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December 24th, 2002 Chris Lydgate, Nick Budnick | News Stories
 

RUBBISH!

Portland's top brass said it was OK to swipe your garbage--so we grabbed theirs.

     
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It's past midnight. Over the whump of the wipers and the screech of the fan belt, we lurch through the side streets of Southeast Portland in a battered white van, double-checking our toolkit: flashlight, binoculars, duct tape, scissors, watch caps, rawhide gloves, vinyl gloves, latex gloves, trash bags, 30-gallon can, tarpaulins, Sharpie, notebook--notebook?

Well, yes. Technically, this is a journalistic exercise--at least, that's what we keep telling ourselves. We're upholding our sacred trust as representatives of the Fourth Estate. Comforting the afflicted, afflicting the comfortable. Pushing the reportorial envelope--by liberating the trash of Portland's top brass.

We didn't dream up this idea on our own. We got our inspiration from the Portland police.

Back in March, the police swiped the trash of fellow officer Gina Hoesly. They didn't ask permission. They didn't ask for a search warrant. They just grabbed it. Their sordid haul, which included a bloody tampon, became the basis for drug charges against her (see "Gross Violation," below).

The news left a lot of Portlanders--including us--scratching our heads. Aren't there rules about this sort of thing? Aren't citizens protected from unreasonable search and seizure by the Fourth Amendment?

The Multnomah County District Attorney's Office doesn't think so. Prosecutor Mark McDonnell says that once you set your garbage out on the curb, it becomes public property.

"She placed her garbage can out in the open, open to public view, in the public right of way," McDonnell told Judge Jean Kerr Maurer earlier this month. "There were no signs on the garbage, 'Do not open. Do not trespass.' There was every indication...she had relinquished her privacy, possessory interest."

Police Chief Mark Kroeker echoed this reasoning. "Most judges have the opinion that [once] trash is put out...it's trash, and abandoned in terms of privacy," he told WW.

In fact, it turns out that police officers throughout Oregon have been rummaging through people's trash for more than three decades. Portland drug cops conduct "garbage pulls" once or twice per month, says narcotics Sgt. Eric Schober.

On Dec. 10, Maurer rubbished this practice. Scrutinizing garbage, she declared, is an invasion of privacy: The police must obtain a search warrant before they swipe someone's trash.

"Personal and business correspondence, photographs, personal financial information, political mail, items related to health concerns and sexual practices are all routinely found in garbage receptacles," Maurer wrote. The fact that a person has put these items out for pick-up, she said, "does not suggest an invitation to others to examine them."

But local law enforcement officials pooh-poohed the judge's decision.

"This particular very unique and very by-herself judge took a position not in concert with the other judges who had given us instruction by their decisions across the years," said Kroeker.

The District Attorney's Office agreed and vowed to challenge the ruling.

The question of whether your trash is private might seem academic. It's not. Your garbage can is like a trap door that opens on to your most intimate secrets; what you toss away is, in many ways, just as revealing as what you keep.

And your garbage can is just one of the many places where your privacy is being pilfered. In the wake of 9/11, the U.S. government has granted itself far-reaching new powers to spy on you, from email to bank statements to video cameras (see "Big Brother's in Your Trash Can," below).

After much debate, we resolved to turn the tables on three of our esteemed public officials. We embarked on an unauthorized sightseeing tour of their garbage, to make a point about how invasive a "garbage pull" really is--and to highlight the government's ongoing erosion of people's privacy.

We chose District Attorney Mike Schrunk because his office is the most vocal defender of the proposition that your garbage is up for grabs. We chose Police Chief Mark Kroeker because he runs the bureau. And we chose Mayor Vera Katz because, as police commissioner, she gives the chief his marching orders.

Each, in his or her own way, has endorsed the notion that you abandon your privacy when you set your trash out on the curb. So we figured they wouldn't mind too much if we took a peek at theirs.

Boy, were we wrong.

Perched in his office on the 15th floor of the Justice Center, Chief Kroeker seemed perfectly comfortable with the idea of trash as public property.

