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Fourth Amendment Doesn't Protect Spit on the Sidewalk:
Facts: Rape suspect walking on a street spits on the sidewalk. An investigator is following the suspect, and he collects the spit; a DNA test proves a match. Holding: No Fourth Amendment violation. Analysis:
[A]lthough the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids), see Matter of Lavigne, 418 Mass. 831, 835-836, 641 N.E.2d 1328 (1994); Jansen, petitioner, 444 Mass. 112, 120-121, 826 N.E.2d 186 (2005), when he expectorated on to a public street and did not retrieve the fluid, he voluntarily abandoned that protection; he assumed the risk of the public witnessing his action and thereafter taking possession of his bodily fluids. See Commonwealth v. Ewing, 67 Mass.App.Ct. 531, 540, 854 N.E.2d 993 (no expectation of privacy in cigarette butts abandoned as trash in interview room), further appellate review granted, 447 Mass. 1113, 857 N.E.2d 1094 (2006). See also Commonwealth v. Pratt, 407 Mass. 647, 660-661, 555 N.E.2d 559 (1990) (observations and inspections occurring after items deposited in public places generally fail to intrude upon reasonable expectation of privacy); Commonwealth v. Nutile, 31 Mass.App.Ct. 614, 619, 582 N.E.2d 547 (1991) (no reasonable expectation of privacy in drugs voluntarily thrown from vehicle); Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 564, 633 N.E.2d 1058 (1994) (no reasonable expectation of privacy in drugs dropped on ground during police surveillance).

Here, the motion judge found that the location where the defendant spat was a public street, a place freely accessible to others. See Krisco Corp., 421 Mass. at 42-44, 653 N.E.2d 579. See also Commonwealth v. Pratt, supra (no reasonable expectation of privacy in trash left on curb); Commonwealth v. Bloom, 18 Mass.App.Ct. 951, 952, 468 N.E.2d 667 (1984) (defendant had no reasonable expectation of privacy in open area of public restroom). Moreover, there is no indication that the defendant took affirmative action to recover the saliva once it had left his mouth. In Bly, supra at 490-491, 862 N.E.2d 341, the defendant did not attempt to retrieve the cigarette butts when leaving the interview room, nor did he request to go back and collect them. The court held that Bly's "wholesale failure to manifest any expectation of privacy in the items whatsoever" compelled the "conclusion that [he] had no subjective expectation of privacy." Id. at 491, 862 N.E.2d 341. See Ewing, supra (defendant made no attempt to take cigarette butts when leaving interview room). Contrast Krisco Corp., supra at 45, 653 N.E.2d 579 (discussing affirmative steps taken by defendant to protect dumpster from public access). Thus, where the defendant here voluntarily abandoned his saliva onto a public street, the investigator (whether deemed to be functioning in a private capacity or as a State actor) did not infringe on any reasonable expectation of privacy when he recovered the spittle from the street.
Commonwealth v. Cabral, 69 Mass.App.Ct. 68, 2007 WL 1413143 (Mass. App. Ct. May 16, 2007).

  UPDATE: Elizabeth Joh had an interesting article on this very topic in the Northwestern University Law Review. You can download it here.
John C (mail):
Probably the correct decision under precedent; I just wonder, though, at what point does this "abandonment" and "failure to manifest any expectation of privacy" doctrine bump up against emerging technology?

When the day comes that a police officer can pick up my DNA from my holding onto a subway pole, or can somehow capture a breath sample from my breathing while I'm on an elevator, will the Fourth Amendment not protect that? Will people have to become shut-ins to get protection (and don't bother logging onto the internet or making a phone call. . .)?
5.18.2007 8:11pm
elChato (mail):
I'm with John C- this decision is certainly correct under existing law. But what if some (non-police) creep is walking around scooping up your saliva or trash?
5.18.2007 8:14pm
Kovarsky (mail):
Law Review Article Title: Expectorant Expectations
5.18.2007 8:14pm
Henri LeCompte (mail):
I am as "law and order" as anyone you'll ever meet, but this gives me the creeps. In a digital/DNA age, there is no such thing as "privacy." We are all constantly flaking off bits of DNA. DNA that will be used for what purpose in the future?

elChato: you bring up an excellent point. With DNA available literally everywhere, how easy is it to "steal" someone's identity, forensically speaking? Fingerprints are hard to steal, but planting someone eles' DNA at a crime scene is sounding easier and easier every minute. Pretty soon, DNA will be useless because every savvy crook will know to plant someone else's DNA at the scene to throw the police off.
5.18.2007 8:22pm
Steve:
This takes us back to the case from a week or two ago where the cops tricked the defendant into licking an envelope.

