mr. stillman, dna and discarded evidence in criminal cases
mr. stillman, dna and discarded evidence in criminal cases mr. stillman, dna and discarded evidence in criminal cases
tree based on existing records. If a suspect is identified, police can obtain a warrant for his DNA, or even gather itsurreptiously from an abandoned drink or cigarette butt”. 75VII. CONCLUSIONAccused persons have no expectation of privacy in evidence they abandon in a public place. They will, however, havean expectation of privacy in items they have on their property and inside their home. This will not, however, generallyinclude household trash placed at the curb for collection (especially if the constraints suggested in State of Montana v.1993 Chevrolet Pickup 76 are followed).An accused will also generally not have an expectation of privacy in evidence voluntarily left behind at the policestation upon release. However s/he may have an expectation of privacy if s/he is detained and has no choice but todiscard the evidence into the State’s garbage can. In these situations, however, a search warrant may be obtained for77the evidence or a General Warrant used to collect a sample using a simple ruse such as was employed in R. v. Nguyen.Nevertheless, collecting items discarded directly by the accused in a public place is a legal and safe way ofobtaining a DNA sample. All other methods have their drawbacks, including the seizure of garbage from the curb, asone has no idea to whom any of the items actually belong, and one may have to trespass onto private property in orderto obtain it, whereas if you actually see the accused abandon his/her cigarette butt, juice bottle, mucous, spittle, etc.,you can state that the sample obtained was from the suspect in question.It has been suggested that a special ‘exception’ should be made for discarded or abandoned DNA evidencebecause one does not always intend to leave genetic material behind. 78 However, as rightly noted by Crown AttorneyMichael Fairburn:[P]erpetrators do not intentionally leave their genetic fingerprint behind. How would one develop a constitutional exception in relationto DNA that would allow a warrantless seizure from a crime scene, but not from a McDonald’s cup? 79However, a compelling case could be made for protecting and possibly criminalizing the misuse and abuse ofgenetic information surreptitiously collected by employers, insurers and others for discriminatory purposes. A similarcase can be made where ones right to privacy is violated by ‘trophy hunters’ selling genetic information, or in othercase where the collection and analysis of genetic information is not in the public interest.VIII. EXAMPLES OF ABANDONED / DISCARDED ITEMS WHERE DNA HAS BEENOBTAINEDGumPop cans / bottle rimsUsed StrawsSalivaCombToothbrushUsed pens / pencilsCigarette buttsUsed tissueUnfinished food (half-eaten foods, apple cores, etc.)CutleryCup or drinking glass rimsShirts/Jackets (collars, cuffs, etc)7576777879Maura Dolan and Jason Felch, “State offers police extra DNA tool; California will use partial matches from relatives in its genetic database totrack down criminals” (April 26, 2008). On-line at .Supra, note 36. Also see R. v. Kang-Brown supra, note 37.Supra, note 14.See Elizabeth Joh, “Reclaiming ‘Abandoned’ DNA: The Fourth Amendment and Genetic Privacy” (2006) 100 Nw. U.L. Rev. 857.Michael Fairburn, “From Washing Your Hands to Blowing Your Nose: The Constitutionality of New Search Techniques” (2005) Section 4.1,National Criminal Law Program handout.
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