"Things inside your house are to be guarded," he told WW. "Those that are in the trash are open for trash men and pickers and--and police. And so it's not a matter of privacy anymore."

Then we spread some highlights from our haul on the table in front of him.

"This is very cheap," he blurted out, frowning as we pointed out a receipt with his credit-card number, a summary of his wife's investments, an email prepping the mayor about his job application to be police chief of Los Angeles, a well-chewed cigar stub, and a handwritten note scribbled in pencil on a napkin, so personal it made us cringe. We also drew his attention to a newsletter from the conservative political advocacy group Focus on the Family, addressed to "Mr. & Mrs. Mark Kroeker."

"Are you a member of Focus on the Family?" we asked.

"No," the chief replied.

"Is your wife?"

"You know," he said, with a Clint Eastwood gaze, "it's none of your business."

As we explained our thinking, the chief, who is usually polite to a fault, cut us off in midsentence. "OK," he said, suddenly standing up, "we're done."

Hours later, the chief issued a press release complaining that WW had gone through "my personal garbage at my home." KATU promptly took to the airwaves declaring, "Kroeker wants Willamette Week to stay out of his garbage."

If the chief got overheated, the mayor went nuclear. When we confessed that we had swiped her recycling, she summoned us to her chambers.

"She wants you to bring the trash--and bring the name of your attorney," said her press secretary, Sarah Bott.

Actually, we couldn't snatch Katz's garbage, because she keeps it right next to her house, well away from the sidewalk. To avoid trespassing, we had to settle for a bin of recycling left out front.

The day after our summons, Wednesday, Dec. 18, we trudged down to City Hall, stack of newsprint in hand. A gaggle of TV and radio reporters were waiting to greet us, tipped off by high-octane KXL motor-mouth Lars Larson.

We filed into the mayor's private conference room. The atmosphere, chilly to begin with, turned arctic when the mayor marched in. She speared us each with a wounded glare, then hoisted the bin of newspaper and stalked out of the room--all without uttering a word.

A few moments later, her office issued a prepared statement. "I consider Willamette Week's actions in this matter to be potentially illegal and absolutely unscrupulous and reprehensible," it read. "I will consider all my legal options in response to their actions."

In contrast, DA Mike Schrunk was almost playful when we owned up to nosing through his kitchen scraps. "Do I have to pay for this week's garbage collection?" he joked.

We told Schrunk that we intended to report that his garbage contained mementos of his military service. "Don't burn me on that," he implored. "The Marine Corps will shoot me!"

It's worth emphasizing that our junkaeological dig unearthed no whiff of scandal. Based on their throwaways, the chief, the DA and the mayor are squeaky-clean, poop-scooping folks whose private lives are beyond reproach. They emerge from this escapade smelling like--well, coffee grounds.

But if three moral, upstanding, public-spirited citizens were each chewing their nails about the secrets we might have stumbled on, how the hell should the rest of us be feeling?

HAUL OF FAME

Decked out in watch caps and rubber gloves, we are kneeling in a freezing garage and cradling our first major discovery--a five-pound bag of dog poo.

We set it down next to the rest of our haul from District Attorney Mike Schrunk's trash--the remains of Thanksgiving turkey, the mounting stack of his granddaughter's diapers, the bag of dryer lint, the tub of Skippy peanut butter, and the shredded bag of peanut M&Ms.

There is something about poking through someone else's garbage that makes you feel dirty, and it's not just the stench and the flies. Scrap by scrap, we are reverse-engineering a grimy portrait of another human being, reconstituting an identity from his discards, probing into stuff that is absolutely, positively none of our damn business.

It's one thing to revel in the hallowed tradition of muckraking. It's another to get down on your hands and knees and nose through wads of someone else's Kleenex. Is this why our parents sent us to college? So we could paw through orange peels and ice-cream tubs and half-eaten loaves of bread?

