Legal News

A Reasonable Expectation of Privacy in One?s Spittle?

By Dan Slater

While torts class reigns supreme when it comes to riveting fact-patterns, we always thought that criminal procedure Fourth Amendment cases, detailing the cat-and-mouse game law enforcement plays with those it pursues, are a close second.

And while we don’t have anything as controversial as a little boy pulling the chair out from beneath an arthritic old lady, we do have the following: On the front page of today’s NYT is a story about the growing popularity of so-called surreptitious sampling, a practice in which law enforcement officials collect a suspect’s DNA by staking out their discarded cigarette butts, coffee cups, licked envelopes, and, yes, even a gob of spittle on the sidewalk.

Critics, reports the Times, argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search. “The law cannot tolerate such back-door methods, which seize something that any reasonable person expects to remain private,” says David Lynch, the lawyer for Rollando Gallego, a murder defendant whose DNA was extracted from a discarded cigarette.

Police think otherwise. “It’s a great tool,” said Micki Links, a sargeant in the Sacramento sheriff’s homicide division. “Our hands are tied on a lot of things as far as what we can do and what we can search, so when we find something that’s within the law, we’re going to use it.”

In the meantime, writes the Times, anyone with something to hide should keep in mind a recent decision by the Massachusetts Court of Appeals, which admitted as evidence DNA collected after a suspected rapist spit on the street. “We conclude that under the circumstances, the expectorating defendant had no reasonable expectation of privacy in his spittle,” the court ruled, “or in the DNA evidence derived therefrom.”

LB readers, this one’s just teed up for you. Swing away.

Full post as published by Law Blog - WSJ.com on December 31, 1969 (boomark / email).