CA9: Court ordered DNA collection permissible solely to exclude persons from an investigation

A Phoenix officer was shot and killed on duty. “More than 300 public safety personnel, the chief of police, and the mayor quickly converged on the scene. Roughly 100 people entered the area where Sergeant Drenth’s body was discovered, including the three plaintiffs, who were assigned to canine search teams.” Male DNA was found at the scene. All but five voluntarily contributed DNA to exclude them. The five weren’t suspects, but they needed to be excluded. They steadfastly refused to provide DNA, so the PPD applied for a court order to get it. After it was obtained they sued for nominal damages, a declaratory judgment, and to have it destroyed. A court order, a warrant, to obtain evidence does not require that the person from whom it is obtained be a suspect in a crime. DNA can be collected by court order to exclude people from an investigation. Bill v. Wheeler, 13-15844 (9th Cir. August 31, 2015):

To be sure, the orders here did not seek to obtain evidence that the plaintiffs committed a crime. But contrary to plaintiffs’ intimations, “[t]he critical element in a reasonable search is not that the owner of the property,” or in this case the person, to be searched “is suspected of crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Rather, “probable cause to search … concerns the connection of the items sought with crime and the present location of the items.” United States v. O’Connor, 658 F.2d 688, 693 n.7 (9th Cir. 1981). Of course, law enforcement must demonstrate “a nexus … between the item to be seized and criminal behavior.” Warden, Md. Penitentiary v.
Hayden, 387 U.S. 294, 307 (1967). “[I]n the case of ‘mere evidence,’ probable cause” for such a nexus “must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Id.

These constitutional requirements were satisfied here. The superior court expressly found “probable cause to believe that the crime of Homicide had been committed.” Plaintiffs wisely do not challenge this finding; indeed, the affidavits detailed the date, time, victim, and crime scene of the highly publicized death being investigated. The affidavits also explained that DNA samples were sought from all public safety personnel who entered the crime scene to exclude them as depositors of the questioned DNA. It cannot be meaningfully debated that there was probable cause to believe the evidence sought could be found in the place to be searched (inside of plaintiffs’ mouths). See Illinois v. Gates, 462 U.S. 213, 230 (1983) (explaining that probable cause is a “commonsense, practical question”).

Moreover, the affidavits plainly demonstrated “a nexus” between the crime under investigation and the evidence sought. Warden, 387 U.S. at 307. They stated that “[a]pproximately 50 Phoenix Police Officers entered the scene,” along with numerous other public safety personnel; that all of these public safety personnel except for plaintiffs and two other Phoenix police officers (identified by name and badge number) had already provided samples; and that such samples would be “analyzed for DNA and compared to other evidence in th[e] investigation” “[i]n attempts to identify the unknown DNA profile/s” found at the scene, and thus “may contribute to the identification of the individual who committed the felony offense described.”

That plaintiffs had themselves already been excluded as suspects does not undermine the nexus between the evidence desired and the crime investigated; excluding public safety personnel as the source of DNA would plainly “aid in” the conviction of an eventual criminal defendant, by negating any contention at trial that police had contaminated the relevant evidence. Messerschmidt v. Millender, 132 S. Ct. 1235, 1248 n.7 (2012) (emphasis and citation omitted); see also In re Morgenthau, 457 A.2d 472, 473-76 (N.J. Super. Ct. App. Div. 1983) (per curiam) (affirming order compelling collection of “blood and hair samples and finger and palm prints” from individuals who were “not suspects” in a homicide investigation because these “physical exemplars constituted material evidence relevant to [the suspect’s] guilt” and the orders, while not denominated as warrants, “comport[ed] with all the requisites of a search warrant”). We therefore conclude that the superior court orders authorizing the collection of plaintiffs’ DNA satisfied the Warrant Clause of the Fourth Amendment. Given that conclusion, we need not address whether an exception to the warrant requirement would have applied in the absence of the orders.

If the killer is identified and charged, it also has the salutary effect of removing a defense argument that DNA at the scene wasn’t tested and could belong to another person who could have been the actual killer.