WEBVTT 1 00:00:00.120 --> 00:00:03.120 What's up everyone, and welcome back to the program. In 2 00:00:03.160 --> 00:00:05.919 this episode, we're getting right back to Judge Hipler's order 3 00:00:06.360 --> 00:00:11.519 on the genetic genealogy. Second in Marylyn VERUS King decided 4 00:00:11.599 --> 00:00:15.279 after Skinner, Riley, and Davis, the United States Supreme Court 5 00:00:15.640 --> 00:00:19.280 confirmed that the objective reasonableness of a privacy interest in 6 00:00:19.359 --> 00:00:23.000 DNA depends on how the DNA is actually used by 7 00:00:23.000 --> 00:00:26.719 the government, not what it is capable of revealing. Five 8 00:00:26.800 --> 00:00:30.839 sixty nine US four thirty five for sixty five twenty thirteen. 9 00:00:31.600 --> 00:00:34.640 At issue in King was a Maryland statute which permitted 10 00:00:34.880 --> 00:00:38.479 the warrantless acquisition of a buckle swab from an arrestee 11 00:00:38.520 --> 00:00:42.119 to obtain a DNA sample. Because the testing was for 12 00:00:42.240 --> 00:00:46.920 identification purposes, which is constitutionally permissible, and did not reveal 13 00:00:46.960 --> 00:00:50.359 genetic traits or private medical information, the Court found that 14 00:00:50.399 --> 00:00:54.719 it did not contravene and arrestees privacy in any way. Notably, 15 00:00:54.799 --> 00:00:59.079 the DNA testing in King was of the str alleles, which, 16 00:00:59.159 --> 00:01:01.600 unlike SNP time testing, are not known to have any 17 00:01:01.600 --> 00:01:07.079 association with genetic disease or any other genetic disposition. However, 18 00:01:07.120 --> 00:01:09.840 the Court signaled that it's how the DNA is tested 19 00:01:09.920 --> 00:01:12.879 that is legally relevant, not what it is capable of 20 00:01:12.959 --> 00:01:17.439 revealing to wit, and even if non coding alleles could 21 00:01:17.480 --> 00:01:20.480 provide some information, they are not in fact tested for 22 00:01:20.519 --> 00:01:25.400 that end. It's undisputed that law enforcement officers analyze DNA 23 00:01:25.680 --> 00:01:29.400 for the sole purpose of generating unique identifying number against 24 00:01:29.439 --> 00:01:33.439 which future samples may be matched. This parallels a similar 25 00:01:33.480 --> 00:01:37.519 safeguard based on actual practice in the school drug testing context, 26 00:01:37.719 --> 00:01:40.359 where the court deemed it significant that the tests at 27 00:01:40.400 --> 00:01:43.439 issue here look only for drugs and not for whether 28 00:01:43.560 --> 00:01:48.560 the student is, for example, epileptic, pregnant, or diabetic. If 29 00:01:48.599 --> 00:01:51.879 the future police analyze samples to determine, for instance, and 30 00:01:52.000 --> 00:01:56.920 arrestees predisposition for a particular disease or other hereditary factors 31 00:01:56.959 --> 00:02:01.000 not relevant to identity, that case would present additional privacy 32 00:02:01.040 --> 00:02:05.879 concerns not present here. Thus, under King, testing of lawfully 33 00:02:05.879 --> 00:02:08.599 obtained DNA samples may run a foul of the Fourth 34 00:02:08.639 --> 00:02:12.719 Amendment only if law enforcement uses it for purposes irrelevant 35 00:02:12.759 --> 00:02:16.360 to identification. Otherwise, it is no more of a search 36 00:02:16.400 --> 00:02:21.199 for Fourth Amendment purposes than the testing of fingerprints. C. Burns, 37 00:02:21.319 --> 00:02:24.000 nine eighty eight at three sixty six, Noting that if 38 00:02:24.039 --> 00:02:27.919 law enforcement had tested the defendants DNA to reveal physiology 39 00:02:28.080 --> 00:02:31.840 and health conditions, such as genetic predisposition to cancer, it 40 00:02:31.919 --> 00:02:35.360 might implicate privacy interests, but law enforcement did not do so. 41 00:02:36.520 --> 00:02:40.159 Rain Or ninety nine A three D that petitioner's DNA 42 00:02:40.560 --> 00:02:44.439 could have disclosed more intimate information is of no moment 43 00:02:44.479 --> 00:02:47.400 in the present case because there is no allegation that 44 00:02:47.439 --> 00:02:50.639 the police tested is DNA sample for that purpose State 45 00:02:50.719 --> 00:02:54.400 versus ad Hon Washington, two thousand and seven. While DNA 46 00:02:54.479 --> 00:02:57.400 has potential of revealing a vast amount of personal information, 47 00:02:57.759 --> 00:03:01.360 no privacy interest was implicated where the testing of DNA 48 00:03:01.560 --> 00:03:06.159 was limited to identification purposes. Here, defendant provided no evidence 49 00:03:06.159 --> 00:03:09.840 that SNP profile developed from q dot one one through 50 00:03:09.879 --> 00:03:15.599 IgG revealed any genetic predispositions or physiological or medical conditions. 51 00:03:16.360 --> 00:03:20.120 As mister Helwig testified, the SNPs that carry such sensitive 52 00:03:20.159 --> 00:03:23.919 information are not targeted or revealed in IgG because they 53 00:03:23.919 --> 00:03:29.080 are neither relevant, nor probative, nor appropriate to the identification process, 54 00:03:29.319 --> 00:03:33.599 which is the goal of IgG. Rather, IgG only implicates 55 00:03:33.639 --> 00:03:38.039 those SNPs associated with ancestry and genealogy in order to 56 00:03:38.120 --> 00:03:42.960 determine genetic associations, build a family tree, and identify potential 57 00:03:43.000 --> 00:03:47.840 genetic relatives of the uploaded SNP profile. It's simply an 58 00:03:47.879 --> 00:03:52.960 identification tool. In this regard, Carpenter is unavailing authority, as 59 00:03:53.159 --> 00:03:55.599 has been found by other courts addressing the issue of 60 00:03:55.639 --> 00:04:01.360 privacy interests in DNA. Generally, the CLI and Carbenter was 61 00:04:01.400 --> 00:04:04.479 not used as an identification tool. It was used as 62 00:04:04.479 --> 00:04:09.039 a comprehensive surveillance tool after a suspect had already been identified. 63 00:04:09.439 --> 00:04:13.120 At best, Carbenter can be applied to technologies that provide 64 00:04:13.159 --> 00:04:17.319 the government with comprehensive surveillance of known persons physical movements. 65 00:04:18.079 --> 00:04:20.680 This is not the type of information the DNA provided 66 00:04:20.839 --> 00:04:24.439 in this case. Law enforcement here extracted and analyzed the 67 00:04:24.560 --> 00:04:29.279 DNA of unknown suspects solely for identification purposes. It provided 68 00:04:29.319 --> 00:04:32.160 no information as to the location of a known person 69 00:04:32.560 --> 00:04:36.319 and does not begin to approach the surveillance described in Carpenter. 70 00:04:36.839 --> 00:04:40.279 Riley is distinguishable as well as it was context driven. 71 00:04:40.480 --> 00:04:44.160 Focusing on the lack of connection between the justifications underpinning 72 00:04:44.199 --> 00:04:47.759 the search incident to arrest, exception to the warrant requirement 73 00:04:48.000 --> 00:04:50.360 and a search of digital data on a cell phone, 74 00:04:51.079 --> 00:04:53.680 the court noted that after an arrestee cell phone is 75 00:04:53.680 --> 00:04:57.199 secured by officers, the digital data it contains cannot harm 76 00:04:57.240 --> 00:05:01.240 the officer or be destroyed. Thus the search of the 77 00:05:01.279 --> 00:05:05.800 digital data becomes solely a phishing expedition without justification. Here, 78 00:05:05.920 --> 00:05:09.279 by contrast, law enforcement analyzed the DNA from a crime 79 00:05:09.319 --> 00:05:13.079 scene item associated with a weapon for purposes of identifying 80 00:05:13.120 --> 00:05:18.240 the perpetrator. Identification is an accepted justification for testing DNA. 81 00:05:19.079 --> 00:05:23.800 Thus Riley is unavailing. Moreover, even assuming that there were 82 00:05:23.839 --> 00:05:27.759 sensitive genetic details revealed by the IgG performed here, the 83 00:05:27.800 --> 00:05:30.360 fact that the DNA was obtained from a crime scene 84 00:05:30.480 --> 00:05:35.079 