The bottom line in all these cases is that you do not really have an expectation of privacy in your bodily fluids per se; what you do have is the right to be free of intrusive methods of collecting those fluids by the government. They're not allowed to poke and prod you and stick needles in you absent a showing of probable cause. But absent that restriction, your bodily fluids are fair game.

I wonder about the scenario where the cops take a suspect down to the station, load him up with coffee and donuts, and wait for him to take a crap in the special DNA-collecting toilet.
5.18.2007 8:36pm
andy (mail) (www):

When the day comes that a police officer can pick up my DNA from my holding onto a subway pole, or can somehow capture a breath sample from my breathing while I'm on an elevator, will the Fourth Amendment not protect that? Will people have to become shut-ins to get protection (and don't bother logging onto the internet or making a phone call. . .)?


Maybe the people will pass a statute that prevents such tactics...
5.18.2007 8:40pm
M. Lederman (mail):
"and did not retrieve the fluid."

A new jurisprudential classic.
5.18.2007 8:44pm
TMac (mail):
I think a police officer would have to prove that he could differentiate between the thousands of prints on a pole or some molecules in the air. The spitter was observed spitting at a specific location where, presumedly, no other spit resided.
5.18.2007 8:50pm
David Schwartz (mail):
I think this shows the flaw in interpreting fourth amendment freedoms as freedoms from intrusive collection practices rather than rights to privacy. The reason for prohibiting searches and seizures without probable cause is not just to minimize inconvenience but also to stop the government from going on fishing expeditions.

If we allow our privacy to shrink as technology expands, at some point we may have little to none left.

In any event, I disagree with the ruling's factual claims. I think most people who spit on the sidewalk expect that their spitting will not be observed and their spittle will not be collected and used to associate a DNA profile with their identity. I think society will accept this expectation as reasonable.

I think the precedent is wrong. Even if people can get your DNA without your consent, we all reasonably expect that people will not collects the bits of us that we shed and figure out what diseases we are likely to get.
5.18.2007 9:13pm
Realist Liberal:
"Moreover, there is no indication that the defendant took affirmative action to recover the saliva once it had left his mouth."

Next time I'm arguing against a motion to suppress I've got to figure out a way to get this in. That is hilarious and follows what Prof. Lederman pointed out.
5.18.2007 9:17pm
Q the Enchanter (mail) (www):
General Jack D. Ripper would have been outraged.
5.18.2007 9:17pm
JohnO (mail):
What kind of creep spits on a public sidewalk?
5.18.2007 9:38pm
SethB (mail):
Isn't spitting on the sidewalk illegal? The police observed a crime and collected the evidence thereof.
5.18.2007 10:08pm
Spocougar:
I think that there is a difference between actively and electively spitting your bodily fluids onto a public sidewalk and inadvertently leaving behind genetic identifiers in the process of regular, necessary activities - such as holding onto a subway pole. I don't see a slippery slope here. I also don't have a legal background, so I may not fully appreciate the potential for a slippery slope.

I do have a medical background and think that the fears expressed above are probably unfounded. Unless someone is bleeding or otherwise weeping fluid, it's extremely unlikely that they would leave any genetic material behind on things they touch. It would be much simpler to get a fingerprint, which doesn't sound too sinister.
5.18.2007 10:21pm
John Burgess (mail) (www):
I think it's pretty well established that what goes on within my body is my business until there's a warrant saying otherwise. The bits of detritus I leave behind me in public spaces is public and therefore accessible to law enforcement without a warrant.

I leave fingerprints behind me whenever I touch something with an ungloved hand. I'm shedding tens of thousands of skin cells hourly. I don't spit, other than when brushing my teeth, so I'm clear there. But since the government already has my DNA--voluntarily submitted to help with identifying body parts while I was working in a high threat environment--I'm just going to have to live a clean life, I guess....
5.18.2007 10:24pm
Nikki:
Kovarsky: I nearly expectorated the Coke I was drinking all over the monitor when I read that.

