E.D.Wis: Faced with motion to suppress DNA evidence, govt can seek it again

The government obtained DNA and defendant moved to suppress. Then the government sought DNA by warrant again with a new warrant. It is permitted to do so. United States v. Watson, 2023 U.S. Dist. LEXIS 185148 (E.D. Wis. Oct. 16, 2023):

The independent source doctrine, along with the closely related inevitable discovery doctrine, are both intended to further the latter goal—to ensure that the prosecution is not put in a worse condition. Thus, under the independent source doctrine, “[w]hen the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Id. Under those circumstances, the evidence need not be excluded. Id. (“The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.”). Likewise, under the inevitable discovery doctrine, “[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.” Id. at 444.

Neither doctrine supports Watson’s contention that the government should be barred from using lawful means to obtain his DNA on the facts of this case. The fact that DNA evidence is permanent and unchanging is irrelevant. So, too, is the fact that the government’s decision to obtain a new sample of Watson’s DNA is prompted by Watson’s motion to suppress. The only relevant questions are whether the materiality of the evidence was obvious, wholly aside from the unlawful police misconduct, and whether the government can lawfully obtain it. A criminal trial is not a game with arbitrary rules to determine winners and losers. It is a search for the truth governed by rules that are intended as much as possible to achieve that result, while at the same time minimizing the risk of convicting the innocent. If, as the government suggests, it will be able to lawfully obtain a new sample of Watson’s DNA without relying upon evidence that is tainted by or derived from any illegal police conduct, there is nothing to prevent it from doing so. Indeed, it would “reject logic, experience and common sense” to deprive a jury or other factfinder of key evidence, lawfully obtained and not derived from any police misconduct, concerning the question of whether Watson’s DNA was found on the firearms he is charged with possessing.

See also:

On post-conviction, defendant can’t show prejudice over a search claim that a DNA swab was erroneously taken where the state could do it again and cure any error. Ford v. State, 2023 Tenn. Crim. App. LEXIS 412 (Oct. 17, 2023).