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Fourth Amendment DNA Cases

 

 

Recently there have been Fourth Amendment challenges to the methods that law enforcement officers have used to obtain DNA samples from suspects without a warrant. Cases addressing those issues are listed below:

  1. Commonwealth v. Rice, Supreme of Massachusetts, 3/24/04. While in custody on an unrelated charge, the defendant’s bed sheets, inmate uniform and T-shirt were secured during the ordinary course of collecting standard-issue bed sheets and inmate uniforms for periodic laundering. The items were seized and DNA tested - the DNA matched DNA from the homicide. The court found that the defendant did not establish that the items were seized during a search and that he failed to show that he had a subjective expectation of privacy in the items seized. Rice.PDF
  2. People v. Ayler, Supreme Court, Kings County, New York, No. 3217/2003, 9/22/04. During an interview with police, the defendant asked for a cigarette. He was given cigarettes and smoked three leaving the butts in an ashtray in the interview room. Police emptied the contents of the ashtray and sent them to a lab for DNA testing. DNA from the cigarettes matched DNA from the rape. The court found that the defendant had no reasonable expectation of privacy regarding the cigarette butts and was, therefore, not deprived of his rights against unreasonable searches and seizures. Alyers.PDF
  3. State v. Christian, Court of Appeals of Iowa, No. 04-0900 8/23/06. An undercover police officer sat in while the defendant was interviewed for a volunteer position. The officer provided him a bottle of water and a fork to eat a piece of cake. The defendant left these items and, after the interview, they were collected and DNA tested. The DNA from the bottle and the fork matched DNA from the sexual assault. The court found that the defendant had abandoned the bottle and fork and, therefore, had no reasonable expectation of privacy in either item. Christian.PDF
  4. Commonwealth v. Ewing, Appeals Court of Massachusetts, Barnstable, No. 05-P-442, 10/6/06, Further Appellate Review Granted 11/30/06. While being interviewed, the defendant was provided a soft drink and a straw, and he smoked three cigarettes provided by the police. Once the defendant left the room, detectives seized the straw and the cigarette butts and submitted them for DNA testing. The DNA recovered from one of the cigarette butts matched the DNA from the rape. The court ruled that the defendant had no expectation of privacy in items that he voluntarily abandoned as trash and, given the circumstances, if this was a ruse by the police, it was proper. Ewing.PDF
  5. State v. Reed, North Carolina Court of Appeals, NO. COA06-4006, 3/6/07. The defendant flicked a cigarette butt onto his patio during an interview with detectives. One of the detectives kicked the butt off of the patio and into the grassy common area, and later recovered it. DNA from the cigarette butt matched DNA from the victim’s shirt. The court ruled that the defendant had a reasonable expectation of privacy on his patio, thus this was an unconstitutional search and seizure. Reed.PDF
  6. Commonwealth v. Bly, Supreme Court of Massachusetts, 3/7/07. Detectives met with the defendant in a jail. During the meeting the defendant smoked three cigarettes and drank from a water bottle. The cigarette butts and the bottle were collected for DNA testing and compared with DNA found at the crime scene. The cigarette butts and the bottle were taken from the meeting room a half an hour after the meeting ended. The court concluded that the defendant had no subjective expectation of privacy in these items as no search or seizure occurred. Bly.PDF
  7. State v. Athan, Supreme Court of Washington, 5/10/07. Detectives, posing as a fictitious law firm, sent the defendant a letter inviting him to join a fictitious class action lawsuit. The defendant’s DNA profile was obtained from the return envelope and compared to a DNA sample from the crime scene. The court held that, under these circumstances, any privacy interest was lost. The envelope, and any saliva contained on it, became the property of the recipient. Athan.PDF
  8. Commonwealth v. Cabral, Appeals Court of Massachusetts, No. 06-P-987, 5/16/07. The defendant spat on a public sidewalk, a private detective collected the spittle and it was sent to a laboratory for DNA testing. The court concluded that the expectorating defendant had no reasonable expectation of privacy for his spittle, nor the DNA evidence derived therefrom. Cabral.PDF
