Sure. Voter ID laws are, I think, a great example. One reasonable law says you have to provide a legal ID in order to show you are a registered voter. Another reasonable law says legal IDs cost $50. Together, they are equivalent to a poll tax, and unconstitutional. The remedy is to change one of the laws, either ditch the ID to vote, or make IDs free and easily obtainable.
I think the garbage picking case fails because the Constitution protects us from self incrimination and protects our personal property, but does not preclude the police being clever in obtaining similar/identical evidence from another source. You don’t want to tell me if you were in a 7-11 on the night of the 5th? I can’t make you, but I can look at the surveillance tapes, ask your friends or family who may have been with you, or pick through a bag that you gave to the garbage man, looking for a Big Gulp receipt with your name on it.
I’m not a detective or anything, but from what I’m aware, there are a few things about criminal investigations which is often left out of TV:
Most crimes are solved within 24 hours.
Most forensic evidence isn’t processed until weeks or months later.
Basically, forensic evidence is almost never used to solve a crime nor even to help track down the truth of a crime. It’s basically just ammunition for the trial, to prove what the police already “knew” weeks or months before.
The bar for getting a search warrant isn’t all that high. They don’t need to steal your trash, they just need to tell a judge why they think you’re the one who did it, and they’ll get a warrant to take a sample of your DNA.
I agree with the Brennan/Marshall dissent in that case. Placing trash on the curb for pick up is not “abandoned” property. Were that the case you could be cited for littering for placing your garbage on the curb for pick up. In my mind, I feel that I am hiring the trash collection company to dispose of my property. They are acting as my agent and bailee and should not have the authority to disclose the contents of the trash to police without a warrant, or through my permission.
I am transferring my property to my agent with the implied instructions that it be destroyed in a landfill.
Dumping waste in a landfill doesn’t destroy it. That’s why police have been know to do grid searches in landfills when there’s probable cause to believe a body has ended up there.
The case that led to the OP had no solid suspects. I am not 100% sure anymore since it has been a little bit but as I recall, either 1) The request for DNA was part of a sweep of several people in the neighborhood; or 2) They told him it was a sweep and had some suspicions but nothing they felt they could use to get a warrant. I am sure they would have preferred to get a warrant than dig through the trash, seeing as all the trash would practically yield would be either exculpatory evidence or enough cause to get a warrant.
Slight hijack here…his DNA and fingerprints would be all over the car, but it’s his car. That’s to be expected. If he says he lent his car to some neighbor and they must have hit you, oh, and they wore gloves that day- it’s not that the cops necessarily believe him, but they can’t prove he didn’t. The “ghost driver” is a popular DWI defense.
In post #23 I sketched a scenario that was ripe with abuse. Here, I’ll take the opposite side.
It is the year 2025. DNA tests cost $5 each when purchased in bulk. A call girl has been murdered and her cell phone has 50 names. Some might be clients, or not. The cops run a standard investigation: 2 samples are taken from the garbage cans of each address, as well as the neighbors of each address: total cost is $1500. The results all go into a permanent data base. Let’s say half the time a match occurs, which is sufficient for probable cause to obtain a warrant from a judge.
The story gives me the heebie jeebies. But why? Why should I care if my DNA-address pairing (as well as hundreds of thousands of other pairs) is in a national police database? Well there might be insurance issues, but those can be handled via a ban on pre-existing conditions. There’s certainly a legitimate state interest at work here.
Legitimate state interest? There’s a legitimate state interest in shredding the entire Constitution, if that’s the only bar to jump over or wiggle under. Matching DNA in a database is a matter of statistics and if you have a population of 500 million people (it’s the future) and odds of a false positive are 1 in 100 million then you’d expect to have around 500 matches every time. Even if we assume that there wasn’t an error that missed the suspect (no false negatives at all), and therefore that the suspect is one of these 500, DNA evidence alone would tell us that the chances of one of these 500 being the suspect is 0.2%. Your typical neighborhood around a crime scene has what, 50 houses? Maybe 100? If it is an apartment complex, maybe that even approached 500. Would you find it reasonable to bust in on every domicile in the neighborhood of a crime because the odds were at or better than 0.2%?
(note on calculation: mean of a binomial distribution is number of trials times the probability of success.)
Sure you could in some cases - toenail clippings, clumps of hair removed from hairbrushes, used sanitary napkins, condoms…
Sample contamination would be an issue, but probably possible to eliminate in cases such as the above where the sample is quite large and self-contained.
And it wouldn’t necessarily need to be used as evidence itself, just as a pointer instead of a house-to-house search - if the police suspected, on the grounds of DNA matching, that you’re the perpetrator of something horrible, they’d find a way of obtaining an admissible DNA sample once they had used the non-admissible sample to track you down.
I’m not convinced the the slim possibility (1 in 100 million, by your standards) of a false positive makes DNA matching Unconstitutional.
What I think Measure for Measure is getting at (correct me if I’m wrong) is that DNA testing/DNA database matching isn’t, by itself, unconstitutional. Just like fingerprint analysis isn’t. The problem with the Constitution generally comes in the collection of the DNA, and, if that is removed as a consideration, Measure for Measure finds DNA testing/matching on a massive scale to be scary, but not necessarily unconstitutional.