And yet, there is also something seductive, almost intoxicating, about being a Dumpster detective. For example, we spot a clothing tag marked "44/Regular." Then we find half of a torn receipt from Meier & Frank for $262.99. Then we find the other half, which reads: "MENS SU 3BTN." String it together, and we deduce that Schrunk plunked down $262.99 for a size-44 three-button suit at Meier & Frank on Saturday, Nov. 16, at 9:35 am.

We are getting to know Portland's top prosecutor from the inside out. Here's an empty bottle of Johnnie Walker Black Label. There's a pile of castoff duds from his days as a Marine. Is he going "soft" on terrorism!?

Chinese takeout boxes and junk-food wrappers testify to a busy lifestyle with little time to cook. A Post-it note even lays bare someone's arithmetic skills (the addition is solid, but the long division needs work).

Our haul from Mayor Vera Katz is limited to a stack of newsprint from her recycling bin--her garbage can was well out of reach--but we assemble several clues to her intellectual leanings. We find overwhelming evidence that the Mayor reads The Oregonian, The Washington Post National Weekly Edition, U.S. Mayor and the Portland Tribune.

We also stumble across a copy of TV Click in which certain programs have been circled in municipal red. If we're not mistaken, the mayor has a special fondness for dog shows, figure skating and The West Wing.

Our inspection of Chief Kroeker's refuse reveals that he is a scrupulous recycler. He is also a health nut. We find a staggering profusion of health-food containers: fat-free milk cartons, fat-free cereal boxes, cans of milk chocolate weight-loss shakes, cans of Swanson chicken broth ("99% fat free!"), water bottles, a cardboard box of protein bars, tubs of low-fat cottage cheese, a paper packet of oatmeal, and an article on "How to Live a Long Healthy Life."

At the same time, we find evidence of rust in the chief's iron self-discipline: wrappers from See's chocolate bars, an unopened bag of Doritos, a dozen perfectly edible fun-size Nestle Crunch bars, three empty Coke cans.

We unearth a crate that once contained 12 bottles of Cook's California sparkling wine, but find no trace of the bottles themselves. Is the chief building a pyramid of them on the mantelpiece? We stack the crate beside a pair of white children's socks, a broken pen, the stub of an Excalibur 1066 cigar, burnt toast, a freezer bag of date bars, orange peel, coffee grounds, a cork, an empty film canister (no weed--we checked), eggshells, Q tips, tissue paper and copious quantities of goo.

We uncrumple a holiday flier from the Hinson Memorial Baptist Church, which contains a handwritten note: "Mark. Just want you to know one Latin from Manhattan Loves You."

Invasion of privacy? This is a frontal assault, a D-Day, a Norman Conquest of privacy. We know the chief's credit-card number; we know where he buys his groceries; we know how much toilet tissue he goes through. We know whose Christmas cards he has pitched, whose wedding he skipped, whose photo he threw away. We know what newsletters he gets and how much he's socked away in the stock market. We even know he's thinking about a new car--and which models he's considering.

By the time we tag the last item (a lonesome Christmas tree angel), our noses are running and our gloves are black with gunk. We scrub our hands when we get home. But we still feel dirty. --CL

WHAT WE FOUND

POLICE CHIEF MARK KROEKER

* Empty containers and wrappers: Kodiak Washington pears, Washington "extra fancy" fancy lady peaches, Oasis Floral Foam bricks ("Worth Insisting Upon") (2), Kashi Go Lean! cereal, Sunshine fat-free milk, Kirkland Signature weight-loss shake, fat-free Swanson Chicken Broth, mandarin oranges, Coca-Cola, Diet Coke, Arrowhead water bottle, Cook's California sparkling-wine box, fried apples, cheese rolls, Bounty paper towels 15-roll pack, Kirkland facial tissue, 12-pack Dove soap, Quaker oatmeal, See's candy bars, lady's razors, Dentyne Ice chewing gum, Vivant zesty vegetable crackers.

* Hershey's Cookies n Crème mini-bars, uneaten (3).

* Several Oregonian issues, still folded.

