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.