In Washington, Your Trash is Private, But Not Your Abandoned DNA

So reports the Seattle Times:

Seattle’s ordinance allowing garbage collectors to look through people’s trash — to make sure food scraps aren’t going into the garbage — was declared “unconstitutional and void” Wednesday afternoon by King County Superior Court Judge Beth Andrus.

The Court's order is here.  The Court held that looking through people's garbage was an unconstitutional search in violation of resident's reasonable expectation of privacy.

"But wait!" one may say, "What about California v. Greenwood, in which the United States Supreme Court held that there was no Fourth Amendment violation when officers searched the trash bags a suspect left to be picked up on the curb in front of his house?"

To answer the inquisitive Fourth Amendment enthusiast: Washington law governing searches and seizures provides a heightened level of protection. Here is the relevant language from the Court's order:

The Washington Supreme Court diverged from California v. Greenwood when analyzing the issue under Art. I, §7. In State v. Boland, 115 Wash.2d 571, 800, 800 P.2d 1112 (1990), the Supreme Court held that under our state constitution, a defendant'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 to be searched by state and federal narcotics agents. The Supreme Court held that any resident who places garbage in a can and puts it on the curb for collection reasonably believes the garbage will not be subjected to a warrantless governmental search. 115 Wash.2d at 578. "While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion." Id. at 581. In other words, we expect the collector to pick up our garbage and remove it for proper disposal; we do not expect that the government will search the contents of our garbage bags to identify evidence of wrong-doing.

On the one hand, the court's reliance on Washington's unique constitutional privacy protections and case law limits the scope of this ruling.  But on the other hand, this ruling highlights how state constitutions may provide more protection than the federal constitution.

The logic behind Washington's protection of privacy in trash has its limits. Elizabeth Joh noted the potential for the court's order to effect the law governing expectations of privacy in abandoned DNA (which is what interested me in this case in the first place). After some digging, however, I found that defendants would be hard pressed to extend State v. Boland or the logic of this more recent trash ordinance injunction case to the government's collection and testing of abandoned DNA.

In State v. Athan, the Washington Supreme Court found no violation of Article I, section 7 of the Washington State Constitution when the police employed a creative scheme to obtain a suspect's DNA:

The detectives invented a ruse to obtain Athan's DNA without making Athan aware they had resumed investigating Sumstad's murder. Posing as a fictitious law firm, the detectives sent Athan a letter inviting him to join a fictitious class action lawsuit concerning parking tickets. The letterhead contained the names of the "attorneys," all of whom were employed by the SPD. Believing the ruse to be true, Athan signed, dated, and returned the enclosed class action authorization form and attached a hand-written note stating, "if I am billed for any of your services disregard my signature and my participation completely." Ex. 53.

 ¶ 6 Athan's reply was received by Detective Diaz, one of the "attorneys" listed on the letterhead. Without opening it, Diaz gave the letter to another detective who forwarded it to the crime lab. A lab technician opened the letter, removed and photographed the contents, cut off part of the envelope flap, and obtained a DNA profile from saliva located on the flap. The DNA profile from the envelope matched the DNA profile from the semen found on Sumstad's body. Based primarily on the results of the DNA testing, the prosecuting attorney filed an information and probable cause statement to secure an arrest warrant for Athan.

This, the Washington Supreme Court held, did not violate Washington's constitutional equivalent of the Fourth Amendment.  Here is the relevant analysis:

We find there is no inherent privacy interest in saliva. Certainly the nonconsensual collection of blood or urine samples in some circumstances, such as under the facts of Robinson, invokes privacy concerns; however, obtaining the saliva sample in this case did not involve an invasive or involuntary procedure. The relevant question in this case is whether, when a person licks an envelope and places it in the mail, that person retains any privacy interest in his saliva at all. Unlike a nonconsensual sampling situation, there was no force involved in obtaining Athan's saliva sample here. 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.

The Court goes on to consider and dismiss concerns that DNA may reveal a great deal of information about a suspect, noting that in this case, the testing done on the DNA was restricted to the defendant's identity.

Under Article I, Section 7 of the Washington State Constitution, you can reasonably expect that the government will not search through trash that is placed on the curb for collection. It is not reasonable, however, to expect that the government will not test the DNA in your saliva on an envelope you mail to what you think is a law firm. While states may protect rights beyond protections found in the United States Constitution, Washington teaches us that these extended protections may end up being quite limited in scope.