Wednesday, March 20, 2013

Gathering versus Mining Evidence: DNA, heat waves, garbage, and urine

by Sherry F. Colb

My column for this week, part one of a two-part series on Justia's Verdict, examines the case of Maryland v. King, in which the U.S. Supreme Court heard argument on February 26th.  The case asks the question whether taking DNA from people who have been arrested, in the absence of any individualized suspicion to support DNA sampling, violates the Fourth Amendment right against unreasonable searches and seizures.  One of the questions that arose (but went unresolved) during oral argument was whether the Fourth Amendment might impose requirements on the government if it has collected discarded DNA (from a cup that the suspect had used to drink water, for example) and wishes to analyze the DNA for some or all of the information contained within it.  The attorney representing Alonzo Jay King suggested that such an analysis of DNA would count as a Fourth Amendment "search" and would accordingly require justification.

In this post, I want to consider this question, because it has long had a very clear answer from the doctrine, but the doctrine may (appropriately) be in the process of changing.

In the case of California v. Greenwood, the question arose whether police could, without a warrant or probable cause, examine a suspect's garbage, left for collection at the curb in a sealed, opaque bag.  The U.S. Supreme Court said yes, police could examine such garbage, because -- among other things -- a person who leaves garbage at the curb for collection has voluntarily relinquished the garbage to a third party and has thereby given up any reasonable expectation of privacy in that garbage.  In another case, United States v. Miller, the Court held that the government may subpoena an individual's bank records without triggering any reasonable expectations of privacy, because a person with a bank account has voluntarily shared the information contained in these records with third parties -- the bank.  And in Smith v. Maryland, the Supreme Court said that police do not trigger the Fourth Amendment's requirements when they ask the telephone company to hand over the phone numbers that a customer dialed, because, again, a person with a telephone account necessarily shares the numbers that he or she dials with the telephone company and thus retains no reasonable expectation of privacy against its disclosure.

The basic rationale for each of these cases is that when people relinquish private property or private data to a third party, they simultaneously forfeit any privacy interest they previously had against the government's examining that property or data.  If this rationale applies to DNA, then police could thoroughly analyze everything contained within an individual's discarded DNA without having to offer any preexisting suspicion of the individual and without having to have any legitimate reason for analyzing his DNA.

In an article published in the Stanford Law Review in 2002, What is a Search: Two Conceptual Flaws in Fourth Amendment Doctrine & Some Hints of a Remedy, I argued that people ought to be able to share their private matters with selected third parties without thereby forfeiting an interest in the matters remaining private, for Fourth Amendment purposes.  In a concurring opinion in United States v. Jones, Justice Sotomayor hinted at the possibility that she might be ready to revisit some of the older cases, on a rationale that nicely tracks the arguments I made in my article, as I discussed in a two-part series of columns about Jones, here and here.  But even without this hint, there is some evidence in recent case law  that the "voluntarily relinquished" rationale is running out of steam.

Take, for example, the case of Kyllo v. United States.  In this case, the Supreme Court held that the Fourth Amendment prohibits police from using a thermal detection device to analyze the heat patterns emerging from a private home, in an effort to find out whether a suspect is growing marijuana inside his home.  Even though the device in question measured only heat waves that had already made it out of the private home -- waves that could accordingly be characterized as "abandoned" by the resident -- the fact that the device served to expose private matters that would otherwise remain undetected renders its use a "search" for Fourth Amendment purposes that must accordingly be justified.

Justice Stevens dissented in the case, noting that the device at issue did not perform any "through the wall" surveillance but only "off the wall" surveillance -- i.e., it did not actually penetrate the walls of the home but merely gathered heat discarded into the out doors.  Yet a majority rejected that argument and even implied that the distinction between "through the wall" and "off the wall" amounted to an exercise in sophistry and formalism.

And in the same year, in Ferguson v. Charleston, the Supreme Court held that police had "searched" women, for Fourth Amendment purposes, by asking medical professionals who were  delivering the women's babies to collect urine from their patients during delivery and then analyze the urine for the presence of cocaine, passing along the resulting evidence to the police.  Despite the fact that the women had plainly discarded their urine, the Court nonetheless regarded police analysis of the resulting data as an invasion of the target's reasonable expectation of privacy.  Though the women parted with their urine, they did not thereby relinquish their right to privacy from criminal law enforcement officials in the information contained within that urine.

