It is my understanding that courts have rarely affirmed property rights or an expectation of privacy over discarded or excised tissue and fluids. Even in Moore v. Regents, where excised material was arguably obtained by fraud, the court ruled that Moore had no rights over his formerly internal fluids and organs.

"Everybody, start using those sponge seal-moisteners!"

Yeah, I was thinking... any criminal above the very petty level will just start using a sponge sealer.

Yah, the pretending-to-be-attorneys part is not good.

Otherwise, have at all the spit you can find.

The law seems to be that you don't have a privacy interest in safeguarding your bodily fluids or DNA per se, but you do have an interest in not having them collected through intrusive means.

Maybe the cops should just bring him in for questioning, give him lots of coffee and donuts, and wait until he has to take an incriminating dump. Then again, this has probably been used as a plot device on CSI or something.

i agree too. this is/was a local case for me. they absolutely should not have pretended to be attorneys (or priests, etc.).

i was actually surprised this held up with the wa court. for that reason

other than that, it's a brilliant ruse. if they claimed to be sweepstakes, etc. i would have no problem. but not an attorney (or priest or mental health worker) etc.

imo, ruses are one of the best tools law enforcement has, and underused (except for drug buys). sneakiness trumps brute force

I'm a little troubled by this decision. I think it just brings us one step closer to a all-inclusive dna database.

What's to stop a police department from sending out thousands or even millions of phony letters to innocent citizens, just for the purpose of collecting dna samples?

it IS standard (somewhat) procedure - the ruse.

i worked undercover for a long time. the entire concept is based on deception (see: sun tsu).

the issue here was posing as attorneys. i think that "shocks the conscience" so to speak, and brings up troubling issues in regards to attorney client (even though this was not a retained attorney, heck it wasn't an attorney at all) privilege, etc.

evan, much like surveillance concerns, etc. - you-ve got it wrong. the classic worry is "big brother" collecting databases like this, etc. that's a non-issue. the concern is "little brother". private companies have far far far far more private info on you than law enforcement, and generally speaking - better access to collecting it and less regulations in regards to storing it.

whether it's surveillance info (video cameras), your shopping choices, your credit, etc. it is businesses that collect and share this information about you, and FAR more than govt. does.

anderson, that's exactly my point.

i think we should draw an extremely clear bright line when it comes to attorneys (or putative attorneys) and their clients.

there are plenty of other ways to be sneaky (good) and not play games with attorney-client privilege.

I recall the classic ruse whereby lots of guys w/ outstanding arrest warrants were sent notices they'd won prizes, &when they showed up to collect (it was a car or something), surprise!

And a solid Simpsons episode as well:

Wiggum: I mailed these bogus prize certificates to every scofflaw in Springfield. When they show up for their free motor boats we arrest them and beat them to the full extent of the law.

Eddie: So the hook is baited.

Lou: Nice metaphor, Eddie!

Wiggum: Yeah, good work, Eddie!

It's not the posing-as-attorneys part that bothers me. It's the using-the-mail-in-a-way-that-would-likely-constitute -mail-fraud-if -you-or-I-did-it that bothers me. Illegal search means a search conducted by illegal means. Mail fraud is, last time I checked, illegal.

Am I missing something here?

As an attorney who routinely has to contact third-party witnesses in the course of my cases, I'm very disturbed by this. In every jurisdiction I'm aware of, attorneys are ethically obligated to identify themselves and disclose their role in any litigation to non-parties, which is for the protection of laypersons. People are already pretty reluctant to speak to attorneys and I can't imagine how much more uncooperative they will become if they start suspecting that the attorney who wants their help in serving as a witness in a civil trial is actually a police officer. Bad form by the Washington court and I hope the Washington bar lobbies for a statute prohibiting this practice.

If the government can use our precious bodily fluids against us, they can use our purity of essence too! Where will it all end?

Surprisingly the court makes no attempt to distinguish this case from Kyllo. Assuming for the sake of argument that there is a privacy interest in electromagentic radiation emitted by private property (which any passerby can observe using appropriate instruments), based on the theory that an unaided policeman could not observe the radiation, why is there no privacy interest in biological markers unintentionally left in public? Here too the markers cannot be observed by the unaided eye.

A motion to suppress DNA evidence seems like a waste of time. You can't get rid of the stuff -- at some point, cops can just collect a glass the suspect used at a restaurant or something, and get the DNA that way.

Ultimately, all DNA evidence probably falls within the inevitable discovery doctrine.

"There really is an issue here, and it really is being missed. There is currently no legal right for the cops to come right out and *demand* a DNA sample from you, Joe Citizen."

there is no right to demand your fingerprints either. yet, if you leave something with your fingerprints on it, they can dust for it (yes, if you are arrested, they can demand fingerprints, but they can also do so with DNA. i am talking non-custodial 'gatherings'.)

"If anything, recent events here in Atlanta have shown that police can and do abuse their powers. If we can't trust the police not to plant drugs on a suspect why should we trust them with our personal data"

you could argue similarly, that police should not be allowed to arrest, conduct searches, make traffic stops, etc. because SOME police do sometimes abuse those powers as well. how is this logical? merely because something CAN be abused (like the power of arrest) does not mean you just get rid of it.

the real issue will change when science advances to the point where DNA evidence becomes much more than mere identifying marks (like fingerprints are). assume that we had a machine that could look at your DNA and tell all sorts of REALLY personal (and hidden) things about you, your sexual tendencies, etc. etc. THEN i think it would be a privacy issue in a way that it isn't now.

what DNA is now, in regards to law enforcement, is a way of identifying people that in many cases (like this) involves a completely non-intrusive method of gathering evidence.

and what i like is that it BOTH helps convict the guilty AND protect the innocent. that's hyoooge. i would way rather police collect my DNA (via ruse or whatever) to eliminate me as a suspect than rely on victims, witnesses id's etc. who lie and can much more easily be manipulated - see: Duke 'rape' case.

since this guy lived cross country, cops used a ruse to get his dna. they could have also just followed the guy around and swabbed an item he touched to get DNA. the reality with DNA is that you "leave it out there". so, i don't see it as any more of a privacy issue than the cops dusting a surface you touched for your fingerprints.

So what then prevents the government from building a DNA database based on the census form or tax forms you send in?

This reminds me of a case I worked on back when I was in the military. There was a cold case of a young enlisted woman who was raped and murdered at a Navy base. Her body was put in the back of her car and her car driven off a pier into the ocean. All of this was years ago, before DNA technology. Nobody was caught.

Twenty years or so pass The NCIS had been working on this off and on all this time, and had narrowed the suspects down to a list of around three. They send out a few young pretty female agents to go flirt with the guys. One of them, now civilian, married, and with kids, takes the bait.

She gets the guy to send her a letter, and gets DNA off the envelope. It just so happens that the prosector had gotten vaginal swaps at post mortem exam (at that time for serology, not DNA), and they had been saved in evidence for two decades.

It was a match. They guy confessed.