Why precisely do you think it is a problem? Do you mean a legal problem or a philosophical one? If it is a philosophical one, are you okay philosophically with police going through trash and only concerned in the specific case of them going through the trash for DNA evidence? If so, why is it only your concern that DNA evidence is acquired this way?
If through some contrived scenario the police wanted your fingerprints to compare against those found at a crime scene, and did not have any probable cause to arrest you and fingerprint you they could just follow you around public places until you inadvertently put your bare hands on something, thus leaving your fingerprint.
I don’t know that this is materially different than the DNA, in both cases you’re basically abandoning evidence so to speak and the police are acquiring it from abandoned or public property as an end run around your explicit refusal to cooperate in providing said evidence.
Practically I think in most investigations if the police care enough about a single suspect to follow him around waiting for him to leave a fingerprint or digging through his trash for DNA evidence they’ve probably already got serious evidence against that person. Otherwise they would not expend limited resources like that on some random person of interest in the case; and if they have probable cause (which is not a very high bar) then they can probably get a warrant for further evidence pretty easily.
I thought I was clear not once but twice, but this comment allows further elucidation:
Which would be highly problematic if I had no reasonable way to wear gloves because gloves or fingerprint pads or something are illegal. Sure, I could pay someone to hold things for me. The problem with the trash scenario is that most of the methods I have to secure my privacy would be forbidden to me. I guess we could come up with a few, not sure about the chemical thing but I guess I could dump grease on everything, but this seems to me to be already at the height of unreasonableness: taking special precautions just so the police cannot find out, for instance, if I have any genetic disorders (they’d need a warrant for doctor’s records, yes?). I get this feeling that there’s this end-run around the fourth amendment which stretches reasonableness. Do you agree that there’s a pretty fine line here?
Again, it isn’t the issue of abandonment. I don’t dispute that abandoned material is abandoned. Not even in question. Strike it from your mind. It’s the issue that my reasonable alternatives are shut down. (Whose reasonableness is also not in question.) What do I have to do to secure my home against unreasonable search and seizure? I have to shut the door. Does storing grease and dumping it over my all my trash sound like an equivalently reasonable measure?
Then a warrant should be no problem. I’ve not got a beef with warrants. I more or less trust how they are issued. The problem is there are two independently reasonable issues—trash is trash, backyard incinerators are too polluting—that together allow an endrun around my ability to say “No, you can’t collect my DNA on your hunch.”
Ok, it looks like there is no effective right to keep your DNA private, if the cops can just pull it from your trash without a warrant. They’ve done exactly this in the past. Is this a problem?
The first thing that springs to mind is “False positives”. Those could be addressed with mandatory followup testing, once a judge signs off.
Let’s say a staunchly Democratic sheriff has learned that there were a ring of marijuana smokers in town: he suspects that some of them may live on certain streets where Republican City Council members happen to reside. After getting over his initial shock (how could it happen in this town?), he arranges to have his men remove the trash from arbitrarily selected houses, before the sanitation department gets to them. A separate group of investigators combs the various trash piles for traces of illicit substances. They find Dixie cups with traces of DNA, cannabis, herbal ecstasy as well as a few stashes of tentacle porn. The former they forward to the DA. The latter gets leaked to the press anonymously: the public has a right to know.
I’m not sure what to do about that. Of course we could expect the privacy conscious homeowner to contract with a private trash collector who has a key to a bin on his property. But that might raise suspicions with the police.
Sorry, it seems I did not address this specifically, and it is a good question. The answer is both.
Law) Trash is trash is already law. Can’t argue it there. No incinerators is already law. Can’t argue it there. How do I argue that some combination of laws, each acceptable on their own, is unconstitutional? Hell if I know. I’m sure it has been done but I wouldn’t even begin to know how to manage it.
Phil.) It smells funny. In cases like Kyllo, the majority cautions against the dangers of technology creeping up behind the fourth amendment and stabbing it in the kidneys (not a direct quote). They beat it to the punch: can’t use infrared to search homes, guys, sorry! (Even though presumably abandoned photons are abandoned…) Sounds ok. The philosophical idea seems sound: technology broadens our powers as a society, but that shouldn’t mean necessarily that the government’s powers should always grow with it. How would anyone view DNA testing at the dawn of the constitutional congress? I mean, it’s a huge boon to the accuracy of prosecution. Huge boon. Really great. But we can’t even help but leave evidence of ourselves everywhere. Good at the scene of a crime, bad when the cops are fishing or stalking you. They’re not even waiting for you to “mess up” and admit to a crime in public to a friend or something. They just sit back and sift trash. Who would have guessed that the fourth amendment would allow someone finding out your familial relations, whether you had a genetic disorder, among god knows what other private information is hidden away there, merely by finding some tissue you blew your nose in? We have expectations of privacy, and these include things like doctor’s records and, hell, refusal to submit DNA in the first place. If some other law blows those protections away… is this a problem? Sounds like a problem.
