D.C. inspectors have been conducting surprise searches on offices, rifling through waste cans and garbage looking for violations of recycling laws. In the process, they are looking through papers with may have protected or privileged information, including material from legal and medical offices.

Under D.C. law, inspectors are allowed to enter nonresidential buildings without a warrant to “inspect and investigate an allegation about a nuisance.” This language would suggest that an allegation should proceed the search, but the inspectors appear to be making spot searches and not complying with the requirement that such searches occur only “consistent with constitutional safeguards.”

One such search occurred of a legal office, where protected material may have been present. A newspaper office was also searched. One can easily imagine the use of such searches to get around protections under the first, fourth, and sixth amendments.

Administrative or code searches can occur without warrant according to the Supreme Court. In New York v. Burger, allowed warrantless administrative search of regulated industry (1) there is a substantial state interest behind the regulatory scheme; (2) the search is necessary to further that scheme; and (3) the authorizing statute is an adequate substitute for the warrant in giving notice to owners and limiting the discretion of those conducting the search. Burger applies to heavily regulated industries.

Such searches are routinely allowed but can trigger the fourth amendment protections. In Camara v. Municipal Court, 387 U.S. 523 (1967), the Supreme Court ruled that an inspector may have to secure a warrant if consent is denied for a search.

In this case, the recycling police appear to be looking through garbage that could reveal privileged or protected information.

In my view, the material in these offices retain some protection even if they are in trash cans. In California v. Greenwood, here, the Supreme Court held that trash at the curb does not retain an expectation of privacy and thus is not protected by the warrant clause of the Fourth Amendment. However, this transformation occurred when the individual released possession and control over the material and placed it into a public space. That is not the case in an office before it is actually released into a public disposal area.

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