The November 13, 2020 edition of the Columbus Bar Association's Legal Connections publication featured an article written by Tyack Law attorneys James Tyack and Holly B. Cline on the way in which law enforcement officials are able to obtain and sequence unavoidably shed DNA material left on items recovered in your trash--without a warrant. The full article, originally published on the Columbus Bar Association's website here, has been reproduced below:
In the context of the Fourth Amendment, courts have generally held that a person does not have a reasonable expectation of privacy in an item that they have voluntarily abandoned by, for instance, throwing the item in the trash or leaving footprints behind at the scene of a crime.
If an item is deemed to be “voluntarily abandoned,” most courts will find that law enforcement is not required to obtain a search warrant into order to search and/or seize that item.
Law enforcement has relied upon that doctrine to bypass the search warrant requirement of the Fourth Amendment before collecting, extracting, sequencing, and analyzing unavoidably shed DNA material that has been left behind on voluntarily abandoned objects such as cigarette butts or soda cans. However, given the breadth of sensitive information that may be learned about a person just from their DNA, the privacy interests in unavoidably shed DNA is of a different magnitude than the interest in physical items placed in the trash, footprints, or fingerprints.1 To be sure, courts have long recognized that a person has a legitimate and reasonable expectation of privacy in their DNA material and all the information it can reveal.2
Moreover, while it may be common knowledge that physical items left in public are readily accessible to law enforcement, it is not common knowledge—or even reasonably foreseeable—that any member of the public or law enforcement would seize a physical item and send that item to a lab to have DNA material extracted, sequenced, and profiled.3 And, unlike physical items, the contents of DNA are never actually visible to the public, as sophisticated technology is required to extract DNA material from a physical object. People do not voluntarily assume the risk of “turning over a comprehensive dossier” of their private genetic information because there is simply no reasonable way for a person to avoid leaving behind a constant trail of their DNA material as they move about in the world.
Thus, even if law enforcement’s warrantless seizure of a physical item voluntarily abandoned is lawful, such logic cannot—and should not—be extended to the DNA material that has been unavoidably and inadvertently shed onto that object. Once an item believed to contain DNA material is seized and secured by law enforcement, no exception to the warrant requirement of the Fourth Amendment to the United States Constitution and/or Article I, Section 14 of the Ohio Constitution applies to the warrantless extraction, sequencing, analyzing, profiling, and comparison of the DNA material contained thereon. As the U.S. Supreme Court has repeatedly cautioned, “[a]s technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, [courts must seek] to ‘assure [ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”4 Courts must therefore avoid “mechanically applying” older doctrines to new types of searches made possible by modern technologies, which can reveal myriad “privacies of life” in ways that are “remarkably easy, cheap, and efficient compared to traditional investigative tools.”5
1. See, e.g., Birchfield v. North Dakota, 136 S. Ct. 2160, 2178 (2016) (distinguishing alcohol breath testing from chemical analysis of urine on the basis that breath testing can reveal only blood alcohol content, but urinalysis “can reveal a host of private medical facts about [a person], including whether he or she is epileptic, pregnant, or diabetic”); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617 (1989) (noting that the “chemical analysis of urine, like that of blood, can reveal a host of private medical facts about [a person], including whether he or she is epileptic, pregnant, or diabetic.”).
2. See, e.g., State v. Emerson, 134 Ohio St. 3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 18; Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Norman-Bloodsaw v. Lawrence Berkeley Lab., 1355 F.3d 1260, 1269 (9th Cir. 1998) (“One can think of few subject areas more personal and more likely to implicate privacy interests than that of one’s health or genetic makeup.”); United States v. Davis, 690 F.3d 226, 239 (4th Cir. 2012) (holding that “extract[ing] and test[ing]” a suspect’s DNA constitutes a search).
3. See, e.g., California v. Greenwood, 486 U.S. 35, 40 (1988).
4. Carpenter v. United States, 138 S. Ct. 2214, 2217 (2018), quoting Kyllo v. United States, 533 U.S. 27, 34 (2001) (last alteration in original).
5. Id. at 2217–19; see also Riley, 573 U.S. at 393 (“any extension of [pre-digital] reasoning to digital data has to rest on its own bottom”).
2. See, e.g., State v. Emerson, 134 Ohio St. 3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 18; Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Norman-Bloodsaw v. Lawrence Berkeley Lab., 1355 F.3d 1260, 1269 (9th Cir. 1998) (“One can think of few subject areas more personal and more likely to implicate privacy interests than that of one’s health or genetic makeup.”); United States v. Davis, 690 F.3d 226, 239 (4th Cir. 2012) (holding that “extract[ing] and test[ing]” a suspect’s DNA constitutes a search).
3. See, e.g., California v. Greenwood, 486 U.S. 35, 40 (1988).
4. Carpenter v. United States, 138 S. Ct. 2214, 2217 (2018), quoting Kyllo v. United States, 533 U.S. 27, 34 (2001) (last alteration in original).
5. Id. at 2217–19; see also Riley, 573 U.S. at 393 (“any extension of [pre-digital] reasoning to digital data has to rest on its own bottom”).
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