Suppose I wish to be a private individual. So private, that I try to take care to shred all personal documents and avoid disposing of anything identifying in the thrash. This has its limits when it comes to DNA.
The cops come to my door. For some reason, they don’t particularly seem to suspect me, but they’d like some DNA to eliminate me anyway, just to be sure. I am, of course, free to refuse. They acknowledge this refusal, thank me for my time, then leave. Then they wait, and root around later that week through my garbage, under the idea that I’ve already disposed of it and therefore it isn’t mine anymore. Sounds reasonable, I guess.
But I’m a private individual. I don’t really like this. So I decide to burn my trash so no one can even get my DNA out of what I dispose of on the street. Except, burning the trash is against the law in many municipalities (and some states in general). Hmmm…
Is this an end-run around the ability to refuse giving DNA evidence? I know it wasn’t devised that way, I don’t think that anti-incineration laws were concocted by a secret cabal of fascists. But, in the end, events seem to have aligned in such a way that refusal to give DNA evidence is nothing but a formality with absolutely no protection whatsoever.
Anyone have a problem with this? If so, any ideas?
Further question: would it be legal for the police to just go around to people’s trash to collect DNA and store it in a database, in advance of any particular crime suspected? Just to help plump up their database? Obviously the cost would be ridiculous but, in principle, could they do it?
While I haven’t looked at the laws myself, it is my understanding that this would be an illegal search. If the law prohibits dumpster divers going through your garbage because it’s still yours, it should prohibit the police doing the same thing for the same reason.
At least one state Supreme Court (in Maryland) has declared it okay:
We will have to wait until one of these cases makes it to the Supreme Court for a final answer. It is not clear cut, and this Maryland decision was not unanimous.
While I also have not studied the laws, I was under the impression dumpster diving is perfectly legal if your trash container is not indoors in some fashion or behind closed doors.
For example, your trash can is on the side of your house, where anyone passing by can see and open it if they were inclined. If someone was inclined to do this and take things from it, it’s not illegal.
However, if your can is in your backyard in plain view of your next door neighbors, but inaccessible without otherwise getting into your backyard, then taking anything from it is illegal. Same as if you keep the can in a small, indoor type section specifically the size of trash cans for exactly this reason.
I seriously doubt you could get usable DNA samples from the garbage. It would be contaminated and wouldn’t be admissible as anything, even if it were legal for them to do what you are suggesting (which, not being a lawyer and based on my non-lawyer best guess notions, they can’t do).
As for this:
I don’t think they could do this even in theory. In practice it would cost the world and would be impossible even if they had the price, as from what I understand labs are already straining to keep up with demand for DNA type testing as it is. And this doesn’t even get into the data storage and computing power issues that trying something like this would cost (I can’t imagine the IT requirements for something on this scale…or where the budget would come from for such an undertaking, even if the DNA testing were free and rapid, and you could get usable information from garbage).
While the specifics vary, IIRC the cops can take anything which you throw away, if it is not on your property (or maybe not on private property generally). Essentially, if you’ve thrown it out you’ve voluntarily reliquished ownership an posession. However, if it’s on your property, they still can’t search it even if it’s in a trash can (since, among other things, the cops don’t get to decide what you consider trash until or unless you make it clear, and can’t search your property anyway).
Trash is pretty broadly defined as abandoned property, so anyone can freely go through it and find what they will.
Here is an interesting case about detectives that pushed a cigarette butt off a dude’s porch so it counted as “trash” that they could collect as evidence.
That said, if you’re really freaked out about DNA leftover in your trash, then there isn’t much hope for you, because every time you go out in public, someone could be out there lifting your DNA from the hairs and skin that you’re shedding all the damn time.
Find a place that allows burning of yard trash, live there, and put all of your bodily waste trash in with the leaves and burn them that way. It won’t save you totally, but it can make their lives more difficult.
Sorry, I should have put some research up to clarify that point:
From the case: “Held: the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.”
Well, DNA, no, but obtaining DNA from a residence which matches your suspect sure would help you get a warrant, right? I think I’ve wondered about this before but it is fresh in my mind because I was just watching one of those cop shows on cable, a Forensic Files clone, and in it the officer mentioned that a few of their (many) suspects refused to give DNA evidence… so they went through the trash.
Again, not a lawyer nor a police officer or forensic anything, but basically if you are at the point where you are willing to go through their garbage AND attempt to get DNA samples, then you could probably simply get a warrant from some sympathetic judge. I can see going through the garbage for some evidence, and certainly if you found a bunch of bloody rags or body parts that would be usable, but normal garbage? I guess I’m just not seeing it or how it would be worth while to try and get usable samples from it. I mean, it would be mixed in with, well, garbage…food debris and such, cleaning solvents, organic and inorganic waste. All sorts of nasty stuff that would, I assume, contaminate the samples and make them essentially worthless, unless they had those bloody rags or whatever.
I don’t know what the Forensic Files is, but if it’s one of the CSI type shows, they are mainly hype from what I’ve been told…lots of tech that is either fantasy, or is being vastly overblow by the show.
No, Forensic Files (and the clone in question) is about actual cases. They spice it up with dramatization but they’re shows about real cases decided by forensic work, interviews with officers and lawyers, journalists, etc. I find them extremely interesting.
Well, then I’d have to concede the point if they think they can get real, usable info from garbage. Like I said, I have zero expertise in that field, and I don’t even watch CSI…nor have I stayed at a Holiday Inn Express in quite a long time. I’d still say that it would be impossible for the police or forensics to gather, process and store (as well as retrieve) preemptive samples of garbage from a large enough percentage of the population to make any sort of dent in crimes that might happen in the future, but even there maybe it’s easier to process DNA samples and store them than I thought it was.
