In this series on police deception we've thus far dealt primarily with suspect interrogations. Modern science and technology, however, are taking police deception into the new frontier of surreptitious DNA sampling. (See web links below to previous articles in the series.)
When I used the L word in Training Cops to Lie (web link below) it caused quite a brouhaha, if reader comments are any indication. The Supreme Court prefers the term strategic deception. Given the high Court's apparent sensitivity to calling a lie a lie, it's no surprise that the covert collection of DNA has become known as surreptitious sampling.
Surreptitious sampling doesn't always involve overt deception. Often the police obtain abandoned DNA. While the U.S. Supreme Court has not yet ruled on the constitutionality of this, lower courts have supported it.
- Commonwealth v. Cabral, Massachusetts Court of Appeals No. 06-P-987 (May 16, 2007). Court held that rape suspect abandoned his privacy interest when he left his saliva on the sidewalk by spitting.
- People v. Ayler, N.Y.L.J. (Oct. 1, 2004). Court denied defendant's motion to suppress DNA evidence procured from cigarettes offered to him in a police interview.
- Andy Furillo, Man gets 16 to life for killing aunt in '91 (April 24, 2009). Reports on sentencing of defendant convicted with DNA from a cigarette butt retrieved by surveilling officers that matched evidence taken from a bloody towel at the murder scene.
- Altemio Sanchez, suspected of strangling and raping several women, admitted killing three and received a life sentence after undercover police retrieved his glass and utensils following his dinner at a restaurant and matched it to other seized evidence. Lawyers Fight DNA Samples Gained on Sly, web link below.
One of the more comprehensive listing of lower court rulings on challenges to police surreptitious DNA sampling can be found at the Denver District Attorney's web site, listed below. Out of 21 cases reviewed, only one - State v. Galloway and Hoesly - suppressed evidence.
In Galloway defendants placed their garbage inside cans and placed those cans in locations clearly connected with their residences pursuant to contracts with garbage collection companies. The Oregon Court of Appeals decided that, under those facts, the defendants had retained a property interest in the garbage (as opposed to an expectation of privacy) under Article I, section 9 of the state constitution. Accordingly, suppression of DNA tests performed on items found in the garbage was proper. The defense did not even argue a Fourth Amendment violation.
Lying for DNA
Courts have also approved of police obtaining DNA by overt deception. The Washington Supreme Court affirmed police obtaining a murder suspect's saliva by posing as lawyers. State v. Athan, 158 P. 3d 27 (2007).
Twenty years after the rape and murder of 13-year-old Kristen Sumstad, cold case detectives decided to re-examine her case using advances in DNA technology. John Athan had been a suspect. Police located him in New Jersey and sent him a letter inviting him to join a fictitious class action lawsuit. DNA from the saliva of the letter he sent in response matched DNA on the victim.
Affirming Athan's conviction, the court concluded,
We hold under these circumstances, any privacy interest is lost. The envelope, and any saliva contained on it, becomes the property of the recipient.
It is noteworthy that Athan's attorney did not dispute that "one's cells sloughed in public in the normal course of daily living are not entitled to (federal Fourth Amendment) constitutional protection." Rather, the defense argued that the police violated Athan's greater privacy rights under the Washington Constitution.
In People v. Laudenberg, a detective suspected the defendant of a 1972 murder and fooled him into a meeting at a donut shop to discuss a purported auto theft case. After the meeting, the defendant left behind a cup and a napkin he used to wipe his mouth. Police determined the DNA on them matched genetic material from the victim's autopsy.
The California Court of Appeals (2nd Appellate District, No. B199633, 7/23/08) seemed unconcerned with the detective's deception, ruling there was no fourth amendment violation because the defendant could have no reasonable expectation of privacy in his discarded garbage.
In recent years, police seeking DNA have used the following deceptions:
- Created a phony dating service in Boston
- Impersonated a public health worker in New York City
- Portrayed a rape counselor in Iowa City
- Passed as a Taco Bell worker in California
- Played a diner at a Wendy's restaurant in upstate New York.
Not to be outdone, defense lawyers and civil litigators have begun using DNA ruses. In Phoenix in 2000, defense investigators seeking to exonerate Ray Krone from a murder conviction followed other suspects to bars to try and get their DNA from drinking glasses. None of those samples matched any DNA left at the crime scene but Krone was released after a neighbor's DNA was matched to the crime. (See web link below to Police dupe suspects into giving up DNA.)
Two courts have found that certain surreptitious sampling did violate the Fourth Amendment.
- An Iowa court rejected DNA from a water bottle that police secretly swapped with another when the suspect went to the restroom. The court said the suspect had not abandoned the water bottle and police were not entitled to it.
- The North Carolina Court of Appeals said police were not entitled to evidence on a cigarette butt that an officer kicked off the suspect's patio by and later retrieved because the suspect had an expectation of privacy of discarded items on his property.
Go not too boldly into the new frontier
Law enforcement's surreptitious sampling of DNA - whether by overt deception or not - is being debated. See web links below to Reclaiming Abandoned DNA: The Fourth Amendment and Genetic Privacy and the Association for Practical and Professional Ethics in which a 2008 ethics bowl for college students debated this issue.
One issue is whether people are truly abandoning and relinquishing an expectation of privacy to their personal genetic code and all the information it contains. We all slough off DNA wherever we go, whatever we do.
- Does that mean we're abandoning our genetic code to police seizure whenever we leave our homes?
- If you respond to a Fish and Wildlife survey by mail have you abandoned the DNA of your saliva to the government for any purpose?
So far, reported cases involve police focusing on a person they suspect of illegal activity. As a practical matter, why would they do otherwise? (Conspiracy theorists can come up with reasons but I'm addressing the real world of policing.) It's not like we lack criminal activity to investigate and DNA testing isn't cheap. As to this purpose, courts have been very supportive of surreptitious sampling.
But a concern expressed by critics is that police could collect DNA deemed "abandoned" from targeted individuals even if they don't suspect them of committing a crime and innocent people could have their DNA turn up in a database file they didn't know existed. Should this latter occur with any frequency, prepare for a public outcry.
As with many things, discretion is the better part of valor. Put another way for law enforcement purposes, bad facts make bad law. If officers surreptitiously sample the DNA of a person they do not suspect of illegal activity for reasons other than to attempt to solve a crime, they may end up burdened with new legal restrictions governing all surreptitious sampling.
Stay tuned next month as we continue to explore the legal and ethical parameters of police deception.