Fourth Amendment Doesn't Protect Spit on the Sidewalk:
Facts: Rape suspect walking on a street spits on the sidewalk. An investigator is following the suspect, and he collects the spit; a DNA test proves a match. Holding: No Fourth Amendment violation. Analysis:
UPDATE: Elizabeth Joh had an interesting article on this very topic in the Northwestern University Law Review. You can download it here.
[A]lthough the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids), see Matter of Lavigne, 418 Mass. 831, 835-836, 641 N.E.2d 1328 (1994); Jansen, petitioner, 444 Mass. 112, 120-121, 826 N.E.2d 186 (2005), when he expectorated on to a public street and did not retrieve the fluid, he voluntarily abandoned that protection; he assumed the risk of the public witnessing his action and thereafter taking possession of his bodily fluids. See Commonwealth v. Ewing, 67 Mass.App.Ct. 531, 540, 854 N.E.2d 993 (no expectation of privacy in cigarette butts abandoned as trash in interview room), further appellate review granted, 447 Mass. 1113, 857 N.E.2d 1094 (2006). See also Commonwealth v. Pratt, 407 Mass. 647, 660-661, 555 N.E.2d 559 (1990) (observations and inspections occurring after items deposited in public places generally fail to intrude upon reasonable expectation of privacy); Commonwealth v. Nutile, 31 Mass.App.Ct. 614, 619, 582 N.E.2d 547 (1991) (no reasonable expectation of privacy in drugs voluntarily thrown from vehicle); Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 564, 633 N.E.2d 1058 (1994) (no reasonable expectation of privacy in drugs dropped on ground during police surveillance).Commonwealth v. Cabral, 69 Mass.App.Ct. 68, 2007 WL 1413143 (Mass. App. Ct. May 16, 2007).
Here, the motion judge found that the location where the defendant spat was a public street, a place freely accessible to others. See Krisco Corp., 421 Mass. at 42-44, 653 N.E.2d 579. See also Commonwealth v. Pratt, supra (no reasonable expectation of privacy in trash left on curb); Commonwealth v. Bloom, 18 Mass.App.Ct. 951, 952, 468 N.E.2d 667 (1984) (defendant had no reasonable expectation of privacy in open area of public restroom). Moreover, there is no indication that the defendant took affirmative action to recover the saliva once it had left his mouth. In Bly, supra at 490-491, 862 N.E.2d 341, the defendant did not attempt to retrieve the cigarette butts when leaving the interview room, nor did he request to go back and collect them. The court held that Bly's “wholesale failure to manifest any expectation of privacy in the items whatsoever” compelled the “conclusion that [he] had no subjective expectation of privacy.” Id. at 491, 862 N.E.2d 341. See Ewing, supra (defendant made no attempt to take cigarette butts when leaving interview room). Contrast Krisco Corp., supra at 45, 653 N.E.2d 579 (discussing affirmative steps taken by defendant to protect dumpster from public access). Thus, where the defendant here voluntarily abandoned his saliva onto a public street, the investigator (whether deemed to be functioning in a private capacity or as a State actor) did not infringe on any reasonable expectation of privacy when he recovered the spittle from the street.
UPDATE: Elizabeth Joh had an interesting article on this very topic in the Northwestern University Law Review. You can download it here.
When the day comes that a police officer can pick up my DNA from my holding onto a subway pole, or can somehow capture a breath sample from my breathing while I'm on an elevator, will the Fourth Amendment not protect that? Will people have to become shut-ins to get protection (and don't bother logging onto the internet or making a phone call. . .)?
elChato: you bring up an excellent point. With DNA available literally everywhere, how easy is it to "steal" someone's identity, forensically speaking? Fingerprints are hard to steal, but planting someone eles' DNA at a crime scene is sounding easier and easier every minute. Pretty soon, DNA will be useless because every savvy crook will know to plant someone else's DNA at the scene to throw the police off.
The bottom line in all these cases is that you do not really have an expectation of privacy in your bodily fluids per se; what you do have is the right to be free of intrusive methods of collecting those fluids by the government. They're not allowed to poke and prod you and stick needles in you absent a showing of probable cause. But absent that restriction, your bodily fluids are fair game.
I wonder about the scenario where the cops take a suspect down to the station, load him up with coffee and donuts, and wait for him to take a crap in the special DNA-collecting toilet.
Maybe the people will pass a statute that prevents such tactics...
A new jurisprudential classic.
If we allow our privacy to shrink as technology expands, at some point we may have little to none left.
In any event, I disagree with the ruling's factual claims. I think most people who spit on the sidewalk expect that their spitting will not be observed and their spittle will not be collected and used to associate a DNA profile with their identity. I think society will accept this expectation as reasonable.
I think the precedent is wrong. Even if people can get your DNA without your consent, we all reasonably expect that people will not collects the bits of us that we shed and figure out what diseases we are likely to get.
Next time I'm arguing against a motion to suppress I've got to figure out a way to get this in. That is hilarious and follows what Prof. Lederman pointed out.