John O: plenty of them. At least as many people as throw their cigarette butts away on the public sidewalk, I suspect. If this verdict discourages either behavior I will regard it as a beneficial side effect. (Yes, that was somewhat tongue in cheek.)
5.18.2007 10:54pm
A. Zarkov (mail):
"Pretty soon, DNA will be useless because every savvy crook will know to plant someone else's DNA at the scene to throw the police off."

The Unabomber planted hairs from public restrooms in an effort to confuse the FBI. I guess they were pretty confused, as they didn't catch him until his brother turned him in.
5.18.2007 11:24pm
Snark:
JohnO writes:

What kind of creep spits on a public sidewalk?

As a general matter, I totally agree. But see John 9:6:

And as he [Jesus] passed by, he saw a man which was blind from birth. ...

When he had thus spoken, he spat on the ground, and made clay of the spittle, and he anointed the eyes of the blind man with the clay, and said to him, "Go, wash in the pool of Siloam" (which means Sent). He went his way therefore, and washed, and came back able to see.
5.18.2007 11:36pm
Eugene Volokh (www):
Snark: Quod licet Iovi, non licet bovi.

Oh, wait, since it's you, let me add: Quod licet Iovi, non licet bovi. Quod licet Iovi, non licet bovi.
5.19.2007 12:59am
ChrisC (mail):
If everything we discard is considered to be in the public domain, does that mean the emails we send to the trash bin are available, or at least fair game, for others to rummage through?
5.19.2007 1:16am
Fern:
I'm with John C- this decision is certainly correct under existing law. But what if some (non-police) creep is walking around scooping up your saliva or trash?
Even if the Fourth Amendment was interpreted differently to take into account changes in technology it would never prevent a private citizen from collecting the DNA you leave behind. Perhaps a different law might, but the Fourth Amendment only restricts how the government collects information about you, not what private citizens do.
5.19.2007 1:45am
Dacted:
Isn't spitting demonstrating a subjective expectation of privacy? Assuming he knows the law, knows he did the crime, and wishes to avoid jail, he would only spit if he expected that his DNA would remain private.
5.19.2007 2:03am
Truth Seeker:
Great case! The goal of law should be to find the truth, not to provide loopholes for clever lawyers to get rich by helping the guilty go free. Only someone who prefers criminals over victims or a criminal attorney could disagree with this case. Or a Democrat.
5.19.2007 2:07am
Peter Wimsey:
Truth seeker writes:
<i>Great case! The goal of law should be to find the truth, not to provide loopholes for clever lawyers to get rich by helping the guilty go free. Only someone who prefers criminals over victims or a criminal attorney could disagree with this case.</i>

Well,the framers of the constitution would probably disagree with your understanding of what the goal of law should be, although perhaps not with the outcome of this case.

People sometimes get confused by this, but purpose of the bill of rights is *not* to find the truth. The purpose of the bill of rights is to protect the rights of the accused. Even where this means that truth suffers - as it certainly does since we only allow "reasonable" searches and not "any search conducted with the intent to further the truth." The framers weren't really law and order kinds of guys, come to think of it.

With respect to this case though - and future cases dealing with, perhaps, DNA exhalations - I think John Burgess is right to analogize this to fingerprints. For almost 100 years (or however long we've used fingerprints), there has been no serious argument that it was a 4th amendment violation to fingerprint something in the public that a person touched. So if it's okay to take fingerprints from the oily bodily residue a person leaves on a subway door (or whatever), it should similarly be okay to dust for DNA traces or whatever. At least as the law stands now.
5.19.2007 3:14am
ddt58 (mail):
I'm a big fan of privacy in the Constitution but I don't see any problem with this decision. It's frequently illegal to spit on a public sidewalk, and public spitting bans weren't outlawed by Griswold. Therefore, there is no constitutional protection for public spitting or public spit.

The best argument against this decision is the slippery slope, which somehow seems appropriate.
5.19.2007 5:15am
David Smallberg:

If this verdict discourages either behavior I will regard it as a beneficial side effect. (Yes, that was somewhat tongue in cheek.)

