Seattle police trick suspect into submitting DNA sample

Great Debates
41

In other words, there is only “You think you’re right, and I think I’m right.” Perhaps, but you’ll pardon me if I think the content of my opinion can withstand some debate. I do not prefer to have my opinions unchallenged; if I didn’t want to stand for them, I wouldn’t bring them up. In fact, it is indeed one of the two reasons I am even here in GD (the other being to challenge others’).

Then let me ask you a factual question in order to further the discussion: the envelope is not private, only the contents, then where is the legal harm in me opening someone else’s mail? Why am I not allowed to open mail, so long as I keep the contents out of my eye and free from alteration?

42

Though I am not aware of how to find complete opinions (the scotus site wasn’t immediately friendly), here I found something that seems clear enough. It was the court’s opinion (think they support theirs with arguments? ;)) that:

This was in the context of finding evidence of drug use (though the page does not indicate what was found).

So: is it true that “any member of the public” can gather and process DNA evidence, other than in a “well, in principle, if they had tons of money and someone who offered such services to the public…” sense? Being a reasonable man, would you conclude that the police were just doing what anyone could do if they processed the DNA in my trash?

43

It seems to me that items of evidence usually have to have some sort of “chain of custody;” documentation to provide a provenance that said sample is what is is claimed to be and (ostensibly) has not been tampered with.

Couldn’t he (or his lawyers argue that without a chain of custody, his DNA (say, from a semen sample) had been planted on the envelope?

44

bad, bad, bad…
make that

Couldn’t he (or his lawyers) argue that without a chain of custody, his DNA (say, from a semen sample) could had been planted on the envelope?

45

I would like to further clarify my opinion as well, since after talking about it to some people privately I found some sources of confusion.

Firstly, I am not wishing to remove the ability of the police to go undercover, and hence to commit certain crimes (possession of drugs, for example, in such an undercover investigation) in pursuit of a suspect. Why? Because any crime a cop would catch someone doing (barring the entrapment issue, please) is essentially a crime any other person could reasonably perceive. So while I might buy that an undercover cop could present himself as a lawyer and read the contents of an envelope, it is still not reasonable to assume that whoever I send a letter to could collect DNA samples from the seal. (What if they posed as a health care professional and drew blood?.. hmm…)

Secondly, the trash issue. Clearly the trashman has pretty unlimited access to garbage, and people sort through other people’s rubbish all the time. Should someone stumble upon a razorblade with white powder on it, or a carbon-coated spoon and a syringe, they could reasonably have suspicion that whoever put this in the trash was or knew a drug user. Compare this to collecting hair samples for DNA testing—am I really asking the police to “avert their eyes from evidence of criminal activity”? No, unless one presupposes what the DNA tests are collected with hopes of demonstrating. Get a warrant to search my premises and find all the DNA you want.

Third, the envelope issue. First, I find it nearly preposterous that the seal of an envelope is somehow not part of the private nature of the contents. Certainly the address must be public, as would any fingerprint evidence on the surface; however, the seal and beyond is what is there to, ostensibly, protect the private nature of the communication. One cannot compromise the seal without compromising the contents; at least, not without “he said she said” styled, “But I didn’t look at them, I swear!” Furthermore, the use of the seal to obtain DNA samples calls back to the second point above in that it is not reasonable to assume that every time I lick an envelope “just anyone” could collect samples and test them. Perhaps in the future this would be more common (hello, Gattaca), but now? —I don’t think so.

The issue hinges around reasonable expectations of privacy; while in public, I expect it completely possible that someone could

  1. make an audio tape of anything I say;
  2. see me going where I go;
  3. videotape my actions, even if I attempt to obfuscate them;
  4. ask people about my whereabouts;
  5. collect and sort my refuse;
  6. among other things.

None of which involves fingerprinting or DNA evidence. I have some leniency on the fingerprint issue, since it is possible for me to wear gloves all the time. Still, fingerprinting technology is not drugstore material, while voice recorders and disposable cameras are, and video surveillance is fairly ubiquitous, nevermind people who will simply see things and remember them.

Finally, the crucial difference, to me, between undercover evidence gathering I find appropriate and undercover evidence gathering I don’t is that one type of evidence is indicative of a crime (eg, found syringes or seeing me hand over money in exchange for a contract on someone’s life) while the DNA/fingerprint issue is evidence used to link me to a crime that is not simply a matter of jotting down public information (ie, something “just anyone” could do). I think there is very clearly a category difference between the types of evidence, and I feel that the category difference fails to be blanketed under the decision of California vs Greenwood (that I read, linked above).

