There was no reasonable expectation of privacy in defendant’s shirt that was lawfully seized as evidence after his arrest. Thus, a search warrant was not required to test it for DNA of the blood found on it. This was not a general DNA search; just for identification. Commonwealth v. Arzola, 470 Mass. 809, 26 N.E.3d 185 (2015):
A defendant generally has a reasonable expectation of privacy in the shirt he or she is wearing, but where, as here, the shirt is lawfully seized, a defendant has no reasonable expectation of privacy that would prevent the analysis of that shirt to determine whether blood found on it belonged to the victim or to the defendant. See Raynor, 440 Md. at 92 (defendant “does not possess a reasonable expectation of privacy in the identifying characteristics of his DNA”). See also State v. Athan, 160 Wash. 2d 354, 374, 158 P.3d 27 (2007) (“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”). Requiring police to obtain a warrant whenever they seek to analyze lawfully seized evidence for the sole purpose of identifying the unknown source of a genetic fingerprint would “impose[ ] substantial burdens on law enforcement without vindicating any significant values of privacy.” Commonwealth v. Varney, 391 Mass. 34, 39, 461 N.E.2d 177 (1984), quoting Robbins v. California, 453 U.S. 420, 429, 101 S. Ct. 2841, 69 L. Ed. 2d 744 (1981) (Powell, J., concurring in the judgment). See Commonwealth v. Robles, 423 Mass. 62, 65 n.8, 666 N.E.2d 497 (1996) (if lawfully seized, police need not obtain warrant to conduct chemical analysis of bloodstained coat).
Although we recognize that the science of DNA analysis may evolve and enable DNA profiling to uncover from these loci information more personal than the identity and sex of its source, the loci tested in this case “are not at present revealing information beyond identification” and sex. King, 133 S. Ct. at 1979, quoting Katsanis & Wagner, Characterization of the Standard and Recommended CODIS Markers, 58 J. Forensic Sci. S169, S171 (2013). See Boroian, 616 F.3d at 68-69 (government use of DNA profile for more than identification “merely [a] hypothetical possibilit[y]”). If the Commonwealth were to obtain more than identification and sex information from these loci, use the DNA profile for any purpose other than identifying the unknown source of the sample, or analyze different loci that contained more personal genetic information, we would have to revisit the question whether such DNA analysis is a search in the constitutional sense. See King, supra (“If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here”); Mitchell, 652 F.3d at 408 (“Should technological advancements change the value of [loci analyzed in a DNA profile], reconsideration of our Fourth Amendment analysis may be appropriate”). Cf. Riley v. California, 134 S. Ct. 2473, 2490, 2493, 189 L. Ed. 2d 430 (2014) (warrant is generally required for search of cellular telephone, even when lawfully seized incident to arrest, because “many of the more than [ninety per cent] of American adults who own a [cellular telephone] keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate”).
The defendant’s argument rests heavily on United States v. Davis, 690 F.3d 226, 250 (4th Cir. 2012), where the court concluded that the police conducted an unreasonable search in violation of the Fourth Amendment when they extracted the defendant’s DNA profile from his lawfully seized clothing and tested it as part of a murder investigation. In Davis, the defendant’s clothing was seized as evidence while he was in the hospital as a gunshot victim, and his DNA profile was later obtained from the bloodstains on his pants in order to compare it with an unknown DNA profile from an unrelated homicide. Id. at 230-231. After the defendant was excluded as the source of the evidentiary sample from that murder, the police retained his DNA profile and included it in their local DNA database, where it triggered a “cold hit” with another sample from a different homicide crime scene. Id. at 229, 231-232. The court concluded that the defendant’s clothing was lawfully seized in plain view. Id. at 239. However, the court held that the defendant had an expectation of privacy in his DNA that was implicated once the police extracted the DNA from his clothing and obtained his DNA profile. Id. at 246.
In contrast with the instant case, the police in Davis treated the DNA sample on the defendant’s clothing as the defendant’s known sample, and created a DNA profile in order to compare it with other unknown samples obtained from various crime scenes. Id. at 231-233. The court’s conclusion that the defendant “retained a reasonable expectation of privacy in his DNA profile” was premised on the finding that the sample from his clothing was known to contain the defendant’s DNA. Id. at 248. Even if we were to accept the Davis court’s reasoning with regard to a DNA sample known to belong to the defendant, a defendant does not have a reasonable expectation of privacy in a DNA profile from an unknown sample that was taken from lawfully seized evidence.
Moreover, we doubt that the Fourth Amendment reasoning of the Davis court will be adopted by the United States Supreme Court.13 The Davis court never fully addressed the limited scope of the DNA analysis: to develop a DNA profile that would serve as a genetic fingerprint to be compared with unknown DNA profiles. See id. at 240 n.22 (declining further to discuss science of DNA profiling after noting that some courts analogize DNA to fingerprints while others recognize limitations of that analogy). The Supreme Court’s subsequent opinion in King, 133 S. Ct. at 1979, noted that the loci that comprise a DNA profile “come from noncoding parts of the DNA that do not reveal … genetic traits,” and that the sole purpose of DNA profiling is to generate “a unique identifying number against which future samples may be matched.” Although the Court was addressing the suspicionless collection of a DNA sample through a buccal swab of certain arrestees, rather than the analysis of such a sample, we think it is likely [*24] that the limited information provided by a DNA profile and the limited purpose of identification will lead the Supreme Court to reach a conclusion that is different from that of the Davis court. See Raynor, 440 Md. at 90, petition for cert. filed, U.S. Supreme Ct., No. 14-885 (Jan. 19, 2015) (“The Davis Court’s conclusion that the DNA testing at issue in that case constituted a Fourth Amendment search rested on what may now be a faulty premise, given the discussion in King that DNA analysis limited to the [thirteen Core] loci within a person’s DNA discloses only such information as identifies with near certainty that person as unique”).
We conclude that where, as here, DNA analysis is limited to the creation of a DNA profile from lawfully seized evidence of a crime, and where the profile is used only to identify its unknown source, the DNA analysis is not a search in the constitutional sense. Therefore, no search warrant was required to conduct the DNA analysis of the bloodstain from the defendant’s clothing that revealed that the victim was the source of the blood.