As opposed to swab in cheek?
5.19.2007 1:10pm
DF:
I'm not so concerned about the slippery slope issue. It would seem problematic from a privacy perspective if the mere act of walking outside automatically exposed us to DNA tests because of the inevitable loss of surface skin cells. But this case doesn't really seem to get there. The defendant chose to take part of his person that wouldn't otherwise have been publicly available, separate it from himself, and deposit it on a public sidewalk. The volition seems key here, and quite different from the kind of indadvertent DNA-leaving that might happen in the course of daily out of doors life.
5.19.2007 2:36pm
Gideon Kanner (mail):
This is an amazing exchange that provides an illuminating insight into how lawyers think. Has it occurred to anyone here that if you want to preserve your expectorational privacy you should use a Kleenex and dispose of it properly? How does being an unsanitary slob rise to the level of a constitutionally protected activituy? Sheesh!
5.19.2007 2:40pm
James Fulford (mail):
If it's not protected under the Fourth Amendment, can it be protected under the First as "expressive conduct?" Of course, that wouldn't prevent it being used as evidence of crime.


Spitting on the sidewalk is still illegal, for public health reasons that remain valid, but it might be protected if you were spitting to express an opinion, and were in good general health.
5.19.2007 2:51pm
Cornellian (mail):
I hope this decision gets plenty of publicity so that the disgusting people who spit on public sidewalks will have something to think about (perhaps for the first time in their lives).
5.19.2007 5:01pm
vclosets (www):
There have been laws against spitting on a public sidewalk for dundreds of years in this country. However, I believe intent is relevant. If it can be proved that the person intentionally spit on the sidewalk (e.g. repeated violations) then let justice be served. <a rel="nofollow" href="http://vclosets.com">vclosets</a>
5.19.2007 5:49pm
logicnazi (mail) (www):
First of all I want to say that I'm concerned about precedent being created in cases such as this one. The psychological pressure not to free a rapist by choosing to protect the saliva he spat openly on the sidewalk must be pretty intense.

Having said that I have to say that I agree with the ruling both as a legal and policy matter. At first I was worried like some of you about the effectively unrestricted ability this gives the government to collect anyone's DNA. Despite what previous commenters have said we leave DNA almost everywhere we go. Every time you talk you leave little bits of spittle on the environment, every time you touch something little bits of dead skin cells fall off and every time you use a spoon or drink from a cup you certainly leave genetic material. The very fact that we can so easily catch viruses and bacteria from other people suggests that we are leaving our far more common native cells everywhere. I have no doubt that better DNA replication type techniques (PCR), more sensitive tests and greater computer power will let future investigators take say 50 samples they saw the defendant touch in various places and reveal the common contributor.

However, on second thought it occured to me that this seems like a violation of privacy only because we don't yet have that technology. Once we do every PI trying to determine paternity, stalker wanting to know your genetic profile or assassin trying to engineer a virus deadly only to you will have you genetic profile so why not the police. Now I think there may be some compelling reasons not to let the police actually sequence your DNA to look for tendencies and physical characteristics without a special warrant but mere identification doesn't seem like that great an invasion of privacy. Especially since the low level of DNA we leave around usually will make it quite difficult to use this to track us except when we do things like leave semen/blood behind (we might be able to put together many small samples to get a real sample but that doesn't let us use one sample on it's own). Even if it did if your ex-wife can do this shouldn't the police be able to do it as well?

Ultimately, I'm much more concerned about substantive violations of privacy, like using the customs check as an excuse to search hard drives, than merely gather DNA.
5.19.2007 6:11pm
That's Colonel Gary Coleman to You:
While we're talking about privacy, did anybody notice that Microsoft just bought what I believe the second biggest database of online consumer websurfing profiles. Everyone talks about how they're building out adserving capacity. I beg to differ; they're buying personal data.
5.19.2007 6:49pm
Freddy Hill:
Is there a difference between:

1. Identifying a suspect by matching a few DNA molecules found at the crime scene with identical molecules found in spit that demonstrably emanated from the suspect, and

2. matching a witness' positive identification of a suspect (obtained quite indirectly from the processing of photons captured by the witness' retina) with a pattern of photons irradiating from that suspect and captured on a digital camera's sensor?

Isn't the only difference that (2) is well accepted (we don't object to surveliance pictures of suspects, even of non-suspects taken in a public setting)? Isn't (1) controversial only because it's new?

