Troy Duster reported that the forensic science laboratory in Birmingham, England, claimed that its DNA test can distinguish between “Caucasians” and “Afro-Caribbeans” in nearly 85 percent of cases.49 The original work cited for this result was published in 1993.50 Bert-Jaap Koops and Maurice Schellekens note that the differential power of phenotyping can result in racial bias:
The use of characteristics for a composite drawing or description of the perpetrator of a crime may lead to stigmatization of certain groups within society. . . . This is an even greater risk if one ethnic background can be better determined than others, as the FSS [Forensic Science Service, United Kingdom] indicates is the case with Afro-Caribbeans. This might lead to relatively more cases involving Afro-Caribbeans, simply because they can be determined where other DNA types would yield inconclusive information.51
This is the DNA counterpart to the old joke, “Why are you looking under the streetlight for your lost key?” The answer: “Because that’s where the light is.”
Tony Frudakis, formerly of DNAPrint Genomics, also supports the use of DNA for developing “facial geometry” of an individual. This might include facial bone structure as well as the size and shape of the face. In a project at University College London, scientists scanned the faces of hundreds of volunteers in order to find correlations between digitized facial geometry and genetic markers, but the project was abandoned in 2000 when it proved too complex. One German forensic biologist commented that we may never be able to fully reconstruct a suspect’s face from genes alone.52
Policies on Phenotyping DNA
The debate over forensic DNA phenotyping has been more acute in the European Union than it has in the United States. Only three states, namely, Indiana, Rhode Island, and Wyoming, disallow by statute the use of DNA submitted to their data banks for purposes of obtaining phenotypic information about the DNA sources.53 For example, the Wyoming law states that “information contained in the state DNA database shall not be collected or stored for the purpose of obtaining information about physical characteristics, traits or predispositions for disease.”54 But this does not restrict phenotyping crime-scene DNA to generate information about suspects before the DNA enters the data bank. Michelle Hibbert surmises that the vast majority of states permit DNA trawling in order to allow police investigators to trace unknown suspects or anonymous murder victims.55
At the federal level, as discussed earlier, HIPAA provides individuals privacy protection in regard to their medical information and data. However, HIPAA contains broad exceptions that provide medical administrators discretionary authority to disclose information to law-enforcement officers upon request. As a result, phenotypic testing of a bloodstain left at a crime scene that revealed that the suspect had a rare medical disorder could very well lead to a medical dragnet.
The European Union has issued a number of directives prohibiting the exchange of DNA information that can reveal physical traits. On June 25, 2001, a European Council resolution urged member states to exchange only the results of DNA analysis of noncoding chromosomal loci. Under the Prüm Convention of 2005, party states cannot make available DNA data drawn from coding segments of the DNA.56 Belgium and Germany explicitly prohibit deriving physical traits other than gender from DNA. In contrast, a 2003 amendment to the Dutch Code of Criminal Procedures permits investigators to obtain phenotypic information from DNA found at the scene of a crime when the suspect is not known.57 The Netherlands is the only country to explicitly approve the use of DNA forensic phenotyping.58
Increasingly, when law-enforcement investigators cannot get a match between the DNA found at a crime scene and the DNA profiles in their database, they use the services of specialized firms that construct phenotypic profiles of the suspected perpetrator from markers in the crime-scene DNA.59 This trend is likely to continue with the advent of gene chips, or DNA microarrays, such as those that have been developed by the company Affymetrix.60 These gene chips allow researchers to access information on thousands of genes simultaneously.
While at DNAPrint Genomics, Tony Frudakis predicted that in the future people’s DNA will be used to describe their physical appearance.61 Thus far there is little science to support that prophecy. Nonetheless, efforts to develop genotype-to-phenotype indicators will undoubtedly improve as financial investments in research, ancestry analysis, and forensic markets for crime-scene DNA profiles expand.
When a person’s DNA is taken for phenotyping, information about genetic predispositions can be revealed unexpectedly. For example, a suspect could learn the information for the first time in a courtroom or during sentencing. This scenario breaches a basic principle in medical law. People have the right to know—or not to know—about their genome. This right cannot be protected if forensic authorities gain access to sensitive genetic information and are authorized to use it as evidence against a suspect.