  9. State v. Homz, Wisconsin Court of Appeals, No. 2006AP2337-CR, 12/12/07. The victim’s mother gave police a bed sheet from her home upon which she and the defendant had had sex. DNA from semen found on the sheet matched DNA from semen found on underwear and swabs taken from the victim. The court found that the mother was not a State agent for purposes of the Fourth Amendment and that, even if the Fourth Amendment applied to this circumstance, a warrantless seizure of property whose owner has abandoned it does not violate the Fourth Amendment. Homz.PDF
  10. Piro v. State, Court of Appeals of Idaho, Docket No. 33409, 4-25-08, the defendant argued he had a reasonable expectation of privacy a water bottle he left in an interrogation room and the court disagreed. He also maintained that, even if the police were allowed to gather the water bottle, they were not permitted to DNA test it without securing a warrant because he retained a reasonable expectation of privacy in his genetic identity. The court found this novel argument had no support in the existing law. Piro1.PDF
  11. People v. Laudenberg, California Court of Appeals, 2nd Appellate District, No. B199633, 7/23/08. In order to obtain a DNA sample from defendant, the detective arranged a meeting with him at a donut shop to discuss a pretext auto theft investigation. After their conversation, the defendant indicated he was leaving and walked toward the exit. The detective took defendant’s used napkin and cup. A DNA sample from the cup linked defendant to a murder. The court found that the defendant abandoned the cup and therefore the warrantless seizure of the property did not violate the Fourth Amendment. Laudenberg.PDF
  12. Montana v. Madplume, Montana Supreme Court, No. 05-693, 150 P. 3d 956 (2007), Officers in a sexual assault investigation swabbed defendant’s hands and fingers for DNA evidence from the victim without a warrant. The court found the evidence sought in the case was not the defendant’s DNA which would always be available, but rather the DNA of the victim which might have been easily destroyed. Thus there existed exigent circumstances to justify the warrantless search for DNA and there was no violation of the Fourth Amendment. Madplume.PDF
  13. People v. Bradshaw, Supreme Court of Colorado, No. 06SA366, 4-9-07, the court reversed the suppression of swabs for DNA because they were not collected in violation of the Fourth or Fifth Amendment, but instead merely followed a Miranda violation, so the fruit of the poisonous tree doctrine was inapplicable. Bradshaw.PDF
  14. Pharr v. Commonwealth, Court of Appeals of Virginia, No. 1744-05-4, 6-26-07, when an individual voluntarily provides, without express limitation on its use, a DNA sample he does not retain a reasonable expectation of privacy in that DNA sample sufficient to prevent the use of it in another unrelated investigation. Pharr.PDF
  15. Commonwealth v. Perkins, Supreme Judicial Court of Massachusetts, SJC-08448, 3-20-08, during the course of an interview at Department of Corrections, the defendant smoked two cigarettes and drank a can of soda investigators gave him. The institution had no regulation prohibiting inmates from taking cigarettes from the interview room, including cigarette butts. However, the soda can could not have been removed by the defendant, as it would have been considered contraband. The court found that the defendant abandoned the cigarette butts, and that he never had a reasonable expectation of privacy in the soda can. The court also found that there was no inducement in exchange for the defendant's abandonment of the items.
    Perkins.PDF
  16. State v. Galloway and Hoesly, Court of Appeals of Oregon, 01-1195, C 0206-33361, A118599 (Control), A118600, A120107, (Cases Consolidated) 01-1199, 3-30-05, defendants placed their garbage inside garbage cans and placed those cans in locations clearly connected with their residences pursuant to agreements with garbage collection companies with whom they had contracted for removal of the bags of garbage. Under those circumstances, the police infringed on defendants' Article I, section 9, possessory interests in their garbage cans and in the contents of those cans. Accordingly, suppression of DNA tests performed on items found in the garbage was proper. Hosley.PDF
  17. State v. Foreman, Supreme Court of Connecticut, SC 17697, 9/16/08, where the defendant claimed that his consent to give a DNA sample was not voluntary because the detectives never informed him about why they wanted the sample, the court found a mere failure to state the purpose for the sample did not render the defendant's consent involuntary. Foreman.PDF
  18. Garcia-Torres v. State, Indiana Court of Appeals, No. 64A03-0812-CR-630, 9/30/09, taking cheek swabs for a DNA sample is minimally invasive requiring only a reasonable suspicion and may therefore be conducted without a warrant. Torres.PDF
  19. State v. Hauge, 103 Hawai‘i 38, 79 P.3d 131, 141-42 (2003) - the defendant's privacy interest in the blood sample used for DNA analysis and comparison in a burglary case terminated when that sample was lawfully obtained from him through a warrant in an unrelated robbery case. Hague.pdf
