CA1: Use of GJ SDT to acquire DNA violated Fourth Amendment, but no exclusion because of good faith

Defendant’s DNA was collected in 2005 by grand jury subpoena duces tecum, and no charges were filed. In 2011, defendant became the focus of something else, and his DNA was examined again, and this time he was matched up. While collection of the DNA violated Maryland v. King, it was collected years before in good faith, and the exclusionary rule would not be applied. United States v. Thomas, 736 F.3d 54 (1st Cir. 2013), on appeal from United States v. Thomas, 815 F. Supp. 2d 384 (D. Me. 2011):

This case presents a series of Fourth Amendment issues relating to the collection of tissue by cheek swab and the resulting DNA profile, the retention of the profile in the closed case file of the 2004-2005 investigation, and later, the use of the profile in support of the warrant in the 2011 federal case.

The issue arises because the swab material was collected in 2005 by postal inspectors’ service on Thomas of a grand jury subpoena, given by a clerk of court to a U.S. Attorney on request. There was no judicial or other grand jury involvement in issuance of the 2005 grand jury subpoena, and it was not issued in conjunction with an arrest or a determination of probable cause or some lesser standard. While we agree with Thomas that the method of obtaining his DNA, under Maryland v. King, 133 S. Ct. 1958 (2013), violated the Fourth Amendment, we affirm, under Herring v. United States, 555 U.S. 135 (2009), the district court’s denial of Thomas’s motion to suppress in 2011.

. . .

The Supreme Court has recently held that the taking of a DNA sample from an arrestee using a buccal swab on the inside of a person’s cheek is a search. Maryland v. King, 133 S. Ct. 1958, 1968-69 (2013). Certain consequences follow from the holding that it is a search. We agree with Thomas that the obtaining of the buccal swab is a violation of the Fourth Amendment on the facts of this case. That is because since this was a search, under present law the mere use of a grand jury form, without any judicial or even grand jury involvement and no determination of the basis for such an intrusion, is inadequate. We bypass the issue of whether Thomas, to assert the claim, was required to object to the subpoena or seek a hearing to that effect at the time, and assume he is free to present the claim now.

Though grand jury proceedings are entitled to a “presumption of regularity,” In re Lopreato, 511 F.2d 1150, 1152 (1st Cir. 1975), the grand jury is also “without power to invade a legitimate privacy interest protected by the Fourth Amendment,” Calandra, 414 U.S. at 346. In order to decide whether Thomas’s rights were violated here, we do not need to decide under what Fourth Amendment standard a grand jury may obtain a DNA sample through intrusive personal samples by investigative means.

More generally, the Supreme Court has said that the standard governing grand jury subpoenas is something less than probable cause, reasoning that “the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists.” United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991). Of course, there is a qualitative difference between the documents compelled by the subpoena in R. Enterprises and the DNA sample compelled here; R. Enterprises involved the production of documents in which the company did not have a Fourth Amendment interest. What is clear here is that there was no determination by a grand jury or a judge of whether any particular level of Fourth Amendment justification had been met to justify the grand jury subpoena for the DNA sample. On that basis alone, we conclude his Fourth Amendment rights were then violated.

Our issue, though, is not whether Thomas’s rights were violated, but whether the Herring test for application of the exclusionary rule has been satisfied. …