Lawyers Fight DNA Samples Gained on SlyThe United States Supreme Court has yet to address whether there are constitutional limits on the covert collection of DNA. But with a few exceptions, lower court judges in over a dozen recent cases have ruled that DNA clinging to water bottles left in interrogation rooms, on restaurant glassware and on those ubiquitous cigarette butts are fair game for police inspection.
“There is no subjective expectation of privacy in discarded genetic material, just as there is no subjective expectation of privacy in fingerprints or footprints left in a public place,” Washington State’s Supreme Court wrote last year in denying an appeal by John N. Athan, whose murder conviction was based on surreptitiously collected DNA.
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In a dissenting opinion, Justice Mary E. Fairhurst argued that the fingerprint analogy was inappropriate, because Mr. Athan’s DNA “provided the government with vast amounts of intimate information beyond mere identity” including race, gender, predisposition to disease and, perhaps, forms of conduct.
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In Los Angeles, a Superior Court judge last year rejected a motion by attorneys for a suspected serial killer, Adolph Laudenberg, to suppress DNA evidence that the police had acquired by inviting him to a doughnut shop to discuss an unrelated case.
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Several court
opinions on surreptitious sampling cite the United States Supreme Court decision in California v. Greenwood, which held that the Fourth Amendment did not apply when the police searched trash bags left on the curb by a suspected narcotics dealer.