Then in United States v. Jones, mentioned above, the Court held that using a GPS device to track the whereabouts of an individual's car on the public roads for a month triggers the protection of the Fourth Amendment right against unreasonable searches.  The majority relied on the trespass involved in placing the GPS device into the car.  However, at least five Justices (four in dissent, and one in a separate concurrence after joining the majority opinion) indicated their belief that what makes the use of a GPS a "search" has at least as much to do with the invasion of privacy involved in revealing all of the places where an individual has traveled in the course of a month, as it does with the (trivial) trespass involved in attaching the small GPS device to the suspect's vehicle.  In other words, even though a person voluntarily exposes himself to public viewing by driving on the public roads (and thereby relinquishes control of that information), the accumulation and analysis of data that becomes possible with a GPS nonetheless represents an unwarranted invasion of Fourth Amendment privacy.

In all of these cases, we see the shrinking of the previously-robust doctrinal distinction between physically gathering a piece of evidence (or physically invading private space to obtain information), on the one hand, and examining that evidence closely for all of the information it holds, on the other.  Returning to Greenwood, the garbage case, one might see Kyllo, Ferguson, and Jones as supportive of the argument that just because you have relinquished a bag of garbage does not mean that you have given up your legitimate interest in the secrecy of the personal facts contained within that garbage.  The legitimacy of the government's having custody of a bag of garbage, for example, because it has taken it from the curb, does not necessarily entail the legitimacy of rifling through that garbage.  And for similar reasons, "abandoning" one's DNA on a discarded water glass may not necessarily entail a relinquishment of one's interest in the secrecy of the information contained within that DNA.

Perhaps the Fourth Amendment's promise in the age of technology will reside in protection against the mining of data and the analysis of physical evidence, even when the law does not guard against the initial physical gathering of the data and physical evidence at issue.


egarber said...
This comment has been removed by the author.
egarber said...

A few random thoughts / questions.

1. Based on your article, is it true that the police are not allowed to use newly collected fingerprints to retroactively solve cold cases? Has the SCOTUS directly ruled on whether that use is ordinary or special?

2. As I understand Kyllo, there was a big qualifier, in that the court might rule a different way if some technology becomes generally used within the population. I wonder how that possible (and I'd say sort of goofy) distinction plays into the DNA context. What if one day, people carry around "germ sensors" that track DNA components in some way? Does that mean there's no longer any legal difference between relinquishing the physical (aggregate, like a trash bag) and substantial (what's in the bag)?

3. I know you and Orrin Kerr have had a debate about who owns drawing these lines -- the courts or legislatures. It seems correct to me that in this context, the courts should answer the basic question of what constitutes "reasonable privacy expectation", while if so inclined legislatures can leverage popular opinion to fortify it. Isn't that what the "no call" list really is -- privacy protection not constitutionally required (the 4th doesn’t extend to private parties) but a good legislative augmentation of "privacy" in general?


egarber said...

oops. I think it's Orin Kerr. They need to allow comment edits. :)

Sam Rickless said...

This is really interesting. I have a few thoughts that need to be divided into two separate comments.

1. The Ferguson decision does not even mention Greenwood, even in the footnotes. This is odd, given that Justice Scalia, in his dissent, refers to Greenwood on the very first page and suggests that the urine was abandoned. So we don't actually know what the majority's counterargument to the abandonment claim is. My own view is that Greenwood and Ferguson can and should be distinguished. In Greenwood, the occupant of a house threw out a bag of trash. This seems to me to be abandonment if anything is. The occupant of the house, assuming that he or she has the right to throw out what is contained in the trash, is relinquishing all of her or his rights to the contents of the trash bag. Matters would be no different if the occupant of the house took the contents of the trash bag and scattered them in a wood or threw them in the ocean. In Ferguson, however, matters are different. The women who surrendered their urine did not abandon it. They *gave* the urine to the hospital (or to its employees) with the understanding that the urine would be analyzed for medical purposes, having no idea or reason to believe that the hospital would turn the urine (or information acquired from analysis of the urine) over to the police for the purposes of criminal investigation. I understand this to be a gift with tacit strings attached: a conditional gift, if you will. The understanding is that the hospital is permitted to test and analyze the urine for certain purposes, and the default is that the results of the analysis are not to be shared without the patient's explicit consent.

