Sneaky! Why do I think it'll be thrown out of court?

[Biker]

Invesitgators think they have solved a 20 year old murder mystery. <a href="http://www.cnn.com/2003/LAW/05/21/old.murder.ap/index.html" target="blank">CNN is reporting</a> that investigators in Seattle have always had a suspect in mind, but could not gather the necessary evidence to prove their case.

It seems now that they have. Technology has advanced to the point to where they were able to obtain DNA from the evidence they have on hand. And to match it up, they sent a form with an envelope to the prime suspect. The suspect filled out the form, licked the envelop to seal it, and voila! The investigators had a match.

Why do I think the court is going to look at this and say it was an illegal search and seizure?

[Techie2000]

Well I think it will be thrown out of court too. He didn't consent to being DNA tested, and if its allowed in court, well think of the precedent it will set...

[Biker]

When one smokes a cigarette, and tosses it, it becomes fair game, whether you consent or not.

This is a grey area, tho. Not sure how it'll go.

[Coriolis]

I think there might already be a precedent.

I recall a case (saw it on New Detectives or FBI Files) where the FBI was tracking some guy who committed a gruesome murder, but they needed a DNA sample to prove he was at the scene of the crime. They knew where he worked, and had watched him outside during coffee break on several occasions. One of the detectives observed that he would toss his used paper coffee cup into the trash. They requested, and received, a court order to collect the cup. Next day they put an undercover agent at the coffee stand, and waited until he went back inside after finishing his cup of joe. They fished the coffee cup out of the trash, and collected a DNA sample from the saliva residue. Nailed the SOB.

[Biker]

Yeah, but there have been tons of rulings regarding trash. Once you throw something away, it becomes fair game. This one is a little different. I'd like to think the evidence will stand, but I have a bad feeling about this one.

[Coriolis]

I don't know the law about who owns a letter once it is dropped in the mail box, but I would think an envelope placed in a mail box could be considered property of the US mail, or by proxy the addressee, until delivered to the destination. Since they were the addressee, in this case, they would probably have a legal right to use any portion of the envelope as evidence, including fingerprints, hand writing, etc. It will be interesting to see how this plays out.

[Techie2000]

I see how the coffee cup would become fair game (although I wonder if I should just carry a portable incinerator with me to protect my privacy) but they did something to deliberatly get the guys DNA. It's not like it was a random thing the he chose to throw out. That's the difference. They instigated it.

[Ugly]

Had there been a court order allowing the envelope ruse then yes this&nbsp;evidence would be allowed.

As it stands now there is no lawfully obtained evidence.

[Biker]

How so? They sent a form to be signed and returned. It was. In the process, they also were able to obtain DNA evidence from the envelope.

[Coriolis]

I'm assuming the DA obtained the proper court order before putting the plan into action. If not, they deserve to loose this one. If they did have a court order, I can't see how it wouldn't fly. It's no different than a court order for a wire tap and then doing a set-up, really. Happens all the time.

[Ugly]

Originally posted by Biker
How so? They sent a form to be signed and returned. It was. In the process, they also were able to obtain DNA evidence from the envelope. Amendment IV and subordinate law controls the actions of government employees, esp. law enforcement.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures by law enforcement, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Had the DNA been obtained by a private party and voluntarily, ah donated to the police, well that would be more acceptable.

[Biker]

Had the police gone to his house, forced open his mouth, and swabbed the inside of it to obtain the evidence, then yes, the Fourth Amendment would apply. But this was not an unreasonable seizure as the evidence was placed on an envelope and sent back to the police, who then became the owner of the envelope.

[Frodo Lives]

Originally posted by Biker
Had the police gone to his house, forced open his mouth, and swabbed the inside of it to obtain the evidence, then yes, the Fourth Amendment would apply. But this was not an unreasonable seizure as the evidence was placed on an envelope and sent back to the police, who then became the owner of the envelope.

Correct. He didn't have to sign and mail back the form. And then, once the envelope gets 'tossed' and become trash, it then is fair game.

