Issue 6

Garbage Pulls Under the Physical Trespass Test

By reintroducing the physical trespass test to the Fourth Amendment search inquiry, United States v. Jones (2012) and Florida v. Jardines (2013) supplemented the Katz privacy test with a property-based trespassory inquiry. Jones asks courts to consider whether police have physically trespassed on a personal effect with an investigatory purpose, and Jardines asks courts to consider whether police have engaged in an unlicensed physical intrusion into a constitutionally protected area, such as the curtilage of a home. This Note addresses one area of doctrinal uncertainty in the wake of Jones and Jardines: garbage pulls, a practice the Supreme Court found in California v. Greenwood (1988) did not constitute a Fourth Amendment search where garbage awaits collection on the curb.

This Note assesses the status of garbage pulls under the physical trespass test. First, it argues that under Jones, household garbage could qualify as an effect because of its status as personal property and its close connection to domestic intimacy. Second, it presents arguments that under Jardines, police likely exceed the boundaries of the implied license by entering the curtilage of a home to seize or investigate garbage. Here, the Note highlights a series of federal and state appellate court decisions that have historically dismissed the importance of the curtilage in cases involving garbage pulls. Ultimately, this Note demonstrates how the physical trespass test as articulated in Jones and Jardines could significantly restrict the permissible scope of garbage pulls.

Standing to Challenge the Lost Cause

In this Note, I contest the constitutionality of the public Confederate symbols that are pervasive throughout the South. Just months before the Charlottesville “alt-right” rally protesting the removal of a Confederate monument, the Fifth Circuit held that a plaintiff challenging the constitutionality of the Mississippi flag, which contains the Confederate battle flag in its top left corner, lacked standing. The decision prevents courts from remedying the unconstitutional harms inflicted by Confederate memorialization. It is particularly consequential in communities like Hanover County, Virginia, in which most residents are white and favor keeping Confederate symbols in two public schools: Stonewall Jackson Middle School, Home of the Rebels, and Lee-Davis High School, Home of the Confederates. I argue that courts should utilize the coercion test from Establishment Clause doctrine to analyze the harms caused by racially discriminatory government speech, satisfying Article III standing requirements. I further argue that the coercion test is particularly useful when applied to racially discriminatory government speech by public school boards, like in Hanover County, because the heightened harmful effects of Confederate symbolism on children mirror those of religious coercion.

Insincere Evidence

Proving a violation of law is costly. Because of the cost, minor violations of law often go unproven and thus unpunished. To illustrate, almost everyone drives a little faster than the speed limit, but rarely are we ticketed for doing so. Failure to enforce the law against minor infractions is justifiable from a cost-benefit perspective. The cost of proving a minor violation—for example, that a driver broke the speed limit by one mile per hour—outstrips the benefit. But systemic non-enforcement has the downside of underdeterrence. People drive a little too fast, pollute a little too much, and so on.

This Article explores how insincere rules, meaning rules that misstate lawmakers’ preferences, might reduce proof costs and improve enforcement. To demonstrate the argument, suppose lawmakers want drivers to travel no more than 55 mph. A sincere speed limit of 55 mph may cause drivers to go 65 mph, while an insincere speed limit of 45 mph may cause drivers to drop down to, say, 60 mph—closer to lawmakers’ ideal. Insincere rules work by creating insincere evidence. In the driving example, the reduction in proof costs achieved by an insincere rule is akin to adding an artificial 10 mph to the reading of every radar gun.

The logic of insincere evidence is not confined to speed limits. The conditions necessary for insincerity to work pervade the legal system. We distinguish insincere evidence from familiar concepts like over-inclusive rules, prophylactic rules, and proxy crimes. We connect insincere evidence to burdens of persuasion, showing how it can offset the effects of higher burdens. Finally, we consider the normative implications of insincere evidence for trials, truth, and law enforcement.

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