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Interesting Fourth Amendment Question:
If the police want to collect a suspect's DNA sample, can they mail him a letter under false pretenses, wait for a response, and then analyze the seal on the letter (which the suspect likely sealed with saliva) to collect the DNA, all without a warrant? A divided Washington Supreme Court has just concluded that the answer is "yes" in State v. Athan (see pages 20-25). Howard has links to the various opinions in the case here.
FantasiaWHT:
Now that's clever! Constitutional? I have no idea. Clever though. Couldn't you just claim somebody else licked it tho?

Everybody, start using those sponge seal-moisteners!
5.10.2007 1:20pm
Tomm:
It is my understanding that courts have rarely affirmed property rights or an expectation of privacy over discarded or excised tissue and fluids. Even in Moore v. Regents, where excised material was arguably obtained by fraud, the court ruled that Moore had no rights over his formerly internal fluids and organs.
5.10.2007 1:34pm
plunge (mail):
Frankly, I'm just not sure that the idea of the privacy of the identity of your DNA holds up as one worth defending. It's one thing if the police start tracking you everywhere you go, but in the end, I'm not sure that them following you by sight is unconstitutional either, and in both cases they are basically using information gained in public spaces against a particular identity. If police have the right to put a face to a name without much burden of proof or warrant, I don't see how they really can be held back from putting a skin flake to a genome.
5.10.2007 1:39pm
liberty (mail) (www):
"Everybody, start using those sponge seal-moisteners!"

Yeah, I was thinking... any criminal above the very petty level will just start using a sponge sealer.
5.10.2007 1:41pm
badger (mail):
I agree with the dissent's concern about police impersonating attorneys. The opinion makes it clear that police can't impersonate for the purpose of receiving communications protected by attorney-client, but there are other forms of access that people commonly give to attorneys that they would never give to a police officer or a member of virtually any other profession. I'd be a hell of a lot more comfortable with this decision if they had just kept it simple and impersonated Publishers Clearinghouse.
5.10.2007 1:44pm
Anderson (mail) (www):
Yah, the pretending-to-be-attorneys part is not good.

Otherwise, have at all the spit you can find.
5.10.2007 1:48pm
Bill Sommerfeld (www):
My initial thought was "wouldn't it have been easier to just collect a DNA sample from his garbage?" But on reading the opinion, you learn that that the investigators were in Seattle, and the suspect was in New Jersey. In addition to bonus points for cleverness, they also get them for frugality..
5.10.2007 1:53pm
Steve:
The law seems to be that you don't have a privacy interest in safeguarding your bodily fluids or DNA per se, but you do have an interest in not having them collected through intrusive means.

Maybe the cops should just bring him in for questioning, give him lots of coffee and donuts, and wait until he has to take an incriminating dump. Then again, this has probably been used as a plot device on CSI or something.
5.10.2007 1:54pm
Random Ranter:
That court needs to get its act together. If Justice Chambers "fully concur[s] with Justice Fairhurst's dissent," and Justice Sanders concurs in Justice Chambers's dissent, why is no one listed in Fairhurst's dissent as concurring in it? And why is the concurrence in a different font than the other opinions? And who wants to download four PDFs to read all the opinions anyway?

While you're at it, Washington Supreme Court, adopt a publication-neutral citation format and choose one justice named Johnson. And stop this "Wn.2d" nonsense. The first time I saw that, I thought it was Winnipeg. Are the Oregon Reports abbreviation "On."?
5.10.2007 2:11pm
whit:
i agree too. this is/was a local case for me. they absolutely should not have pretended to be attorneys (or priests, etc.).

i was actually surprised this held up with the wa court. for that reason

other than that, it's a brilliant ruse. if they claimed to be sweepstakes, etc. i would have no problem. but not an attorney (or priest or mental health worker) etc.

imo, ruses are one of the best tools law enforcement has, and underused (except for drug buys). sneakiness trumps brute force
5.10.2007 2:21pm
Guest 3L (mail):
I am too lazy to read the opinion, but I thought that trickery and deception by the police is perfectly fine from a 4th Amend perspective (e.g., Hoffa v. US). I don't see how this is any more objectionable than getting someone's close friend and confidant to flip on him.
5.10.2007 2:34pm
EvanH (mail) (www):
I'm a little troubled by this decision. I think it just brings us one step closer to a all-inclusive dna database.

