I’m not talking about spitting in a cup, I’m talking about spit on a cup. It does seem to be pretty common to manufacture saliva while eating.
If the police thought you’d raped someone, and had DNA from it, would they be justified in taking a cup or napkin you threw away and analysing the DNA on it? Would that violate your right to trash privacy?
And does it matter if it’s in public or in your trashcan on the curb?
**
Once again, I’m not so sure. The Supreme Court would have reached exactly the same conclusion – and probably with a bigger majority – had the issue involved non-invasive medical scanning of a person walking down the street – especially if this technology allowed the state to discover particulars of a person’s medical condition.
Consider this:
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In other words, doing these tests necessarily involves gathering information about the woman’s sex life.
I think Kyllo even applies – and quite easily – to the cigarette butt DNA test. You don’t have a protected privacy interest in your “identity.” The police can take all the pictures of you they want (in public) without a warrant. By the same token, the police can do DNA tests that identify to whom the DNA belongs without a warrant. However, the police cannot extend that reasoning to do other warrantless tests on your DNA that will discover information in which you do have a reasonable expectation of privacy, e.g. genetic abnormalities you may have.
In other words, we have two levels here. You can’t unreasonably seize physical material. However, even if the material has been properly seized, you still can’t do an unreasonable search. Before you open up a woman’s personal life and medical history to scrutiny by the state, you need to have probable cause, i.e. a warrant.
I think that’s what Kyllo is really saying. The zone of privacy protected by the Fourth Amendment has an independent existence. It’s not defined by the limits of the technology the police can use to infiltrate it. Private information is protected by the Fourth Amendment even if the police can discover that information by “non-intrusive” means.
It’s rather amazing to cite Katz - indeed, to cite dicta in Katz - for the proposition that a warrantless search of trash is unreasonable, when there are other Supreme Court cases that are directly on point - and, I might add, not supportive of your position.
In Katz, the Court excluded recordings made from a telephone booth that was tapped with no warrant. They held that a person has a reaosnable expectation of privacy in a phone booth, and the Fourth Amendment protects not places per se, but places in which people have an interest in privacy that society is prepared to recognize as reasonable. I grant that, were this the only case law addressing the subject, you could certainly argue that society should recognize personal garbage cans as private, and protected by the Fourth Amendment.
However, to your dismay, as well as the dismay of Billy Greenwood, the Court has spoken more definitively on the issue of garbage. Suspecting that ol’ Billy was involved in narcotics, and lacking probable cause for a warrant, the Laguna Beach police asked the garbage collectors to save Billy’s trash for them.
Finding a lot of drug-related items, the police obtained a warrant based on the garbage evidence, searched Mr. Greenwood’s home, and found cocaine and hashish. Greenwood was arrested, tried, and convicted. California’s appeals courts overturned his conviction, claiming that the Fourth Amendment protected garbage.
In California v. Greenwood, 486 U.S. 35 (1988), the Court held that Billy was out of luck.
Already been done (well, close). A few years back, in a multipart episode about the murder of a Hollywood movie executive, the police went through the trash to find a bandage worn by a suspect, to get a blood/DNA sample to test against the crime scene.
Sua
and that was a special three parter, with a road trip to CA!
(not that I would know this, I got my law degree from L&O U 
)
BLALRON –
Since when is “appropriate behavior” a yardstick for law enforcement? I’m not being snarky about cops here, but they routinely do things that are not “appropriate behavior” for regular citizens, from stopping cars to shooting people. Investigation of criminal activity is not grounded in politesse. The fact that garbage is in “opaque containers” is irrelevant; it’s in “opaque containers” you leave on the curb, surrendering all control over, for anyone to root through and for total strangers to pick up. You see, the rationale is that if you desired to keep a certain thing private, you wouldn’t surrender control of it wholly to someone else, over whom you have no control. Those to actions are logically inconsistent.
Only by those who don’t know that going through your garbage is a legitimate and legal means of invesigation for law enforcement.
Yes. Exactly. If you want to keep your “very personal matters” out of the hands of “snoopers,” be they police or otherwise, you’ll have to “undergo undue hardship” to do it. If you want to keep your “very personal papers” away from “snoopers,” undergo the hardship or shredding them. If you want to keep your “very personal pictures” away from “snoopers,” undergo the hardship of burning them. As others have said, the fact that we’re talking about tampons here is largely irrelevant – if you leave it out there, someone can pick it up and look at it, or through it.
Is your garbage sealed? Is it in the Federal mail system? You’re right; accessibility by others does not take away the expectation of privacy, but it certainly can indicate you have no such expectation in the first place. If you leave your diary out on the curb, do you have an expectation that no one will read it?
Would I mind, or would I think you were doing something illegal?
*:: Shrug ::[/i The Supreme Court disagrees with you. I see people digging through the trash every day (unfortunately), for cigarette butts, aluminum cans, or food. People around here leave funiture or household goods out on the curb by the garbage with the expectation that total strangers will come pick them up. So while you might think the current law is wrong and should be changed, you may also want to keep in mind that it is the law, and shred those ACLU letters before your stalker has a chance to see them.
Blalron:
As I have suggested elsewhere, it’s not really relevant to the state of settled law whether you “buy” into garbage having a reasonable expectation of privacy, unless you’re Ruth Bader Ginsburg posting under an alias. What does matter is the Supreme Court’s interpretation, and they have decided the issue against your view.
Of course, as was mentioned earlier in the thread, the state constitution in Oregon may offer more substantial protections than the federal constitution does. The US Supreme Court has no say in whether the Oregon constitution or laws prohibit the practice; that’s up to the Oregon courts.
Why in the world would “evidence of semen” be of importance to their investigation?
pug - the concept was: the tampon would contain suffient matter from the woman to show existence of drug use. It could be assumed to be hers, only if there was an absence of semen (which would indicate another potential source of drugs in the sample) unless I misread.
They did a blood test on her without her consent.
Is that or is that not legal?
I didn’t see that in the article.
If you are referring to testing the blood on the tampon, that blood test is legal (again assuming the Oregon Constitution does not give greater rights in this regard than the federal one).
Cops don’t need a court order to test blood; they need a court order to draw blood. Drawing blood is the invasive procedure that requires court approval. If the blood is just lying around, no invasion of the person is involved, and the police can have at it.
Sua
Well, that’s what I meant, Sua. They tested her blood without having to get consent to draw it. Neat little loophole.
The bottom line is that garbage is… well… garbage. You’ve thrown it away. You can hardly claim it’s intensely private or personal.
We shred mail at the Bricker household, and use the shredded paper to light kindling in the fireplace. We do so not because we’re worried about law enforcement’s interest, but out of the recognition that anyone could easily grab our trash and answer one of the numerous 0-APR-for-6-Months-And-Then-Fees-That-Will-Impoverish-You credit card offers. I simply know my garbage is not private, and takes steps to avoid suffering problems because of that.