It would not be a matter of telling cops to turn a blind eye to what is staring them right in the face. It is asking them to obtain warrants for evidence that is

  1. not at crime scenes, and
  2. not staring just anyone in the face.
46

People are assumed to intend the ordinary consequences of their actions. To the extent that opening another’s mail is illegal to assure privacy, I suppose it’s perfectly possible you could try to convince a jury that you opened mail without intending to read it. But that seems a weak inference for them to make - what purpose might you have?

In fact, there are plenty of other problems beyond privacy with opening someone else’s mail. You are opening something that isn’t yours - you are depriving someone else of control and dominion over their own property. In the case at hand, the envelope was addressed to the police, albeit in their phony guise, and that consideration doesn’t come into play.

  • Rick
47

That’s not the right question.

The Fourth Amendment protects against unreasonable search and seizure. If you abandon something, or voluntarily display it to the public, then it’s not unreasonable for the police to search it.

In fact, for less than $400, I can have a DNA test done. It took me about 15 seconds to find numerous companies on the web offering these services. (Cite.)

So I’d say that any member of the public can do just what the police are doing, processing DNA from your trash. Not that the question is remotely relevant to the analysis of whether you manifested a subjective intention to keep your trash private and whther society is prepared to objectively recognize your expectation as reasonable.

  • Rick
48

The DNA match gave rise to probable cause. Probable cause is not a certainty. It is merely a determination that something is likely. He’s certainly free at trial to show that the DNA’s chain of custody is suspect, but he can hardly claim it didn’t create probable cause for arrest. They can do another DNA test for trial evidence, in any event.

  • Rick
49

For evidence of a crime.

Are hair samples evidence of a crime like, say, a dead body is? Or like a gun is? Or used needles may be, especially when the suspect is linked to potential drug use?

The category difference here seems fairly obvious.

Yeah, as soon as I posted that I went to check up on it and found quite a few places as well. I must indeed retract the portion of my arguments that indicate that it is not reasonable to conclude just anyone could get a DNA test done.

Now it makes me wonder what the utility of private doctor conversations are. Medical history is completely available to anyone with enough time to collect and sort trash and order tests done on body samples and fluid samples, all of which end up as waste somehow. How would you weigh in on that topic?

The question was never really that my trash was qua private, but whether the way a policeman would find evidence of a crime would mesh with the way the public would find evidence of a crime—a distinction that I think still stands. They are not averting their eyes of evidence of a crime, they are requesting to gather things just so they can see if there is evidence that links someone to a crime.

However, given the fact that, by their nature, they will already have access to evidence gathered from the scene, I suppose it is possibly reasonable that they can test whoever they want for whatever reason they want to see if they fit any evidence of existing, unsolved crimes. I still think the category difference is astounding, but I must admit that my thoughts on the accessibility of DNA testing’s availability led me to most of my conclusions about the reasonableness of the actions.

Now doesn’t that feel better than saying, “Gee, erl, you disagree with me but there’s no point in talking to you about it, so good luck with your privacy campaign!” :wink: Maybe not, who knows. There’s evidence either way.

50

Ok, let’s make it simple again, so we don’t get lost chasing after red herring.

An officer, dressed like a “street person” approaches a suspected dealer in drugs and asks to buy some. The suspect offers to sell drugs to the officer, the officer proffers money, the suspect profers drugs, and the officer arrests him. The charge is possession of drugs. The officer did not have probable cause to seize the suspect and search him for drugs prior to the “sting.”

An officer, purporting to be an agency pretending to offer a large sum of money in return for a signed form sends said offer in the mail to a suspected rapist. The suspect returns said form in an envelope, which the officer tests for DNA, which DNA matches a sample obtained from a crime. The officer, didn’t have probable cause to seize the suspect to obtain from him a DNA sample until he received the envelope.

This is such an obvious parallel I am surprised anyone is attmepting to dispute the validity of the effort. It doesn’t matter what is in the envelope (the judge was wrong on that issue), it doesn’t matter if you have an expectation of privacy in the envelope (you sent it to a third party unknown to you). Your person wasn’t seized, and your home and car weren’t searched. What the heck else do you expect the police to do? Sit and watch you thumb your nose at them?

It is NOT wrong for police to be smart and tricky. The average citizen is hardly put in a position of potentially violated privacy from same.