and analyzed for purposes of identifying the perpetrator displaces any 85 00:05:35.120 --> 00:05:39.360 reasonable expectation of privacy. The Court of Appeals of Washington 86 00:05:39.399 --> 00:05:43.079 recently came to the same conclusion under similar facts. In 87 00:05:43.160 --> 00:05:46.800 state Verus Hartman, law enforcement extracted DNA from seamen and 88 00:05:46.879 --> 00:05:50.279 hairror left on a murdered victim's body. The DNA was 89 00:05:50.279 --> 00:05:53.920 then sent to a genealogy consultant, who uploaded a genetic 90 00:05:54.000 --> 00:05:59.360 profile to various genealogy databases for analysis. From that analysis, 91 00:05:59.399 --> 00:06:02.560 law enforcement learned that the suspect had alleles related to 92 00:06:02.680 --> 00:06:07.240 substance abuse, bipolar disorder, and baldness and was approximately nine 93 00:06:07.279 --> 00:06:12.160 percent Native American idea nine sixty. The genealogists use the 94 00:06:12.199 --> 00:06:16.360 information obtained from the databases and other resources to begin 95 00:06:16.439 --> 00:06:19.079 building a family tree, from which he learned there was 96 00:06:19.120 --> 00:06:23.639 an instance of misattributed paternity in the suspect's family. Her 97 00:06:23.720 --> 00:06:28.279 research ultimately appointed law enforcement toward the defendant. Like here, 98 00:06:28.319 --> 00:06:31.360 the defendant and Hartman argued he had a reasonable privacy 99 00:06:31.399 --> 00:06:34.279 interest in the DNA extracted from the seamen, which law 100 00:06:34.319 --> 00:06:39.519 enforcement violated through its analysis revealing private personal details. In 101 00:06:39.560 --> 00:06:43.040 declining to recognize his privacy interest as reasonable, the court 102 00:06:43.079 --> 00:06:47.079 observed it was a well established rule that analysis of 103 00:06:47.120 --> 00:06:49.800 evidence left behind at a crime scene does not require 104 00:06:49.800 --> 00:06:53.439 a warrant where the abandoned evidence contains DNA. Even though 105 00:06:53.519 --> 00:06:57.879 DNA contains a wealth of personal information, the court observed 106 00:06:57.920 --> 00:07:01.079 that the DNA was not only abandoned. The analysis performed 107 00:07:01.079 --> 00:07:04.439 by law enforcement was to determine the killer's identity and 108 00:07:04.519 --> 00:07:08.639 nothing more. Thus, even though the analysis reveal personal details, 109 00:07:08.839 --> 00:07:12.439 they were identifying characteristics that served to narrow the suspect 110 00:07:12.519 --> 00:07:15.120 pool and therefore did not run a foul of the 111 00:07:15.120 --> 00:07:20.480 Fourth Amendment. This holding highlights another important point. It is 112 00:07:20.519 --> 00:07:23.439 the status of the individuals whose DNA is tested that 113 00:07:23.519 --> 00:07:27.639 helps frame the reasonableness of the privacy expectation In Davis 114 00:07:28.519 --> 00:07:32.360 relied upon heavily by defendant, the Fourth Circuits holding arrested 115 00:07:32.519 --> 00:07:35.519 entirely on the fact that the DNA tested was taken 116 00:07:35.560 --> 00:07:38.959 from clothing police seized years earlier, when the defendant was 117 00:07:39.000 --> 00:07:42.199 a crime victim, noting, we agree with the District Court 118 00:07:42.480 --> 00:07:44.920 that a person who is solely a crime victim does 119 00:07:44.959 --> 00:07:48.160 not lose all reasonable expectation of privacy in his or 120 00:07:48.160 --> 00:07:51.120 her DNA material simply because it has come into the 121 00:07:51.199 --> 00:07:54.399 lawful possession of the police. And although Davis later was 122 00:07:54.519 --> 00:07:57.639 arrested because the police seized his clothing when he was 123 00:07:57.639 --> 00:08:01.519 solely a crime victim, we conclude that his latter arrest 124 00:08:01.800 --> 00:08:06.040 does not eradicate his expectation of privacy in his DNA material. 