* Email correspondence between chief and Mayor Katz's staff in which he preps them on what to tell Los Angeles officials regarding his application to be chief there.

* Rough draft, internal police memo.

* Various cash-register receipts.

* Half-full bag of fun-size Nestle Crunch bars.

* Slice of burnt toast.

* Photocopy of WW Nov. 13 "Murmurs" item on chief, hand-dated in blue pen, reporting scuttlebutt that Katz has "taken over the day-to-day running of the Police Bureau."

* Half-smoked stub of an Excalibur 1066 cigar.

* Paper cups from Starbucks and Torrefazione.

* Pears, lettuce, grapes, bread, eggshells, goo, potato salad, wire hangers, a 75 watt light bulb, orange peels, coffee grounds, wine cork, dish rag, film canister, used Q-Tips.

* Half-eaten protein bar, still in wrapper.

* Newsletter from Focus on the Family, a conservative political group. Insert, addressed to "Mr. & Mrs. Mark Kroeker." Insert asks for "one last year-end contribution."

* Photos of chief and a bare-chested man moving a large appliance.

* Creased wedding photo of a prominent Portlander.

* Broken pen.

* Three envelopes from California, hand-addressed, sent on consecutive days.

* Notice from mortgage company for payment.

* Internet printout of "How to Live a Long Healthy Life."

* Postcard from friend vacationing in Arizona.

* Post-it with notes about a new car.

* Extremely personal note on dinner napkin, handwritten in pencil.

* Account summary from Fidelity Investments for the chief's wife.

MAYOR VERA KATZ

* Trader Joe's "Happy Holidays" paper bag.

* Several issues of The Oregonian.

* Several issues of The Washington Post National Weekly Edition.

* A copy of U.S. Mayor (a monthly magazine devoted to mayors).

* A copy of TV Click. Someone has marked several programs in red, including Wargame: Iraq, Simulated National Security Council meetings, MSNBC; Everwood: Ephram tries to revive his mother's Thanksgiving traditions, KWBP; CSI Miami: A dead man is found hanging from a tree, KOIN; Life with Bonnie on KATU; The West Wing on KGW; The National Dog Show on KGW; Figure skating: ISU Cup of Russia, ESPN; Biography: "Audrey Hepburn, the Fairest Lady," A&E: Figure skating: ICE WARS: USA vs. The World, KOIN.

* Several issues of the Portland Tribune.

* Daily Journal of Commerce from Dec. 3, 2002.

DISTRICT ATTORNEY MIKE SCHRUNK

* Empty containers and wrappers: Cozy Fleece Baby Blanket, Bee Cleaners, Nibblets Corn and Butter, Johnnie Walker Black Label, Fred Meyer unflavored gelatin, Burger King beverage cup and straw, possible Chinese takeout (lots), Dreyer's Mocha Almond Fudge ice cream, Skippy peanut butter (creamy), Land's End, Fred Meyer green beans, Campbell's Chunky New England Clam Chowder with 100-watt bulb inside, Meier & Frank, Jelly Belly jelly beans, Foster Farms boneless and skinless Oregon chicken thighs.

* Coffee grounds.

* Used pekoe tea bags, many.

* Used Christmas napkins, used Kleenex, used Q-Tips.

* Remains of Thanksgiving turkey carcass, drumstick intact.

* Remnants of roast beef.

* Soiled baby diapers.

* Plastic bags containing dog poo, very clean, with some blades of grass (2).

* Bag of dryer lint.

* Christmas wrapping paper.

* Orange peels, empty Millstone coffee bag, containing two very ripe but uneaten bananas, two half-eaten loaves of wheat bread.

* Disposable razors.

* Remnants of peanut M&Ms bag.

* Energizer AA batteries (2), wrapped in plastic bag.

* Shopping lists.

* Baseball cap with crustacean emblem: "DON'T BOTHER ME. I'm CRABBY."

* Baseball cap for Outward Bound.

* Baseball cap with embroidered green fish.

