Ruse police used to get DNA was legal, judge declares

By Christine Clarridge
Seattle Times staff reporter

	John Athan
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Seattle police didn't break the law when they tricked a suspect in a 20-year-old homicide case into providing a DNA sample by licking and mailing them an envelope, a judge ruled yesterday.

The ruling by King County Superior Court Judge Sharon Armstrong means a trial can go forward in the case of John Nicholas Athan, charged in the 1982 killing of 13-year-old Kristen Sumstad of Seattle.

Police arrested Athan in May at his home in New Jersey after they sent him a letter from a mock law firm with an invitation to join in a bogus class-action suit. Athan replied, and DNA found in the saliva on the envelope matched a sample taken from Sumstad's body, prosecutors say.

Last month, Athan's attorney, John Muenster, argued that the police ruse invaded Athan's privacy and violated his constitutional rights. Muenster argued that his client had given the sample involuntarily and that it was illegal for detectives to pose as lawyers and illegal for crime-lab investigators to open mail that Athan intended for someone else.

But Armstrong said yesterday the police hadn't violated mail laws because a detective was listed as a partner in the mock law firm and that the mail was opened with that detective's permission. The judge also ruled that saliva doesn't count as communication, so lawyer-client privilege didn't apply.

The judge ruled there was sufficient evidence against Athan to proceed with a trial, which tentatively is set to begin the first week of December.

Deputy Prosecutor Tim Bradshaw lauded the ruling as "scholarly and common-sensical."

Police have long used deception to get evidence or information from suspects, they point out. It's not unlike a time-honored ruse in which police bring a suspect to the station for a friendly conversation and offer a drink of water. After the suspect leaves, the glass is dusted for prints.

"Just because you're outwitted doesn't mean it was not voluntary," Bradshaw said.

But Muenster said he will appeal directly to the state Supreme Court.

"I believe strongly that police shouldn't be allowed to pose as lawyers," Muenster said. "This is a very important issue to everyone."

Prosecutors argue that in similar cases, courts have typically ruled that DNA samples and other evidence collected in public places are not protected by the Fourth Amendment prohibition on warrantless searches and seizures. Muenster said those cases haven't involved lawyer impersonation, and other states have tended to frown on that.

Athan, now 35, was 14 years old when Sumstad, his neighbor, was found strangled in a cardboard box behind a TV-repair shop near her Magnolia home.

Athan was considered a suspect early on because he had been seen pushing a cardboard box on a cart the night before her body was found, though he claimed the box had been used to steal neighbors' firewood.

Last year, the state crime lab found a distinct DNA marker in the sample taken from the girl's body, but detectives invented the ruse because they lacked a sample of Athan's DNA.

Christine Clarridge: 206-464-8983 or cclarridge@seattletimes.com

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