Washington Supremes: Okay To Trick Clients Into Giving DNA

Seattle police detectives who were trying to solve a murder case posed as lawyers and mailed a suspect a fake letter in order to collect his saliva when he mailed back the return envelope.  This morning, the Washington State Supreme Court issued a ruling finding that this did not violate the constitutional rights of the accused:

The detectives, posing as members of a fictitious law firm, invited Athan, a longtime suspect now living in New Jersey, to join a class-action lawsuit for overpaid parking tickets. After Athan licked an envelope they mailed to him and sent it back to police, his DNA was matched to a sample that had been recovered from Sumstad at the time of her death....

"No recognized privacy interest exists in voluntarily discarded saliva," the court wrote in its ruling.

The court concluded that the accused rights were not violated even though the search was itself illegal:

"Although the ruse used by detectives in this case violated certain statutes, it was not so outrageous or shocking as to warrant dismissing the case," Justice Charles Johnson wrote.

The ruling apparently sets a new precedent about how samples can be collected.  Writing for the minority, Justice Tom Chambers wrote that this may have a chilling effect on attorney-client relations:

"Washington law prohibits a nonattorney from holding himself or herself out as an attorney," he wrote. "Permitting this unlawful and unethical conduct ... undermines the ... ability of all people to communicate freely with their attorneys without fear that the communications will be used against them."


  • (Show?)

    This is similar to the problem of US intelligence officers posing as journalists to infiltrate terrorist groups.

    On the one hand, it's an effective subterfuge. On the other, it puts real journalists at risk.

    Of course, in that case, we're talking about the lives of legit journalists pursuing stories. In the Washington case, it's just the credibility of lawyers who cold-call class action plaintiffs.

    It's also not unlike the police tactic of announcing a big sweepstakes giveaway of free stereos - and then sending it to everyone in a community that has outstanding warrants... and they scoop 'em up.

    I guess that reduces the credibility of sweepstakes offers, but that seems OK to me.

    I don't personally understand why these cops in Seattle felt like they had to impersonate attorneys - when there's any number of other creative options. But this doesn't seem like a big deal to me.

  • (Show?)

    I'm not so sure. We need to have a serious discussion about the legality of DNA and its collection. I know the fourth amendment is the lost right, but this seems to strike at the heart of it. Since we are shedding, liquid beings, we leave parts of ourselves everywhere. Given the unassailility of DNA, we need to have protections that assure us, as the Fourth says, that we will be secure against unreasonable seizures "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    Maybe someone with a degree in law can sort this out--Kari and I only play constitutional lawyers online.

  • (Show?)

    Ah yes... I do think a discussion about the "search and seizure" of DNA is a good one.

    Of course, in a world where CSI is the #1 show in the land, judges worry about "the CSI effect" in jurors, and Forensic Science is the #1 requested college major that (most) colleges don't offer.... I suspect most Americans are going to support the use of DNA to solve crimes.

    But a constitutional discussion would be an interesting one.

  • JHL (unverified)

    I think I disagree with the ruling based entirely on the premise that the detectives posed as attorneys. Kari's parallel to journalists is superb.

    However, I do think that the collection of saliva in such a shrewd manner (as they said: "voluntarily discarded") should be a-OK.

    Yes, we leave our DNA plenty of places... but to extend the Fourth Amendment to instances in which we leave DNA in public places or voluntarily send it out into the world goes too far from its original intent. Bottom line: this man's privacy was no more infringed upon than if the police had sent a kind letter asking him whether or not he did it.

    However, I'm less interested in the Fourth Amendment implications and more interested in Fifth Amendment implications. Since DNA is basically a positive match, is this case an example of self-incrimination? It's legal for someone to incriminate themselves if they've been Mirandized first, but how do you tell someone of their right to use a self-stick envelope?

  • (Show?)

    At the risk of simply confirming many readers' decision not to vote for me for the Supreme Court last year, isn't it appropriate to remember why we have the constitutional protection against self-incrimination to begin with?

