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A Buffalo, N.Y., man was charged with murder in February after police collected DNA from spit he left on a sidewalk. A Detroit man recently pleaded guilty to car theft after police made a link by collecting DNA from his leftover cinnamon roll. And a former Seattle resident is awaiting a ruling in a murder case he was linked to when police gathered DNA from an envelope he licked. As police employ more methods to collect DNA, a debate has emerged over “genetic privacy.” Some lawyers say so-called “abandoned DNA” helps solve cold cases without compromising privacy. Others dispute that DNA left behind is “abandoned” and say police increasingly cross the line when gathering people’s biological makeup. Catherine McDowall, senior deputy prosecuting attorney in the King County Prosecutor’s Office in Seattle said that there are no issues with collecting DNA left by a suspect, whether it is on an envelope, an eating utensil or items left in a garbage can. “Legally there are no problems with collecting something that’s shed or left out in public,” she said. But Tania Simoncelli, science advisor to the American Civil Liberties Union, which filed an amicus brief in the former Seattle resident’s case, said such DNA collection methods will likely lead to a slippery slope. “It is really problematic if we allow police to take our DNA without our knowledge and consent,” she said. “We’re really opening our doors to mass DNA collections of anyone who’s even vaguely suspected.” In one case, police in Buffalo charged Leon Chatt in August with the rape and murder of his wife’s stepsister after collecting saliva he left while spitting on a sidewalk. New York v. Chatt, No. 01940-2006 (Erie Co., N.Y., Sup. Ct.). Also in Buffalo, Altemio Sanchez was arrested in January after police collected samples from eating utensils left behind in a restaurant. Sanchez has been charged with a triple homicide dating back to 1990 in the so-called “bike path rapist” case, which led to exoneration of a man who spent 22 years in jail. New York v. Sanchez, No. 00128S-2007 (Erie Co., N.Y., Sup. Ct.). Chatt’s attorney, John Jordan, and Sanchez’s attorney, Andrew LoTempio, did not return calls for comment. The two work in Buffalo’s Law Offices of Andrew C. LoTempio and John K. Jordan. Erie County, N.Y., District Attorney Frank Clark said police are doing their job when they collect DNA from samples and objects left by suspects. “I don’t think anybody has any protection of privacy the same way they don’t have any expectation of privacy with a cigarette butt they finish and throw on the ground,” he said. “I don’t see that this is something that invokes traditional Fourth Amendment expectations of privacy.” John Wesley Hall Jr., a criminal defense lawyer in Little Rock, Ark., who runs a blog on Fourth Amendment issues, said people constantly shed their DNA and the courts have allowed police to collect samples from them. “DNA is there depending on how creative police or forensic people are in looking for it,” said Wesley, who is aware of one suspect who ensured he did not dispose his cigarette butts for this reason until he finally forgot and police collected his sample. Cinnamnon-roll solution Eric Keiser, a detective in the Eastpointe Police Department in Michigan, pointed out that suspects’ samples in Michigan are run against those in a state and a federal DNA database of convicted felons. “If you’re not committing felonies or crimes at all you have nothing to worry about,” he said. For example, police in January issued an arrest warrant for Norman Wheeler of Detroit after a witness led them to a car he stole in 2004. Police collected a DNA sample from a partially eaten cinnamon roll left in the car, which contained Wheeler’s DNA. Because he was a convicted felon, his sample was already in the state’s DNA database and he was connected to the theft, Keiser said. He has since pleaded guilty. Most states only collect samples from convicted felons, but some have expanded their databases to include certain arrestees or are considering such changes. Another case involves Jonathan Athan, who was arrested in 2003 for the 1982 murder of a 13-year-old girl after police took his saliva sample from an envelope he licked. Washington v. Athan, No. 75312-1 (Wash.). Police pretended to be lawyers and tricked Athan into licking the envelope by asking him to join a fictitious class action. When Athan mailed the envelope, his dry saliva was analyzed and he was arrested based on a DNA match from the crime scene. Athan’s lawyer, John Muenster of The Law Offices of Muenster & Koenig in Seattle, said police broke the law by posing as lawyers and did not have the right to collect his DNA. “People have privacy rights in their DNA under the state’s constitutional privacy protection,” Muenster said. “It was improper for the police to seize the envelope and open it and have it tested without court order or warrant.” On Thursday, the Washington Supreme Court issued a 45-page opinion affirming Athan’s conviction of second-degree murder. The court said there is no inherent privacy interest in saliva; that there is no prohibition of police ruse using detectives and that there was no violation of the Fourth Amendment’s protection against unreasonable searches. “No recognized privacy interest exists in voluntarily discarded saliva and a legitimate government purpose in collecting a suspect’s discarded DNA exists for identification purposes,” Justice Charles W. Johnson wrote. Elizabeth Joh, acting professor of law at University of California, Davis School of Law who raised concerns about Fourth Amendment rights and genetic privacy in DNA collections in a recent Northwestern University Law Review article, said it’s an issue legislators need to address soon. “The larger issue is: Do we intend to give up privacy concerns every time we shed skin flakes or some saliva behind?” she said. “Perhaps yes, but there really needs to be some public debate about it.”

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