For probable cause to seek DNA from defendant to link him to clothing worn in a crime, the police don’t need DNA to start. The officer’s experience here that DNA has been found in the past with clothing is not enough to attempt to link him to a firearm. There was no comparable experience with firearms. They already had fingerprint evidence linking defendant to the crime. State v. Lovett, 2020 Del. Super. LEXIS 2817 (Oct. 2, 2020):
In White, the Court found that the affidavit, containing information regarding the affiant’s experience finding DNA on objects worn by perpetrators during the commission of crimes, supported a finding of probable cause. In that case, not only did the affidavit provide information regarding the affiant’s experience in finding DNA, but it stated that the police had already matched the fingerprints on a dirt bike mask with those of the defendant. The Court found that, because there was a “fair probability” that DNA would be recovered from the dirt bike mask based on the “totality of the circumstances,” particularly given that “under common and ordinary understanding, [a dirt bike mask] is a tightfitting article of headgear that would be more likely to retain hair or other DNA,” the warrant for the defendant’s DNA established a sufficient nexus and was supported by probable cause.
Most analogous to the case before the Court is Bell. In that decision, the Court found, as it does here, that a firearm with which the police sought to compare Defendant’s DNA evidence “would not necessarily be considered likely, under common and ordinary understanding, to retain materials containing DNA evidence, as would, for example, a dirt bike mask or other tight-fitting clothing.”
In this case, the affidavit stated, “Affiant believes there is sufficient reason to believe that DNA belonging to [Defendant] will be present on the … firearm and/or ammunition in question as it is likely he would have had physical contact with it.” Nowhere in the affidavit does it state that the affiant had training, education, or experience in the collection, analysis, or presence of DNA evidence either at crime scenes generally, or on the specific types of items seized from this crime scene, to support the assertion that Defendant’s DNA would be found on the gun and/or ammunition. Furthermore, as distinguished from White and consistent with this Court’s holding in Bell, the specific types of items to which the police wished to compare Defendant’s DNA evidence – firearms and/or ammunition – would not be considered likely to retain materials containing DNA evidence.
Given the totality of the circumstances, including the failure to describe the likelihood of recovering DNA from the evidence seized versus merely speculating that there was “reason to believe” Defendant’s DNA would be found on the gun and/or ammunition, this Court finds that the affidavit in question fails to establish a sufficient nexus between Defendant’s DNA and evidence of a crime. Therefore, the warrant for Defendant’s DNA was not supported by probable cause.
No discussion here of good faith exception.