Category Archives: 4th Amendment
COLLECTING AND ANALYZING LITTER
It’s all around us. DNA deposits. Sweat we’ve dripped. Saliva on envelopes. Blood shed from minor scrapes and bruises. But not all of these DNA deposits were innocently lost or responsibly discarded. Many people deliberately elect to abandon their DNA where other people will then have to dispose of it for them, or suffer at their peril. To what do I refer?
CHEWED GUM and CIGARETTE BUTTS
Rude and inconsiderate persons elect to leave their chewed gum holding the secrets of their DNA inviolate in such inconvenient places as the ground, public seats and under desks and tables for an added surprise. There’s no reason that people cannot swallow gum. It can be swallowed and passes without incident through the body in the time it takes other food to be digested; not as the old wives would have you believe, in seven years. (Smith, 2008.) Thus, gum is something you should swallow, or at least dispose of properly. There are those, instead, who elect to intentionally abandon these sticky DNA samples where other people are likely to step in them or grab them. This constitutes several crimes: littering, vandalism, and destruction of public property. Who are these anonymous offenders? Under this proposal, their days of vexatious littering could be numbered.
Presently, however, this is a crime seemingly without recourse. The public nuisance that it is, gum manufacturers should be required to post warning labels on their product advising customers that the product is safe to be swallowed and should be swallowed. The warning should also encourage their customers to dispose of the gum properly, for the failure to do so could result in criminal consequences.
So, too, with rude cigarette smokers. Children, building sand castles at the beach, sift through abandoned cigarette butts. Motorists who smoke but apparently do not want the dirty cigarette butt to remain in their car instead foist it upon the rest of society by ejecting the butt out their car window, often still lit, without much concern if any for its extinguishing or proper disposal. This disgusting act occurs in all regions and climates, but is particularly dangerous in fire danger zones. The abandonment of chewing gum is an act of littering, vandalism and public nuisance in most places. In fire danger zones, a carelessly tossed cigarette butt could be charged as reckless endangerment or arson, depending on the circumstances.
Instruments of death that they are, cigarettes are already pre-loaded with warnings. These companies should be required to add one more to the repertoire explaining to its customers, that the failure to dispose of the cigarette butt properly could also result in criminal consequences.
Perhaps this genetic litter is discarded so casually as the individual believes themselves anonymous and impervious to detection. A safe assumption in the past, but the anonymity of yesteryear, however, has given rise to the unlocking of the secrets of life and the universe itself, by a key shaped like a double helix found within each human. This key, unique to most persons, is easily retrievable in many items that are casually abandoned every day. If identified and analyzed, the genetic markers could provide an approximation of the offender: the hair, skin and eye color, and even the physical structure of the face. Instead of anonymous, those who leave their chewed gum and cigarette butts behind, now do so with their genetic calling card attached for anyone to find and identify.
An artist seeking to bring attention to this issue collected the abandoned DNA found in cigarette butts, chewed gum and other debris and analyzed it. In sculptures described as both “creepy” and “cool,” artist Heather Dewey-Hagborg replicated the markers found in the abandoned DNA to approximate the facial appearance of its owner. After a quick Internet search, the artist deduced there were no laws governing abandoned DNA material in public spaces. According to Dewey-Hagborg, because the markers do not provide predictions sufficient in reliability to be used in forensic science, the sculptures she created are unlikely to closely resemble the owners of the DNA. (Aldhous, 2013.)
Still, her guesses put a literal face on an otherwise anonymous act.
As the artist had correctly concluded for herself, so, too, can states legally collect the DNA samples abandoned in chewed gum and cigarette butts and enter this DNA into a database for later cross-comparison and possible analysis. The Supreme Court, in 2013, made it much easier for the government to do so. In the case before it, a criminal whose DNA was extracted when he was arrested and and then stored in the DNA database challenged this action in court. The issue was ultimately heard by the Supreme Court which ruled in favor of the government in a 5-4 split decision. Scalia, in a dissent joined by Ginsberg, Sotomayor and Kagan informed Americans, ““Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” The rationale for the majority’s decision is that the taking of the sample is minor intrusion and that it furthers a legitimate government interest in establishing the identity of the accused. Maryland v. King (June 3, 2013) No. 12-207.
But unlike the criminals whose DNA is extracted from them, the DNA in discarded cigarette butts and chewed gum has previously been abandoned. It’s owners, tossing the sample out of a moving car window, flicking it into the sands of a beach where children play or mischievously planting it on a chair to ruin someone’s day or pants, will not be later able to say that they reserved a privacy interest in the abandoned property. They threw away their privacy interest in the DNA sample when they abandoned the property as they did, and in so doing, left many clues behind.
