DE: Without a showing there is anything to test DNA against, a warrant for DNA may be without PC; but here moot for now

Without a showing there is anything to test DNA against, a warrant for DNA may be without probable cause. After surveying the cases requiring there be something to test for a sample to be obtained, the question here is moot because the state admits the DNA was never tested against anything. If it is, then the question will be revisited. State v. Campbell, 2015 Del. Super. LEXIS 525 (Oct. 5, 2015):

Defendant next argues that there is no nexus between the taking of a DNA swab from Defendant and the evidence recovered from the crime scene. “In determining whether probable cause has been demonstrated, there must be a logical nexus between the items sought and the place to be searched.” The affidavit’s four corners, along with logical inferences based on the specific facts alleged therein, “must demonstrate why it was objectively reasonable for the police to expect to find the items sought in those locations.” Delaware Courts do not necessarily require that probable cause be based on firsthand knowledge that the items specified in affidavits are actually located in the places to be searched, nor is it required that the owners of properties identified be suspected of criminal activity. Rather, our Courts have framed the question as “whether, based upon the specific facts alleged within the affidavit’s four corners, one would normally expect to find those items at that place.” If answered in the affirmative, “then that inference will suffice to allow the valid issuance of a search warrant for that place.”

To justify taking the DNA sample, the detective included the following additional paragraphs in the warrant:

28. Your affiant is aware that several casings from the firearm that was fired were located at the scene and collected as evidence.
29. Your affiant is aware that it is possible to collect DNA evidence of the suspect(s) from the casings. Your affiant is aware that DNA belonging to Keith Campbell 8/3/1988 can be compared to any DNA found on the casings.

Critical to Defendant’s argument is that, at the time the warrant was issued, no effort had been undertaken to determine whether usable DNA was on the shell casings recovered at the crime scene. Without any support for his conclusion, the detective simply stated he “is aware that it is possible” to recover DNA from shell casings. The statement is not supported by the detective’s personal knowledge gained from work experience or other investigations that may have occurred or even based on specific training or education. It is simply a conclusory statement without any support.

Defendant has presented a series of cases to the Court in which courts have found that, absent law enforcement recovery of a comparison sample of DNA, a DNA swab search warrant is unsupported by probable cause. In the most recent decision cited by Defendant, Hindman v. United States, the United States District Court for the Northern District of Alabama stated the standard, applied by many of the cases supporting Defendant’s proposition, for demonstrating probable cause sufficient to authorize collection of DNA from a free citizen suspected of crime:

[T]he government must possess a testable DNA sample sufficiently linked to the subject crime, which might then be compared to the suspect’s sample to attempt to establish a ‘match’ placing him at the scene. The testable DNA is necessary because DNA, like a fingerprint, is a means of identification and not, in and of itself, evidence of any particular crime. …

The reasoning in these decisions is compelling but, in the Court’s opinion, goes too far. In spite of the public perception created by the “CSI effect,” the determination of whether DNA exists on an object is not an easy or quick process.

And in an underfunded and resource-limited criminal justice system, to mandate such a finding is simply unrealistic. That said, the Court does believe more is required than the detective’s unsupported belief that DNA may be recovered from an object. At a minimum, the assertions made in the affidavit must be supported by training, education, or experience that would reasonably justify and explain the detective’s conclusion that DNA could reasonably be recovered from that particular object. On occasion, this will be easy to justify simply from the object being tested, such as blood or semen. On other occasions, when the object is one on which DNA is not routinely found because of the properties of that object, more justification for the search will be needed.

Here, the lack of any foundation to support the detective’s conclusion would require the Court to suppress the evidence seized from the DNA swab. However, during oral argument it was disclosed to the Court that no DNA testing was ever performed on the shell casings in spite of the DNA evidence taken from Defendant. As such, there is nothing to suppress. While perhaps this circumstance may be relevant to other arguments made by Defendant, the nexus argument set forth in his Motion is moot by the lack of any testing.