Written by attorney Andrew Daniel Myers

Search And Seizure - Is Saliva Covered?

There's an inmate serving a long prison sentence in Massachusetts because he spit on the sidewalk. He was suspected in an atrocious crime. But, prosecutors lacked enough evidence for an indictment. The suspect refused a DNA test. At that point, the victim's family hired a private investigator. When the suspect spit on the sidewalk, the investigator collected a sample and sent it for a DNA test. The positive result of that test provided the basis for a court ordered DNA test, which implicated the suspect and helped nail down a conviction. The issue in the appeal was whether the defendant had what is called a "reasonable expectation of privacy" in the sample he left on the sidewalk. The decision was announced on May 16, 2007 by the Massachusetts Court of Appeals in Commonwealth v. Cabral. The Fourth Amendment to the U.S. Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". State constitutions offer similar and sometimes greater protection. These constitutional guarantees require a search warrant to search a home, for example, unless an exception applies. One exception kicks in where the homeowner consents to the search. Another exception arises where 'exigent circumstances' apply. However, a warrant is not always required where items are seized outside. Traditional cases involve seizures of items in a car, in a field or some other open area. A search or seizure can be justified without a warrant where the owner has no 'reasonable expectation of privacy' in the property. In this case, the private investigator, after a number of months of surveillance, failed to obtain a DNA sample. So, he cooked up a ruse. He had someone else contact the suspect and hire him to do some plumbing. During the course of the plumbing job, the suspect spat on the sidewalk outside the job site, and the now famous sample was collected. The Appeals Court bought the first part of the defendant's argument, that he had a reasonable expectation of privacy in his saliva. However, the court held that when he expectorated onto a public street and walked away, he voluntarily abandoned all constitutional protections. He assumed the risk of the public witnessing his action and thereafter taking possession of the sample. The court based its decision on another case in which police were questioning a suspect. After the interrogation, police took a cigarette butt left behind by the man. They sent the butt to the crime lab, and the resulting DNA test led to a conviction. The defendant in our case complained that his spit sample was obtained by trickery. The court agreed there was a ruse, but said too bad. The proper constitutional analysis, the court pointed out, is "whether a defendant's actions were prompted or coerced." The court held that neither the investigator nor anyone else prompted or coerced the defendant to spit on the sidewalk. The New Hampshire Supreme Court adopted the "reasonable expectation of privacy" analysis back in 2003, thus replacing an earlier, but similar "exclusionary rule" along the same lines. In State v. Goss, the NH Court said a criminal defendant had a reasonable expectation of privacy in plastic trash bags left in his driveway three feet from the street. Interestingly, both the Massachusetts Court and the U.S. Supreme Court have found no reasonable expectation in trash in similar factual settings. However, there is a long line of trash cases going in all directions. That column won't be written unless there are enough requests to the e-mail address below. If there is a moral to the story in the expectoration case, it is left to the readers. The case was decided by the Massachusetts Court of Appeals, and is subject to one final level of appeal, to the Supreme Judicial Court.

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