Defendant in his § 2255 failed to show that defense counsel was ineffective for not arguing that he had a reasonable expectation of privacy in a hospital room. He cited no controlling case law. The law is unsettled on that at best, and no case from the Eighth Circuit is in point. Defense counsel is [essentially] not charged with being ineffective for not arguing that the law should be changed. New v. United States, 652 F.3d 949 (8th Cir. 2011):

This court has held that an attorney’s failure to anticipate changes in the law does not constitute constitutionally ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999). Then in Fields v. United States, 201 F.3d 1025 (8th Cir. 2000), this court reached the same conclusion about unsettled issues. We denied relief to a § 2255 movant who argued that his attorney’s failure to object to the district court’s jury instructions deprived him of effective assistance of counsel. See id. at 1026. We noted that neither the Eighth Circuit nor the Supreme Court had decided whether the jury instructions at issue were adequate, and that two other courts of appeals had addressed the issue and come to contrary conclusions. We then said the following:

Given this split of authority at the time Fields was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject, it must be said that counsel’s performance fell within the wide range of professionally competent assistance. … If counsel’s failure to anticipate a change in the law will not establish that counsel performed below professional standards, then counsel’s failure to anticipate a rule of law that has yet to be articulated by the governing courts surely cannot render counsel’s performance professionally unreasonable. Moreover, Fields has not directed our attention to Supreme Court or Eighth Circuit precedent (and our research has located none) that can be said to clearly portend the law … as Fields would have us state it.

The testimony of a witness is not subject to exclusion in Washington. Also, inevitable discovery applied to ammunition tied to defendant though an ongoing investigation that really had nothing to do with the product of the search warrant of defendant’s house. State v. Hilton, 164 Wn. App. 81, 261 P.3d 683 (2011).

Defendant driver’s shaking hands and odd travel plans made for reasonable suspicion. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011); State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).

A parolee had no state or federal constitutional right to be free from warrantless urinalysis. State v. Mahone, 164 Wn. App. 146, 262 P.3d 165 (2011).*

Officer finished his business during a traffic stop, handed back the paperwork and stepped back, telling defendant to drive carefully, indicating that defendant was free to leave, but then stepped forward to converse again. This second move toward the car was consensual. United States v. Gonzalez-Garcia, 781 F. Supp. 2d 1167 (D. Kan. 2011)*:

11. The court is persuaded that the encounter after the return of the documents was consensual. The court believes that Trooper Trinkle conveyed to Gonzalez-Garcia that he was free to leave after he returned the documents. The comment made by Trooper Trinkle to drive safely coupled with his movement away from the window of the car suggested that the traffic stop had ended. In returning to the window, Trooper Trinkle asked in a conversational tone if he could ask some additional questions. In doing so, he did not physically touch Gonzalez-Garcia or his vehicle, and did not display his weapon. Gonzalez-Garcia readily agreed to answer additional questions. He appeared to do so without reservation. Thus, the court finds no merit to Gonzales-Garcia’s argument that he was detained beyond the permissible scope of the stop.

[Note: I still can’t buy this, no matter how it is dressed up. The officer stopped the defendant. Saying “you’re free to go” but essentially keeping him from it by talking is inherently coercive.]

Defendant was stopped for a traffic violation, and he did not have his driver’s license on him. He was asked for consent which he refused. The officer said he was getting a drug dog but didn’t. Finally, he conducted a field sobriety test, and defendant passed. Then he arrested the defendant for no DL. A search incident after defendant was locked in the police car was invalid under Gant. Turner v. Commonwealth, 2011 Ky. App. LEXIS 138 (August 12, 2011). [Caution: If the vehicle would be towed, could the state argue inventory as an alternative?]

Just because defendant had one brake light out did not mean that his vehicle did not comply with the state vehicle code. The taillights otherwise worked, and the statute only referred to “stop lamp.” Therefore, the stop was invalid. State v. Heien, 2011 N.C. App. LEXIS 1750 (August 16, 2011).*

A university police officer was fired after making a complaint that other officers had violated the Fourth Amendment in conducting a search on campus. The ALJ upheld the firing. On appeal, the court held that the officer was a whistle blower, and his motive for complaining was pretty much irrelevant. Lawson v. Bowie State Univ., 26 A.3d 866, 32 I.E.R. Cas. (BNA) 1252, 161 Lab. Cas. (CCH) P61,177 (Md. 2011).* [Which only goes to show that police departments usually protect their cops; one complains about another and he’s gone as a troublemaker.]