A second differnce is that it seems to me that DNA molecules are likely to be much more reliable than photons.
5.19.2007 7:31pm
whit:
"I think this shows the flaw in interpreting fourth amendment freedoms as freedoms from intrusive collection practices rather than rights to privacy"

well, no. there is no flaw. that's what the 4th amendment says, not what we wish it said. compare and contrast with my state constitution that specifically protects privacy.

the 4th amendment says no unreasonable searches or seizures. if you abandon something, and the cops retrieve it - that does not infringe on the 4th.

it arguably does infringe on a "right to privacy". that's why cops can't recover garbage in my state from the curb (w/o a warrant), because there is a right to privacy - in my state.

change the 4th amendment, or pass a law. but don't blame cops, or judges for ruling on what the constitution ACTUALLY says, not what we wish it said.
5.19.2007 8:12pm
John C (mail):

the 4th amendment says no unreasonable searches or seizures. if you abandon something, and the cops retrieve it - that does not infringe on the 4th.


Says you. The Fourth, by its terms, bans "unreasonable" searches and seizures. Who's to say that retrieving spit is or is not reasonable?


it arguably does infringe on a "right to privacy". that's why cops can't recover garbage in my state from the curb (w/o a warrant), because there is a right to privacy - in my state.


That's exactly the point. The courts have developed Fourth Amendment reasonableness analysis to balance the needs of law enforcement against the right of privacy. Now, there might be other values the Fourth should be concerned with (property rights, human dignity, etc.), but since everyone accepts that it protects privacy, the question is whether the need for the evidence, or the lack of intrusiveness of the search, is more compelling than whatever privacy interest is ostensibly offended by the search.


change the 4th amendment, or pass a law. but don't blame cops, or judges for ruling on what the constitution ACTUALLY says, not what we wish it said.


No one's blaming anything on the police. They do everything they can under the law and the Constitution. That's their job. The problem, from a constitutional perspective, is that the Fourth Amendment ACTUALLY SAYS nothing interesting ("unreasonable" is a meaningless concept in and of itself); it is the particular interpretive tools that are used to resolve actual questions that matter. Like most of the commenters here seem to agree - under current precedent, the officer's actions in recovering the spit was probably constitutional. The question is whether current precedent is slowly closing in on what many people consider to be a right of privacy.
5.19.2007 8:46pm
John C (mail):
Replace "lack" with "level"
5.19.2007 8:47pm
Q:
"'the 4th amendment says no unreasonable searches or seizures. if you abandon something, and the cops retrieve it - that does not infringe on the 4th.'

Says you. The Fourth, by its terms, bans "unreasonable" searches and seizures. Who's to say that retrieving spit is or is not reasonable?"

it doesn't matter whether it's reasonable or not, because it's not a "search" or a "seizure." where the conduct at issue involves physical collection of evidence (as opposed to electronic or other surveillance through the use of sensory enhancing technology) it is perhaps useful to think in terms of the old olmstead "trespass" framework for whether the conduct at issue can be characterized as a search or not. that was, of course, the framework that was used up until about 40 years ago. the shift to the katz paradigm reflects the recognition that the government can significantly intrude on a citizen's privacy interests *without* performing a physical collection. it is the intrusion that results from the non-physical collection itself that makes such collections come within the terms of the 4th amendment. here, although we have changes in technology that allow investigators to discern more information from the evidence than before, this doesn't change the fact that the collection itself did not infringe on any privacy or property interests (after all, you certainly abandon your saliva when you spit on the ground) and thus that it was not a 'search' or a seizure.'
5.19.2007 9:22pm
Henri LeCompte (mail):
I think what disturbs me about this scenario is "odor" it has of creeping Big Brotherism. It is the same feeling I get when I contemplate the idea of having cameras in every public space.

Yes, like anyone, I want safety. I want the police to have the most powerful methods for catching "the bad guys." But, at the same time, I also am nostalgic for the old-fashioned privacy and solitude that is quickly vanishing for any citizen of a modern society.