Proposed fix: Cops can search trash cans all they want, and even put trash under a magnifying glass or optical microscope. But if they want to do DNA testing, they should get a warrant.
There’s a reasonable expectation that scroungers will go through my refuse. There is no such expectation that they will conduct DNA testing on the stuff. Same goes for scanning electron microscopes or even centrifuges.
What about piecing together shredded material? Expecting a privacy-aware resident to buy a cross-cut shredder doesn’t sound too arduous. Having them hire a private company and putting their trash under lock and key is another matter.
I’d say it was good detective work. If we’re going to trust anyone with DNA it should be the
police for investigation purposes. And that’s just it: We have to trust someone with this information, because this information is valuable and exists and we can’t ignore it, just like Sherlock
Holmes couldn’t ignore fingerprints. Don’t think of just DNA evidence, think of “lipstick on a dixie cup”, or “google searches for arsnic”.
A drunk mother fucker hit my car in the parking lot, totaled it, by the time I found out about it and called the cops he was gone. “Can’t do anything to prove the owner was driving” said the fuzz, I replied, “how about finger prints, DNA scan, or something!?”
They struggled to contain their laughter. Conspiracy theorists and gobment misanthropes would sleep easier at night knowing even real criminals have a good chance of evading trouble.
Isn’t this a rule waiting for a combination of jealous girlfriends and decreased DNA testing costs? If the costs come down, I’d bet a gazillion doper-bucks that people would find a lot more reasons than cops to start collecting boogers.
But would this even be sufficient? The whole ruling which says “trash is trash” makes this point:
I’d go even further: we probably expect someone involved with the trash to sort it for things like recyclables. (Throwing them out happens to actually be against the law where I live, even. Have to recycle them.) And anyway I think a lot of communities already contract private firms to do their garbage collection.
My understanding is that the ruling considers trash to be abandoned property. I’m suggesting this interpretation needs to be tightened.
I suspect that the law would permit locked trash and private removal. There is a niche in the waste disposal industry that handles document destruction: I doubt whether the cops could intercept that waste stream without a warrant. As I said though, setting up such a service at a private residence is likely to call attention to the authorities - another Catch22.
I agree. But if DNA testing cost a buck and trash was routinely raided by jealous SOs… I’m not sure what I would think. It is difficult to form a position based upon a world I can’t observe yet. After all, my guideline didn’t spring directly from a deeply grounded principle: it was more like a judgment call. My take is that under those future circumstances, police would have basis to revisit the issue in court. That doesn’t seem wrong to me.
It might be easier to come up with a more robust framework if I had a clearer idea about why I don’t want my DNA invaded. But it’s also possible that in our hypothetical future world, I wouldn’t mind routine trash sifting. That privacy expectations evolve over time doesn’t sound unreasonable.
Trash disposed of in the properly defined manner, in an “official” receptacle or within the confines of a waste disposal mechanism remains your property while stuff tossed on the street is easy game.
So to you the problem with digging through trash for DNA evidence is it is very difficult for you to prevent the police from doing, but with fingerprints it is “easy” in that you just have to be sure to wear gloves anytime you are out of the house? Or is it the fact that they have methods to get around your explicit refusal to cooperate with their investigation?
It’s not a reasonable measure, but I’d argue the concern over DNA evidence ending up in your trash isn’t a reasonable concern.
I guess to me, I don’t see the fourth amendment as designed to protect you from the government learning things about you. It’s designed to make you secure in your home and personal papers in your home and on your person. Over the years this protection has expanded somewhat as technology has increased, but I don’t see any intention in the fourth amendment to protect us from the government looking through things we leave behind to learn things about us.
Do I want the government doing that to me? Not really, and in general I don’t think they would without suspicion. Do I have a philosophical problem with government doing this? Not really…I do not feel that just because technology means you can learn more about someone through their trash than you could 150 years ago that means trash should be specially protected.