What's to stop a police department from sending out thousands or even millions of phony letters to innocent citizens, just for the purpose of collecting dna samples?
5.10.2007 2:40pm
David Maquera (mail) (www):
I think this was an old Law &Order episode a few years back. I thought this was standard procedure.
5.10.2007 2:43pm
whit:
it IS standard (somewhat) procedure - the ruse.

i worked undercover for a long time. the entire concept is based on deception (see: sun tsu).

the issue here was posing as attorneys. i think that "shocks the conscience" so to speak, and brings up troubling issues in regards to attorney client (even though this was not a retained attorney, heck it wasn't an attorney at all) privilege, etc.

evan, much like surveillance concerns, etc. - you-ve got it wrong. the classic worry is "big brother" collecting databases like this, etc. that's a non-issue. the concern is "little brother". private companies have far far far far more private info on you than law enforcement, and generally speaking - better access to collecting it and less regulations in regards to storing it.

whether it's surveillance info (video cameras), your shopping choices, your credit, etc. it is businesses that collect and share this information about you, and FAR more than govt. does.
5.10.2007 2:51pm
Anderson (mail) (www):
I recall the classic ruse whereby lots of guys w/ outstanding arrest warrants were sent notices they'd won prizes, &when they showed up to collect (it was a car or something), surprise!

A similar ruse would work by mail, assuming that it wasn't tossed as junk.

OTOH, imagine that the 1st ruse had been "come meet with an attorney and discuss any legal issues that might be on your mind," and then they arrested the show-ups. Any problem with that?
5.10.2007 2:52pm
whit:
anderson, that's exactly my point.

i think we should draw an extremely clear bright line when it comes to attorneys (or putative attorneys) and their clients.

there are plenty of other ways to be sneaky (good) and not play games with attorney-client privilege.
5.10.2007 3:04pm
EvanH (mail) (www):
Whit, trust me my concern with little brother is just as big as my concern big brother. There's nothing to stop my insurance company from collecting my dna from an envelope and declaring me uninsurable.

But I don't think the state collecting information about citizens is a nonissue. If anything, recent events here in Atlanta have shown that police can and do abuse their powers. If we can't trust the police not to plant drugs on a suspect why should we trust them with our personal data?
5.10.2007 3:05pm
curious:

I recall the classic ruse whereby lots of guys w/ outstanding arrest warrants were sent notices they'd won prizes, &when they showed up to collect (it was a car or something), surprise!


And a solid Simpsons episode as well:

Wiggum: I mailed these bogus prize certificates to every scofflaw in Springfield. When they show up for their free motor boats we arrest them and beat them to the full extent of the law.

Eddie: So the hook is baited.

Lou: Nice metaphor, Eddie!

Wiggum: Yeah, good work, Eddie!
5.10.2007 3:08pm
Kazinski:
I've got no problem with the police pretending to be attorneys, priests, or doctors, as long as they are not using a subterfuge where the communication would be priviledged if the actualy were attorneys, etc.

Take an example where a con man is victimizing attorneys in a bogus tax shelter scheme, can the police pose as an attorney to gather incriminating evidence? I think so.
5.10.2007 3:15pm
blog fiend (mail) (www):
It's not the posing-as-attorneys part that bothers me. It's the using-the-mail-in-a-way-that-would-likely-constitute -mail-fraud-if -you-or-I-did-it that bothers me. Illegal search means a search conducted by illegal means. Mail fraud is, last time I checked, illegal.

Am I missing something here?
5.10.2007 3:34pm
Guest 3L (mail):
blog fiend - yes, you are. whether or not there is a statute or regulation prohibiting the conduct at issue is not the test for what constitutes a search under the fourth amendment. indeed, if i recall correctly, in the greenwood case there was a state law prohibiting people from rummaging through others' trash. nonetheless, the conduct in that case was held not to be a search, the prohibition notwithstanding.
5.10.2007 4:06pm
Just Dropping By (mail):
As an attorney who routinely has to contact third-party witnesses in the course of my cases, I'm very disturbed by this. In every jurisdiction I'm aware of, attorneys are ethically obligated to identify themselves and disclose their role in any litigation to non-parties, which is for the protection of laypersons. People are already pretty reluctant to speak to attorneys and I can't imagine how much more uncooperative they will become if they start suspecting that the attorney who wants their help in serving as a witness in a civil trial is actually a police officer. Bad form by the Washington court and I hope the Washington bar lobbies for a statute prohibiting this practice.
5.10.2007 5:02pm
glasnost (mail):
There really is an issue here, and it really is being missed. There is currently no legal right for the cops to come right out and *demand* a DNA sample from you, Joe Citizen. There absolutely shouldn't be a right to obtain such a sample by fraud - unless you have the same probable cause as to search someone's house.

Whether or not you have a privacy right to your bodily fluids is not the issue. They didn't stumble across your bodily fluids: they assertively collected them. Furthermore, these are not just random bodily fluids, they constitute unique personal info. The correct metaphor is to financial records or library records.