The Fourth Amendment law on abandoned property is rather settled. Trash placed in a bag and left at the curb for pick-up by the trash collector is deemed to be abandoned property. Because a person relinquishes any expectation of privacy in the property when it is abandoned, the Fourth Amendment is not violated should the government seize it. California v. Greenwood (1988) 486 U.S. 35. Thus, cigarette butts and chewed gum lawfully discarded in a proper trash receptacle would also be considered abandoned and proper to collect and store. Yet there is no need to rummage through trash bags when there is an ample collection of abandoned DNA left in the most inconvenient and thoughtless of places.
Currently, there are limitations that shows such as CSI fail to depict when comparing suspect’s DNA against the DNA database. It’s not quite as easy as the TV audience is led to believe. (See, in general, The Defamation of the Criminal Justice System for a discussion of media inaccuracies in depicting the criminal justice system.) The DNA databases are physically located and geographically confined. There is not one central database, but a network of inter-connecting databases. Searches must be done on multiple databases each with its concomitant cost. And then, the search will only show a match if the person previously committed a crime before. Since criminals represent a small population and those whose DNA has been collected and stored are an even smaller sub-set of this population, the only likely match will occur if the suspect has previously been arrested. The few number of samples and the unlikelihood of a match renders the cost involved prohibitive for most agencies and for most offenses.
These factors led to a backlog of untested DNA in rape kits. This problem became so unwieldly for local agencies to overcome, the federal government had to assist and did so in the creation of the DNA Backlog Reduction Program. But this, too, costs money.
To build up the database, many proposals for voluntary or administrative submission of DNA have been made but rejected. Most interesting, police officers in departments across the country have been objecting to policies collecting the DNA of officers working at crime scenes to identify unknown genetic material found at the crime scene. The police unions argued that there are no restrictions limiting the use and storage of the samples for the purpose intended and cited other privacy and misuse problems. This debate continues on with police officers prevailing in some jurisdictions and the agency in others. (Collins, 2011.)
From an efficacy viewpoint, how can we increase the volume of DNA samples for the greatest crime-fighting benefit? The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.” (Bazelon, 2013.) Chewed gum and cigarette butts discarded inappropriately are, in and of themselves, crime scene evidence. However, this evidence could also help pinpoint locations of suspects and narrow the focus of a criminal identification. This evidence could give a clue where a particular criminal was located in a particular city and that information could help generate a timeline or locate other witnesses. And, the procedure could not only be helpful in solving crimes, but also helpful in reducing the costs involved in collecting, analyzing and storing DNA.
ABANDONED DNA COLLECTION PROGRAM
This proposal will also add jobs to the workforce and create a new position; that of Abandoned DNA Collector. This person will collect DNA in the form of chewed gum or cigarette butts, preserving such evidence as is proper, and labeling the collection with its location and the date and time of its collection. The evidence collected is forwarded to the crime lab for extraction of DNA. The DNA is then stored in the database for later comparison.
If and when a match is made, that person will be charged either with vandalism, destruction of government property, reckless endangerment or arson as the facts suggest. If the person is found guilty, the offender will be ordered to pay a fine and reimburse the cost of the crime lab and Abandoned DNA Collector. These sums would then offset the cost of collection and storage.
Another anticipated benefit of such a proposal is that, once implemented, it would help to deter persons from abandoning their DNA inappropriate places. Cleaner beaches and reduced fire danger from fewer cigarette butts being carelessly discarded, and the decreased likelihood of stepping in or sitting on chewed gum are laudable goals in and of themselves.
What do you think of this proposal? Let’s talk about it in the comments, below. If you support this proposal, contact your state lawmakers and urge them to implement it in your state. If you don’t support this proposal, at least stop discarding your gum and cigarette butts inappropriately.
Aldhouse, P. (2013, June 10). Artworks highlight legal debate over ‘abandoned’ DNA. New Scientist.
Bazelon, E. (2013, June 3). They’re Coming for your DNA. Slate.
Collins, D. (2011, October 16). Police Wary of Giving DNA Samples. Huffington Post.
Gambino, M. (2013, May 3). Creepy or Cool? Portraits Derived from the DNA in Hair and Gum Found in Public Places. Smithsonian.
Objkshn. (2014, Dec. 1). The Defamation of the Criminal Justice System.
Office of Justice Programs. National Institute of Justice. (2015). DNA Backlog Reduction Program.
Smith, M.W. (2008, September 1). Swallowing gum. WebMD.com