Do you think that people should be “swabbed” if they are convicted of a crime? I do. They are already fingerprinted when they are charged. Why is DNA considered “more private”? Doing a DNA test might be too costly, but surely there should be one for each person convicted. I think that I am not in line with the ACLU on this one. And why isn’t there a national data bank for DNA and for fingerprints?
I don’t think there is a right to refuse DNA testing- if there were, the judge would have thrown out either the evidence or the case. You got it closer later on in your post “refusing to provide DNA samples”. But I still don’t think it’s quite right. I think (any lawyers correct me, please) that the police can’t essentially seize your body to obtain DNA samples, blood samples, hair samples , etc without either consent or a court order.But the fact that you can refuse to turn over your body for the samples to be taken doesn’t mean that consent is required to test and use the results from samples obtained by other means.
It boils down to a difference between “refusing DNA testing” and “refusing to provide DNA samples.” You DO NOT have the right to not have samples tested. You do, however, have the right not to be physically invaded to obtain DNA evidence. They can’t take samples of your blood, saliva, or pluck hair samples without a court order. However, you do not have any right not to have a sample of your “flotsam and jetsam” DNA tested.
It boils down to whether you have a “reasonable expectation of privacy” in the things you give away, whether through a letter a cup you drank. Since you don’t, you don’t have a right to not have those things tested. I am unaware of any court case that extended the “reasonable expectation of privacy” to the particular use that was given an abandoned object.
Actually, you’d be on much better legal ground arguing that the confession obtained by pretending to be your lawyer than in DNA you gave away. While some legal scholars are advocting that the intended use of an abandoned object, such as not intending DNA testing, should control, I know of no jurisdiction that actually goes that far.
The objects in these cases, the envelope and the cup, were abandoned. The defendants no longer had any interest in the items (except, as the judge pointed out, the letter inside the envelope), and thus had no rights under the Fourth Amendment to protect. Before you can claim that there was an illegal search or seizure under the Fourth Amendment, you have to show that you have some kind of interest in the property. For example, you have a interest in your house, car, and person, but you don’t in your old house you no longer own or live in, a car you’re not in, or your friends body. And you do not have an interest in an envelope you sealed and sent away, or in a cup you gave to somebody else.
Once you no longer have an interest in the property being searched, you have no right to complain about the use that property is put to, or to what tests are conducted on those items. There simply is not a right not to have items that you no longer have any interest in, tested.
I hope I did.
This is why I get my dog to lick all my envelopes.
I’m sorry, this whole thing seems like ridiculous semantics to me.
So, am I correct that you can decline to provide a DNA sample without a court order?
So, if I choose to refuse to provide DNA samples and cops have nothing on me beyond a hunch and hence cannot obtain some sort of court order for me to obtain a DNA sample, again, how in the hell can I live my life without inadvertently providing DNA samples to the world. It’s impossible. Should I paste a disclaimer on every piece of trash I leave saying that I have not abandoned the trash but intend for it to be taken to the dump and not examined by anyone?
If police can use means like digging through trash to provide a DNA sample which they couldn’t compel through probable cause and a court order, then the right to refuse to provide a DNA sample doesn’t exist at all.
threemae, you miss the point of the Fourth Amendment.
The point to the Fourth Amendment isn’t to protect your DNA. It’s to protect you from having the police invade your home, or seize your person, without having a reasonable belief you are or have been engaged in illicit activity. To obtain your DNA without your consent they can do one of two things: a) seize your person, and take some part of you (saliva, blood, etc.) that contains your DNA, or b) take some object without seizing you that contains your DNA. The former they can’t do without probable cause, NOT because of your DNA, but because it violates YOUR right to be free from such interference with your person. The latter they can do so long as they don’t engage in an unconstitutional search for such an object (e.g., by entering your home in your absence and taking your toothbrush without having first obtained a warrant).
The point to the constitutional protections of the Fourth and Fifth Amendments isn’t to protect criminals from attempts to solve crimes. It is to protect all cititzens from the sorts of tactics engaged in by the King’s officers during the religious wars of the 16th, 17th and 18th centuries. If you don’t want the police to track you down through your DNA for commission of a crime, then don’t commit the crime, n’est-ce pas?
I don’t understand what you’re saying here. I think it’s obvious that they intended to trick him. It’s not like they accidently sent the letter. legal-definitions.com says “fraud is defined as a deception deliberately practiced to secure unfair or unlawful gain.” So what part of that do you disagree with? Are you claiming that they did not gain from it?
