Do People Have a Reasonable Expectation of Privacy in Abandoned DNA?
posted by Daniel Solove
A recent NY Times article discusses how the police are increasingly collecting DNA samples from suspects — not with warrants or probable cause — they are gathering it surreptitiously from the abandoned DNA that people leave behind:
The two Sacramento sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway — without his knowledge.
Recently, the sheriff’s cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the murder of Mr. Gallego’s aunt. If his DNA matched, they believed they would finally be able to close the case.
On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.
The practice, known among law enforcement officials as “surreptitious sampling,” is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego’s trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure.
Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search. . . .
“Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court,” said Elizabeth E. Joh, a law professor at University of California, Davis, who studies the intersection of genetics and privacy law. “I don’t think a lot of people understand that.”
Under existing Fourth Amendment law, if you abandon something or expose it to others, then you no longer have a reasonable expectation of privacy. So if you leave trash on the curb for collection, the police can rifle through it without a warrant or probable cause. See California v. Greenwood, 486 U.S. 35 (1988).
DNA is sensitive information in many people’s books, but it is also very hard to keep contained. We leave traces of DNA everywhere we go — in hair and skin we shed, in saliva, etc. It is quite easy for law enforcement officials to obtain our DNA.
DNA is one illustration of where the current Fourth Amendment regime doesn’t work very well with information privacy. It works well with papers and things — we can hide papers away in our homes or in bags, and we can have protection in our homes. But information in today’s Information Age often is hard to contain. It is hard to tuck away. The result is that our personal information is increasingly in places where the police no longer need warrants and probable cause.
April 5, 2008 at 10:46 am
Posted in: Criminal Procedure, Privacy, Privacy (Law Enforcement)
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Responses (7)
Mark - April 5, 2008 at 11:52 am
Why exactly are we worried about this? The fourth amendment is mainly prophylactic, you can’t abuse the rights of the guilty because sometimes you will be violating the rights of the innocent, but here there is no harm to an innocent person ever from collecting their DNA off something they have discarded.
The cops collecting used cigarette butts does not raise create the same type of concerns that are raised by other searches (like raids of homes of innocent people) because if the person’s DNA does not match the DNA at the crime scene the police will not arrest you. I guess if you decide to kill someone or commit some other crime you will have to be a bit more cautious about how you get rid of your DNA.
I realize that I am being a little flippant, but I really do not understand what the privacy concern is here.
Jason - April 5, 2008 at 1:13 pm
I think the major concern for me is not the collection of the evidence itself but the fact that the cops will be walking around with me all day just waiting for me to drop a cigarette butt, to throw out an empty Coke bottle, etc. I think the main post is right: the Fourth Amendment just doesn’t deal well with these new issues.
Maryland Conservatarian - April 5, 2008 at 1:32 pm
Wouldn’t the fact that Gallego was an inconsiderate smoker AND a litterer provide more than enough probable cause to deserve whatever society can do to him.
…and what’s the problem with the 4th – Justice Brennan would have just invoked the “living” constitution methodolgy and read whatever he thought needed read in. I’m sure you all can convince Justice Ginsburg or Breyer to do the same.
steve - April 5, 2008 at 1:36 pm
Mark, I just want to make a small correction, which makes a big difference. The Fourth Amendment is NOT a prophylactic. It is a right guaranteed by the Constitution. The exclusionary remedy, which bars the use of evidence obtained through the violation of the Fourth Amendment, is a prophylactic. But if it is inconsistent with my reasonable expectations of privacy under the Fourth Amendment to have the police collect my DNA, it is a constitutional problem, regardless of whether I’m guilty of a crime.
Logical Extremes - April 5, 2008 at 7:09 pm
The biggest threat I see to the innocents is that if this continues to be allowed, it opens the door to mass collection of DNA. This is a huge privacy intrusion in and of itself, but also creates a whole host of risks of abuse and leaks of highly personal information that cannot be changed if compromised.
Mark - April 7, 2008 at 10:44 am
Steve, you are correct, but I think you are going to have a real hard time trying to argue that someone has a reasonable expectation of privacy in their litter. Logical Extremes, I do think that the creation of a database of everyone’s DNA would be troubling, but I don’t think it would be unconstitutional. I guess it is a good thing we still vote.
Jesse - April 24, 2008 at 6:31 pm
came home from a 2 day getaway in new york and found that my house was on fire. call the fire department and they came with the police. The fire were put out and I and my wife was interogated. We told them that we had just gotten home. They took stuff out of the house and I ask if I could take pictures and they told me no. They had my wife to sign a statement and when she ask for a copy, they told her that they wasn’t going to give her one. Is any of this unconstitutional or has our fourth amendment been violated in any way? Please help if possible.
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