Allegations of sexual abuse of a minor here did not support a search warrant for possession of child pornography. Also, the CI’s allegation was insufficient to show PC. The affidavit was, indeed, so devoid of evidence that the good faith exception should not apply. United States v. Doyle, 650 F.3d 460 (4th Cir. 2011):

There is, however, remarkably scant evidence in the affidavit (or Rouse’s investigation summary) to support a belief that Doyle in fact possessed child pornography. The bulk of the information supplied in the affidavit concerned allegations of sexual assault. But evidence of child molestation alone does not support probable cause to search for child pornography. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (“[I]t is beyond dispute that the warrant was defective for lack of probable cause-Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography). Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial.”); see also United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (“[A]lthough Falso’s crime allegedly involved the sexual abuse of a minor, it did not relate to child pornography. That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”) (citation omitted).

Here, the only mention in the warrant application regarding the presence of pornography was the statement that one of the alleged victims “disclosed to an Uncle that Doyle had shown the victim pictures of nude children.” Doyle argues that the warrant lacked sufficient indicia of the credibility of Jones, the only informant who mentioned the presence of nude photographs. “In order to establish probable cause for the issuance of a search warrant, it is necessary to show that ‘given all the circumstances set forth in the affidavit[,] … including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Legg, 18 F.3d at 243 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

. . .

However, the credibility of Jones, who merely reported the allegations of a child informant, does little, if anything, to indicate probable cause to search Doyle’s home. Even if the step-uncle’s credibility were entirely unassailable, this would merely establish that he was telling the truth that his step-nephew made the allegations that Jones reported to Rouse. That, in itself, says nothing about the truth of those allegations. Importantly, Rouse testified that none of the alleged child victims made allegations to law enforcement that they were shown pornographic material. Indeed, there is no indication in the record that the children were even asked during the interview process about the presence of child pornography.

This may be the first time the Fourth Circuit found that a search was not saved by the good faith exception. I haven’t checked; I just don’t remember any.

Granted, the defendant’s travel plans were a little unusual, but the district court was correct in holding that there simply was no reasonable suspicion for this fifteen minute detention and questioning which was overlong and never wavered from being a drug investigation, as shown by the video. The government’s rationale sweeps in too many innocent motorists for the same routine. United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011):

On appeal, the government makes four arguments seeking to excuse Trooper Conner’s lack of diligence. First, the government argues that any delay caused by the unrelated questioning was de minimis, and, therefore, Digiovanni’s Fourth Amendment rights were not violated. According to the government, our case is much like the Mason case, where the delay caused by the unrelated questioning was one to one and one-half minutes.

We reject the government’s reliance on Mason. The delay in this case was not de minimis. The unrelated questioning was extensive and time-consuming. It started with some unrelated questioning concerning Digiovanni’s travel plans and morphed into unrelated questioning concerning the presence of drugs. The record, in particular the video, makes clear that at just about every turn Trooper Conner was conducting a drug investigation instead of a traffic infraction investigation. Indeed, the bulk of the encounter between Trooper Conner and Digiovanni involved a drug investigation, as the driver’s license check did not even begin until approximately ten minutes into the stop, and, in fact, it never was completed.

Second, the government argues that, because the overall length of the traffic stop (approximately fifteen minutes) was reasonable, there was no Fourth Amendment violation. We reject this argument.

We have emphasized that “[t]he maximum acceptable length of a routine traffic stop cannot be stated with mathematical precision.” Branch, 537 F.3d at 336; see also United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004) (noting that there is “no constitutional stopwatch on traffic stops”); ….

The Fourth Circuit, no less. Now my circuit, the Eighth, is the most conservative.