I worry about the not-so-altrustic purposes that all these snooping techiques could be put to. Can you imagine what a Hell, say, East Germany would have been if the Stasi had had all of these newer technologies available to them? It just gives me a libertarian shudder to think of the arsenal of weapons that the State is steadily acquiring, and wondering if we really know what we are getting. And, worst of all, wondering what beast is slouching toward Bethlehem... so to speak.
5.19.2007 11:28pm
JohnO (mail):
Snark:

Your post is a non-sequitur. I didn't say it was creepy to spit on the "ground," but that it is creepy to spit on a "sidewalk." The language you quote references mixing the spit with the dirt on the ground, which suggests that the subject of youtr quote spit in dirt and not upon a sidewalk (which probably didn't even exist).
5.19.2007 11:45pm
whit:
"Says you. The Fourth, by its terms, bans "unreasonable" searches and seizures. Who's to say that retrieving spit is or is not reasonable? "

anybody with a brain

it is clearly not a search. and it's not a seizure either.

it's no more a seizure than taking somebody's picture in a public place, lifting prints off a glass they left in a restaurant, or following them down the sidewalk is a seizure.

so, whether or not it is "unreasonable" is irrelevant,since it doesn't say "unreasonable STUFF" it only refers to unreasonable searches and seizures.

see?

not that difficult

it may give some the "ick" factor, but that's not the point. the point is what the 4th amendment says.
5.20.2007 12:38am
whit:
"wondering what beast is slouching toward Bethlehem"

a rough beast, of course
5.20.2007 12:39am
Dave Hardy (mail) (www):
I must admit that I can't see anything unreasonable about taking a DNA sample from a wad that a guy spat up on the street and, as the opinion notes, quite abandoned when he could have claimed it as performance art (doubtless far superior to much such that is produced today).

Last time I hawked up a lunger and fired it at 500 fps was when my late ex was head of a day care center and had brought home a bug that was rather like pulmonary anthrax. You can talk of ick factor but when your lungs are full of creeping crud and your handkerchief is to be kept for necessities in hopes it will last out the day, who cares about the gutter's virus load? Anyone crawling or eating there has bigger problems.

If you wanna see a real ick factor, look at the container after they suction out the lungs, as they did when she was cashing in the chips while dying of cancer. (It was transparent so they could monitor the level, and right next to her bed. Four years ago tonight she was going that route, I and I was calling the priest).
5.20.2007 1:44am
Owen Hutchins (mail):

If it's not protected under the Fourth Amendment, can it be protected under the First as "expressive conduct?" Of course, that wouldn't prevent it being used as evidence of crime.



Sure, but just like speech- "Anything you spit can and will be used against you in a court of law".
5.20.2007 6:55am
David M. Nieporent (www):
I think it seems creepy to people because they think collecting DNA allows us to learn facts about a person, rather than merely personal identity. Let's say the guy had spit into a tissue and tossed it aside. If police had picked up the tissue and recovered a fingerprint from the tissue (put aside whether that's possible), would anybody suggest it was intrusive?
5.20.2007 8:51am
John C (mail):
Like most of these threads, this has begun to slide off the rails. . .no one here was arguing that the guy had a protectable Fourth Amendment right to not have his spit collected on the sidewalk. What most of us were saying is that this interpretive framework, that you "abandon" genetic or other biological markers by doing little more than heading out into the world and acting like a normal person, has the potential to seriously infringe on what we (or at lesat many of us) today think of as our right to "privacy," "solitude," or whatever as technology improves.
5.20.2007 9:49am
Toby:
To me, the most inportant point is the Publicness of it. If he spits in his yard, and someone goes and retrieves it - arguably unreasonable search. If he spits on the sidewalk, none whatsoever. I do think the spit in the tissue and carfully dispose of it, if only in a public trash can is a bit closer to gray.

The issue must be where is there some reasonable expectation of privacy? Like many, I find the idea that "Well, he should have read up on the latest forensic techniques and known there was no privacy from IR cameras aimed at homes and photographing those inside." to be repugnant. I find peeping Tomism by police to be likely unreasonable invasion of privacy as well.

But spitting on the sidewalk? He has established BY THAT ACT that he makes no distinction between personal and private behavior. And by the standard he has, himself, established, he has no reasonable expectation or privacy.

And besides - EEEWWWWWWW!
5.20.2007 11:36am
Thief (mail) (www):
The Supreme Court has long held that there is no reasonable expectoration of privacy in a public place...
5.20.2007 10:45pm