State of Washington v. John Nicholas Athan, ___P.3d___, 2007 WL 1365301 (Wa. Sup. Ct. 2007)

Brief Summary
Twenty years after the murder of a 13-year-old girl, the Seattle police sent a letter to the lead suspect, posing as a law firm seeking to represent the suspect in a class action involving parking tickets. The suspect signed the enclosure and returned it to the “firm.” The police then performed a DNA test on the saliva used to seal the envelope and used this evidence to assist in the successful prosecution of the suspect for second degree murder. On appeal, the Washington Supreme Court held that the saliva was not a “communication” protected by the attorney-client privilege; that the ruse used by the police did not violate the defendant’s constitutional rights to privacy or due process; and that the conviction should be upheld.

Complete Summary
In November 1982, Kristen Sumstad, a 13-year-old girl, was found murdered inside a cardboard box. There was evidence of a sexual assault and semen was found on her body. John Athan was known to frequent the area where the body was found and his brother had reported seeing Mr. Athan transporting a large box on a grocery cart near where the victim was found. The police were unable to obtain sufficient evidence to charge Mr. Athan with the crime and the case went cold.

Twenty years later, however, the Seattle Police Department’s cold case detectives reviewed the file. Advances in DNA allowed the lab to determine a male DNA profile. Id. at *1. The detectives developed a ruse in which they would send Mr. Athan a letter from a fictitious law firm. The letterhead listed the names of attorneys who were actually employees of the police department. The letter invited Mr. Athan to participate in a class action regarding parking tickets. Mr. Athan signed the documents and returned the class action authorization form with an attached handwritten note that stated if he was to be billed for any services, he did not want to participate. Id. at *2. Upon the receipt of the envelope, it was tested for DNA and matched the DNA profile developed from the crime scene evidence. Detectives went to New Jersey and arrested Mr. Athan. He was tried and convicted of second degree murder. This appeal followed.

This appeal led to a vigorous debate regarding whether the police violated Mr. Athan’s constitutional rights when, in order to obtain his saliva for DNA testing, they posed as attorneys seeking to represent Mr. Athan in a class action. The Washington Bar Association and American Civil Liberties Union filed amicus briefs. The court first reviewed whether the detectives violated Mr. Athan’s state or federal constitutional rights in obtaining DNA without a warrant. The court distinguished cases involving invasive testing, such as the use of a pre-employment urinalysis test, versus saliva that is often discarded in public by spitting on a sidewalk or leaving a cigarette butt in an ashtray. Under these circumstances any constitutional privacy interest in saliva is lost. The envelope and any saliva on it belonged to the recipient.

Mr. Athan also argued that Washington law provided a strong privacy protection for communications between attorneys and their clients, see RCW 5.60.060(2)(a), and that the police held themselves out as attorneys in violation of RCW 2.48.180(2)(a). Mr. Athan argued that he relied on the representation that they were attorneys and, thus, should be able to use the attorney-client privilege to protect his communications with them. The State, however, argued that the saliva used to seal the envelope was not a communication and also that because Mr. Athan wrote the note indicating that if he did not want to be involved if he was going to be billed, Mr. Athan’s intention was not to form an attorney-client relationship with the fictitious firm.

The court found it unnecessary to reach the issue of whether an attorney-client relationship was formed, because it found saliva was not a communication based on the ordinary definition of “communication” in the dictionary. “Communication” may be defined as “[t] expression or exchange of information by speech, writing, or gestures.” Id. at *5, citing Black’s Law Dictionary 296 (8th ed. 2004). The court also distinguished this situation in which the Seattle police officers’ names were on the letterhead and they were the intended recipients from situations in which mail from a suspect to an attorney is intercepted by the police. The court found “no absolute prohibition of police ruses involving detectives posing as attorneys in the State of Washington.” Id. at *5. The court noted that while the police did violate a state statute by posing as lawyers, the effect of their conduct on the legal system was “not as severe as where the ruse was directed at obtaining confidential information.” Id. at *10. The court also rejected the defendant’s other evidentiary arguments and upheld the conviction.

Significance of Case
The court obviously had to balance the desire to uphold the conviction of a guilty person who would have escaped prosecution but for the creative attempt by the police to gather incriminating evidence with concerns about the protection of attorney-client communications and relationships. Given that, in this particular instance, the ruse was aimed at procuring saliva for a DNA test and not at obtaining what would otherwise be substantive and attorney-client privileged communications, the court’s conclusion seems appropriate. The court also made reasonably clear that it was prepared to set limits on the use of information generated by police who falsely represent themselves to be attorneys for suspects.

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