Rule 41(b) and the Fourth Amendment permit search warrants for DNA evidence from a witness or a victim to a crime.

 In re Grand Jury Witness G.B. (decided May 26, 2016).

Players: Associate Judges Easterly and Thompson, Senior Judge Nebeker. Opinion by Thompson. Concurrence by Nebeker. Trial Judge: Melvin Wright. Murad Hussain and Mary Kennedy for G.B.

Facts: Appellant, G.B. was a witness and victim to a stabbing. Police officers spoke to G.B. at the hospital and he told them the stabbing occurred at his apartment, that he knew he did it, but that he did not “want to do anything about being stabbed.” Police went to the apartment and saw blood on the floor and on a doormat. A witness told police he saw the incident and provided the name of the person he saw do the stabbing. Police found blood inside that person’s rental vehicle. The government then sought an indictment and asked G.B. to give a saliva sample to test for DNA. G.B. declined, so the government obtained a search warrant to take the sample by the buccal swab method to see if it matched the blood inside the vehicle. 

G.B. filed a motion to quash the warrant, emphasizing that his status as a victim made the warrant invalid. Judge Wright denied the motion but by that time the warrant had expired. The government indicated it would seek another warrant and G.B. said he would file a motion to quash any search warrant for his DNA. Judge Wright again denied the motion but ruled that the DNA sample would be restricted to use in this case only. G.B. noted this appeal to challenge that ruling and the government agreed not to seek a new warrant until the Court of Appeals decided the case. 

Issue:  Can an investigative search warrant issue to forcibly take the DNA of a witness who is not suspected of participating in the crime for which the DNA is sought?

Holding: Yes. First, the Court ruled that Super. Ct. Crim. R. 41(b) does provide a basis for the issuance of the warrant in this case. The Rule sets out the requirements for when a warrant may be issued and the Court ruled that G.B.’s DNA evidence constituted “evidence of the commission of a criminal offense,” within the meaning of 41(b)(1). The Court disagreed with G.B. that his DNA was “simply evidence that might lead to other evidence.” A warrant can issue under this provision if its collection “will aid in a particular apprehension or conviction.” Here, if the DNA is a match it would “aid” in a possible conviction and that is sufficient to meet the rule’s requirement. The Court also disagreed with G.B. that Rule 41 only authorizes the search of property and not the seizure of the person, which would be needed to take his DNA sample.  The Court, relying on Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), stated that “notwithstanding privacy expectations with respect to the human body, it is not always necessary to justify independently the momentary seizure of a person that occurs when the government takes samples of the person’s bodily fluids.” Also, even if taking of the sample required a “seizure,” it does not require independent justification because it is merely “incidental to the search authorized by the search warrant,” and the Fourth Amendment permits such seizures. See Michigan v. Summers, 452 U.S. 692, 696 (1981).

Next, the Court disagreed with G.B.’s argument that because he was just a witness there was not sufficient “probable cause of his guilt” to justify the issuance of the warrant. The Court said the probable cause needed for a search warrant only requires probable cause to “believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense.” There is no requirement that the evidence sought must be used against the person it is being sought from. “Nothing on the face of the [Fourth] Amendment suggests that a third-party search warrant should not normally issue[,] and “it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of a crime and is subject to arrest[.]”

Lastly, the Court ruled that the proposed search would be reasonable. The Court said there was probable cause to believe that the “things” to be searched for – the DNA – would be located on the property for which entry is sought and this search was not premised on obtaining evidence by “mere chance.” Also, it is reasonable to conclude that evidence relevant to the suspect’s guilt will be found. The government had obtained blood from the suspect’s rental vehicle and, based on statements from the witness, had reason to believe G.B.’s blood would be found inside the car. And, the Court ruled the search here – taking a swab from the inside of G.B.’s cheek – would be performed in a reasonable manner. The procedure involves “no risk, trauma, or pai[n].” And the procedure is quick and can be conducted “virtually anywhere” with “a minimum of inconvenience or embarrassment.” Another factor supporting the reasonableness of the search is the seriousness of the crime and that there are not less intrusive means of obtaining the evidence. And finally, the Court ruled the search was reasonable because Judge Wright had ordered that the sample only be used in this case and the order “prohibits” entering G.B.’s DNA into any database and requires the government to destroy any remaining DNA from G.B.’s sample at the conclusion of the instant case. 

Of Note:

• Judge Nebeker filed a concurring opinion where he agreed with the entirety of the Court’s ruling with the exception that he did not believe that Judge Wright’s order to limit the collection of G.B.’s DNA to this case should be a factor in the reasonableness determination. “Destroying the evidence does not make the search any more or less at the time it occurred or make the manner performed any more or less reasonable.” In relying on that factor, the majority pointed to language in Maryland v. King, 133 S. Ct. 1958, 1980 (2013), which found a statute subjecting those in custody for serious offenses to a buccal swab to collect DNA reasonable, in part, because the statute limited the purpose of the evidence to be collected to “identification only.”

• Judge Nebeker did not believe that the King opinion factored into its decision “whether limitations on future use of DNA evidence for identification purposes was a factor in determining the reasonableness” of the search. He wrote that the Supreme Court mentioned the limitation only as support for why the search itself would not subject the person to a further intrusion of privacy other than providing identification information, as compared to a more invasive search that would provide information such as genetic traits.  Because of that, he concluded it was “unnecessary” for the majority to rely on that factor in its analysis. Also, he wrote that preserving the evidence had “additional salutary effects” for its potential to exonerate those “wrongly convicted of crimes or even identifying human remains.” He wrote that to any extent a witness’s DNA sample should be destroyed, it should not be done by a court’s order but left to the legislature to make that determination on public policy grounds. BM

Read full opinion here.