I’ve posted in this thread twice previously and been ignored. Perhaps third time will be a charm.

51

People keep going on about the expectation of privacy in the envelope. I wonder how much privacy they expect in the envelope? I generally expect the envelope to be private until it gets to the addressee (under certain circumstances, only until it gets to the address- prisons and businesses often open mail before it gets to the person whose name is on the envelope). After that as far as I know, the recipient can do just about any thing he or she wants with it- show it to other people,post it on a bulletin board, or turn it over to the police for DNA testing.

The police in this case were the recipients of the letter. They did not interfere with the delivery of anyone’s mail, or take control over anyone’s property. They can test that envelope for exactly the same reason they can test any envelope given to them by the recipient- because they didn’t violate anyone’s Fourth Amendment rights in obtaining it.

52

Actually, I think there is a colorable claim as to the contents of the letter, simply because the police claimed to be lawyers communicating with a potential client. The contents of his communication are arguably privileged. Now, I’m basing this solely on the facts as reported in this thread; if it develops that the letter included a disclaimer as to any attorney-client relationship being formed, for instance, I’m prepared to back away from this claim. But while the general proposition is that a letter sent to an unknown third party is not private, a letter sent by a prospective client to a prospective lawyer may well be privileged.

  • Rick
53

Who cares about the contents? The seal was the issue. A cop would never look at the contents of a letter that wasn’t addressed to him. That would be wrong. He just wanted to inspect the envelope.

54

Since the envelope was addressed to the cops, they were perfectly entitled to inspect the envelope.

55

Of course, but again, that’s not the big deal. There is no big deal. They were entitled to open it because it was addressed to “them”, and they were able to inspect the seal whether or not it was addressed to them anyway. Isn’t that the point I’ve just conceeded?

Envelops offer no privilege, and even if they did, cops can impersonate anyone anyway. There’s really no debate left.

56

Bricker

Seems a bit circular to me. Of course, I guess my position is a bit circular, too.

What, we’d all become pompous?

I think as it stands, the cop is already guilty of inappropriate behavior.

So if they lie about catching the guy’s partner, would any fruit of that be inadmissible? Or do you agree that not allowing certain types of lying does not mean that all lies must be prohibited? And what if my story had ended with the cop getting the guy to hand over a cup with his DNA?

There’s a big difference between saying that if the cops say they weren’t intending to do anything illegal, it’s likely that they will be believed, and saying that the law doesn’t apply to them, no matter what their intent.

DSYoundEsq

You do realize that not all opposition must rest upon the Fourth Amendment, right?

Person A sells some drugs, for the agreed upon price of one hundred dollars. The buyers fails to pay, so person A sues him.

Person B receives a letter saying that if he fills out a form, he will receive one hundred dollars. He fills out the form, but doesn’t receive the money, so he sues.

Obvious parallel? Perhaps. But there’s also an obvious difference. Similarly, there’s an obvious difference between an LEO tricking someone into doing something illegal, and tricking him into doing something completely legal. I don’t see anything odd about the proposition that they should have greater leeway in the former than in the latter.

If they have probable cause, get a warrant. If they don’t have probable cause, get probable cause. The police don’t have the right to trick people into doing their work for them, even if it does make it easier to catch criminals. Suppose the police were announce a new program. In order to make it easier to match fingerprints, they’re offering twenty bucks to anyone who comes in and has their fingerprints entered into the database. People come in, the police get a nice large database of fingerprints, but people are asking for their money. The police then say “Hee, hee. Gotcha ya! We’re the police. We can lie anytime we want! We don’t have to give you your money. Now go away.”

Yes, but it is wrong for the police to mess with innocent people’s minds.

57

Is this your idea of announcing a new rule of law?

What’s the remedy if the police do mess with innocent people’s minds? Is the rule transgressed if the person is guilty? Like the exclusionary rule, will it lead to dismissal of charges?

THE COURT: I find that, although the evidence clearly establishes Mr. Ryan’s guilt in selling automatic weapons to schoolchildren, the police messed with his mind during questioning. The charges are therefore dismissed.

  • Rick
58

Here’s a good “messing with the mind” test case.

In Arizona, after police raided several houses of prostitution and arrested the operators, they let female deputies answer the phones, directing callers to one of three hotels in which police were set up to arrest johns. A total of 72 arrests were made.

Story.

Does that run afoul of the Ryan Rule forbidding messing with the mind?

59

Ah. I didn’t see that The Ryan was no longer a member.