    Isn't it intended to take away the incentive for police to browbeat (or literally beat) confessions out of people, to force them or trick them into admitting to something they didn't do, and to protect all of us from brutal, outrageous or deceptive practices that harm the innocent and the guilty alike?

    If that's so, where is the potential for abuse in getting someone's DNA by this method? Our DNA, like our fingerprints, have great probative value and I've yet to hear of anyone being coerced into giving a false DNA or fingerprint under the 3rd degree.

    In the end, what would be the benefit of excluding such evidence in this case other than letting the suspect get away with murder?

  • (Show?)

    The issue about the 5th is, does coercion to give unbiased evidence violate the principle of the 5th or not?

    What truly lies behind the rationale of the 5th to begin with?

    "Beating a confession" out of someone is actually obtaining suspect evidence of guilty because the process taints the validity of the evidence produced by that process. However the evidence of DNA is unbiased in that it is empirically true or false (given the limitations of the science behind it that is). The only issues of DNA (beyond the science of it) is the validity of the chain of evidence in obtaining it (i.e. was it falsely planted and/or corrupted scientifically in the process of obtaining it)...?

    My understanding of the 4th is simply that the state doesn't have the right to violate your home or person without probable cause and/or a warrant, etc. (i.e. due process) In other words it simply can't be busting down doors doing police sweeps, etc. by caprice (try selling that principle as valid in what we are doing Iraq BTW).

    The only aspect of the particulars of this case (only form what I have read here that is) is the notion that pretending to be a lawyer subverts the concept of privileged communication between attorney and client/suspect, etc.)

    I question the wisdom of letting the police bending the rules because the ends justified the means of subverting the principle of privileged attorney/client communication).

  • Ms. Mel Harmon (unverified)

    I'm wondering how far the "let's pretend we're someone we're not in order to obtain the evidence we need" ploy can legally be allowed to go...as was pointed out above, "free" items have been offered to those with warrants in order to trick them into being arrested and the vice squads all use pretend johns and hookers to nab their prey. Cops pretend to buy drugs all the time...but these are cases of going after people either already wanted or who are actively breaking the law during the "sting". But the DNA issue is disturbing. I realize this may be reaching, but where is the line drawn on DNA, even "voluntarily" given? Yes, licking an envelope is fairly innocuous, but what if the police someday decide they need blood? Will they send a letter to the suspect claiming he/she has been identified as possibily having been exposed to a disease and requesting they come for testing? Will the police pose as health officials and draw blood to "test" and then use that in a DNA test to prove guilt in a case? How far do we go to obtain the evidence needed, especially DNA evidence, in order to make the case?

    No answers here, just questions....this whole thing disturbs me and I can't quite communicate clearly why...

  • 17yearoldwithanopinion (unverified)

    This case follows what the supreme court has said in the past. For example police can pick up your garbage and search it without evidence. Also police can lie to suspects in order for them to give up evidence or statements that help the police. I see nothing wrong with this ruling. Seems like it allows cops to use creative means in order to protect the public safety. I disagree with Kari over how creative this case was. I think it was quite creative to tell you the truth. Anyways this is what I think based off of law classes at a public high school.

  • (Show?)

    I'm wondering how far the "let's pretend we're someone we're not in order to obtain the evidence we need" ploy can legally be allowed to go...

    Yeah... this is slightly askew from the original topic -- but I'm a bit concerned about the civil liberties implications of all these "to catch a predator" cases where a 30-year-old male police officer pretends to be a 14-year-old girl.

    If the perp at the other end never actually talked solicited sex from a 14-year-old girl, then what crime was committed? Talking dirty to another adult? Last I checked, that was still legal.

    Then again, I'm not sure that we should be using actual teenage girls in these operations. Quite a bit more danger involved there (unlike, say, hiring teens to attempt to buy beer and cigarettes from 7-11s).

    Not sure there's a good answer here.

  • (Show?)
    Posted by: Kari Chisholm | May 10, 2007 4:25:35 PM

    Well the question is, would that 30-year old guy be trying to solicit a real 14 year-old online instead of the cop posing as one online?

