Post details: D.Md.: Cold case hit of DNA from a shooting victim 9 years ago was unreasonable seizure, but exclusionary rule not applied


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D.Md.: Cold case hit of DNA from a shooting victim 9 years ago was unreasonable seizure, but exclusionary rule not applied

Defendant was the subject of a cold case hit on his DNA after his DNA was taken years earlier after he showed up at an ER with a gunshot wound and the ER called the police. They arrived and seized defendant's clothing which was later subjected to DNA testing. The seizure of the clothing was permissible under plain view but not inevitable discovery or implied consent. "[U]nder the totality of the circumstances, the Court finds that the extraction of Davis' DNA profile for comparison with the evidentiary sample from the Neal murder was reasonable. The compelling government interest in potentially identifying the perpetrator in an ongoing homicide investigation outweighs the somewhat diminished privacy interests in his DNA that Davis retained. Therefore, the extraction of Davis' DNA from his clothing was a lawful search under the Fourth Amendment." It was a violation of his privacy interest in putting his DNA profile in CODIS where he was a victim. United States v. Davis, 657 F. Supp. 2d 630 (D. Md. 2009):

c) Conclusion As To Placement of Davis' Profile In Database

The above analysis demonstrates that there are significant privacy interests implicated by the maintenance of one's DNA profile in a government database, above and beyond those implicated by the testing and comparison of one's DNA profile to evidence from a single, specific crime. Were law enforcement permitted to include individuals' DNA profiles in searchable databases under these circumstances, it would open "a backdoor to population-wide data banking." Joh, Reclaiming "Abandoned" DNA at 874. If the Fourth Amendment imposes no restrictions on the indefinite retention of DNA profiles developed from "abandoned" DNA or DNA lawfully in police possession for another purpose, then "the means by which total population DNA data banking might be achieved have arrived without general public awareness and thus without discussion of how it might be regulated against abuse." Id. at 884.

Although we may eventually retain DNA profiles as routinely as we retain fingerprints today, the Court does not believe that day has yet arrived:

Since investigators should not treat ordinary private citizens like criminals, the analysis should differ and courts should consider additional factors. Similar to the case of convicted criminals, obtaining the DNA of ordinary citizens through covert methods is not overly invasive. Unlike convicted criminals, however, an ordinary citizen, solely by virtue of police suspicion, does not have an increased tendency to commit crimes. If the covertly obtained DNA profile of an ordinary citizen is included in a database, authorities have the capabilities to identify a near hit, which might indicate that he or she is a close relative to the perpetrator of a crime. Furthermore, DNA has the potential to reveal a wide range of personal information, including physical characteristics, medical information (such as susceptibility to disease), ancestral and familial information. Practically speaking, police could not obtain these kinds of private information without a search warrant or without first having gained the trust and confidence of the individual.

Matejik, DNA Sampling at 85.

However, it was a close question, and the court declines to apply the exclusionary rule to the DNA.

D. Application of the Exclusionary Rule Is Not Appropriate In This Case

. . .

In this case, the only constitutional violation occurred when Prince George's County homicide detectives, after comparing Davis' DNA profile with the sample from the Neal homicide, retained Davis' profile in the local CODIS database. As the length and intricacy of this Court's analysis of that decision should indicate, whatever error existed was hardly flagrant. Given precedents such as Edwards, the officers most likely believed that Davis had no significant privacy interest in his clothing because it was lawfully within police custody. Then, once the profile existed, the officers placed it within the database for use in any potential future investigations; it is certainly counterintuitive that information, once gained by police, should not be retained. However, in the unique discipline of DNA analysis, as the Court's analysis above demonstrates, this is what the Fourth Amendment requires. Nonetheless, the placement of Davis' profile in the database can hardly be called reckless, flagrant, or systematic, and is negligent at worst.

The actions of the officers investigating the Schwindler murder are even less culpable. When those officers realized that the culprits in the Schwindler robbery/murder had left DNA evidence behind, detectives simply utilized an investigative resource that was available to them. They ran a comparison of the crime scene evidence against the profiles contained in the local CODIS database and came up with a "hit." This is precisely why such databases were created--to assist in solving crimes where more traditional investigative techniques may not be successful. The detectives investigating the Schwindler murder had no knowledge of the circumstances under which Davis' DNA came to be included in the database, nor were they under any obligation to make inquiries about them. Officers are entitled to rely upon the presumptive legality of any DNA profile contained within their database. Therefore, as to these detectives, there is no behavior that needs to be deterred by application of the exclusionary rule.

As for the officers who placed Davis' profile in the database, the Court finds that excluding the DNA evidence in this case would result in only marginal deterrence, if any. First of all, the relative rarity of the factual scenario presented here--a former victim's DNA already being in police custody when that victim later becomes a suspect--does not create a great need to deter similar actions in the future. Errors that arise from "nonrecurring and attenuated negligence [are] far removed from the core concerns that led us to adopt the [exclusionary] rule in the first place." Herring, 129 S. Ct. at 702. Furthermore, the good faith rule does not require that exclusion of the evidence have no deterrent effect whatsoever. As the Court noted in Herring, "we do not suggest that the exclusion of this evidence could have no deterrent effect. But our cases require any deterrence to 'be weighed against the substantial social costs exacted by the exclusionary rule,' and here exclusion is not worth the cost." Id. at 702 n.4 (quoting Illinois v. Krull, 480 U.S. at 352-353 (internal quotation and citations omitted)) (emphasis added).

This Court reaches the same conclusion in the instant case. Any deterrent effect that could be achieved by application of the exclusionary rule in this case would be vastly outweighed by the costs that would be incurred by suppression of the powerfully inculpatory and reliable DNA evidence. The marginal deterrence that might be achieved by suppression of the evidence in this case -- potentially preventing police from placing DNA profiles obtained from those with undiminished privacy expectations in their genetic information (already a rare occurrence) into law enforcement databases -- simply cannot justify keeping the DNA evidence from the jury and disrupting the truth-seeking function of a criminal trial.


The seizure, nine years ago, of Defendant's blood-stained clothing, the later extraction of DNA therefrom, and the entry of his DNA profile into the local CODIS database has generated a host of interesting and novel legal issues that have now been addressed and resolved. Ultimately, any Fourth Amendment violations were, at worst, close calls over which many reasonable minds could differ. There was certainly no blatant or flagrant police action in deliberate disregard of the Defendant's rights that would warrant the remedy of suppression.

This is a fascinating and important case on all the issues. The discussion of Davis's privacy interest in his DNA from the police just scarfing it up and putting it in CODIS for no apparent reason is valuable. Read this case if you can; the court posted it on its website. It is 101 pages long.


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