Typographical error that left warrant in system was just like Herring and not suppressible. United States v. Godfrey, 427 Fed. Appx. 409, 2011 FED App. 0423N (6th Cir. 2011) (unpublished):

The district court applied Herring’s approach here and found no justification to exclude the evidence. We agree. Nash’s initial data-entry error was a mistake and at most constituted typical negligence of the sort present in Herring. See Herring, 129 S. Ct. at 698, 704. And Godfrey does not argue, nor is there evidence in the record independently establishing, that Hamilton County officers make these sorts of typographical errors recurrently or systemically. See id. at 703 (“If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified ….”). Accidental typographical mistakes are not the sort of police behavior that suppression would deter, so the exclusionary rule does not require suppression for this error.

Conditioning a teacher’s continued employment on taking a drug test after a misdemeanor drug arrest was reasonable. Palmer v. Cacioppo, 429 Fed. Appx. 491 (6th Cir. 2011).*

Taking DNA from an arrestee still entitled to the presumption of innocence without judicial authorization violated the Fourth Amendment. People v. Buza, 197 Cal. App. 4th 1424, 129 Cal. Rptr. 3d 753 (1st Dist. 2011), Modified by, 2011 Cal. App. LEXIS 1149 (Cal. App. 1st Dist., Aug. 31, 2011):

The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act), which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense ―immediately following arrest, or during the booking … process or as soon as administratively practicable after arrest … (§§ 296.1, subd. (a)(1)(A), 296, subd. (a)(2)(C).) Appellant claims that the seizure of his DNA at a time when he was entitled to the presumption of innocence, and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his Fourth Amendment right to be free from unreasonable searches and seizures. We agree, and therefore reverse the judgment.

This is a detailed and scholarly opinion. I highly recommend it because it rejects the DNA as mere fingerprint analogy which was adopted by the Third Circuit just two weeks ago.

A woman heard water running in an adjoining apartment from an apparent leak that was coming down her basement wall into an electrical box. She couldn’t find the neighbor and called 911 fearing an electrical fire. When firemen arrived, they entered defendant’s apartment and went to the basement to turn off the water. There they found a grow operation. The entry was justified by the community caretaking function. People v. Slaughter, 489 Mich. 302, 803 N.W.2d 171 (2011).

Defendant was arrested, and there was probable cause for a search of his vehicle. The vehicle was impounded and towed to the police station for a search warrant. The impoundment of the vehicle and removal was valid under the state constitution even though defendant was in custody. Commonwealth v. Griffin, 2011 PA Super 138, 24 A.3d 1037 (2011).*

The search of the apartment here was by consent from someone with apparent authority. Also, defendant repeatedly denied living there on the record, so he likely lacked standing, but the district court did not rule on standing, so the appellate court won’t either. United States v. Marrero, 651 F.3d 453, 2011 FED App. 0175P (6th Cir. 2011).*

At trial, the defendant officers came forward with evidence of exigent circumstances justifying their actions. The jury was properly instructed on the plaintiff’s burden of proof. Bogan v. City of Chicago, 644 F.3d 563 (7th Cir. 2011).*

Defendant’s request for a Franks hearing was properly denied. “Because Erickson failed to offer any proof in support of his claims, the district court’s denial of his request for a Franks hearing was not error.” United States v. Cha, 2011 U.S. App. LEXIS 13722 (11th Cir. June 20, 2011) (unpublished).*

Defendant was patted down three times. “[W]e find that appellant’s conduct fell short of a reasonably unequivocal revocation of consent and find no error in the trial court’s denial of appellant’s motion to suppress evidence.” State v. McCree, 2011 Ohio 1993, 2011 Ohio App. LEXIS 1700 (12th Dist. April 25, 2011).*

Defendant was slowly driving a forklift on the shoulder of the road without a “slow moving vehicle” emblem, which does not apply only to farm vehicles. His DWI conviction was affirmed because there was cause for this stop. Harvey v. State, 2011 WY 72, 250 P.3d 167 (2011).*

Defendant had no standing in the premises of another. The authority he cites doesn’t hold what he says. United States v. Soto, 779 F. Supp. 2d 208 (D. Mass. 2011).*