Some traits are less sensitive than others. If direct phenotyping of DNA could be limited to externally perceptible traits, such as hair color or stature, and nonsensitive internal or behavioral traits, such as voice type, left-handedness, or absolute pitch, then an appropriate balance between preserving genomic privacy and assisting law enforcement might be achieved. These traits raise no serious objections based on the right not to know, privacy, or the risk of stigmatization.62 Perhaps phenotyping the DNA from unknown subjects can fall under an ethical principle “the right not to know” when the proposed DNA test is for characteristics that are beyond the individual’s physical identifying features. Unfortunately, no such distinction has been made by crime investigators to date, and in the meanwhile, the temptation on the part of law enforcement to mine crime-scene DNA to make predictions about the physical, behavioral, or medical conditions of the alleged perpetrator only increases. Already claims have been made that genetic factors have been found that are associated with sexual orientation, intelligence, addictive behavior, and aggression. Even if they are unsound, law enforcement will be tempted to use them to generate profiles of suspects from the DNA, such as “Likely to be a tall, African American homosexual male, with high intelligence, a propensity for addiction, and recessive for sickle cell anemia.” Koops and Schellekens argue that “once phenotyping for criminal investigation is an accepted practice, phenotypical information will be used for other purposes as well, such as eugenics to redress bad genotypes related to aggression and pedophilia.”63
Chapter 6
Surreptitious Biological Sampling
We can’t go anywhere without leaving a bread-crumb trail of identifying DNA matter. If we have no legitimate expectation of privacy in such bodily material, what possible impediment can there be to having the government collect what we leave behind, extract its DNA signature and enhance CODIS to include everyone? Perhaps my colleagues in the plurality feel comfortable living in a world where the government can keep track of everyone’s whereabouts, or perhaps they believe it’s inevitable given the dangers of modern life. But I mourn the loss of anonymity such a regime will bring.
—Judge Alex Kozinski1
People constantly leave genetic material, fingerprints, footprints, or other evidence of their identity in public places. 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.
—Justice Charles W. Johnson2
In 1974 Barbara Lloyd was raped and stabbed to death in her home in Buffalo, New York. Police had a suspect in Leon Chatt, the husband of the victim’s stepsister at the time of the murder, but no evidence to connect him to the crime scene. Over three decades later the police revived the case with DNA retained from the forensic evidence of the crime scene. Although police did not have enough evidence to obtain a warrant for a search, they followed Chatt around, picked up his DNA after he spat on the sidewalk, and compared it with the 30-year-old crime-scene sample. He was charged with and convicted of one of Buffalo’s oldest unsolved crimes in 2007.3
This is one example of a number of documented cases where police have collected DNA from individuals surreptitiously. Sometimes police have acquired these items by offering an individual a cigarette or a drink during an interrogation and then collecting the items afterwards; at other times police have simply followed individuals around without their knowledge, picking up items that they have discarded that might contain their DNA.
The presumption of law enforcement in these cases is that the practice of collecting and analyzing an individual’s DNA without his or her knowledge or consent is legal. Law enforcement’s primary argument in support of this position is that the DNA one leaves behind is “abandoned,” and furthermore, an individual who “abandons” his or her DNA no longer has any privacy interest in it or in the information it holds about that individual.
In the handful of state court cases that have considered this issue to date, law enforcement’s perspective on the use of so-called abandoned DNA has prevailed. The remainder of this chapter discusses one of these cases in detail and analyzes the implications for genetic privacy of law enforcement’s prevailing view on DNA collected surreptitiously.
State of Washington v. Athan
On November 12, 1982, the Seattle police found the body of a 13-year-old named Kristen Sumstad. The teenager had been stuffed into a cardboard box in the Magnolia neighborhood of Seattle after she was sexually assaulted and strangled. In their search for the perpetrator, the police had questioned John Nicholas Athan, whose brother they claimed saw John transporting a large box on a grocery cart around the time and in the neighborhood of the crime. When questioned, Athan told police that he had been in the neighborhood stealing firewood the night before Sumstad’s body was discovered. Police did not have enough evidence to charge Athan with the crime. The case went cold.
Twenty years later the Seattle Police Department’s Cold Case Unit sent biological evidence preserved from the crime scene to the Washington State Patrol Crime Laboratory. The laboratory investigators sequenced and profiled the crime-scene DNA that had been taken from the body of Sumstad and compared it with DNA profiles in the state and federal DNA data banks, but no match was found. The police then turned their attention to living suspects from two decades earlier, including Athan.
The police located Athan in New Jersey. Concerned that he might flee the country if they approached him directly, they created a ruse to get the suspect to give up his DNA. The detectives posed as lawyers from a fictitious law firm and wrote Athan a letter inviting him to be their client in a fabricated class-action suit filed against municipalities that overcharged on parking tickets. Athan believed that he could share in the settlement costs if they prevailed in the suit. The letter he received contained the names of a fictitious firm and the names of fictitious attorneys, which in actuality were the real names of members of the Seattle Police Department. Athan signed, dated, and returned the fabricated class-action authorization form and then licked the envelope and mailed it. It was then retrieved by the police, who removed the flap, photographed the contents, and had it tested for DNA from the residual saliva that was used to seal the envelope, all without a warrant.
The DNA profile from the envelope matched the DNA profile from the semen found at the crime scene obtained from Sumstad’s body. On the basis of these results the prosecutor obtained an arrest warrant for Athan. Once arrested, he was presented with a search warrant to obtain a sample of his DNA. When the sample was analyzed, police found that his DNA profile from the sample matched both the DNA profile obtained from the envelope and the profile taken from the semen left on the victim’s body.
