Court backs police ruse that licked old murder

OLYMPIA – Police who obtained a murder suspect’s DNA by tricking him into licking an envelope didn’t violate any privacy laws, even though the letter was from a fake law firm, the state Supreme Court ruled Thursday.

In a 6-3 ruling, the court held there is no state or federal privacy interest in the spit used to seal a person’s mail.

Licking an envelope, the majority wrote, is “analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray.”

It also didn’t matter that Seattle detectives got the DNA sample by posing as lawyers preparing a class-action lawsuit.

Even though pretending to be a lawyer is illegal under state law, police didn’t violate the suspect’s rights and didn’t gather any privileged or confidential information, the court held.

“Although the ruse used by detectives in this case violated certain statutes, it was not so outrageous or shocking as to warrant dismissing the case,” Justice Charles Johnson wrote for the majority.

The decision upholds the second-degree murder conviction of John Athan, a Palisades Park, N.J., man found to have killed a 13-year-old girl in Seattle in 1982, when he was 14.

The girl’s murder went unsolved for years, until cold-case detectives fooled Athan into licking the envelope and sending it back to police.

Athan’s DNA was matched to a semen sample found on the dead girl’s body. He was convicted in 2004 and sentenced to at least 10 years in prison.

In Thursday’s ruling, the court’s majority said collecting Athan’s saliva from the envelope did not raise the same privacy concerns as would forced collections of blood or urine.

“There is no subjective expectation of privacy in discarded genetic material just as there is no subjective expectation of privacy in fingerprints or footprints left in a public place,” the court ruled.

Athan also wasn’t protected by attorney-client privilege in the case because the saliva used to seal the envelope is not an actual “communication,” the court said.

Although Athan believed he was sending the letter to a lawyer, detectives were allowed to open the mail because their names were listed – albeit as fake attorneys – on the original letter, the court ruled.

The court’s chief justice, Gerry Alexander, concurred with the majority’s results, saying Athan didn’t prove the state unreasonably intruded on his private affairs.

But in a separate opinion, Alexander said the majority should have staked out greater protections for a person’s DNA. He noted an earlier decision that held Washingtonians retain some privacy rights to their trash cans.

“It is hard for me to imagine that a person has a reasonable expectation of privacy in his garbage, but he does not have the same reasonable expectation of privacy in his body makeup,” Alexander wrote.

The three dissenting justices – Tom Chambers, Richard Sanders and Mary Fairhurst – strongly disagreed with the majority’s results.

In two separate writings, they argued that DNA information should have stronger privacy protections and that police should not be allowed to dupe suspects by posing as lawyers.

Fairhurst, who called the ruling “breathtaking,” worried that it could allow the government to create a vast database of DNA information on virtually anyone, provided the samples weren’t taken directly from someone’s mouth.

“As reluctant as I am to risk letting a murderer free, such is the price of a free society,” Chambers wrote.

Athan’s lawyer, John R. Muenster, declined comment Thursday.

Doug Klunder, an American Civil Liberties Union lawyer who filed a friend-of-the-court brief, said a federal appeal was not likely because Washington’s state constitution has stronger privacy protections than federal law.

King County Prosecutor Norm Maleng praised the decision.

“We will continue our efforts to apply today’s technology to unsolved cases and seek justice for the victims and their families,” Maleng said in a statement.