“Where officers advised defendant that if he did not consent to giving oral swabs and surrendering certain items of clothing that they would detain him until they obtained a search warrant, this did not negate defendant’s voluntary consent to the seizure of those items.” State v. McMillan, 2011 N.C. App. LEXIS 1625 (August 2, 2011).*

Defendant preserved her argument that her purse could not be searched under the search warrant in the trial court, and the court of appeals erred on that score, but she loses on the merits of the argument because the warrant covered her purse found inside the house. State v. Walker, 350 Ore. 540, 258 P.3d 1228 (2011), affg 234 Ore. App. 596, 229 P.3d 606 (2010).*

Arrest for being a person in suspicious place was valid and with probable cause because defendant was a suspect in a shooting incident. Cardella v. State, 2010 Tex. App. LEXIS 7218 (Tex.App.—San Antonio September 1, 2010), Delivered, Released for Publication May 27, 2011, petition for discretionary review dismd Cardella v. State, 2011 Tex. Crim. App. Unpub. LEXIS 453 (Tex. Crim. App., Jan. 12, 2011), Petition for discretionary review refused by In re Cardella, 2011 Tex. Crim. App. LEXIS 364 (Tex. Crim. App., Mar. 9, 2011).*

There was probable cause to believe that evidence would be found on defendant’s sneakers which were the subject of the search warrant. “In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion; inferences drawn from the affidavit need only be reasonable and possible, not necessary or inescapable.” Commonwealth v. Cavitt, 460 Mass. 617, 953 N.E.2d 216 (2011)*:

Although the defendant shed some items of clothing during his escape, he remained dressed, and there was a substantial basis for concluding that the clothes that he did not discard, including footwear, would be found at LaVoice’s apartment. In light of the altercation between the defendant and Ryan, it was reasonable to infer that trace evidence, including blood, tissue, or fragments of clothing, may have transferred between the men, including onto their shoes, and that such evidence would be relevant to the identification of the defendant as the perpetrator of the armed robbery. Similarly, it was also reasonable to infer that the defendant’s clothing, and any scrapes or tears thereto, could provide trace evidence linking the defendant to the purported carjacking of Thompson’s vehicle.

Based on our review of the four corners of Pioggia’s affidavit, we conclude that it set forth probable cause to search LaVoice’s apartment for items of the defendant’s clothing, including his red and white sneakers. It follows, therefore, that the seizure of the sneakers did not exceed the scope of the search warrant. …

The judge signing the search warrant was in New Jersey at the time. State law requires that all reasonable efforts to contact a nearby judge be exhausted before turning to telephone or fax warrants. On remand, the state will have to show that all reasonable efforts were exhausted. If so, defendant will not have suffered prejudice. Commonwealth v. Nelson, 460 Mass. 564, 953 N.E.2d 164 (2011).*

Defendant’s Alford plea got him sentencing considerations in a child pornography case, and that included him waiving his motion to suppress. He knew what he was doing, and the denial of the motion to withdraw the plea is affirmed, and his client. State v. Stocking, 131 Conn. App. 81, 26 A.3d 117 (2011).*

Officer’s mistake of law as to where temporary paper tag should be located in the back window did not justify extending the stop. Once it could be read, the driver should have been allowed to go on his way. United States v. Estrada-Ayala, 2011 U.S. Dist. LEXIS 104411 (D. Kan. September 14, 2011).*

Defendant was seized without reasonable suspicion he was involved in a robbery and taken in for a lineup. After he was potentially IDed he was arrested and searched, and cocaine was found on his person. His detention was unlawful, and the cocaine should have been suppressed. Bennett v. United States, 26 A.3d 745 (D.C. App. 2011):

Here, the police detained appellant in the absence of exigent circumstances that would have satisfied the “narrowly circumscribed” witness exception. The seizure of appellant was not a brief stop conducted to freeze a fast-moving and dangerous situation so that a witness could be questioned before he fled the scene of the crime. Appellant was not fleeing, but instead — over seven minutes after the robbery — was standing on his street smoking a cigarette. When the police approached him, he may have been argumentative, but he ultimately answered their questions and gave them his identifying information. He also spoke to his mother via cell phone and paced up and down the street, where she joined him. This controlled, relatively calm scenario is the opposite of the quick sequence of events that occurred in Trice following a violent crime involving a weapon. Further, there was no danger that the police would lose the opportunity to question appellant about the crime, since they obtained his identifying information and would have been able to locate him for further questioning if necessary. Cf. Hawkins, 663 A.2d at 1226-27 (declining to apply Williamson exception where other methods of investigation were “readily available”).

