Surprise! Breitbart and Big Government don't know how the law works

Blog ››› ››› ERIC BOEHLERT

This is getting to be an embarrassing habit. Right-wing activist Andrew Breitbart has already shown us he doesn't know what a "hate crime" is," and that he doesn't understand what "blackmail" means. And now, apparently he can't read Supreme Court rulings.

Breitbart's been wildly (over) hyping a batch of ACORN documents that a San Diego private investigator (and failed GOP candidate) by the name of Derrick Roach stuffed into his car one night back in October. Roach got the docs after a dumpster dive behind ACORN's office. Breitbart has been claiming the latest ACORN installment is Watergate-meets-the-Lindbergh-kidnapping in terms of blockbuster news, even though, to date, his site hasn't produced the goods yet on San Diego, which is why the story's gone nowhere.

But in a recent post, note how Big Government pushed back against claims that the ACORN docs may have been obtained illegally; a claim that California AG's Jerry Brown seemed to endorse. Here's how Breitbart's site defended the charge [emphasis added]:

At age 71, California's top cop and erstwhile Gov. Moonbeam might benefit from a refresher course in current law. Attorney General Brown cited a case from the 1960's where items placed in the garbage were considered private; however, in 1988 the United States Supreme Court ruled in a case, California v. Greenwood, 486 U.S. 35 (1988), that there was no expectation of privacy when items are thrown in the garbage since it is common knowledge that plastic garbage bags are readily accessible to animals, children, scavengers, snoops, and other members of the public. As for the local National City ordinance prohibiting scavenging through garbage that the ACORN office and its supporters cite, that law was enacted in 1984 and was nullified by the United States Supreme Court ruling just four years later.

Breitbart's Big Government pointed to a 1988 Supreme Court ruling to suggest that everything Roach did in obtaining the ACORN docs was okay.

Not quite.

From CALIFORNIA v. GREENWOOD, 486 U.S. 35 (1988):

Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. See Krivda, supra, at 367, 486 P.2d, at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage "in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it," United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.

Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Hence, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."

The 1988 ruling clearly dealt with garbage disposed "on or at the side of a public street." And today, Breitbart's Big Government claims that that decision means their actions were legit. But where did Big Government obtain the ACORN documents? Did they come across them in garbage bags that "could have been observed by any member of the public" and "left on or at the side of a public street"? Were the documents "knowingly expose[d] to the public"?

Of course not. According to Big Government's own telling of the tale, the docs were taken, under the cover of night, from a dumpster located behind ACORN's San Diego office. In fact, here's the photo Big Government posted showing the dumpster in question. And yes, the dumpster was caged:

In 1988, the Supreme Court ruled there was no claim to privacy regarding garbage bags placed on the side of a public curb from pick-up. Today, Breitbart says that law pertains to them, even though Big Government's docs were taken from a caged dumpster; a dumpster that Breitbart even concedes was located not on the side of a public curb, but "behind ACORN in San Diego."

And get this: Roach himself even admits that he drove by a no trespassing sign to get to the ACORN dumpster!

UPDATED: Big Government itself has referred to the San Diego document retrieval as a "dumpster dive." Obviously, the 1988 Supreme Court ruling did not concern itself with late-night dumpster dives into caged containers located beyond a no trespassing sign.

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