* Military khaki shirts with "SCHRUNK" embroidered on pocket and collar (4).

* Jacket, olive drab, with fading stencils of "USMC" and "Schrunk."

* Yellow Post-it note with sample of someone's arithmetic: The addition is successful (54 + 32 = 86), but the long division of 32 divided by 6 comes up a little bit wide, at 5.4.

Gross Violation

Officer Gina Hoesly has long had less privacy than the average cop, thanks to the Portland Police Bureau's rumor mill.

Hoesly (below), 34, has dated rock musicians, other cops and Portland Trail Blazers. She's had breast implants and once posed for a photo on a website selling motorcycle gear--badpig.com--showing plenty of skin. In 1996, she won a $20,000 settlement from the bureau in a sexual-harassment claim based on behavior by her co-workers. But none of that comes close to the scrutiny she received in March, when fellow officers rifled through her garbage. The evidence they found led to her indictment on charges of possessing ecstasy, cocaine and methamphetamine.

Hoesly, a 13-year police officer who occasionally was an undercover decoy in police prostitution stings, became the subject of an investigation early this year, when she told police she'd been assaulted by her ex-boyfriend, Joshua David Rodriguez. Rodriguez has a history of drug arrests and convictions, and when officers booked him on assault charges, they found meth in his pocket.

Subsequently police began investigating Hoesly, hearing rumors from police informants that she had used drugs. On March 13 at 2:07 am, narcotics officers Jay Bates and Michael Krantz took her garbage. The order to do so came from Assistant Chief Andrew Kirkland, who dated Hoesly in the early '90s.

Searching through her trash back at Central Precinct, they found traces of cocaine and methamphetamine, as well as drug paraphernalia. They also found a bloody tampon. They sent a piece of the tampon to the state crime lab, where forensics experts tested it for drugs, DNA and, for reasons that remain unclear, semen. The results of those tests have not been released.

The police didn't seek a search warrant to take Hoesly's trash because, as the Multnomah County District Attorney's office conceded, officers didn't at the time have sufficient evidence to convince a judge to issue a warrant. But once they had drug residue from Hoesly's trash, officers were able to persuade Judge Dorothy Baker to issue a search warrant for Hoesly's house. Inside, they found more paraphernalia and a diary that described apparent drug use. An indictment was issued in June.

Hoesly, who is currently on medical leave and at the time of her arrest was in the process of medically retiring, pleaded not guilty and hired criminal-defense lawyer Stephen Houze. Like a Labrador smelling leftover turkey, Houze promptly zeroed in on the grabbing of her garbage. He argued that under Oregon's Constitution, privacy rights extend to someone's trash--at least until it's picked up by trash haulers. The used tampon "goes to the heart of just what an outrageous violation of privacy rights this police search was," Houze said. "If the police will do this to a police officer, who won't they do it to?"

Not only that, he said, but if garbage is up for grabs, "There will be identity thieves lining up out there on every garbage day, knowing they can [take trash] with impunity."

The Hoesly case is not unprecedented. In 1997, police poked in the trash of David Peters, a star prosecutor for Multnomah County, and found cocaine residue, which was used to obtain a search warrant. Unlike Hoesly, he was not indicted; instead, he was fined and allowed to enter court diversion to maintain a clean record.

In a hearing on Dec. 10, Judge Jean Kerr Maurer agreed with Houze, issuing a ruling that said the cops' taking of trash was illegal. Senior Deputy District Attorney Mark McDonnell immediately said his office would challenge the ruling. --NB

Big Brother's in Your Trash Can

The government is essentially going through your trash every day, says Evan Hendricks, publisher of Privacy Times, a Washington, D.C., newsletter. "They just don't have to get their hands dirty.

In the past 16 months, thanks to measures contained in the Patriot Act, the Homeland Security Act and the creation of the Total Information Awareness office, our government has turned into a bad Oliver Stone movie--you know, where a cabal of conservative spooks takes over and suddenly Big Brother is in charge.

