Be careful where you spit. More than one state court has ruled that you don't have full "privacy" rights in your saliva once it leaves your body. If police collect your spit after it willingly leaves your mouth, such collection will also not be considered an "unreasonable search and seizure" under the Constitution (unlike the police searching your home without a court warrant, for instance).
An appeals court in Massachusetts has ruled that police can collect saliva off of the sidewalk in order to conduct DNA tests on it while investigating a crime.
Investigators were following a rape suspect at the time when they saw him casually spit on a sidewalk. The suspect's saliva was then collected and turned over to the crime lab. (Once again, this was done without any form of warrant or court order.) Using the DNA gathered from the collected saliva, police in Massachusetts were then able to positively match the suspect's DNA to a recent rape victim. This provided the critical evidence needed in order to secure a conviction.
After his trial, the defendant appealed his conviction - arguing that the gathering of his saliva by the police was an "unreasonable search and seizure" that is prohibited by the Fourth Amendment to the Constitution. Courts have often struggled with the question of just what is "unreasonable" in terms of the ability of law enforcement to search people's private belongings when investigating potential crimes. In this instance, the Massachusetts Court of Appeals rejected the defendant's argument that the collection of his saliva violated the Constitution or was otherwise unreasonable.
The court wrote:
"[A]lthough the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids)...when he [spit] 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.
...
Moreover, there is no indication that the defendant took affirmative action to recover the saliva once it had left his mouth.... Thus, where the defendant here voluntarily abandoned his saliva onto a public street, the investigator...did not infringe on any reasonable expectation of privacy when he recovered the spittle from the street."
The Washington State Supreme Court has gone even further - ruling that police have the right to actively trick a suspect into giving up his own DNA to be examined.
The Washington case involved the 1982 murder of a 13-year-old girl in Seattle. Police found evidence that she was sexually assaulted before her death. Authorities had focused on one suspect - John Nicholas Athan, who himself was a teenager at the time. However, police never developed enough hard evidence to charge Athan with the crime, so it went unsolved for over two decades.
Twenty years later police re-examined what was by then a ‘cold case'. The DNA evidence found on the victim had been preserved. Advances in DNA testing technology gave them hope that the crime could still be solved.
Once again, police focused on their prime suspect - John Nicholas Athan, who was now living in New Jersey. They came up with an elaborate scheme in order to get Athan to unwittingly send them a DNA sample.
Police detectives posed as a fictitious law firm. They sent Athan a letter on the "firm letterhead" inviting him to join a class action lawsuit concerning parking tickets. All he had to do was sign and mail make an enclosed "authorization form" Like the firm itself, the class action lawsuit was a fake.
Athan signed the form, licked the return envelope to seal it, and mailed it back. Unbeknownst to Athan, he actually mailed it back to the Washington State police.
When police received Athan's envelope, they sent it to the crime lab without opening it. Lab technicians were able to lift a DNA sample from Athan's saliva found on the envelope flap. The DNA from Athan's saliva positively matched the DNA profile found on the murder victim from 20 years earlier.
Based on that evidence, Athan was eventually found guilty of second degree murder.
Athan appealed his conviction, arguing that it violated his rights under both the federal and Washington State constitutions.
The Washington State Supreme Court upheld the conviction by a vote of 6 to 3, writing, "[T]here is no inherent privacy interest in saliva...The facts of this situation are analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray... The envelope, and any saliva contained on it, becomes the property of the recipient."
The court suggested it might have reached a different conclusion if the DNA sample was forced through an "invasive" or "involuntary" procedure, or if it had been improperly used to gather information beyond simple identification (i.e., to gather medical information or other data that would violate privacy rights). However, none of those scenarios were found in this case.
The court admitted that police may have technically violated laws regarding the unlicensed practice of law in the state, but that "public policy allows for a limited amount of deceitful police conduct in order to detect and eliminate criminal activity." It concluded that the method of deceit in this instance was "not so outrageous or shocking as to warrant dismissing the case."
There were two written dissents in the Washington case, but neither view prevailed with the majority.
The first dissent argued that Athan's privacy rights were definitely violated and that the deception by the police made his actions in liking the envelope "involuntary".
It argued that, "Under the majority's holding, the government could analyze the DNA in anyone's saliva, however obtained, as long as it was not directly from the person's mouth, and use the information to construct a DNA database that includes both felons and non-felons."
The second dissent agreed with the first dissent, but also emphasized the potential harm to the attorney-client relationship if society allowed police to masquerade as attorneys in order to catch criminals.
In any event, the majority of the Washington Supreme Court held otherwise. So the current state of the law is this: If you don't want people to know your identity, be careful where you spit.
Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article. ]
