UPDATES & ANALYSIS

Iowa Legislature may enact statute declaring curbside trash to be ‘abandoned property’, Iowa Supreme Court holds

by Rox Laird | June 19, 2025

The Iowa Supreme Court held in 2021 that police could not conduct warrantless searches of trash set out for collection in communities that prohibit scavenging on the grounds that such property was not yet considered “abandoned” property that could be subject to a warrantless search. In response, the Iowa Legislature enacted a statute declaring that trash set at the curb is to be considered abandoned property.

As a result, warrantless searches that had been barred by the 2021 decision under the Iowa Constitution’s equivalent of the Fourth Amendment are now lawful, the Court held in a decision handed down June 13. The decision was written by Justice Thomas Waterman and joined by all members of the court except Justice Matthew McDermott, who dissented.

The Court recently summarized its 2021 decision in State v. Wright, saying that in the portions of the opinion supported by the majority, “this court decided: (1) that the defendant had not abandoned the garbage because a local ordinance prohibited anyone from taking or collecting any solid waste which has been put for collection ‘unless such person is an authorized solid waste collector,’ … (2) that the officer committed a trespass because he violated this ordinance, … and (3) that the officer also violated the defendant’s reasonable expectations of privacy because the defendant had a reasonable expectation of privacy based on the ordinance ….”

Local ordinances such as the one cited in Wright were “effectively preempted” by the enactment of Iowa Code Section 808.16(3), which provides that garbage placed outside a person’s residence for waste collection in a publicly accessible area is deemed abandoned property, the Court held.

“No longer may local antiscavenging ordinances support a finding that garbage placed outside defendants’ property for collection is not yet abandoned,” Justice Waterman wrote. “No longer may defendants claim that an officer conducting a trash pull has committed a trespass. And no longer may defendants claim a reasonable expectation of privacy in discarded trash.”

The Court said, however, that while Section 808.16(3) declaring trash abandoned property is constitutional, it did not address the remaining provisions of Section 808.16, “which in our view are severable.”

And, in a footnote, the Court added: “We adhere to the constitutional avoidance doctrine and refrain from addressing the constitutionality of the remaining language in Iowa Code section 808.16(3), which declares that such garbage ‘shall not be considered to be constitutionally protected papers or effects of the person.’ That assertion logically follows abandonment, but it is our role, not the legislature’s, to determine the constitutional protection afforded to papers and effects. That language is severable.”

Nor did the Court overrule its 2021 decision in Wright. “The State urges our court to decide this appeal by harmonizing Iowa Code section 808.16 with Wright,” Justice Waterman wrote. “We have resolved the appeal on that basis. We therefore do not reach the State’s alternative argument that Wright should be overruled if section 808.16(3) cannot be harmonized with Wright.”

In his dissenting opinion, Justice McDermott wrote that he would hold that the warrantless trash search in this case violated Article I, Section 8 of the Iowa Constitution.

Justice McDermott said the majority failed to recognize the Court’s second rationale in Wright that there is a reasonable expectation of privacy on one’s trash apart from the protection afforded by an anti-scavenging ordinance. “We concluded that people maintained a reasonable expectation of privacy in their trash left out for collection and held that the officer’s warrantless search thus violated the constitution under this rationale too.”

On the question of abandonment, Justice McDermott wrote that in deciding whether someone has abandoned property, the question is whether the abandonment was voluntary. “Because people have little choice but to put their trash out for municipal collection, I find the element of voluntariness generally lacking with residential trash.”

Abandonment does not necessarily involve a voluntary relinquishment, he wrote. “When residents set out their trash, the situation is more akin to a conveyance than an abandonment because there is one intended recipient for the trash: the trash collector. At a minimum, people maintain ownership over the trash until the intended recipient (the trash collector) claims it.”

Tags: Iowa Supreme Court 2024-25