Furthermore, RCW 9A.60.040 defines as a gross misdeamor criminal impersonation of which one is guilty if one:
“Pretends to be a representative of some person or organization or a public servant and does an act in his or her pretended capacity with intent to defraud another or for any other unlawful purpose.”
Why? Suppose he hadn’t sent anything other than the envelope; instead, he wrote a message on the inside of the envelope. Would that not have priviledge?
Impersonating an officer of the court seems rather questionable to me.
jayjay
There’s a huge difference between lying and corrupting the legal system. What if a police officer were to walk into an interrogation room and claim to be the public defender?
Hamlet
No, I believe that he is saying that if society thinks that the laws against fraud should not apply to cops, then the law against fraud should explicitly say so, rather than retroactively deciding that that law doesn’t apply to them.
By that logic, we should just forget about the Fourth Amendment entirely.
I disagree with the “unfair or unlawful” part. The cops sought to gain an advantage through deception, yes, but the advantage they sought was neither unfair nor unlawful. Their actions are not criminal fraud.
I should direct milum to this thread, as an example of what might happen were unlicensed person permitted to practice law.
Again, the officers’ actions do not fall within the ambit of the law you post: there was no intent to defraud, nor any other unlawful purpose. Their purpose was lawful.
The message itself would be privileged, yes, and probably not admissible against him. But since the police didn’t care about the substance of the communication, the claim of privilege is useless.
Fascinating. The moment we have a thread in which your opinions of how the law should be are relevant, I will be sure to remember this and provide a link. But it’s really not relevant what your view is, since there is plenty of well-established case law that stands for the proposition that police may impersonate all sorts of people without offending the Constitution.
Finish the story. What happens next? If the cop elicited an inculpatory admission by pretending to be the public defender, then that admission, and any fruit of it, would be inadmissible. What happens next in your story?
Mens rea. Did I post that explanation in vain? The law DOES say so.
- Rick
Take it easy, Bricker, you’re in that thread. Read the OP, point 2.
I think there are some good ideas surrounding the notion of “leaving DNA behind”… after all, it is not legal to root around in someone’s trash. Their intent was not to put it up for public or private consumption, but destruction. Similarly, the letter was mailed under certain pretenses; it is not as if they told him who they were. If I mail an envelope to someone, under no circumstances do I intend anyone else to have that mail, or the envelope, except in whatever uses are necessary to secure its rightful delivery.
In this case, the delivery never made it. In fact, there was no one to send it to. The letter is private, as is the envelope. To get to that mail DNA sample, one would pretty much have to open the envelope, but as already mentioned, the expectation and intention of sending an envelope is that only the ultimate party will have legal access to it.
I also find the collection of fingerprints, in addition to DNA, without consent of the suspect in order to match them up to crime scenes or objects used in a crime to be suspicious at best. My behavior is public in public, this is true, and so I must admit myself to possible scrutiny in the public. But, as with other things, the traces I leave behind of myself are only there because I cannot control them. Were it possible to be under my control, I would certainly choose to not leave DNA evidence of my passage at all, nor fingerprints. Thus, without good reason to collect them (ie at a crime scene, or on a suspected weapon), and without my permission to collect samples for comparison, I don’t care where they’re from. Get a warrant to search my premises, period.
If you don’t have enough information to come into my house and collect hair from my brush, you have no right to follow me around and scavage the debris I leave behind in some hope that you’ll strike the right target. If the police are assured of my guilt through evidence, then they can obtain a warrant. If not, bugger off.
Very valid point: the OP does, in fact, solicit opinions about “should” as well as invite discussion about “is.”
This is, as you point out, the right thread. My bad.
Which concept totally ignores the point of my post.
How, I might ask, is it that you find some sort of issue with taking fingerprints from a crime scene? What, the police don’t have a right to collect evidence unless you agree to it or they already have strong suspicion (which has to be backed by SOME sort of evidence) that you have committed a crime? What a silly, specious notion! With such a philosophy, NO crime unwitnessed would ever be solved; it is a good bet the criminal doesn’t want the police to find evidence he or she has left behind. Duh.
I again challenge those opposed to what the Seattle police did to explain how the use of a ruse to obtain the envelope in any way submitted the suspect to either a seizure or search that was unreasonable, i.e., one that threatens the privacy and collective security of Americans not to be subjected to police tactics used without discretion, or to intimidate us. You know, sometimes the police actually do get to try and catch criminals.
I can expect my trash to not be searchable, isn’t that correct (in my previous post I said this as if it was a fact, but I am prepared to be mistaken)? I can expect that mailmen cannot open mail, isn’t that correct? I can expect that my roommate cannot open mail addressed to me, even if he was the one that fraudulently appealed for it to be sent (like a credit card application), correct?
