OH11: Search warrant for victim’s DNA in def’s apartment was speculative and overbroad

Officers obtained a search warrant for the victim’s DNA in defendant’s apartment, even though there was no showing that the victim had ever been there. A search warrant for DNA in premises is overbroad. In addition, officers read a journal under the guise of looking for the victim’s DNA in it. State v. Armstrong, 2013 Ohio 2618, 993 N.E.2d 836 (11th Dist. 2013):

[*P25] At the outset, we recognize that, although it has not been addressed by the parties, the search warrant is so broadly stated that it is virtually limitless. It authorizes a search for a key to the victim’s apartment and also for biological evidence/DNA. The search warrant does not specify whose DNA, but it must be assumed it is the DNA of the victim, because the officers had previously taken appellant’s DNA sample. There is, however, no indication why the officers had probable cause to believe the victim’s DNA was in appellant’s apartment; the only reference to blood was that appellant’s DNA was found on the broken knife in the victim’s apartment. The search for the victim’s DNA in appellant’s apartment appears strikingly overbroad. It is fairly common knowledge that DNA is prevalent; it is microscopic. This broad permission, without any stated probable cause that would lead one to believe some particular bit of DNA was present, may have given the officers impermissibly broad authority to conduct this search. If the search was intended to seek blood, it should have simply been limited to that specific type of DNA.

[*P26] There can be few things more private, and therefore more protected from unwarranted intrusion, than one’s private notebook. According to the testimony at the suppression hearing, the notebook may have been a place to hide a key and/or it may have plausibly contained DNA evidence. The testimony, however, reveals no justification to believe the victim’s DNA was inside the notebook or, specifically, what type of DNA the notebook may have contained. Further, even if the notebook was a place to conceal a key, it does not warrant a page-by-page perusal of the book. Additionally, the testimony at the suppression hearing reveals that Detective DiJerome was not only searching for biological evidence or a key but “anything else that may be pertinent.” A search warrant should not give an officer carte blanche authority to search appellant’s apartment. The items to be located and seized pursuant to a search warrant must be identified with sufficient particularity.

[*P27] At the hearing, Officer Ennermoser testified that Detective DiJerome came across a “small notebook and he happene[d] to show me a page that has a writing in it[.]” Officer Ennermoser makes it clear she read the notebook because of the “interesting journal article”—not because of the search for DNA or a key, as stated in the warrant; she flipped the page and read the next entry of appellant’s notebook which was appellant’s confession.

. . .

[*P30] The seizure here was not contraband. It was evidence in the form of a writing that could have been attributed to appellant. This was not within the scope of the search warrant. The trial court, therefore, erred in overruling appellant’s motion to suppress the black memo notebook found in appellant’s apartment.