    That is, in essence the difference from entrapment and a legitimate sting. If the guy is already looking to "connect" with and underage child for sex, then his person is a threat and is attempting to commit a crime.

    Is someone plotting to blow up a building, actively planning, making arraignments to do so, etc. committing a crime in the planning stage or only when the bomb goes off?

  • (Show?)

    An excellent point, lestatdelc.

  • Ed Bickford (unverified)

    Indeed I am glad I voted for Virginia Linder!

    The gentleman posits a constitutional protection "to protect all of us from brutal, outrageous or deceptive practices that harm the innocent and the guilty alike" but not if one is a suspect. If they had any proof of guilt, they would be obliged to get a warrant to require the suspect to submit to a search of his person for evidence. He thinks it is safe to allow police to circumvent the requirement of evidence of guilt to acquire evidence from the suspect, as long as they figure that otherwise they'd be "letting the suspect get away with murder". It seems he'd be a big fan of the methodds employed at Gitmo.

  • JHL (unverified)

    I think I may have to (gasp!) agree with Jack Roberts(!) The "search" itself was not invasive.

    Again, with the caveat that I still think it's outrageous for the police to pose as an attorney Or, to extend Mel Harmon's argument (doctors), posing as anyone with whom the suspect would be able to have a privileged conversation.

    Doctors, attorneys, priests... like Kari alluded to above with his journalist example, when police pose as these people, it puts a chilling effect on all privileged conversations.

    I have no problem if they pose as radio hosts saying "Win a free CD player if you can spit in this evidence bag."

  • (Show?)

    I still haven't seen anything that sufficiently refutes Lestatdelc and Ed's points. In the case, justices argued that he had "voluntarily discarded evidence"--something I can't reconcile with the facts.

  • (Show?)

    To clarify where I am on this...

    Is searching someone's garbage a violation of the person or his home i.e. the 4th?

    The courts say no, and I tend to agree.

    Is an envelope licked shut and freely given a violation of the 4th?

    I don't find the argument that it was/is very compelling and agree with the court. The guy freely (though under false pretext) gave over an envelope he licked shut and was no longer his papers, person, home or effects. It was for all intents and purposes imminent garbage, no longer in his possession nor could be construed and his property, etc.

    Is falsely posing as a lawyer a very suspect and chilling threat to protected communication between lawyer/client?

    I am worried that might be, which is where and why I question the wisdom of the ruling by the court in this case.

  • (Show?)

    I think lestatdelc has zeroed in on the critical issue, but don't forget that the exclusionary rule is not the only way to sanction bad behavior. Police officers can be sanctioned for pretending to be lawyers without rendering the evidence gathered as a result of such misconduct to be inadmissable.

    In most of the world, relevant evidence is admissible regardless of police misconduct; the remedy is to punish the misconduct. In this country, we take the extra step of denying the prosecution of the fruits of such misconduct, which is a reflection of our greater commitment to protecting civil liberties, but it does not have to be absolute and in this case I think the Washington Supreme Court (not generally regarded as a bunch of rightwingers) struck the right balance.

  • Ed Bickford (unverified)

    A court does not have to have a demonstrable political agenda to make an error in judgement. The government in our country has made way too many "balancing acts" resulting in curtailing of civil rights in the recent years, and I am extremely sensitive to further erosion of those rights. The type of conduct allowed our police forces in pursuit of criminal convictions is extremely important to keep within the bounds of respect for the rights of the accused. If our commitment to protection of civil liberties is not "absolute" then we are already on the slippery slope!

    Thank you for losing Mr. Roberts, you have done Oregon a great favor.

  • Ed Bickford (unverified)

    The applicable clause of the 5th Amendment:

    "No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..."

    If there is no credible evidence to confirm suspicion by authorities (due process) then why should they be able to coerce their suspect into furnishing evidence against themself?

