Familial DNA Matching
One of the big headlines recently was the arrest of James Joseph DeAngelo, an alleged rapist and murderer. Dubbed the Golden State Killer and the East Area Rapist, DeAngelo terrorized citizens in several California communities during a ten-year period. He is connected to more than a dozen murders, 50 rapes, and numerous burglaries. (Time, April 2018)
Another aspect of DeAngelo’s arrest making headlines is how DeAngelo was eventually connected to the crimes after eluding multiple law enforcement agencies for more than 40 years. After reopening the investigation into the decades old crimes in 2016, Steve Grippi, chief deputy district attorney for Sacramento County, said “detectives narrowed their search by using genetic information available through commercial genealogy websites furnishing personal family histories to consumers who send DNA samples in for analysis.” Police obtained a discarded DNA sample from DeAngelo once he became the focus of their investigation. (Time, April 2018)
Your Privacy and Discarded DNA
The expectation of privacy isn't absolute, but it must be reasonable. The Fourth Amendment to the U.S. Constitution protects individuals against the unreasonable search and seizure of their houses, papers, persons, or effects. Generally, a search without a warrant is generally considered unreasonable, and therefore unconstitutional. However, The Supreme Court of the United States has ruled that there is no constitutionally-protected privacy right to discarded items. California v. Greenwood, 486 U.S. 35 (1988). The ruling originated from a case which involved trash left for pickup beyond the constitutionally-protected curtilage of a house or home. See also Katz v. United States, 389 U.S. 347 (1967).
Once something is discarded, you no longer have an expectation of privacy. It is legal when the biological sample is taken from items which have been voluntarily discarded, and the courts have found the collection of a DNA sample without the person’s knowledge legal. Discarded DNA can be obtained from, but not limited to, saliva, hair, cigarette butts, and chewing gum.
Discarded DNA: Case in Point
State of Washington v. John Nicholas Athan, 158 P.3d. 27 (Wash 2007).
Detectives in Seattle suspected John Athan of raping and murdering 13-year-old Kristen Sumstad in 1982; however, there was not enough physical evidence to link Athan to the murder. Almost 20 years later, police working the cold-case, and posing as a law firm, invited Athan to join a class-action suit by responding to the letter police sent to him. Athens responded, and the police tested the DNA sample left behind when Athan licked the envelope closed. The DNA was a match to the DNA left behind at the Sumstad crime scene. The court found that, "No recognized privacy interest exists in voluntarily discarded saliva…." The dissenting justices called the ruling "breathtaking in its sweep."
State of North Carolina v. Borders, N.C. App. 149 (2014).
Donald Borders was suspected of the rape and murder of an elderly Shelby woman. He repeatedly refused requests to provide his DNA sample. In response, detectives located a warrant for Border’s arrest in an unrelated matter and had another detective serve it on Borders. In an attempt to obtain a sample of Borders’ DNA, the detective offered Borders a cigarette and offered to discard the cigarette for Borders, which he consented to. The officer took the cigarette from Borders’ mouth, extinguished it, and placed it in an evidence bag. Borders’ DNA was a match to the DNA found at the crime scene. Borders was charged with, and convicted of, the rape and murder of the Shelby woman.
With regard to the discarded cigarette, Borders argued, at trial and on appeal, that the evidence of his DNA profile should be suppressed because he (1) did not willfully relinquish control of the cigarette butt to the officer; and (2) had a reasonable expectation of privacy in the cigarette butt and the DNA since he gave it to the officer within the curtilage of his home. The court of appeals ruled that the trial court properly denied Borders’ motion. The appellate court determined that the evidence supported the conclusion that Borders voluntarily accepted the officer’s offer to throw the cigarette away.
“The court determined that once Borders voluntarily turned over the cigarette butt to the officer, he no longer had a reasonable expectation of privacy as to that item, despite the fact that the two were standing in the carport. Had Borders spit the butt onto the ground, put it in a trash can that was not out for collection, or left it somewhere else in the curtilage of his home, the officer could not have lawfully seized it. However, once Borders, who was handcuffed and in the officer’s custody, permitted the butt to be placed in the officer’s hand, he no longer had a reasonable expectation of privacy in the item.”
Standard DNA vs. Familial DNA
Standard DNA testing is when an unknown DNA sample is compared against samples in a DNA database, such as the one maintained by the FBI, known as the Combined DNA Index System (CODIS). This differs from familial testing, which occurs when an unknown DNA sample exists, but it is not a match in an existing DNA database. The sample is then compared against a DNA database to search and identify potential relatives of the alleged perpetrator.
Familial testing lead to the arrest of Lonnie Franklin, Jr., also known as the Grim Sleeper serial killer (Los Angeles). Franklin’s DNA sample was obtained when an undercover police officer followed Franklin to a pizza place and collected his discarded plate, pizza, and utensils. Franklin’s DNA matched the DNA samples from the crime scenes. Franklin was convicted on multiple counts of murder for his 1985-2007 crime spree and sentenced to death in August 2016.
Controversary Over Familial DNA
Familial DNA matching is a relatively new investigative technique and highly controversial. The ACLU, legal scholars, and other civil liberty advocates have raised concerns over familial DNA matching. “This trend not only represents a grave threat to privacy and the 4th Amendment, but it also turns the legal notion that a person is innocent until proven guilty on its head.” (ACLU.org)
Maryland and the District of Columbia banned the practice of familial searching, pointing to concerns that such “genetic surveillance” would largely target people of color, who are disproportionately represented in DNA databases. (www.nbcnews.com/news/us-news/familial-dna-puts-elusive-killers-behind-bars)
Currently, North Carolina is not one of the 12 states which uses familial DNA matching to solve crimes.
If you have been charged with a crime you need a skilled defense attorney to help defend your case. Call Rosensteel Fleishman PLLC at (704) 714-1450 to discuss your options.