we are now poised on the cusp of having to assimilate and manage technologies and knowledge that are increasing exponentially. We are unlocking the recipe of existence--the basis for life itself. And the challenge we must meet is dealing with the power of those technologies and knowledge in an ethically and socially responsible manner. Mankind blundered on to the stage of atomic energy and, in the process, we quickly constructed the implements to end life on earth. Our technology and knowledge out-paced our ability to manage it. It happened in our lifetimes; it can happen again....

justice 30.Dec.2007 21:11

Roberto Thomas

Justice Nelson has again and again stuck up for private citizens cilvil liberties unlike some of the other Mt justices. He is to be commended for his courage and wisdom!