I do have a medical background and think that the fears expressed above are probably unfounded. Unless someone is bleeding or otherwise weeping fluid, it's extremely unlikely that they would leave any genetic material behind on things they touch. It would be much simpler to get a fingerprint, which doesn't sound too sinister.
I leave fingerprints behind me whenever I touch something with an ungloved hand. I'm shedding tens of thousands of skin cells hourly. I don't spit, other than when brushing my teeth, so I'm clear there. But since the government already has my DNA--voluntarily submitted to help with identifying body parts while I was working in a high threat environment--I'm just going to have to live a clean life, I guess....
John O: plenty of them. At least as many people as throw their cigarette butts away on the public sidewalk, I suspect. If this verdict discourages either behavior I will regard it as a beneficial side effect. (Yes, that was somewhat tongue in cheek.)
The Unabomber planted hairs from public restrooms in an effort to confuse the FBI. I guess they were pretty confused, as they didn’t catch him until his brother turned him in.
As a general matter, I totally agree. But see John 9:6:
Oh, wait, since it's you, let me add: Quod licet Iovi, non licet bovi. Quod licet Iovi, non licet bovi.
Even if the Fourth Amendment was interpreted differently to take into account changes in technology it would never prevent a private citizen from collecting the DNA you leave behind. Perhaps a different law might, but the Fourth Amendment only restricts how the government collects information about you, not what private citizens do.
<i>Great case! The goal of law should be to find the truth, not to provide loopholes for clever lawyers to get rich by helping the guilty go free. Only someone who prefers criminals over victims or a criminal attorney could disagree with this case.</i>
Well,the framers of the constitution would probably disagree with your understanding of what the goal of law should be, although perhaps not with the outcome of this case.
People sometimes get confused by this, but purpose of the bill of rights is *not* to find the truth. The purpose of the bill of rights is to protect the rights of the accused. Even where this means that truth suffers - as it certainly does since we only allow "reasonable" searches and not "any search conducted with the intent to further the truth." The framers weren't really law and order kinds of guys, come to think of it.
With respect to this case though - and future cases dealing with, perhaps, DNA exhalations - I think John Burgess is right to analogize this to fingerprints. For almost 100 years (or however long we've used fingerprints), there has been no serious argument that it was a 4th amendment violation to fingerprint something in the public that a person touched. So if it's okay to take fingerprints from the oily bodily residue a person leaves on a subway door (or whatever), it should similarly be okay to dust for DNA traces or whatever. At least as the law stands now.
The best argument against this decision is the slippery slope, which somehow seems appropriate.
As opposed to swab in cheek?
Spitting on the sidewalk is still illegal, for public health reasons that remain valid, but it might be protected if you were spitting to express an opinion, and were in good general health.
Having said that I have to say that I agree with the ruling both as a legal and policy matter. At first I was worried like some of you about the effectively unrestricted ability this gives the government to collect anyone's DNA. Despite what previous commenters have said we leave DNA almost everywhere we go. Every time you talk you leave little bits of spittle on the environment, every time you touch something little bits of dead skin cells fall off and every time you use a spoon or drink from a cup you certainly leave genetic material. The very fact that we can so easily catch viruses and bacteria from other people suggests that we are leaving our far more common native cells everywhere. I have no doubt that better DNA replication type techniques (PCR), more sensitive tests and greater computer power will let future investigators take say 50 samples they saw the defendant touch in various places and reveal the common contributor.
However, on second thought it occured to me that this seems like a violation of privacy only because we don't yet have that technology. Once we do every PI trying to determine paternity, stalker wanting to know your genetic profile or assassin trying to engineer a virus deadly only to you will have you genetic profile so why not the police. Now I think there may be some compelling reasons not to let the police actually sequence your DNA to look for tendencies and physical characteristics without a special warrant but mere identification doesn't seem like that great an invasion of privacy. Especially since the low level of DNA we leave around usually will make it quite difficult to use this to track us except when we do things like leave semen/blood behind (we might be able to put together many small samples to get a real sample but that doesn't let us use one sample on it's own). Even if it did if your ex-wife can do this shouldn't the police be able to do it as well?
Ultimately, I'm much more concerned about substantive violations of privacy, like using the customs check as an excuse to search hard drives, than merely gather DNA.
1. Identifying a suspect by matching a few DNA molecules found at the crime scene with identical molecules found in spit that demonstrably emanated from the suspect, and
2. matching a witness' positive identification of a suspect (obtained quite indirectly from the processing of photons captured by the witness' retina) with a pattern of photons irradiating from that suspect and captured on a digital camera's sensor?
Isn't the only difference that (2) is well accepted (we don't object to surveliance pictures of suspects, even of non-suspects taken in a public setting)? Isn't (1) controversial only because it's new?
