W.D.N.Y.: That DNA should have been expunged and wasn’t doesn’t mandate suppression under 4A

DNA that should have been expunged and wasn’t isn’t subject to suppression under the Fourth Amendment. United States v. Green, 2021 U.S. Dist. LEXIS 212916 (W.D.N.Y. Sept. 29, 2021):

In any event, even if a violation of the Act had occurred, defendant has not established that suppression of the DNA sample is the remedy. See Government’s Response [72] at 3. “[T]here is no exclusionary rule generally applicable to statutory violations”. United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006). “The availability of the suppression remedy for … statutory, as opposed to constitutional, violations … turns on the provisions of [the statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights.” United States v. Donovan, 429 U.S. 413, 432 n. 22, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977). See also United States v. Clenney, 631 F.3d 658, 667 (4th Cir. 2011) (“[i]n the statutory context, suppression is a creature of the statute, and its availability depends on the statutory text”). However, defendant identifies no provision of the Act that makes suppression an available remedy. See Clenney, 631 F.3d at 667 (“Congress has shown that it knows how to create a statutory suppression remedy. It did so in 18 U.S.C. § 2515, which provides for suppression of evidence obtained in violation of the statutes governing wiretaps. Yet it chose not to do so in the context of § 2703(c) violations. Therefore, Congress has made clear that it did not intend to suppress evidence gathered as a result of § 2703(c) violations”); United States v. Guzman, 879 F. Supp. 2d 312, 323 (E.D.N.Y. 2012) (“[i]n short, the statutory text does not suggest, in any way, that Congress intended a per se suppression remedy for violations of the JDA’s parental notification requirement”).

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