I don’t think that the Constitution plays fast or slow, tight or loose, with statistics. Sometimes SCOTUS is swayed that way, but it rarely seems particularly substantial. Sure, if it were already constitutional to collect DNA indiscriminately, then presumably searching the database wouldn’t hurt (why’d we collect it otherwise). I don’t disagree.
I think what I find annoying is you just want everyone to agree “there’s a problem.” Is that all you want? Because if so, I agree–it is a problem for people who are extremely irrationally paranoid about their DNA being harvested from their garbage that in most places it is illegal to burn your trash and in most places it is illegal to just store endless trash on your property and in most places it is difficult and expensive to dispose of the trash personally.
The Fourth Amendment is designed to protect your person and your property from the government. When something stops being your property it is no longer a fourth amendment issue, it is irrelevant to the fourth amendment if a “regime of laws” conspires such that sometimes persons will be heavily funneled by society into giving up things they normally wouldn’t due to normal property abandonment that is highly convenient for society.
Garbage management is a valid place for the legislative branch (realistically city councils), as the representative of the people’s will, to decide things. The Fourth Amendment doesn’t really protect your right to not surrender information, it protects your right to not be forced to surrender anything that is your property or to have your person seized without a warrant. But information that is your property or on your person that becomes abandoned and is no longer your property isn’t a fourth amendment concern.
I don’t really believe the fourth was a privacy amendment, it was a personal liberty and property amendment. There may be a right to privacy found in the “penumbras” of the constitution, but the truth of the matter is you want to treat information about yourself as personal property no matter where it is–and that just isn’t the way our laws are set up at present.
eris- Martin is hitting the OP directly. There’s a 4th amendment search issue if the government wants to swab your cheek or take a blood sample. But there’s no real “Search” going on if Big Guv studies what you’ve discarded, since said material is no longer yours. (That said, arguably it still is yours if it sits on your curb, though courts don’t see it that way.)
In contrast, there is a privacy issue whenever your DNA is sampled without your consent. But that’s a separate matter (which might or might not be embedded in the 4th amendment).
Nice to see that you grasp the Bayesian difficulties in my post. But remember that my database consists of names and addresses: we would have much higher rates of false positives and negatives. Garbage could contain the DNA of a visitor or someone who tossed their soda can while walking down the street (false positive). False negatives would be high since the garbage sampler won’t always pick the correct cigarette butt out of the trash. But so what? This isn’t evidence to convict anybody of anything. It’s evidence to get permission to take a cheek swab.
Drilling down, I’m assuming that the those failing the 2nd test would be put under arrest and given a third test. Between the 2nd and 3rd, I assume the false positive rate would be vanishingly low and sufficiently low given the pre-test procedure, as it were. Admittedly, I’d want a statistician to look over this chain of events and courts to admit such testimony as an aspect of due process.
Anyway the privacy concerns are 1) false positives and 2) abuse of dataset. Rudimentary safeguards can offset some concerns about abuse, but not all. I wouldn’t want naked pictures of myself in an FBI database without good reason, simply because stuff happens. Pictures leak. Printouts get thrown away rather than shredded. Hackers hack. And by 2045, there very well may be strands of DNA found to be correlated with certain embarrassing physical and personality traits. Things an individual wouldn’t want posted on the internet.*
Are there other reasons not to have a noisy and humungous address-DNA dataset used by law enforcement?
ETA: * ACK! The DNA data wouldn’t be comprehensive! So this last consideration is bogus right?
It seems that what you want, erislover, is some sort of doctrine of “unintentional and unavoidable abandonment” wherein the personal information contained in your skin cells and other biological detritus can not be utilized by legal entities without your permission. The fact of our biology shedding our DNA everywhere and on damn near everything makes it impractical to control what is generally seen as personal and private information. Our DNA tells a lot of our life story and it’s very personal. Harvesting the DNA from a household could reveal the adult occupants are not, as is commonly considered, the biological parents of the youth in the household. This is considered a private matter and open testing would require permission of the occupants. Harvesting DNA from the Schwarzenegger household could have been highly lucrative if the right tabloids were offered the test results. Culling tens of thousands of households for DNA and analyzing it for predisposition to hypertension or obesity could allow someone to set up an actuarial-style system of placing life insurance policies on various people and making out like a bandit when they drop dead as their predisposition predicted. These things would be odious to the average citizen, but they’re generally legal now.
These would be illegal if there were a doctrine of still retaining the rights to your unintentionally, involuntarily abandoned personal information.
I understand what the courts have ruled, but if the law holds that I have discarded trash by putting it on the curb for collection, why can’t I be cited for littering?
Maybe once it hits the landfill I’ve discarded it, but I can’t see the difference between entering a contract for the trash company to pick up my property and transport it to the landfill and entering a contract for UPS to pick up my property and deliver it to a third party. In the first instance, it is abandoned at the end of its journey, but I can’t see the difference at the point of collection.
If it were crafted in such a way that collecting such unintentionally and unavoidably abandoned things were still usable at a crime scene, I would be all for it. It would, incidentally, make rulings like Kyollo totally superfluous (but still IMO correct).
