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Collection and Analysis of DNA Left on a Chair at the Police Station Not a Fourth Amendment Search, Court Holds Orin Kerr • October 6, 2011 12:36 pm
In recent years, lower courts have struggled to figure out how the Fourth Amendment applies to the collection of DNA from a suspect to try to prove identity in a criminal case (typically in rape cases). In general, courts have held that if a suspect uses a cup and throws it away, or spits on a sidewalk, the police can recover the cup or the spit and test it without triggering the Fourth Amendment. The suspect has “abandoned” the DNA, the thinking goes, so he has no continuing Fourth Amendment right in it. On the other hand, if the police for a suspect to submit to a DNA test, such as a inner-cheek swab for saliva, the suspect has Fourth Amendment rights in the DNA. Courts have not settled on exactly what protection the Fourth Amendment applies in those cases, and in particular whether a warrant or just some cause is needed to force the cheek swab. But they agree that there is at least some Fourth Amendment protection.
In Raynor v. State, the suspect in a rape case was asked to come to the police station for an interview. At the station, he was asked to submit to a DNA sample. The suspect refused. When the suspect left, however, the police swabbed the chair in which he had been sitting and were able to collect his DNA:
"... At that time, appellant was wearing a short-sleeved shirt and, according to Trooper Wenger, “kept rubbing his arms up and down the armrests of the chair.” . . . After appellant left the police barracks, Sergeant Decourcey swabbed the armrests of the chair on which appellant had been sitting. The swabs were submitted to the Maryland State Police Forensic Lab, where the forensic sciences supervisor, Bruce Heidebrecht, extracted DNA from the swabs and developed a DNA profile for comparison purposes. That DNA profile was found to match the DNA profile developed from the evidence taken from the pillow case and the patio at the scene of the crime."
Held, by the Court of Special Appeals of Maryland: The collection and analysis of the DNA was not a Fourth Amendment search. From the opinion:
"... DNA evidence, when used for identification purposes only, is akin to fingerprint evidence. And, although fingerprint evidence is suppressible if it is obtained in the course of an unlawful detention, see Hayes v. Florida, 470 U.S. 811, 816 (1985); Davis v. Mississippi, 394 U.S. 721, 727 (1969), the fingerprinting process itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” See United States v. Dionisio, 410 U.S. 1, 15 (1973) (quoting Davis, 394 U.S. at 727).
Thus, even if appellant could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only. As in Williamson [an earlier Maryland case involving recovery of a cup the suspect had used and thrown away], the police were in lawful possession of the item from which the DNA was collected. In Williamson, the cup from which the DNA was collected came into police possession when the suspect discarded it in the holding cell; here, the chair in the police barracks was, from the outset, in the possession of the police. Thus, like the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis in the instant case of DNA evidence, which was in the lawful possession of the police, was not a constitutionally protected search."
Unfortunately, the moral of the story with this ruling seems to be that you, as a potential suspect (whether you did anything wrong or not), should not come come to the police station for voluntary interview. Rather, have your attorney set the venue for the voluntary interview which the police do not have control over such that they cannot have access to such forensic samples.
Last edited by FreedomThroughAnarchism; 10-07-2011 at 03:24 PM..
We've got random roadside checkpoints, sneak & peak under the patriot act, random gropings at the airport. Ask Amanda Knox what an abusive prosecutor can do with mucked-up DNA 'evidence.'
If we interpreted the 1st Amendment like we interpret the 4th, Volokh never would have been able to print what he did.
We've got random roadside checkpoints, sneak & peak under the patriot act, random gropings at the airport. Ask Amanda Knox what an abusive prosecutor can do with mucked-up DNA 'evidence.'
If we interpreted the 1st Amendment like we interpret the 4th, Volokh never would have been able to print what he did.
The number of ways police can game the kind of system which that court seems to want to allow is basically limited only by the imagination:
Police don't have evidence they want on a suspect, no judge will give them a warrant due to that lack of evidence..... What to do? What to do? Perhaps have patrolmen observes suspect who "failed to come to a complete stop" at a stop sign, and then at the traffic stop, the officer [upon prior instruction from detectives] handcuffs the motorist "for the officers safety." Voila..... DNA sample [on handcuffs].... no pesky warrant needed. Although, more than likely that would simply be "step 1". That could then provide the probable cause needed to get a warrant from which they can get a non-tainted sample. The original sample would be called into question, so probably would not make for solid evidence. The latter issue is kind of beside the larger point.
Unfortunately, the moral of the story with this ruling seems to be that you, as a potential suspect (whether you did anything wrong or not), should not come come to the police station for voluntary interview. Rather, have your attorney set the venue for the voluntary interview which the police do not have control over such that they cannot have access to such forensic samples.
bingo. Also to begin with, you should NEVER do a voluntary 'interview' w/ police. And never talk to them w/out an attorney.
What is the difference between going to a police station of an interview, drinking a glass of water, and leaving the glass whereby the police then obtain your fingerprints?
Saliva Left on Blood Alcohol Test Mouthpiece as “Abandoned” DNA?
Orin Kerr • October 31, 2011 7:46 pm
Three weeks ago, I blogged about a Maryland case holding that a defendant had no reasonable expectation of privacy in his DNA left in a chair at the station house. Here’s a related decision: A new California case holding that a defendant “abandoned” his DNA, relinquishing his Fourth Amendment rights, left on a mouthpiece of a blood alcohol test. (Hat tip: FourthAmendment.com)
The case is People v. Thomas, and it involves a burglary suspect. A DNA sample of the burglar was found at the scene of the crime. Although the opinion downplays this, it seems the police were trailing the suspect and waiting for a moment to collect a DNA sample from him to find a match. They got the chance when the police had reason to think the suspect was driving drunk: The officer pulled over the suspect and he consented to a breath test. The officer was really interested in the DNA sample, not the alcohol test, however, so he kept the mouthpiece of the test for DNA testing instead of discarding it. A DNA test of the mouthpiece revealed a match. The California court held that the testing did not violate the Fourth Amendment:
[snip] click link above to read rest of the article:
Unfortunately, the moral of the story with this ruling seems to be that you, as a potential suspect (whether you did anything wrong or not), should not come come to the police station for voluntary interview. Rather, have your attorney set the venue for the voluntary interview which the police do not have control over such that they cannot have access to such forensic samples.
That's what any intelligent person would do. If you aren't intelligent, it's called Darwinism.
Quote:
Originally Posted by wutitiz
Ask Amanda Knox what an abusive prosecutor can do with mucked-up DNA 'evidence.'
Why would I want to do that? She would probably lie and change her story two dozen times.
You might want to actually read the 4th Amendment. It says "unreasonable searches" not all searches.
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