2. Kyllo should also be distinguished from Greenwood (and also from Ferguson). It is a mistake to suppose that the heat waves emanating from someone's home are abandoned. (The very fact that you are using scare quotes around "abandoned" reveals as much.) The occupants of the home have no idea that the home is emanating heat waves that could be analyzed remotely using thermal imagers. So we can't understand the situation as one in which the occupants of the home have relinquished a right to heat waves through abandonment. And the "through the wall"/"outside the wall" distinction is morally, and also legally, irrelevant. The issue is whether remote analysis of the heat waves emanating from the inside of a home can provide law enforcement with personal information (whether directly or via inference) about the occupants of the home, when the occupants of the home have repaired to a location (the inside of a home) that is surrounded by barriers (the walls of the home) that the occupants are using to prevent others from gaining personal information about the occupants of the house. [Analogy: Suppose, for example, that each of us is surrounded by a uniquely identifying magnetic field, that this field extends beyond the confines of one's house, and that extremely sensitive instruments placed outside the house can be used by law enforcement to detect in which room of the house any particular person happens to be. It's a mistake to think that persons "abandon" their personal magnetic fields (or the information that can be gleaned from the detection of those fields).] And, of course, in the case of Kyllo, there is no gift of anything to anyone, with strings attached or without.

Sam Rickless said...

3. Jones is a more complicated case. Suppose that the GPS device was already on the car (and wasn't placed there by law enforcement -- so, no trespass). I've already discussed this in a previous comment on this blog, but I guess it's worth repeating. If the GPS device emits information about the car's location (and nothing more than that) on public streets ONLY (for some reason, the GPS device automatically shuts off when the car enters anyone's private property), then Jones is to be assimilated to Greenwood. When the car is driven in public, the driver is tacitly agreeing to allow others to acquire information about the car's location. (Otherwise, it would be a search, subject to the warrant and probable cause requirements, for a police officer to notice and register the location of a car on a public street. That would be silly.) The reason why any real world Jones-like case should NOT be assimilated to Greenwood is that GPS devices don't just turn off (and can't be made to turn themselves off automatically) when they move from a public location to a private location. So when the GPS device emits information about a car's location on someone's private property, this is information that has not been voluntarily relinquished to third parties. So any real-world Jones-like case should be assimilated to Kyllo.

4. I conclude that it would be a mistake to suppose that Ferguson, Kyllo, and/or Jones have weakened the central holding of Greenwood.

5. What about the case in which X abandons a cup that contains X's DNA? Should we say that X has relinquished her right to the cup (that Y can pick the cup out of the garbage and acquire a property right in the cup)? It seems clear that the answer is yes. Should we say that X has relinquished her right to keep her DNA information private? I think that the answer to this question is yes too. It seems to me that law enforcement should not need to get a warrant or cite probable cause to acquire DNA information that would enable them to identify X as the perpetrator of some crime. [Analogy: Suppose that analysis of the crime scene reveals that the murder weapon was a very rare gun, only one of which remains in existence. X does not know that the police know this. In a non-custodial interview with X, the police trick X into bringing her gun into the open -- Police: "You told us that you never walk around without a weapon. But you don't have a weapon on your person." X: "You're wrong. I do have a weapon on my person. Here it is." Based on their visual inspection of X's gun, the police work out that it is the murder weapon.] If there is anything tricky in the DNA case, it is that law enforcement should not be permitted to mine X's DNA for personal information that is then shared with other parties (e.g., insurance companies). The reasons for this are complex, and I am not sure that I have a complete understanding of the relevant principles governing this sort of case.

CJColucci said...

When I was a child, in those low-tech days, I saw prints of my feet taken for some purpose or other at birth, attached to some public document the nature of which I now forget. I used to wonder why children weren't fingerprinted at birth and their prints kept on file. Was it a legal question, or was there something about how fingerprints are formed over time? If I were a youngster now, I'd probably be wondering why DNA isn't taken, recorded, and stored at birth.

Cristiero Rola said...

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