Surreptitious Sampling and Privacy Rights

The New York Times reports this morning on a practice which some claim circumvent requirements of probable cause – surreptitious sampling. Such sampling is performed by gathering “abandoned” DNA samples from alleged criminals in order to match to evidence on hand. As this DNA is alleged to be “abandoned”, there is no need for a court to approve such evidence gathering or issue any type of warrant.

Those challenging this practice claim that such evidence collecting violates the privacy rights of those accused, and perhaps even ordinary citizens. As no probable cause is required to collect these DNA samples, some argue that the police can easily collect evidence on so-called “targeted” persons for later use, whether the person is suspected of illegal activity or not at the time of collection.

Those supporting such evidence collection point to its success in the assistance of prosecuting criminals. According to the law enforcement officials, “Over the last few years, several hundred suspects have been implicated by the traces of DNA they unwittingly shed well after the crime was committed”. Additionally, such sampling has actually assisted in eliminating suspects in many cases.

In a recent decision, a Massachusetts court held that the Defendant had no reasonable expectation of privacy in his saliva he spit on the sidewalk. As such the DNA evidence collected from this sample was admissible in Court. Other lower court judges for the most part appear to agree with such reasoning. The United States Supreme Court has not yet been faced with addressing this issue.

Some suggest that a middle ground would provide the best solution to this problem. As one expert suggested, the middle ground may lie in continuing to allow such evidence gathering, after the standard of reasonable suspicion is met. Adding this requirement would ensure that random people are not subject to such surreptitious sampling.

Even without having to meet this standard of reasonable suspicion, the courts so far have sided with that of the police, and perhaps rightfully so. It seems a stretch that police will follow “targeted” persons just to create a database for future use. And it has long been accepted that anything picked out of a person’s garbage is considered abandoned and fair game to be used in a court of law. As is the case with searching garbage, it is unlikely that such DNA collection would take place without some type of suspicion, most likely reasonable, and denying the right to obtain “abandoned” DNA may have unknown consequences on other evidence collecting techniques. While I stand by the fact that a person’s Constitutional rights and privacy deserve the utmost protection, it is hard for me to grasp either: (a) how such surreptitious sampling will become so random and so broad that it will infringe on anybody’s rights who is not under reasonable suspicion to begin with; and, (b) how any person can reasonably have an expectation of privacy in their so-called “abandoned” DNA.