Otherwise, there really is nothing stopping them from collecting a comprehensive database.
5.10.2007 5:38pm
Sean O'Hara (mail) (www):
If the government can use our precious bodily fluids against us, they can use our purity of essence too! Where will it all end?
5.10.2007 6:12pm
jimbino (mail):
Someone will soon make a market in vials containing "guaranteed 1,000,000 different DNA strains." In fact, any criminal would be glad to buy a spray can.
5.10.2007 6:38pm
Lior:
Surprisingly the court makes no attempt to distinguish this case from Kyllo. Assuming for the sake of argument that there is a privacy interest in electromagentic radiation emitted by private property (which any passerby can observe using appropriate instruments), based on the theory that an unaided policeman could not observe the radiation, why is there no privacy interest in biological markers unintentionally left in public? Here too the markers cannot be observed by the unaided eye.
5.10.2007 6:57pm
Syd (mail):
If you object to them using a ruse for DNA evidence, would you have the same objection to them dusting the letter for fingerprints?
5.10.2007 6:59pm
Steve H (mail):
A motion to suppress DNA evidence seems like a waste of time. You can't get rid of the stuff -- at some point, cops can just collect a glass the suspect used at a restaurant or something, and get the DNA that way.

Ultimately, all DNA evidence probably falls within the inevitable discovery doctrine.
5.10.2007 7:06pm
Crunchy Frog:
Syd: By that time, the letter would have gone through the hands of countless postal employees.
5.10.2007 7:34pm
whit:
"There really is an issue here, and it really is being missed. There is currently no legal right for the cops to come right out and *demand* a DNA sample from you, Joe Citizen."

there is no right to demand your fingerprints either. yet, if you leave something with your fingerprints on it, they can dust for it (yes, if you are arrested, they can demand fingerprints, but they can also do so with DNA. i am talking non-custodial 'gatherings'.)

"If anything, recent events here in Atlanta have shown that police can and do abuse their powers. If we can't trust the police not to plant drugs on a suspect why should we trust them with our personal data"

you could argue similarly, that police should not be allowed to arrest, conduct searches, make traffic stops, etc. because SOME police do sometimes abuse those powers as well. how is this logical? merely because something CAN be abused (like the power of arrest) does not mean you just get rid of it.

the real issue will change when science advances to the point where DNA evidence becomes much more than mere identifying marks (like fingerprints are). assume that we had a machine that could look at your DNA and tell all sorts of REALLY personal (and hidden) things about you, your sexual tendencies, etc. etc. THEN i think it would be a privacy issue in a way that it isn't now.

what DNA is now, in regards to law enforcement, is a way of identifying people that in many cases (like this) involves a completely non-intrusive method of gathering evidence.

and what i like is that it BOTH helps convict the guilty AND protect the innocent. that's hyoooge. i would way rather police collect my DNA (via ruse or whatever) to eliminate me as a suspect than rely on victims, witnesses id's etc. who lie and can much more easily be manipulated - see: Duke 'rape' case.

since this guy lived cross country, cops used a ruse to get his dna. they could have also just followed the guy around and swabbed an item he touched to get DNA. the reality with DNA is that you "leave it out there". so, i don't see it as any more of a privacy issue than the cops dusting a surface you touched for your fingerprints.
5.10.2007 8:14pm
Fub:
Sean O'Hara wrote at 5.10.2007 5:12pm:
If the government can use our precious bodily fluids against us, they can use our purity of essence too! Where will it all end?
Deny them your essence. Just seal the envelope with grain alcohol and rainwater. Have you ever seen a Commie drink a glass of water?

whit wrote at 5.10.2007 7:14pm:
what DNA is now, in regards to law enforcement, is a way of identifying people that in many cases (like this) involves a completely non-intrusive method of gathering evidence.
And in fact John Doe DNA complaints and arrest warrants have been filed for many years now.

Related question -- when have John Doe complaints or arrest warrants been filed against a set of fingerprints? I don't doubt that they have been. I just don't know of specific incidents or cases.
5.10.2007 10:06pm
Daniel Holmes:
So what then prevents the government from building a DNA database based on the census form or tax forms you send in?
5.10.2007 10:41pm
gasman (mail):
Seems like the chain of custody would be a little week.
5.11.2007 1:39am
William Oliver (mail) (www):

This reminds me of a case I worked on back when I was in the military. There was a cold case of a young enlisted woman who was raped and murdered at a Navy base. Her body was put in the back of her car and her car driven off a pier into the ocean. All of this was years ago, before DNA technology. Nobody was caught.

Twenty years or so pass The NCIS had been working on this off and on all this time, and had narrowed the suspects down to a list of around three. They send out a few young pretty female agents to go flirt with the guys. One of them, now civilian, married, and with kids, takes the bait.

She gets the guy to send her a letter, and gets DNA off the envelope. It just so happens that the prosector had gotten vaginal swaps at post mortem exam (at that time for serology, not DNA), and they had been saved in evidence for two decades.

It was a match. They guy confessed.
5.12.2007 2:49pm