  20. Wilson v. State, 132 Md.App. 510, 752 A.2d 1250, 1272 (2000), DNA analysis of the defendant's biological sample did not violate his Fourth Amendment rights because any expectation of privacy he had in that sample “disappeared” when it was validly obtained pursuant to a warrant in an earlier, unrelated case. Wilson.pdf
  21. People v. Collins, Colorado Court of Appeals, 06CA1235, 2/18/10, the defendant’s valid consent to the taking of a DNA sample was not rendered involuntary because he was not told that the result would be placed in a DNA database and might be used for other investigations. Collins.pdf
  22. Williamson v. Maryland, Court of Appeals of Maryland, No. 61, 4/22/10, obtaining abandoned cup used by detainee in holding cell not violative of the Fourth Amendment and testing and uploading of DNA obtained from cup not violative of Maryland DNA Collection Act, nor was the statement to police resulting from arrest warrant based on DNA results. Williamson.pdf
  23. People. v. Gallego, California Court of Appeals, CA3, C061749A,11/22/10, a reasonable expectation of privacy did not arise in the DNA test of the cigarette butt that the defendant abandoned on the street, and consequently neither did a search for Fourth Amendment purposes. Gallego.pdf
  24. Friedman v. Boucher, U.S. Court of Appeals, Ninth Circuit, No. 05-15675 No. CV-04-00286-JCM, June 23, 2009, extracting a DNA sample from a detainee without a warrant, court order, reasonable suspicion, or concern about facility security is a violation of the detainee’s clearly established rights under the Fourth Amendment. Friedman.pdf
  25. Raynor v. Maryland, Court of Special Appeals of Maryland, No. 1629, 2011, the defendant could not demonstrate a subjective expectation of privacy in his DNA profile which he left on a chair at police headquarters. During a police interrogation the defendant was wearing a short-sleeved shirt and kept rubbing his arms on the armrests of the chair he was seated in. After the defendant left the station, the armrests of the chair were swabbed. A DNA profile was developed from these swabs that matched a DNA profile from the crime scene. Raynor.pdf
  26. People v. Thomas, California Court of Appeals, 2nd Appellate District, Division 4, B228049, 8/28/11, testing DNA left on a PAS breath test conducted during a DUI was not a violation of the 4th Amendment. Thomas.pdf
  27. US v. Davis, United States CA for the 4th Circuit, 09-4890, 8/16/2012, there was a Fourth Amendment violation in the extraction and testing of a victim’s DNA profile from an item the police properly obtained but suppression was not the proper remedy because the "good faith" exception to the exclusionary rule was applicable. Davis2.pdf
  28. State v. Emerson, Supreme Court of Ohio, Slip Opinion No. 2012-Ohio-5047, 11/1/12, the defendant had no reasonable expectation of privacy in his DNA profile extracted from a lawfully obtained DNA sample in a case where he was later acquitted, and he lacked standing to object to its use in a subsequent criminal investigation. Under these circumstances, the state is not prohibited from retaining in CODIS the defendant’s DNA profile and using it in a subsequent criminal investigation. Emerson.pdf
  29. Varriale v. Maryland, Court of Special Appeals No. 1261 September Term, 2013: The use of a buccal swab inside a person’s cheek to obtain DNA samples for testing is a search. Generally, a DNA sample may be obtained from an individual for testing by consent, pursuant to a warrant, or other court order. If a person’s DNA profile created from a DNA sample is in the lawful possession of the police for examination by consent and does not exceed the scope of the consent given to conduct the search, there is no Fourth Amendment violation. Moreover, the subsequent examination and use of the DNA in an unrelated investigation is not a search. Here, the defendant did not expressly limit the testing and/or use of his DNA. Any legitimate expectation of privacy that Varriale had in the identifying information contained in his DNA obtained from his cheek cells and penile area evaporated when his DNA was lawfully seized; it did not reappear when law enforcement officers compared his DNA sample to other samples and obtained a match. Varriale.pdf
  30. People v. Lancaster, Colorado Court of Appeals, No. 12CA0791, 2015COA93, 7/16/15 (unpublished opinion): there was no constitutional violation in taking a DNA sample for Lancaster when he was in custody, he was under the supervision of the probation department when the first sample was taken, and the intrusion into his privacy resulting from the buccal swabs was minimal and akin to booking procedures like the fingerprinting and photographing of a suspect. Lancaster.pdf