Defendant’s strip search incident on the street was unreasonable, even if it was with probable cause (the probable cause issue held waived). State v. Battle, 202 N.C. App. 376, 688 S.E.2d 805 (2010), Review denied, 364 N.C. 327, 700 S.E.2d 926 (2010):

In Starks v. City of Minneapolis, 6 F.Supp.2d 1084 (D.Minn., 1998), the United States District Court of Minnesota commented on the rarity of this kind of invasive roadside search.

As one might expect, there is very little case law considering the use of on-street strip searches. The Court considers the paucity of case law as reflective of the natural assumption that these things simply do not occur. By way of example, the United States Supreme Court, when considering the governmental interest underlying a stationhouse search of an arrestee, stated in Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605, 2609, 77 L.Ed.2d 65 (1983) that, “the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street.” Other courts have explicitly recognized that a strip search on a public street is not justified. “Probable cause that an arrestee is hiding something on his body does not justify conducting on a public street a strip search or some search akin to one.” United States v. Bazy, Nos. 94-40018-01-SAC, 94-40018-02-SAC, 1994 U.S. Dist. LEXIS 14165, 1994 WL 539300, at 8 (D.Kan. Aug.29, 1994).

Similarly, the Fourth Circuit upheld a strip search which occurred in a police van, finding it was not unconstitutional because “the search did not occur on the street subject to public viewing.” United States v. Dorlouis, 107 F.3d 248, 256 (4th Cir.1997). Under very unusual circumstances, the D.C. Circuit upheld a strip search on a public street when officers had deduced that the defendant was trying to push drugs into his buttocks. But even under such circumstances, that circuit stated, “We wish to make it clear, however, that such public intrusions should not be the norm. Ordinarily, when police wish to search the private areas of an arrestee’s person incident to arrest, they should first remove the arrestee to a private location–i.e., a private room in the stationhouse.” United States v. Murray, 22 F.3d 1185, 306 U.S. App. D.C. 103 (D.C. Cir.1994).

Starks, 6 F.Supp.2d at 1088.

“A strip search is an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). The Seventh Circuit described strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G. v. City of Chicago, 723 F.2d at 1272; see also Chapman, 989 F.2d at 396. No matter how professional or courteous the manner used in conducting a strip search, it remains an embarrassing and humiliating experience. Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir. 1992). Strip searches, thus, are not a matter of course for searches incident either to arrest or detention.

United States v. Bazy, 1994 U.S. Dist. LEXIS 14165, *13-14 (D. Kan. Aug. 29, 1994), aff’d, 82 F.3d 427 (10th Cir., 1996); see also Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991) (“[T]he ‘full search [incident to arrest]’ authorized by [the United States Supreme Court decision in] Robinson was limited to a pat-down and an examination of the arrestee’s pockets, and did not extend to ‘a strip search or bodily intrusion.'”).

Questions to the defendant after his traffic stop were not unreasonable and did not extend the stop. The officer’s experience in evaluating a drug interdiction stop has to be given credit. People v. Roa, 398 Ill. App. 3d 158, 923 N.E.2d 401, 337 Ill. Dec. 842 (2010), As Amended March 8, 2010 (on remand in light of People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603, 325 Ill. Dec. 556 (2008)):

As stated in our prior opinion, effective and efficient interstate drug couriers can successfully avoid apprehension by camouflaging their illegal activity with something as innocuous as an air freshener. Meaningless minutiae that might go unnoticed by the untrained person may become a significant factor to an experienced drug interdiction officer considering the totality of the circumstances attendant to the traveler at hand. The trial judge found the officer’s testimony credible and the basis of his suspicions justified.

