It’s well known that the trash you throw out may contain personal information that could be used to steal your identity. However, the idea that the trash you discard contains your personal DNA, which could be used as incriminating forensic evidence, is not only new, but also controversial. The Syracuse.com article, “Anything you throw away can be used against you” raises many questions about this contentious topic.
Courts across the United States began to wrestle with this issue ever since DNA found on discarded items was used to convict suspects. To date, search warrants have not been required, as courts have found that this “surreptitious sampling,” or collecting biological samples without the person’s consent, is legal when the items are voluntarily discarded or abandoned. Law enforcement maintains that a person’s right to privacy is lost once they discard or throw out something that happens to contain their genetic sample. Rick Trunfio, first chief assistant district attorney in Onondaga Co., NY states that collecting possible evidence in this manner is becoming a common technique in law enforcement.
He further asserts that once a person throws something away, they have no right to privacy.
Defense attorneys aren’t so sure it is as cut and dry as that. In fact, The National Institutes of Health has issued grants to study the issue and its effect on civil liberties. Albert E. Scherr, a professor at Franklin Pierce Law Center in Concord, New Hampshire, who has studied cases nationwide, found that the courts have only recently considered this issue. One question being studied is whether “reasonable doubt” must be proved before gathering discarded DNA. Is DNA considered personal property? If so, does a person forfeit their expectation of privacy when they discard something like a cigarette butt, used tissue, napkin, or drinking straw? According to New York’s Onondaga County Judge Anthony Aloi, the test for determining admissibility is twofold. The court must first determine if the defendant exhibited an expectation of privacy in the item. The second consideration is whether the circumstances “would lead society to regard defendant’s expectation as reasonable.”
Other concerns include the use of surreptitious DNA sampling to discover genetic predispositions to disease, which has nothing to do with criminal investigation. Because the testing for human identification and disease screening are unique, forensic DNA laboratories are typically not equipped to produce results about potential illnesses. Yet, the questions about the legality of using genetic information contained in an individual’s trash remain, and the courts have yet to sort it all out.