Yeah I know, big deal. We've heard it all before. But it's getting worse.
The letter was on expensive-looking law firm stationery, and John Athan had no reason to doubt its authenticity.
So the New Jersey construction worker did what the letter asked: He signed a form agreeing to join a lawsuit in Washington state aimed at recovering overcharges in traffic fines, and he mailed it back in March.But the law firm was phony, created by police in Athan's hometown, Seattle. They didn't want Athan's signature, they wanted his DNA, the unique genetic code they lifted from the saliva he unwittingly provided by licking the return envelope.
Sting operations are bad enough, but this goes way over the line. In effect, through deception, the police have coerced Athan to unknowingly waive his right against self-incrimination.
In a sting, police set up the conditions for a suspect to commit a crime under their observations. They cannot encourage the suspect in any way. He must initiate the act in order for it to be admissible. This requirement that he initiate the act protects the police from violating the suspect's 5th amendment rights. But in the case of Athan, and others like him, no such protection exists. Police lured him into waiving that right.
Had they gone through his garbage to get a sample, that would be entirely different. Another case from the article illustrates this point.
When he was being interviewed by Jacksonville police in 2000, murder suspect Robert Denney refused to lick an envelope or drink from a water bottle he was offered. He smoked a cigarette but wouldn't give police the butt.Police got his DNA anyway, by hiding near the restaurant where Denney, 19, worked. They collected spit that he discharged during a break. The sample matched DNA from the crime scene. Denney goes to trial in October.
In this instance, the police did not initiate the action, but benefited from a voluntary act by Denney. That is perfectly acceptible police work.
Gotta disagree with your analysis, Rich. You say that "the police have coerced Athan to unknowingly waive his rights." No, they haven't. Nobody was coerced into anything. Instead, Athan willingly and voluntarily licked the envelope and sent it into the public domain. He had no control over it once it left his possession.
Try a thought experiment. What if there really had been a law firm, or a Publishers Clearing House sweepstakes, or anything else that Athan voluntarily submitted a saliva-stained envelope to. And the police, instead of fooling Mr. Athan, went to the Publishers Clearing House and asked nicely for the envelope? Would that be wrong?
No difference here. The police didn't force Mr. Athan to lick the envelope. Mr. Athan could easily have used one of those envelope-moisteners that use tap water and a sponge, and never sent his saliva into the public domain. He didn't. Whoopsie.
Hi Laura, have you made it to TN yet?
I see your point, but I think your example just shows the divide I pointed out. If the police did as you said, I wouldn't have as much of an issue with it. There would be no deception involved. On the other hand, in the actual scenario, police took action to get Athan to unknowingly incriminate himself. I have a problem with that.
Look at it this way. You go to the doctor for a physical, and they do bloodwork. Would it be OK for the police to go to that doctor and take the blood sample to get DNA evidence? Wouldn't that violate your privacy rights? Why should an envelope, which contains the same info from saliva, be any different?
As I think about this, I'm beginning to believe that gathering DNA evidence should be held to an even stricter standard. For example, based on the current interpretation, police could generate a national DNA database through your tax returns or other documents. You wouldn't even have to be a suspect for anything. After all, by licking the envelope, you put it into the public domain.
Right?
Posted by: rich on September 12, 2003 8:35 PMI am beginning to realize that I am now living in a soon to be fascist country. With "color codes" for airline passengers, liberal "we can arrest you without a warrant and hold you without a trial because you might be a terrorist" laws I have an urge to move to China. At least they dont hide the fact that you cant do anything without the state knowing about it. Do you think our Supreme Court will have the balls to take this one on?
Posted by: justin on September 12, 2003 10:39 PMHi Rich. Still stuck in California, but at least I've closed escrow on the house in Kingston (yay!) and I'm close to finishing up the sale of property here. Hope to get on the road next week.
The difference in your hypothetical with the blood work is that there is a well-established privilege regarding your relationship with your doctor. Your doctor is forbidden to give up any part of your medical records without your consent or a court order. So there's no danger there.
But I very much like your hypothetical about tax returns and DNA. Interesting thought! And I can't think of any legal reason the police would be barred from doing exactly as you suggest. You have indeed placed that envelope in the public domain and waived any right to privacy in the DNA you have voluntarily stained it with.
But before you flee the country in advance of the brownshirts, let me console you. There may not be a legal impediment, but there is an enormous practical problem. Huge. The IRS processes millions of tax returns in a fairly limited time window. The DNA in saliva doesn't last forever; it degrades if it isn't preserved, I do believe. So what you're suggesting would require that all of those millions of envelopes be immediately turned over to some processing agency to extract the DNA from the saliva, and to match the DNA with the donor's social security number. DNA processing is not cheap, and it is not easy. Especially when you're talking about extracting it from the saliva on an envelope, instead of (for example) extracting it from a liquid blood sample. I don't think in practical terms it could possibly be done.
In addition, you'd still have the possibility of false matching -- instances where the taxpayer didn't lick the envelope himself. In such a large population, that would be a non-trivial problem. Many taxpayers don't prepare their own tax returns, so they don't mail them either.
So although I think you propose an interesting thought-experiment, and certainly one that is legally possible, the practical problems sink it pretty quickly.
Feel better?
Posted by: Laura M. Hagan on September 16, 2003 11:40 AM