Sorry, I fail to see where the constitution offers me protection of my unwanted trash items once they are no longer in my custody. If they aren’t unwanted and being discarded, then they shouldn’t be in the trash.
I was a little snarky above, and I apologise, but there* isn’t *any protection of trash - it’s trash.
If there are things in your trash that you don’t want people to go through, then it is incumbent upon you to either 1) filter out those things that you don’t want people to go through, and/or 2) start a drive to add a constitutional amendment to classify trash as a category of abandoned property that is protected from search.
Further, I can just about guarantee that you won’t find much support from the general public for a constitutional amendment barring people going through their trash, because - well - it’s trash. We can’t even get most people to sort their damn recycling, let alone shred their private documents, LET ALONE monitor and filter their trash for DNA residue.
I really can’t tell what you’re trying to get me to do or feel about this. I gather that you’re upset by what you feel is a violation of your privacy (but isn’t, legally speaking), but I can’t figure out what you think should be different.
I didn’t think I was disputing this, but if it isn’t clear: I am not disputing this.
I cannot hoard garbage, that’s also against the law. I can’t burn my trash (in many places—which is also probably a good thing). But the combination means that, effectively, I cannot refuse a request to give law enforcement my DNA. But we’ve accepted as a society that I can refuse to give up my DNA. So, again: is this a problem?
How about answer the question: does this combination of events, which shows I cannot actually turn down a request for DNA evidence, represent a problem? If the police want to search my house, and I say “no”, they need a warrant. If they police want my DNA, and I say “no,” they need a warrant. Or they just root through your trash which you have no legal way to hide from them.
I don’t know. Maybe nothing should be different. If the courts feel that refusing to give DNA evidence is a right, and the police can trivially subvert it, and I have no way to dispose of it… well, that seems like a problem.
It might find support as part of an overall campaign for a Privacy Amendment, which would cover lots of other fields besides just trash. It could address profiling, dossiers of suspects, and/or put additional restrictions on wiretapping. It could go as far as preventing supermarkets from keeping records of your purchases, which many people hold to be an unacceptable violation of privacy. (I don’t; that, at least, doesn’t bother me a bit. But many people feel otherwise.)
No two people hold exactly the same views and values on privacy; even if there were an amendment, it would have to be interpreted by the courts.
(Would it even be possible, politically, to propose such an amendment, given that it would almost inescapably be taken to support abortion rights? Or would Congress phrase it so delicately that it would exclude abortion privacy? A really big can of worms either way!)
Right, but DNA might fall into a different category. If DNA is attained without a warrant–by whatever means–it might be something that a court would consider a 4th Amendment violation–kind of in the way that they did with the GPS device placed on a car for long term surveillance. However, I read somewhere about cops using DNA obtained without a warrant from an eating utensil someone left in a restaurant, and that wasn’t contested.
I don’t know how I feel about the overall question of rights to keep DNA private vs police having access to it through already-established search procedures that weren’t designed with things like DNA in mind. I’ve never really thought about it.
However, I do have some thoughts about the italicized parts.
First - I don’t think that searching your garbage is that trivial or easy. It seems to me that police are very aware that roadblocks to convictions can be thrown up in court very easily over improperly or contested avenues of evidence gathering. It would seem to be more likely that they would simply find a judge who was willing to give them a warrant to force you to submit your DNA than to spend hours mucking about through your trash, proving that they didn’t violate your property rights while doing it, and then trying to isolate your personal DNA from that of your family members, your pets, and whatever visitors you may have had that week.
Second - I don’t think that it’s true that you literally can’t discard your waste other than in the curbside trash. You can process it with chemicals to remove or contaminate the DNA before you trash it, you can flush it down the toilet, you can take it to publically-accessible dumpsites where it would be anonymous and therefore harder to find and search, trash can be taken directly to a processing facility where it will be immediately destroyed, day trips can be taken to campsites which allow burning of campfires… Certainly none of that is as *easy *as curbside trash, but if unmolested trash is important to your hypothetical person, then one would think that those would not be insurmountable difficulties.
So I don’t know. Maybe it’s because I can think easily of ways that I could circumvent the potential if I were worried about it, maybe it’s that I’m not too worried about the potential anyway. Like I said, I’ll have to think about that part.
I agree that the actual act of sifting through garbage is one I’d call particularly simple, but I wouldn’t argue that busting down a door is particularly simple, either. The fourth amendment protects my house even if the lock is not very good. And I am sure a different standard should apply to trash, but it seems I don’t really have a legal recourse other than “buying a better lock.” (which also applies somewhat to your second comment)
It would not be insurmountably difficult—though I don’t think going to a trash facility directly would make a bit of difference, more on that in a second—but is difficulty the point of the fourth amendment? It seems to me its protections are stronger. They’re not a few inconveniences thrown in front of the police just to make them waste time, they’re protections against unreasonable search and seizure. In that sense, I think that circumventing my refusal to consent to search (DNA search) is trivially overridden—it is only a hurdle, not an evidentiary burden like a warrant.
As far as the waste disposal place goes, some states’ constitutions have been interpreted as requiring a higher standard, even on curbside trash. But even there, once the trashman has picked it up, it’s already disposed. Same with dumps, I’d guess. Though I wonder if the operator of the dump could refuse. (Are dumps privately owned? Christ I know nothing about garbage when I get down to it.)
I guess I could eat a lot of meat and dump grease all over everything… I haven’t really thought about it either, not being particularly paranoid.
