Court backs ruse to get DNA

Seattle police detectives did not violate a murder suspect's constitutional rights when they posed as lawyers and tricked him into licking an envelope to obtain a sample of his DNA, the state Supreme Court has found.

Thursday's 6-3 decision upholds the King County Superior Court conviction of John Nicholas Athan and could clear the way for police to use ruse tactics in future investigations without worrying about the impacts on criminal prosecution.

In 2004, a jury found Athan guilty of second-degree murder in the death of 13-year-old acquaintance Kristen Sumstad, whose body was found in a cardboard box behind a TV repair shop in Magnolia in 1982. Police and prosecutors said that Sumstad was raped and then strangled to keep her silent.

Athan was 14 at the time of the slaying.

Two decades later, detectives linked Athan to the cold case using a ruse that became a controversial spark in a national debate over privacy rights.

The detectives, posing as members of a fictitious law firm, sent a letter to Athan, a longtime suspect then living in New Jersey, inviting him to join a class-action lawsuit for overpaid parking tickets. After Athan licked an envelope they mailed to him and sent it back, his DNA was matched to a sample that had been recovered from Sumstad's body.

"No recognized privacy interest exists in voluntarily discarded saliva," the court wrote in its ruling, essentially saying that saliva does not fall under the legal category of protected communication between a client and his attorney.

The court did raise some concerns about the police tactics but said none was serious enough to require dismissal of the case.

"The message [from the high court] is that it is OK for police to engage in ruses to obtain evidence from people, which has long been the case," said King County Senior Deputy Prosecutor Catherine McDowall, who argued the case before the justices in January 2006. The decision also clarifies that posing as an attorney is considered to be a more sensitive, risky ruse, one police agencies likely will not want to undertake, said Senior Deputy Prosecuting Attorney Tim Bradshaw, who tried the original case.

After his 2004 conviction, Athan was given a 10-year minimum sentence, which he is now serving. His attorney challenged the conviction, saying the police action to gather the DNA evidence was illegal and violated Athan's state and federal constitutional rights.

The defense attorney, John Rolfing Muenster, said Thursday he had no comment. In a dissenting opinion, Justice Tom Chambers expressed concern over the majority opinion's potential impacts on attorney-client relations.

"Washington law prohibits a non-attorney from holding himself or herself out as an attorney," he wrote. "Permitting this unlawful and unethical conduct ... undermines the ... ability of all people to communicate freely with their attorneys without fear that the communications will be used against them."

Natalie Singer: 206-464-2704 or nsinger@seattletimes.com