I don’t really view it as an endrun, the fourth was never designed to protect you from the government snooping through stuff you abandon. I don’t know that the simple fact that technology allows the government to do that far better than it could in 1789 changes the fundamental nature of this fact: trash is abandoned and people and the government can look through it as they wish.
There are a lot of benefits that have come through modern technology, I sort of feel if you are so paranoid about the government going through your trash you could just live out somewhere that you could either legally or easily (through remoteness) burn all your garbage.
I guess to me for “unreasonable paranoia” I have no problem that it requires “unreasonable” measures to satisfy your privacy concerns.
I think infrared scanners are a good example of where we’ve properly adapted the law to modern technology. An infrared scanner being used to look into someone’s house is to me a clear violation of my fourth amendment right just in the same way a police officer sneaking in my unlocked back door and snooping through my house would be.
The court definitely got that one right, because it was a way in which technology provided government with a new and unexpected way to directly get around the fourth amendment. I say directly because it basically allows them to see into your home, and you are supposed to be secure from your home/person/effects etc being searched without some just cause (just caused being defined by warrants being issued etc.)
But with trash? Well, even new technology aimed at trash is, to me, just new technology enhancing something the government could always do. Infrared scanners was new technology allowing government to do something it would otherwise not be permitted to do, and rightfully it was prohibited without a warrant.
So you don’t think you should have the right to refuse to submit to a DNA sample without a warrant? I was taking the law for granted here, assuming everything is right and just in the world with each law, taken on its own. But I guess if you don’t think I have that right, this issue would be quite moot.
Again you think I have questioned this decision. Again I can only say I haven’t. I will make it as clear as possible: I have no problem with the notion that abandoned material is searchable without a warrant. None. Strike it from your mind, from the record, destroy the words, shred the paper, and sink it in the ocean.
Yes, one could do that. Do you think asking people to move is a reasonable way to interpret constitutionally protected rights? I don’t. I think that if the supreme court ruled that if you didn’t want the FBI to violate the fourth amendment, you could just move to the UK, so everything was ok—I think if that decision came down, you’d probably be a little concerned that things had gotten out of hand.
You weren’t allowed to burn trash in the street a long long time before DNA testing came around.
I’m not an expert on DNA chain of custody procedures, but refusing to provide DNA is not the same as preventing the police from collecting whatever DNA you happen to leave around. Of course they still have to tie it to you, for which I think they need a properly collected sample.
Locally, there is a murder case that was dormant for 30 years proceeding because of DNA evidence fished out of the trash. The suspect would not willingly give investigators a sample, so they used a discarded cup retrieved from a trash can. The match from this was close enough for them to be able to legally compel him to submit a sample for analysis. So here, anyway, DNA retrived from the trash doesn’t have to be an exact match, just close enough for The Man to decide you need closer scrutiny.
In my view, it is reasonable to tell people, in effect, “You must go to extra effort to secure your trash from prying eyes, if you wish your trash to be secured from prying eyes.”
Since you already acknowledge that abandoned trash is just that, something in which you no longer have a cognizable Fourth Amendment interest, the answer is simple. You are treating trash removal form your home as some sort of right. It’s not. It’s a paid service. Granted, the cost is often – but not always – invisible to the end user, as its covered by taxes, but it still costs.
If you wish to ensure the privacy or your trash beyond the inexpensive measures offered by the basic service you’re using now, you’ll have to upgrade to a private trash removal service that destroys your trash, or so thoroughly mixes it in with other trash as to destroy any probative value it might have. This is more expensive than most cities are willing to fund, so you must pay for it yourself.
A private trash disposal service discretely offering exactly the service Bricker describes sounds like a possibly lucrative business if you live in an area that has a sufficient population of wealthy and/or sketchy people who desire the added anonymity.
You hire someone to do secure disposal of your trash. There are plenty of companies who do secure disposal of documents, they could easily handle household trash as well, if they chose to do so. Nothing illegal there, and I’m sure they would refuse to let the police search their truck/facility, if they fail to produce a search warrant.
It’s the issue that my reasonable alternatives are shut down. (Whose reasonableness is also not in question.) What do I have to do to secure my home against unreasonable search and seizure? I have to shut the door. Does storing grease and dumping it over my all my trash sound like an equivalently reasonable measure?