[cdw]

Sneaky? I think it's excellent detective work! By the way, no where in the article does it say that there may be a problem with the method that they used, nor does it say that they didn't have a warrant, if it's even necessary to have one. What makes everyone think it's even an issue?

[Fiona]

Originally posted by Biker
Invesitgators think they have solved a 20 year old murder mystery. target=blank&gt;CNN is reporting (http://www.cnn.com/2003/LAW/05/21/old.murder.ap/index.html) that investigators in Seattle have always had a suspect in mind, but could not gather the necessary evidence to prove their case.

It seems now that they have. Technology has advanced to the point to where they were able to obtain DNA from the evidence they have on hand. And to match it up, they sent a form with an envelope to the prime suspect. The suspect filled out the form, licked the envelop to seal it, and voila! The investigators had a match.

Why do I think the court is going to look at this and say it was an illegal search and seizure? &nbsp; It worked on CSI rofl

&nbsp;

on the flipside, there is no proof HE licked the envelope

[Steve]

Oh, Fiona! Excellent defense! If he can manage to keep from having to provide a DNA sample that follows the rules of evidence, then he certainly can claim that HE didn't lick that envelope!

Very clever!

Why didn't they just go through his trash in the first place, looking for DNA?

[Fiona]

On CSI they had him lick the envelope or sip the coffee cup right there with witnesses ;)

[Frodo Lives]

Well, it doesn't change the fact that whomever licked that envelope was the murderer, the DNA matched.

It wasn't Colonel Mustard in the Kitchen with the Candle Stick, thats for sure. :)

[mikepd]

This could still not fly. There was a case a long time back where the government kept sending an old guy ads for young nudist mags and other such literature for several years. When he finally did respond to one and went to the post office to pick it up, they nailed him for pornography. Got thrown out for entrapment. They lost on appeal with a stern warning from the judge to clean up their act.

[Frodo Lives]

But he already commited the crime. They just a sample of his DNA. They didn't entrap him by sending him a form and envelope.

[Steve]

If you presume he is guilty, it is unlikely he would willingly have provided a DNA sample that would confirm his guilt. Therefore, his rights concerning self-incrimination were compromised when the law enforcement officials deceived him into providing such a sample.

I'm not defending the (presumed) SOB, mind you, if he did the crime he should be punished, but I do want every single law enforcement authority to act with 100% impeccability and fully within the bounds of the law. As I see it, they did not, in this case.

[Frodo Lives]

There is already enough reason to make him a suspect. The DNA isn't going to convict him, it's just the stamp on the package.

I doubt they did anything wrong or criminal. Unless I am mistaken, suspects in a crime have to give a blood or DNA sample anyway. If if didn't match, then he has nothing to worry about.

I am sick and tired of seeing criminals get more rights then the victems.

[Steve]

They've been unable to convict, or even arrest anyone, for 20 years, even though they suspected this guy all along.

The DNA sample he unwittingly provided will clearly be the key piece of evidence at trial.

And, no, suspects do NOT have to give blood or DNA samples; if they were required to do that, there would be far fewer innocent people in prison.

I'm angry over "criminal's rights", too, but I don't think the way to address the issue is by relaxing the rules of investigation.

[Advocat]

This won't be used in court... it's be used to reopen the case and establish reasonable cause for a judge to issue search warrants, which will probably include DNA tests.

It's no different than if he had mailed the form in, and they dusted it for prints. Personal privacy is restricted to the body and home, not to items you freely send out of it to the police.

[ShinyTop]

I think going into his home to obtain DNA without a warrant would have been unreasonable search. I do not think this is. And I do not believe getting DNA from every suspect is any more unreasonable admission of guilt than requiring fingerprints. Can anybody explain the difference?

[Stiofán]

Originally posted by Advocat
This won't be used in court... it's be used to reopen the case and establish reasonable cause for a judge to issue search warrants, which will probably include DNA tests.

It's no different than if he had mailed the form in, and they dusted it for prints. Personal privacy is restricted to the body and home, not to items you freely send out of it to the police.

Hello! We have a winner. The were trying to prove probable cause to procecute, which they now have. They were unable to do so before. They can now get a warrant to do further testing.