Defendant’s DNA was collected from him in the BOP in 2005 while he was there on another conviction out of D.C. It was 2009 before it was tested under the DNA Backlog Elimination Act. It matched a cold case in the District from 2003. Based on that match, the government sought a DNA warrant for confirmation. Even assuming all of defendant’s constitutional and statutory arguments are valid, the court declines to apply the exclusionary rule because it was apparent that everybody was acting in good faith. Blair v. United States, 2015 D.C. App. LEXIS 166 (May 7, 2015):
We need not address all of appellant’s arguments because even assuming (without deciding) that they all are meritorious as far as they go, we conclude that this is not a case in which the trial court was required to apply the exclusionary rule, i.e., to exclude the evidence that was the fruit of the 2005 DNA sample. In other words, we discern no error in Judge Motley’s ruling that he would “not exclude the CODIS hit” or “suppress the use of the DNA obtained in this case.”
The exclusionary rule is a “prudential rather than constitutionally mandated” rule, which is “applicable only where its deterrence benefits outweigh its ‘substantial social costs.'” Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998) (explaining that “the rule does not ‘proscribe the introduction of illegally seized evidence in all proceedings or against all persons,’ … but applies only in contexts ‘where its remedial objectives are thought most efficaciously served[.]'” (quoting Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976))); see also Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) (“[A]pplication of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced.”). As the United States Court of Appeals for the Second Circuit has observed, “[t]he Supreme Court has restricted application of the exclusionary rule to those circumstances where its deterrent effect would most likely be ‘substantial and efficient,'” and “has cautioned that any extension of the rule beyond its core application — normally, barring use of illegally seized items as affirmative evidence in the trial of the matter for which the search was conducted — must be justified by balancing the ‘additional marginal deterrence’ of the extension against the cost to the public interest of further impairing the pursuit of truth.” Tirado v. Commisioner of Internal Revenue, 689 F.2d 307, 310 (2d Cir. 1982) (quoting United States v. Janis, 428 U.S. 433, 453, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976)). Thus, exclusion is not “a necessary consequence of a Fourth Amendment violation.” Herring v. United States, 555 U.S. 135, 141, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). “Where suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly … unwarranted.'” (Willie) Davis v. United States, 131 S. Ct. 2419, 2426-27, 180 L. Ed. 2d 285 (2011) (quoting Janis, 428 U.S. at 454). “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Id. at 2427.
As the Supreme Court further explained in Herring, the exclusionary rule “serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence” as opposed to “mistakes [that] are the result of negligence.” 555 U.S. at 144, 147. “An error that arises from nonrecurring and attenuated negligence is … far removed from the core concerns that led [the Court] to adopt the rule in the first place.” Id. at 144. The Court has “never applied the rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more intentional or culpable than [that].” Id.; see also Davis, 131 S. Ct. at 2427-29 (admonishing that when police “conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way” and that the exclusionary rule is not “to become a strict-liability regime” (internal citations and quotation marks omitted)); United States v. Wright, 777 F.3d 635, 642 (3d Cir. 2015) (“[T]he Supreme Court has unequivocally held that deterring isolated negligence is not worth the social cost of excluded evidence. Only if mistakes of this nature recur with some frequency will a criminal defendant be in a position to argue that the calculus has changed.”) (citation omitted). Thus, “[t]o trigger the exclusionary rule,” the conduct that was violative of a defendant’s rights must be both “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144.
. . .
In this case, Judge Motley found that government officials had acted in good faith and that application of the exclusionary rule in this case would “not deter conduct.” Although there was a limited basis for that “good faith” assessment (the statements in the FBI’s letter, and the government’s candor about the unauthorized 2005 sample that was the basis for the CODIS match), we see no reason to reject it and a number of reasons to accept it. The first is that appellant’s counsel acknowledged at the October 13, 2011, hearing that he did not “know of any” bad faith in this case. Nor on appeal does appellant argue that the BOP employees who drew his blood in 2005 did so with “knowledge, or may properly [have been] charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Herring, 555 U.S. at 143 (internal quotation marks omitted) (stating that absent such knowledge or constructive knowledge, evidence should not be suppressed because “[t]he extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct”); see also Thomas, 736 F.3d at 61 (declining to apply the exclusionary rule where the court saw “no evidence … that the postal inspectors involved in obtaining and executing the subpoena [for a DNA sample in 2005] knowingly engaged in any misconduct”).
. . .
In light of all the foregoing, we find it difficult to believe that application of the exclusionary rule would have any significant deterrent effect on the BOP officials who took the 2005 sample or on their current counterparts. And, even if there is some slight deterrent effect to be achieved by applying the exclusionary rule in this case, we think it would not be “worth the price paid by the justice system.” Herring, 555 U.S. at 144 (i.e., the price of effectively foreclosing appellant’s conviction of the first-degree sexual abuse of C.H., since he became a suspect only because of the 2005 sample). Accordingly, we can find no error in Judge Motley’s determination not to apply the exclusionary rule and to issue the warrant on the basis of the CODIS match. He could reasonably conclude that in this case, the exclusionary rule “cannot ‘pay its way.'” Davis, 131 S. Ct. at 2428 (quoting Leon, 468 U.S. at 907 n.6).