Can you help explain the difference here for me? I’d really appreciate it.
DSYoung, obviously they will collect evidence at the scene of a crime. I admit this wasn’t explicit in my post, but I thought it was clear enough that they would have already had it in this statement:
Emphasized portion added to aid my original intent.
The Fourth Amendment doesn’t protect you from government searches or seizures unless you have a reasonable expectation of privacy in said person, place or thing. You have a reasonable expectation of privacy in your trash so long as it’s in your house or perhaps very close to it (in “the curtilage”), but as soon as you set it by the curb, it’s expected that all the world can and may go through it. Trash by the curb is searchable without a warrant, so sayeth SCOTUS in California v. Greenwood.
Same with letters. You have an may have an reasonable expectation that your mail won’t be read, but not, say, that the FBI won’t get your fingerprints off of the envelope. Same with the DNA on the licky part if the letter is addressed to a fictional party c/o the police station, just as if an undercover cop had deceived you into handing over a drinking cup. The thing that makes mail private, generally, is the letter portion, not the fact that you’ve slobbered on it.
In California v. Greenwood, the United State’s Supreme Court laid out the test for the constitutionality of garbage searches for garbage left for collection, and stated: “The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.” The Court found that it was not objectively reasonable to have a expectation of privacy in garbage left to be collected. Thus, as a general rule, the police may search your garbage that is left out for collection.
Yes, and the Judge in this case pointed out that the contents of the envelope are protected. You have an expectation of privacy in the contents of an envelope, just as the Judge found. And that expectation of privacy is reasonable, just as the Judge found. However, you may, if you were threemae, have an expectation of privacy in the saliva on an envelope, but the Judge, and most judges, would find that that expectation is not reasonable.
Thank you, pravnik. Now, do you feel this is actually a reasonable thing?
This bothers me greatly, actually. I walk around in public and behave in a public manner under, more or less, the understanding that Joe Anyone (including Joe Cop) could be stalking me, taping my activities, taking pictures, having a photographic memory, etc. However, I do not think it is reasonable to expect that Joe Anyone can start a fingerprint and DNA collection in his own house; perhaps some day the technology will be publicly accessible, but right now it is pretty exclusive technology. So its collection seems… well, suspicious.
The government already has nearly unlimited resources (relative to the average private citizen) to gather information and intelligence, so when J Edgar Hoover is inspecting my trash, I am a little bit more worried than when Jane Neighbor is. Reasonably speaking, Jane is probably looking for aluminum cans, not personal identity information, and definitely not genetic information.
The government has a rather unique position in terms of gathering information and evidence than private parties do not, significanly, have access to. So I think this means the liberties they may take with unintentionally public materials should definitely be curtailed.
How do you feel?
Hamle, thank you also for your explanation. Another question, if I may.
Doesn’t that seem a little like bullshit? “Oh, of course the contents are protected. No one read them, we just opened the envelope to get a saliva sample.” Suppose I took that to court after my roommate found me opening his mail. What is the likely result? Do you, Hamlet the person, find that really so outlandish that, in order to protect the privacy of the contents, the integrity of the envelope is reasonably at stake?
Thanks, also, for the case references. I think I’ll find some time over the next day or so to read them. You lawyers are a good bunch, I don’t care what anyone says.
Mens rea. Mens rea. Mens rea. Your roommate opening your mail has a culpabale mental state; he’s doing something wrong.
The police are not doing anything wrong. Please stop drawing these comparisons.
They’re not doing anything wrong? They are opening mail not intended to be given to them. I am going to stress that this is my opinion of the subject, my interpretation of how the law should be (everyone has done a great job of stating what the law is, and I really appreciate it). No policeman has any right to open mail not addressed to him, nor reasonably intended through false pretense to be addressed to “him” (ie the false person he “represents”), without a warrant to seize private property.
They are presenting themselves as someone they are not in order to secure delivery of a private object from me. Anyone doing that, and then opening the mail, is in the wrong. If they have enough reason to suspect me of a crime, then they should have enough evidence to obtain a warrant.
Just collecting saliva, man, nothing wrong here…
Well, I appreciate your opinion, erislover, and I further offer prayers of thanks that your opinion is not the law of the land, since your interpretation would have a chilling effect on the capture of criminals, and does not preserve any particular right of privacy, freedom or the like that society has recognized as reasonable. I understand that YOU recognize it as reasonable, and I’m pleased as punch President Bush has not called to offer you a seat on the federal bench.