Lying for DNA

Do suspects have a reasonable expectation of privacy in their personal genetic code? Can they abandon DNA unwittingly? Can police legally obtain DNA by deception without a warrant? Val Van Brocklin looks at this new frontier in policing.

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.)

Surreptitious Sampling

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.

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