    The law is not just a means of punishing antisocial behavior, it also describes the limits within which we are free to enjoy life, liberty, and property. We demand civil rights that let us live as free men as long as we are good citizens. We have the right to live without having to be paranoid about taking a lawyer into our confidence for fear that he's going to try to get you to incriminate yourself.

    In that nightmare an unprincipled law enforcement agent with an agenda is willing to forge evidence, such as DNA, to get a conviction of a suspect they had no evidence to implicate. They cannot be allowed to coerce me into helping them frame me. This scenario became more plausible with the revelations of political cronyism in the US Justice Dept.

    "What truly lies behind the rationale of the 5th to begin with?"

    The rationale is that the same law which has the force to punish criminals can be turned against innocent citizens who get in the way of the agenda of a powerful and unscrupulous elite, unless we have the protections of inviolate civil rights.

  • Ed Bickford (unverified)

    The applicable clause of the 4th Amendment:

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..."

    I aver that JR was wrong in his assertion that "lestatdelc has zeroed in on the critical issue" justifying the decision. What kind of tortured logic gives the police the right to search the suspect's person and seize such evidence in the absence of a warrant granted when probable cause was to be shown?

    The proposition "Is an envelope licked shut and freely given a violation of the 4th?" is a red herring, as the envelope was not freely given: the agent of the law circumvented the requirement to get a warrant by inducing the suspect to surrender evidence against himself while masquerading as an officer of the court required to hold his confidences. The agent's subterfuge set aside the suspects rights without mention; that to me is coercion.

    I apologize if my arguments employ imprecise language, as I am bereft of the legal qualifications of some commenters here. Their tendered bona fides do not assure me that they argue to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity".

  • Laura Calvo (unverified)

    It seems to me there are several issues being mixed together in the posts.

    If the police had probable cause to believe that the suspect committed murder they could have applied for a warrant to seize the DNA.

    There are certainly times in a murder investigation where tactics come into play. If you tip your hand and at the wrong time, there's a serious risk of losing further evidence. Without knowing all the fact of the case, it's hard to tell.

    This is a case of subterfuge. Police are allowed to use subterfuge and it's not at all uncommon for them to use this to gather eveidence. Contrary to popular beilief the Police are not required to tell the truth in all circumstances. The courts have ruled time and again on this.

    The suspect voluntarily sent the envelope to them. He was not coereced. He was given the opportunity to do something he would ordinarily do. He could have easily chose to not respond to the mailing. It's debatable if the suspect had a reasonable expectation to privacy in this circumstance since it was kind of a attorney-client communication. I too kind of worry if that didn't go a little far. On the other hand, I've recieved class action notices in the past. To me it's kind of like getting a publisher's clearing house sweepstakes notice.

    As long as the Police afford a person a voluntary opportunity to do something they would ordinarily do or are predisposed to do, then it really can't be construed as coercion or entrapment. More on that later.

    The other issues mentioned in the posts deal with the suspect's expectaion to privacy. Not withstanding the argument of client attorney privelege, did the supspect have an expectaition of privacy when he mailed the documents.

    I believe if you place something in the mail, US Postal Service, you have a reasonable expectation to privacy and that your mail is secure. I'm not certain, but the US mail service was one of the only exceptions when it came to the chain of evidence rules. If eveidence needed to be transported, the US mail was an acceptable means. In other words it's not like the garbage you put out at the curb.

    Once your mail is delivered, it's a different situation. I believe you lose all expectation of privacy in most instances.

    As far as self incrimination is concerned. It seems that it's been ruled that a person's fingerprints, hair, and body fluids are not considered "self incriminating". They are considered physical evidence of a crime. Depending on the situation, many suspects are legally compelled to provide these samples with or without a warrant depending on the situation. If you're booked into jail, you have to submit to finger prinitng. I think I read somewhere that people are also being swabbed for DNA in some jails as a part of the booking process. These situations fall under a procedureal kind of thing in identifying persons booked into jails. Subsequently their finger prints and DNA are put into a data base. Drunk driver's, which is a quirky area, are compelled to give breath samples. If they refuse they automatically lose their license. But if the same drunk diver is suspect in reckless driving or some sort of assault in connection with the incident, then Police have the authority to sieze the blood of a person. This is routinely done without a warrant and at times under force. It's based upon probable cause and the the fact that alcohol dissipates in humans, which falls under exigent circumstances.