No longer do the Feds need to meet the evidentiary standard of "probable cause" to initiate an investigation or start amassing information on you. Nor do they need to show any evidence of a link to terrorism. All they need to do, in short, is say they find you suspicious. They don't need to tell a judge why.

"This administration really represents a combination of Reaganism and McCarthyism--though they're not chasing Communists, they're chasing people that they call 'terrorists,'" says Hendricks, who grew up in Portland. "They're expanding their power and intimidating people to sort of go along or be afraid of being accused of being soft on terrorism."

The October 2001 enactment of the USA Patriot Act opened the door to domestic and Internet surveillance, as well as warrantless, covert "sneak and peek" searches. Then, on Nov. 19, 2002, Congress approved the Homeland Security Act, which Sen. Pat Leahy (D-Vt.) called the "most severe weakening of the Freedom of Information Act in its 36-year history."

The HSA also created the Total Information Awareness office, whose logo, taken from the back of the dollar bill, is of a pyramid with an eye on top, looking down at the globe. Headed by Iran-Contra co-conspirator Admiral John Poindexter, the agency will "mine" commercial databases, including magazine subscriptions and book purchases, to spy on American citizens. It plans to use this information to profile likely terrorist supporters; it also wants to deploy video camera and facial-recognition surveillance systems.

"The Pentagon basically wants to knock down the walls to all private-sector records and plug into them," says Hendricks. "And trash is like a microcosm of what you get: the bills people pay, what they buy at the store, the packages they throw out. The government is proposing more systematic surveillance of databases that have the same information."

How do they define who is a likely terrorist supporter? Sorry, but that's a secret. Attorney General John Ashcroft has given federal agencies free rein to reject information requests, with the assurance that his Department of Justice would defend the agencies no matter what.

Civil-liberties advocates point to the inherent danger in granting the government such sweeping power. Declassified documents have shown myriad abuses by law-enforcement agencies involved in domestic spying in the '60s, '70s and '80s, including in Portland. In 1997, a Washington, D.C., police official used video surveillance of people coming and going from a gay bar to try to blackmail married men. And studies of camera systems in Britain found that they were used to target minorities for increased police attention, while women caught on camera were often targeted for voyeuristic reasons, with male camera operators panning over them for purposes of ogling.

Small wonder that even conservatives such as Rep. Dick Armey, Sen. Charles Grassley and New York Times columnist William Safire are going ballistic. Attorney General Ashcroft is "out of control," and the federal government has "no credibility" on protecting individuals' privacy, said Armey, who has even volunteered to do consulting work for the ACLU on privacy issues upon his retirement.

"You Are a Suspect" was the title of Safire's Nov. 14 column on the Total Information Awareness program, which he called a "supersnoop's dream" and a "sweeping theft of privacy rights." --NB


Every man, woman and child in the metro area generates an average of 3,001 pounds of waste per year; 55 percent of that waste winds up in the landfill--the rest is recycled.




The Portland Bureau of Sustainable Development normally requires that recycling bins and trash cans be left within three feet of the sidewalk. You can, however, leave it next to your house if you are willing to pay $3 a month.




In 1970, Washington Post columnist Jack Anderson raided the trash of notorious FBI director J. Edgar Hoover, reasoning that Hoover's agents were doing this to everyone else.




Similar to Schrunk's, Hoover's garbage revealed empty bottles of whiskey as well as dog poo.




The U.S. Supreme Court has held that the Constitution gives you no privacy rights over your garbage, but individual state constitutions can offer more stringent privacy rights. Warrantless trash searches by police are not legal in Vermont and New Jersey.




Visit these links for more information on privacy:

ADVOCACY:

www.aclu.org .
www.cdt.org .
www.epic.org .

PUBLICATIONS:

www.privacytimes.com .
www.privacyjournal.net .

GOVERNMENT:

www.darpa.mil/iao/TIASystems.htm .(Total Information Awareness)
www.whitehouse.gov/deptofhomeland/ .(Homeland Security)

 
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