D.Me.: Police did nothing wrong years ago in a DNA collection, and there would be no suppression

A grand jury subpoena was used years ago for DNA which was arguably unreasonable, but the defendant provided it anyway. In the confusing legal landscape of this case, however, the court cut to the chase: the exclusionary rule, and found that it would not be excluded because the police did nothing wrong. United States v. Thomas, 815 F. Supp. 2d 384 (D. Me. 2011)*:

Amid all this legal uncertainty, I conclude that it is best to focus on the ultimate question on the motion—whether the exclusionary rule even applies to circumstances like these. The Supreme Court adopted the exclusionary rule “to discourage the police from violating the Fourth Amendment by prohibiting them from leveraging illegal encounters into criminal convictions.” United States v. Clariot, 2011 U.S. App. LEXIS 17719, 2011 WL 3715235, *3 (6th Cir. August 25, 2011) (citing Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960)). If there was a Fourth Amendment violation in 2005, I assume that the exclusionary rule would have applied to a prosecution for the 2004 mailings. But the Supreme Court has also said that suppression is not automatic for every Fourth Amendment violation. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). “[T]he question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Id. at 137. I must examine the flagrancy of police misconduct, “appreciable deterrence” is the standard, id. at 141, and the benefits of deterrence must outweigh costs. “[P]olice conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144.