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Tuesday, September 13, 2005

The DNA Trick and the Fourth Amendment

Dna2An interesting issue is emerging in a Seattle case involving the extent to which the police can use ploys to gather people's DNA.  According to a news story:

A judge has upheld a ploy by Seattle police detectives to get a slaying suspect to send his DNA to them -- leading to a first-degree murder charge in a 20-year-old case.

King County Superior Court Judge Sharon Armstrong ruled that police did not violate John Athan's privacy or other rights by sending the New Jersey man a phony letter saying he was eligible for money in a class-action lawsuit over parking tickets. Athan responded to the letter -- and licked an envelope, leaving saliva that provided his DNA.

That DNA was matched to evidence from the 1982 killing of 13-year-old Kristen Sumstad, whose body was found dumped in a box behind a Seattle store.

Athan's attorney had asked the judge to either throw out the DNA evidence or dismiss the case. Armstrong refused. She agreed that the police broke the law by pretending to be lawyers, but said police are allowed to do that to catch criminals.

The judge also found that while people may expect their letters to be private, that expectation doesn't apply to the envelope they use.

This case raises some interesting issues:

1. To what extent does a person have a reasonable expectation of privacy in his or her DNA?  Existing Supreme Court caselaw holds that if items are discarded in the trash or exposed to others, then people lack a reasonable expectation of privacy in them, and the Fourth Amendment does not provide any protection.  The problem with these holdings is that they never contemplated DNA.  We scatter our DNA about throughout the day; and if the police want to, they can gather people's DNA from discarded items or through many other methods, including the one used in this case.  The police can thus gather people’s DNA readily without a warrant, without probable cause, and without even a subpoena or any legal process.  This situation demonstrates why existing Fourth Amendment doctrines don’t adequately address modern issues involving information.  Should there be some level of regulation for the police gathering of DNA from particular suspects?  (And no, Orin Kerr, this doesn’t suggest that statutory law is better than the Fourth Amendment, because there are no statutes governing this conduct either).

2. To what extent should the police be able to engage in criminal activity to catch criminals?  Here, the police were engaging in fraud.  Similar kinds of issues arise in other kinds of police investigations.  The open fields doctrine allows police who engage in trespass onto people’s land to nevertheless use evidence that they discover.  Should the Fourth Amendment be interpreted to exclude evidence when the police violate the law? 

Posted by Daniel Solove on September 13, 2005 at 12:52 PM in Criminal Law, Daniel Solove, Information and Technology | Permalink


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On more difficulty with DNA is that the markers they use give matches to a certain likelihood - once your database of people gets large enough, you will start getting false positives. As long as DNA is held as some kind of "gold standard", if everyone is in the database, one can expect, several times in ones life, to be hauled off to court to prove you weren't somewhere on a certain date. THAT could be fun...

Posted by: Deoxy | Sep 14, 2005 5:20:57 PM

The whirls on fingerprints are more or less random and uncorrelated with anything else, while your DNA might reveal quite a lot of information about you--in particular such things commonly agreed to be private like reproductive decisions (or at least ability). Why should the police know someone is more likely to die of breast cancer just because they're investigating a robbery? What if there is a "gay gene?" Is that the state's business? If your DNA isn't your personal business, what is?

The question is not whether DNA is personal, it's whether it should cease to be protected when you leave it all over the place, something which is impractical to avoid.

Posted by: John | Sep 14, 2005 11:29:29 AM

Settled case law or not, "[T]o what extent does a person have a reasonable expectation of privacy in his or her DNA?" is an interesting question, because it forces us to contemplate the essence of "privacy." Frankly, I completely understand a right to be secure in privacy and papers. If you go through someone's house or papers on a whim, looking for possible evidence of a potential crime, you're likely to also find things which might embarrass them unnecessarily, such as items relating to odd sexual proclivities, love letters not from their spouse, or topless pictures from their Burmuda vacation. These things are private, and being forced to share them with the state when they are not related in any way to a crime can be genuinely shameful to some. This is not only the reason for warrants, it's also the reason for SPECIFIC warrants.

When the "right to privacy" from that famous penumbra is applied, it's generally to private topics as well, such as reproductive decisions, which we may feel ashamed to share with other people, which are pretty commonly recognized as our "personal business."

The real question is, is there any correlation between the reason we keep these things private and the reason we might want to keep DNA private? If there is, I'm missing it. Police officers have been using "tricks," if you'd like to call them that, to obtain fingerprints, etc., since long before DNA became an issue. It's common sense that the police using your fingerprints on something you've abandoned -- a glass in the police station, say -- is perfectly legal. What embarrassment might come from the comparison of your abandoned prints to the prints at the scene, except, of course, that they match? And if they don't match, what embarrasment at all? You've been cleared, and there would be nothing else to learn from the print itself. Is there anything about a fingerprint that therefore would make it your "personal business" what whirls you have? Not likely. Same with DNA. It's not really my "personal business" whether I left my DNA at the crime scene, and it's not really my "personal business" whether I left it on the envelope I mailed to the police. It's common sense that the fact that the DNA matches IS and SHOULD BE the state's business.

Posted by: Kris | Sep 14, 2005 10:34:13 AM

I saw this on Law and Order. Trickery is not coercion. There is actually case law on it -- more than a little bit. The most common is interrogating two suspects separately and teling each that the other has confessed and placed the full blame on him for the crime. (Please do no make me look for citations because the law is so settled that the courts cite Am. Jur.)>

Posted by: nk | Sep 13, 2005 11:04:08 PM

[s]Dan, the police don't trespass. Rather, they conduct entries without probable cause. They don't commit fraud. Rather, they use creative investigatory tools.

Anyhow, what I hate most about your post is that it assumes the Constitution is on equal footing with the postive law. That is, you seem to suggest that the police, in enforcing positive law, should comply with the Constitution. That's a really strange view. Since when did the Constitution trump any laws, let alone mala prohibita laws?[/s]

Posted by: Mike | Sep 13, 2005 3:16:48 PM

I should also mention that Elizabeth Joh (law, U.C. Davis) has an article about the issue of "abandoned" DNA coming out in Northwestern Law Review.

Posted by: Daniel Solove | Sep 13, 2005 3:09:15 PM

Woops -- I hadn't heard about this case before and didn't check the date of the story. I couldn't find any opinion in the case. Nevertheless, the case still raises interesting issues, ones that have yet to be resolved.

Posted by: Daniel Solove | Sep 13, 2005 2:24:13 PM

This story is from 2003.

Posted by: S.cotus | Sep 13, 2005 2:17:04 PM

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