{"id":7599,"date":"2012-10-02T14:36:06","date_gmt":"2012-08-18T08:31:12","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-08-18T08:31:12","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7599","title":{"rendered":"CA4: DNA testing of blood clothing from a murder suspect was a Fourth Amendment violation but was in good faith"},"content":{"rendered":"

This was a armored car robbery with the killing of the guard and a car jacking to escape. Defendant was wounded and ended up in the hospital. A police officer was with him and saw his clothing in a bag under his bed. The seizure of the bag was not unreasonable. Defendant was considered a shooting victim until the police knew more. The DNA testing of the clothing, however, was unreasonable because DNA testing is a significant invasion of privacy. Because the police were all operating in good faith reliance on a statute that says that DNA is retained, the good faith exception applies to the testing of the DNA. United States v. Davis<\/a>, 690 F.3d 226 (4th Cir. 2012) (2-1) [this is a thoughtful and educational opinion]:<\/p>\n

Nevertheless, we are persuaded by the Supreme Court’s analysis in Skinner, as applied in Mitchell and other cases in the context of DNA, that the extraction of DNA and the creation of a DNA profile result in a sufficiently separate invasion of privacy that such acts must be considered a separate search under the Fourth Amendment even when there is no issue concerning the collection of the DNA sample. See Mitchell, 652 F.3d at 407 (citing United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir. 2005) (citing Skinner, 489 U.S. at 616)).<\/p>\n

Based on the foregoing, we conclude that the holding in Edwards does not give a law enforcement agency carte blanche to perform DNA extraction and analysis derived from clothing lawfully obtained from the victim of a crime in relation to the investigation of other crimes. Instead, a victim retains a privacy interest in his or her DNA material, even if it is lawfully in police custody. Therefore, we conclude that the extraction of Davis’ DNA sample from his clothing and the creation of his DNA profile constituted a search for Fourth Amendment purposes.<\/p>\n

We turn to consider whether a separate search occurred when the PGCPD retained Davis’ DNA profile in the local CODIS database after the profile did not implicate him in the Neal murder. Our sister circuits do not appear to be uniformly settled on the question whether such entry of a DNA profile into this type of database is a search entitled to Fourth Amendment protection. Compare, e.g., Boroian v. Mueller, 616 F.3d 60, 67-68 (1st Cir. 2010) (concluding that the retention and later matching of a lawfully obtained DNA profile is not a search for Fourth Amendment purposes and collecting authority for the same) with United States v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007) (in addition to the collection of the DNA sample from a probationer, determining that “[t]here is … a second and potentially much more serious invasion of privacy occasioned by the DNA Act” because the “analysis and maintenance of [offenders’] information in CODIS … is, in itself, a significant intrusion”) (citation omitted) and Kincade, 379 F.3d at 841-42 (en banc) (Gould, J., concurring) (suggesting the retention of a lawfully obtained DNA profile once a person has “fully paid his or her debt to society” and “left the penal system” would implicate the person’s privacy interest).<\/p>\n

These differing conclusions illustrate the fact that at least some courts have concluded that once a DNA profile has been lawfully obtained and entered into CODIS, the retention of that profile and “periodic matching of the profile against other profiles in CODIS for the purpose of identification[,]” is not a search because it does not intrude upon an offender’s legitimate expectation of privacy. Boroian, 616 F.3d at 67-68 (so holding and citing other authority for the same). Other courts, at least in principle, have left open the possibility that an unrelated examination after DNA retention could be a separate search for Fourth Amendment purposes. See, e.g., Amerson, 483 F.3d at 85 n.12.<\/p>\n

. . .<\/p>\n

We need not choose among these competing principles in this case because, as discussed in the next section, we conclude that the extraction and initial testing of Davis’ profile was an unreasonable Fourth Amendment search. Accordingly, for purposes of this opinion, we will assume, without deciding, that Davis had a continuing right of privacy in his DNA profile, and that a search occurred in the retention of that profile. We now turn to consider the issue whether the two searches were reasonable.<\/p>\n

. . .<\/p>\n

In balancing these competing interests to determine the reasonableness of the searches at issue, we are guided by the weighty reasons underlying the warrant requirement: to allow a detached judicial officer to decide “[w]hen the right of privacy must reasonably yield to the right of search,” and not “a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 13-14 (1948) (quoted in Davis, 657 F. Supp. 2d at 653.) The right protected is “a right of personal security against arbitrary intrusions by official power.” Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). The importance of the judge or magistrate in the process is why the exceptions to the warrant requirement are “jealously and carefully drawn.” Id.<\/p>\n

. . .<\/p>\n

In short, the obtaining and testing of Davis’ DNA from his bloody clothing, and the subsequent inclusion of his DNA profile in the database were, at best, “isolated negligence attenuated from the arrest” [for the Schwindler murder]. See Herring, 555 U.S. at 137. We have no proof before us showing that victims’ DNA profiles or individuals cleared of suspicion in an investigation are routinely entered into the local database by PGCPD, or have been entered into the database in any other instance. There is nothing in the record to suggest that the acts here are likely to reoccur. Moreover, the particularly unusual facts of this case\u2014where a victim, with a dual status as an arrestee, later becomes a suspect in an unrelated crime, and there is DNA evidence available as a result of the crime in which the person was a victim\u2014diminish further the likelihood of reoccurrence. The price to society of application of the exclusionary rule here, especially since the DNA evidence against Davis was compelling, would be to allow a person convicted of a deliberate murder to go free. The deterrent effect, if any, would be minimal, especially considering the lack of culpable conduct on the part of the police. Exclusion, therefore, would not “pay its way.” See Davis, 131 S. Ct. at 2428.<\/p>\n

For the foregoing reasons, the good faith exception to the exclusionary rule applies and we affirm the district court’s denial of Davis’ motion to suppress.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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