Athan’s lawyers petitioned the court to suppress the DNA evidence and dismiss the case. They argued that the police had violated state law by taking his DNA without his consent or by court order. In addition, they argued that lawyers, not the police, were the intended recipients of the letter, and the police had violated state privacy law by opening a sealed envelope that was intended for another person. Finally, they argued that posing as a lawyer was a crime under state law, and therefore any information the police acquired under that ruse should be disqualified. The trial court rejected each of these motions, and Athan was found guilty of second-degree murder and sentenced to 10 to 20 years in prison.
The case was brought before the Supreme Court of the state of Washington. In its decision, dated May 10, 2007,4 the court examined two questions: (1) whether Athan’s DNA was collected in violation of either the state or the federal constitution; and (2) whether the actions of the police detectives were illegal and unfairly prejudiced his right to a fair trial.
In a majority opinion signed by five justices, the court concluded that the surreptitious taking of Athan’s DNA violated neither the state nor the federal constitution. Washington State’s Constitution, which guarantees that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law,” is known to provide greater protection than the Fourth Amendment. Although the state did not deny that one’s DNA is normally part of one’s “private affairs,” it argued that Athan had no privacy interest in the DNA he left on the envelope both because he voluntarily abandoned it when he licked the envelope and mailed it to a third party and because DNA obtained from saliva is “voluntarily exposed” to the public just like appearance and physical description. The court agreed:
We find there is no inherent privacy interest in saliva. Certainly the nonconsensual collection of blood or urine samples in some circumstances . . . invokes privacy concerns; however, obtaining the saliva sample in this case did not involve an invasive or involuntary procedure. . . . The facts of this situation are analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray. We hold under these circumstances, any privacy interest is lost. The envelope, and any saliva contained on it, becomes the property of the recipient.
Furthermore, in direct response to the argument put forth in an amicus brief of the American Civil Liberties Union of Washington,5 the court found that although DNA has the potential to reveal a vast amount of personal information, the state’s use of Athan’s DNA was narrowly limited to identification purposes.
In examining whether Athan’s rights were violated under the Fourth Amendment, the majority of the court wrote:
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. . . . The analysis of DNA obtained without forcible compulsion and analyzed by the government for comparison to evidence at a crime scene is not a search under the Fourth Amendment.6
The opinion concluded in no uncertain terms: “No recognized privacy interest exists in voluntarily discarded saliva and a legitimate government purpose in collecting a suspect’s discarded DNA exists for identification purposes.”7
The court was also not particularly concerned about the approach used by the police to obtain Athan’s DNA sample: “We find there is no absolute prohibition of police ruses involving detectives posing as attorneys in the State of Washington.”8 Furthermore, the use of the ruse was “not so outrageous as to offend a sense of justice or require dismissal of the case,” in particular, because it was not used in an attempt to gain “confidential information” and because “public policy allows for some deceitful conduct and violation of criminal laws by police officers in order to detect and eliminate criminal activity.”9
The 6–3 decision in Athan came as a shock to many privacy advocates. Washington State is known to have strong privacy protections. Article I, section 7, of its constitution is decidedly more protective of individual privacy than the Fourth Amendment. As described in the dissent in Athan, it protects objective expectations of privacy, as opposed to subjective privacy expectations that may be influenced by well-publicized advances in surveillance technology. Prior tests of Washington’s privacy laws had rejected compelled testing of DNA to determine paternity, as well as compelled blood testin
g as a requirement for government employment. The court had also held that the government cannot, without a warrant, use a Global Positioning System (GPS) device to track a person’s movement in a car,10 use an infrared heat device to view a person’s activities inside the home,11 obtain long-distance telephone records by placing a pen register on a person’s telephone,12 or search the contents of garbage left on a curb for pickup.
In this last case, State of Washington v. Boland, the court found that an individual’s private affairs were unreasonably intruded on by law-enforcement officers when they removed garbage from his trash can and transported it to a police station in order to examine its contents for evidence of drug-related activities.13 This decision was in direct contrast to federal precedent. In California v. Greenwood the U.S. Supreme Court had held that under the Fourth Amendment no reasonable expectation of privacy exists in garbage that has been left on the curbside for collection. The Washington court found that the state constitution provided greater protection of the defendant’s privacy interest in this context and went against federal precedent for two reasons: (1) the fact that Boland had left his garbage at the curb (outside his home) had no bearing on whether the state had unreasonably intruded into his private affairs; and (2) the collection of garbage is necessary to the proper functioning of modern society and requires a person to reasonably expect that his garbage will be removed by a licensed trash collector, not indiscriminately rummaged through by the police; it would be improper to require that in order to maintain privacy in one’s trash that the owner would have to forgo use of ordinary methods of trash collection.
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