    "Self incrimination" mainly only deals with confesions, interogation, and court testimony. Here again there are many instances where there are exceptions and the creativity of the Police can become quite elaborate. The most common problem or argument here is the question of "police custody" and the "voluntary" nature of the statements made. That's the whole crux of the Miranda decision and it's still hotly debated today.

    What most people don't realize is that under no circumstances are you compelled to speak or otherwise communicate to anyone in law enforcement. Really no different than being compelled to talk or even acknowledge a street beggar who asks for money while your walking downtown. The police can talk to anyone they wish at any time. Legally you don't have to say anything under any circumstances. If the police officer does not have "reasonable suspicion", which is a very broad and rather low level threshold, they can not legally detain you. If they have do have reasonable suspicion that you have perhaps committed a crime then they can detain you for a reasonable amount of time to inquire further. Still you are not required to speak. There is a famous case involving just this and I can't remember the then name of the case. But it's about a black man who was purposely and simply standing on a sidewalk in a white neighborhood. He was and did not commit any crime. He was taken to jail becasue in esence he refused to speak one word and did not produce any identification. Since the police did not detail any resonable suspicion that the man had committed any crime, the courts ruled it was an unlawfull detainment and that no citizen is compelled to speak to the police. If the police had "reasonable suspicion" to stop and detain, the person is still not under obligation to speak.

    I'm not a lawyer. But I do have some practical experience and understanding in my past.

  • Ed Bickford (unverified)

    L. C. may not be a lawyer, but obviously aspires to twist circumstances to match the desired result as they are known for doing. That she shares Justice Jackson's lack of shock and outrage at the illegal search is sad, but that she is willing to dismiss the chilling effect on attorney-client relations is alarming.

    I reiterate: the law is not just a means of punishing antisocial behavior, it also describes the limits within which we are free to enjoy life, liberty, and property. I can live with the idea that I would need to exercise discretion in dealing with the authorities, and will be using a sponge to seal any envelope addressed to them. I am not obliged to allow them to intrude upon client-attorney confidentiality, leaving me with no one I can trust not to betray me. Surely pentitent-confessor confidentiality would not be safe for long. There must be limitations on the kind of subterfuge authorities are allowed to use in prosecution if civil liberty has meaning. How cramped and stingy a freedom are you willing to accept?

    The agents of the law went too far with this subterfuge, as you seemingly admit with doubts about priviledged communication, then flippantly dismiss.

  • (Show?)

    Ed Bickford's dismissive post notwithstanding, Laura Calvo's analysis of this case is essentially correct. It seems pretty clear that police do not need a warrant to check the DNA on an envelope a suspect licks and then mails to someone else. The tricky part of this case, as lestatdelc identified above, is the deceptive practice that the police used to secure the envelope in the first place, i.e., pretending to be lawyers in a class action case.

    But courts have also long understood that the exclusionary rule is not the only sanction available to deal with police or prosecutorial misconduct. In this case, nothing about the misconduct undermined the credibility of the evidence they obtained. And in the view of the majority of the Washington Supreme Court and as in mine, the deception used was not "so outrageous or shocking" as to justify dismissing a case against a man who raped and killed a 13-year-old girl.

    Contrary to Mr. Bickford's characterization, this is not the road to Gitmo. And if he really believes Justice Linder would have ruled differently in this case, he's probably never read any of her opinions.

  • Ed Bickford (unverified)

    It was my aim not to disappoint the esteemed former candidate for the Oregon Supreme Court, who started comment with the expectation that his former non-supporters would call him out. Done and done!

    <h2>The real reason that I am pleased that he lost is not how either candidate would rule on any particular case, but that Judge Linder had the best qualifications.</h2>
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