A second differnce is that it seems to me that DNA molecules are likely to be much more reliable than photons.
well, no. there is no flaw. that's what the 4th amendment says, not what we wish it said. compare and contrast with my state constitution that specifically protects privacy.
the 4th amendment says no unreasonable searches or seizures. if you abandon something, and the cops retrieve it - that does not infringe on the 4th.
it arguably does infringe on a "right to privacy". that's why cops can't recover garbage in my state from the curb (w/o a warrant), because there is a right to privacy - in my state.
change the 4th amendment, or pass a law. but don't blame cops, or judges for ruling on what the constitution ACTUALLY says, not what we wish it said.
Says you. The Fourth, by its terms, bans "unreasonable" searches and seizures. Who's to say that retrieving spit is or is not reasonable?
That's exactly the point. The courts have developed Fourth Amendment reasonableness analysis to balance the needs of law enforcement against the right of privacy. Now, there might be other values the Fourth should be concerned with (property rights, human dignity, etc.), but since everyone accepts that it protects privacy, the question is whether the need for the evidence, or the lack of intrusiveness of the search, is more compelling than whatever privacy interest is ostensibly offended by the search.
No one's blaming anything on the police. They do everything they can under the law and the Constitution. That's their job. The problem, from a constitutional perspective, is that the Fourth Amendment ACTUALLY SAYS nothing interesting ("unreasonable" is a meaningless concept in and of itself); it is the particular interpretive tools that are used to resolve actual questions that matter. Like most of the commenters here seem to agree - under current precedent, the officer's actions in recovering the spit was probably constitutional. The question is whether current precedent is slowly closing in on what many people consider to be a right of privacy.
Says you. The Fourth, by its terms, bans "unreasonable" searches and seizures. Who's to say that retrieving spit is or is not reasonable?"
it doesn't matter whether it's reasonable or not, because it's not a "search" or a "seizure." where the conduct at issue involves physical collection of evidence (as opposed to electronic or other surveillance through the use of sensory enhancing technology) it is perhaps useful to think in terms of the old olmstead "trespass" framework for whether the conduct at issue can be characterized as a search or not. that was, of course, the framework that was used up until about 40 years ago. the shift to the katz paradigm reflects the recognition that the government can significantly intrude on a citizen's privacy interests *without* performing a physical collection. it is the intrusion that results from the non-physical collection itself that makes such collections come within the terms of the 4th amendment. here, although we have changes in technology that allow investigators to discern more information from the evidence than before, this doesn't change the fact that the collection itself did not infringe on any privacy or property interests (after all, you certainly abandon your saliva when you spit on the ground) and thus that it was not a 'search' or a seizure.'
Yes, like anyone, I want safety. I want the police to have the most powerful methods for catching "the bad guys." But, at the same time, I also am nostalgic for the old-fashioned privacy and solitude that is quickly vanishing for any citizen of a modern society.
I worry about the not-so-altrustic purposes that all these snooping techiques could be put to. Can you imagine what a Hell, say, East Germany would have been if the Stasi had had all of these newer technologies available to them? It just gives me a libertarian shudder to think of the arsenal of weapons that the State is steadily acquiring, and wondering if we really know what we are getting. And, worst of all, wondering what beast is slouching toward Bethlehem... so to speak.
Your post is a non-sequitur. I didn't say it was creepy to spit on the "ground," but that it is creepy to spit on a "sidewalk." The language you quote references mixing the spit with the dirt on the ground, which suggests that the subject of youtr quote spit in dirt and not upon a sidewalk (which probably didn't even exist).
anybody with a brain
it is clearly not a search. and it's not a seizure either.
it's no more a seizure than taking somebody's picture in a public place, lifting prints off a glass they left in a restaurant, or following them down the sidewalk is a seizure.
so, whether or not it is "unreasonable" is irrelevant,since it doesn't say "unreasonable STUFF" it only refers to unreasonable searches and seizures.
see?
not that difficult
it may give some the "ick" factor, but that's not the point. the point is what the 4th amendment says.
a rough beast, of course
Last time I hawked up a lunger and fired it at 500 fps was when my late ex was head of a day care center and had brought home a bug that was rather like pulmonary anthrax. You can talk of ick factor but when your lungs are full of creeping crud and your handkerchief is to be kept for necessities in hopes it will last out the day, who cares about the gutter's virus load? Anyone crawling or eating there has bigger problems.
If you wanna see a real ick factor, look at the container after they suction out the lungs, as they did when she was cashing in the chips while dying of cancer. (It was transparent so they could monitor the level, and right next to her bed. Four years ago tonight she was going that route, I and I was calling the priest).
Sure, but just like speech- "Anything you spit can and will be used against you in a court of law".
The issue must be where is there some reasonable expectation of privacy? Like many, I find the idea that "Well, he should have read up on the latest forensic techniques and known there was no privacy from IR cameras aimed at homes and photographing those inside." to be repugnant. I find peeping Tomism by police to be likely unreasonable invasion of privacy as well.
But spitting on the sidewalk? He has established BY THAT ACT that he makes no distinction between personal and private behavior. And by the standard he has, himself, established, he has no reasonable expectation or privacy.
And besides - EEEWWWWWWW!