Defense counsel waived the motion to suppress in this case by waiting too long to file it, but that did not matter because the trial court on the proffer found that the search was by consent as an alternative ground. State v. Paige, 202 N.C. App. 516, 689 S.E.2d 193 (2010).*

Squealing tires is reasonable suspicion for a stop, and this one led to a DWI. Fernandez v. State, 306 S.W.3d 354 (Tex. App.—Ft. Worth 2010).*

Defendant’s traffic stop was justified by the fact the license plate came back with no record. Reasonable suspicion quickly developed from appearance of the car and the nervousness of the driver. United States v. Duran, 2010 U.S. Dist. LEXIS 13958 (S.D. Tex. February 18, 2010).*

Defendant was convicted of kidnaping and numerous sex offenses, and his victim who lived with him in the month before the occurrence and who paid the rent had apparent authority to consent to the entry and search. She had a key and her clothes there. People v Frankline, 2011 NY Slip Op 6316, 87 A.D.3d 831, 928 N.Y.S.2d 412 (4th Dept. 2011).*

Warrantless sweep was invalid for lack of exigency, but later issued warrant would have come anyway, so the search warrant was valid. State v. Watts, 801 N.W.2d 845 (Iowa Sup. 2011).*

Officer who shot and killed man thinking she’d pulled her taser denied qualified immunity where it had happened twice before. This stated a claim of excessive force in violation of the Fourth Amendment. Torres v. City of Madera, 09-16573 (9th Cir. August 22, 2011):

While handcuffed in the back seat of a patrol car, Everard Torres (“Everardo”) was mortally wounded when Madera City Police Officer Marcy Noriega (“Officer Noriega”) shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everard’s family filed this survival action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment, and now appeals from an adverse grant of summary judgment. Consistent with the Fourth Circuit’s decision in Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816 (4th Cir. July 14, 2011) (en banc), we reverse and remand for trial.

The paperwork on an affidavit and search warrant submitted through court staff was incomplete and did not comply with statute. Nevertheless, the search warrant was executed in good faith and the court would not suppress for this error. Johnson v. State, 952
N.E.2d 305 (Ind. App. 2011).

After officers were admitted into his home he consented first to a limited search. After finding a roach in an ashtray, he was asked if there was more and further consent was sought, and defendant responded “No, there’s nothing else. Feel free to search.” His consent was not coerced. Liles v. State, 311 Ga. App. 355 (August 3, 2011).*

The defendant was found to have consented to a search of his car, and the evidence supported the trial court conclusion. State v. Carter, 2011 Tenn. Crim. App. LEXIS 596 (August 2, 2011).*

Plaintiff voluntarily gave his DNA to be checked against a possible crime under the promise that it would be returned if there was no match. There wasn’t, but the DA and crime lab refused to return it. He had limited his consent, and he had an invasion of privacy suit for retention of the DNA. Amato v. District Attorney for the Cape and Islands District, 80 Mass. App. Ct. 230, 952 N.E.2d 400 (2011):

DNA information is highly sensitive. Citizens have a reasonable expectation of privacy in such information. See Landry v. Attorney Gen., 429 Mass. 336, 354 n.20, 709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073, 120 S. Ct. 785, 145 L. Ed. 2d 663 (2000) (upholding State convicted offender database created by G. L. c. 22E as constitutional; however, “the indefinite storage of the entire DNA sample … creates some concern that the samples could be misused at some point in the future to search for and disclose private genetic information” [emphasis added]).20 See also Horsemen’s Benevolent & Protective Assn. v. State Racing Commn., 403 Mass. at 700 (discussing sensitive information discoverable through urinalysis); Commonwealth v. Cabral, 69 Mass. App. Ct. at 72, and cases cited. Amato has pleaded that the defendants continue to hold this highly sensitive information beyond the scope of the limited consent he gave at the time he provided the sample. Contrast O’Connor v. Police Commr. of Boston, 408 Mass. 324, 329-331, 557 N.E.2d 1146 (1990). Amato has also pleaded that the defendants’ retention of up to 200 DNA profiles constitutes a shadow DNA database, with its constituent records available for disclosure by comparison in other criminal investigations.

The allegations that the defendants have retained Amato’s highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato’s privacy. These allegations therefore suffice to state a G. L. c. 214, § 1B, claim.