125 00:08:06.879 --> 00:08:09.959 In fact, the District Court affirmed in Davis drew a 126 00:08:10.000 --> 00:08:13.839 distinction between the analysis of crime scene DNA and other DNA, 127 00:08:13.879 --> 00:08:17.839 stating this finding would not, as the government argues, require 128 00:08:17.879 --> 00:08:20.920 the police to seek a warrant in order to analyze 129 00:08:20.920 --> 00:08:24.240 any items recovered from the crime scene for a DNA evidence, 130 00:08:24.879 --> 00:08:27.759 no one would argue, for example, that a rapist retains 131 00:08:27.800 --> 00:08:31.040 a reasonable expectation of privacy in the DNA contained in 132 00:08:31.079 --> 00:08:35.120 the semen that he leaves on his victim. Society considers 133 00:08:35.159 --> 00:08:38.399 it reasonable that if one has committed a crime, any 134 00:08:38.440 --> 00:08:40.960 evidence one leaves behind while doing so is fair game. 135 00:08:41.679 --> 00:08:46.000 The intentional volitional act of committing a crime itself supports 136 00:08:46.039 --> 00:08:49.000 the theory, and the criminal intends to abandon any privacy 137 00:08:49.000 --> 00:08:52.559 interests he has in his blood, fluid cells, etc. That 138 00:08:52.600 --> 00:08:55.639 he may leave behind at the crime scene. Furthermore, the 139 00:08:55.759 --> 00:08:58.039 very fact that a given area is a crime scene 140 00:08:58.120 --> 00:09:01.080 changes the balance of interest relevant to a Fourth Amendment 141 00:09:01.080 --> 00:09:06.000 analysis of the crime scene evidence. This distinction between crime 142 00:09:06.000 --> 00:09:09.919 scene DNA and other DNA likewise renders Skinner of no 143 00:09:10.120 --> 00:09:13.039 use to defendant. In Skinner, the urine was collected from 144 00:09:13.039 --> 00:09:17.159 employees for workplace purposes and subjected to testing. It was 145 00:09:17.200 --> 00:09:20.200 not obtained to be tested for identification purposes. It was 146 00:09:20.240 --> 00:09:23.559 obtained to test whether the employees had drugs or alcohol 147 00:09:23.559 --> 00:09:26.559 in their system. Had it been urine that was left 148 00:09:26.600 --> 00:09:29.039 by an unknown suspect out a crime scene and then 149 00:09:29.120 --> 00:09:32.759 tested to determine identity, the result will undoubtedly be different. 150 00:09:33.559 --> 00:09:37.480 Even legal Commentators who advocate for increased protection over DNA 151 00:09:37.559 --> 00:09:40.759 evidence agree that the Fourth Amendment does not prevent law 152 00:09:40.840 --> 00:09:44.039 enforcement from analyzing genetic evidence left at a crime scene. 153 00:09:44.559 --> 00:09:48.120 See Adrian and Kitchen genetic privacy and latent crime scene 154 00:09:48.200 --> 00:09:50.879 DNA of non suspects. How the law can protect an 155 00:09:50.879 --> 00:09:54.759 individual's right to genetic privacy while respecting the government's important 156 00:09:54.799 --> 00:09:58.000 interest in combating crime. If the DNA was found on 157 00:09:58.039 --> 00:10:00.879 the victim, on a murder weapon, or on another object 158 00:10:00.879 --> 00:10:04.320 closely related to the crime, that DNA may be analyzed 159 00:10:04.360 --> 00:10:08.519 without implicating the Fourth Amendment. In some defendant's arguments find 160 00:10:08.519 --> 00:10:11.720 no support under the law any privacy interests he can 161 00:10:11.759 --> 00:10:14.759 claim in his DNA was abandoned along with the sheath 162 00:10:15.360 --> 00:10:18.720 to which he claims no ownership or knowledge. Even if 163 00:10:18.759 --> 00:10:21.840 no such abandonment occurred, defendant has not demonstrated it is 164 00:10:21.919 --> 00:10:25.159 reasonable to recognize a privacy interest in DNA left at 165 00:10:25.200 --> 00:10:29.360 a crime scene, particularly when it's analyzed for identification purposes 166 00:10:29.519 --> 00:10:32.559 and nothing more. Further, to find that defendant retained a 167 00:10:32.559 --> 00:10:36.440 reasonable privacy interest in DNA left at the crime scene, indeed, 168 00:10:36.519 --> 00:10:40.600 on an item intimately associated with the suspected weapon, would 169 00:10:40.679 --> 00:10:43.639 have the untenable effect of eliminating the use of abandoned 170 00:10:43.720 --> 00:10:47.279 DNA as an investigative tool. As observed by the United 171 00:10:47.360 --> 00:10:50.639 States Supreme Court and King. This tool has utmost importance 172 00:10:51.480 --> 00:10:54.120 since the first use of forensic DNA analysis to catch 173 00:10:54.120 --> 00:10:56.919 a rapist and murderer in England in nineteen eighty six. 174 00:10:57.240 --> 00:11:00.000 Law enforcement, the defense bar, and the courts of ignite 175 00:11:00.000 --> 00:11:03.840 knowledge DNA testings on paralleled ability both to exonerate the 176 00:11:03.879 --> 00:11:07.799 wrongly convicted and to identify the guilty. It has potential 177 00:11:07.840 --> 00:11:11.320 to significantly improve both the criminal justice system and police 178 00:11:11.360 --> 00:11:15.480 investigative practices. Neither society nor the court are prepared to 179 00:11:15.480 --> 00:11:19.200 go where defendant seeks to take us. Therefore, because the 180 00:11:19.279 --> 00:11:22.639 development of the SNP profile did not contravene defendants Forth 181 00:11:22.679 --> 00:11:26.399 Amendment rights suppression is not warranted. All right, We're going 182 00:11:26.440 --> 00:11:28.720 to wrap up right here, and in the next episode 183 00:11:28.759 --> 00:11:31.519 we're gonna pick up with b. Defendant is not established 184 00:11:31.519 --> 00:11:34.600 a forth Amendment violation with regard to the trash pull 185 00:11:34.799 --> 00:11:38.320 and testing of DNA. Therefrom If you'd like to contact me, 186 00:11:38.360 --> 00:11:41.200 you can do that at Bobby Kopuci at ProtonMail dot com. 187 00:11:41.320 --> 00:11:44.759 That's bo B B y C. Ap u Cci at 188 00:11:44.759 --> 00:11:47.120 proton mail dot com, or if you prefer, you can 189 00:11:47.159 --> 00:11:53.080 find me on x at Bobby Underscore capu Cci. All 190 00:11:53.080 --> 00:11:54.840 of the links that go with this episode can be 191 00:11:54.879 --> 00:11:58.240 found in the description box. What's up everyone, and welcome 192 00:11:58.279 --> 00:12:01.000 back to the program. In this episode, we're going to 193 00:12:01.000 --> 00:12:03.320 spin back out to Moscow and we're going to pick 194 00:12:03.399 --> 00:12:06.600 up where we left off with Judge Hipler's ruling on 195 00:12:06.759 --> 00:12:10.960 the genetic information b Defendant has not established a Fourth 196 00:12:10.960 --> 00:12:14.720 Amendment violation with regard to the trash poll and testing 197 00:12:14.759 --> 00:12:19.000 of DNA therefrom. Defendant next asserts that law enforcement's trash 198 00:12:19.000 --> 00:12:22.720 poll from his parents Pennsylvania residence and subsequent DNA testing 199 00:12:22.759 --> 00:12:28.639 thereon constituted warrantless and on reasonable searches mandating suppression. He 200 00:12:28.799 --> 00:12:31.519 argues he had a reasonable expectation of privacy in his 201 00:12:31.600 --> 00:12:34.879 parents' garbage that was violated when the law enforcement arranged 202 00:12:34.879 --> 00:12:38.559 for a trash poll. The privacy interest, according to defendant, 203 00:12:38.919 --> 00:12:43.519 is predicated on not only Monroe County's municipal ordinance prohibiting 204 00:12:43.600 --> 00:12:46.919 anyone other than a garbage collector from collecting the Coburger's 205 00:12:46.960 --> 00:12:50.279 family's curbside trash, but also from the fact that the 206 00:12:50.320 --> 00:12:53.720 coburgers resided in a gated neighborhood and the garbage cans 207 00:12:53.759 --> 00:12:55.879 were on the driveway as opposed to a public area. 208 00:12:56.440 --> 00:12:59.840 While defending a knowledges minding precedent holds otherwise, he is 209 00:13:00.159 --> 00:13:03.879 ERTs is it time to rethink these decisions and find 210 00:13:03.919 --> 00:13:07.120 a reasonable expectation of privacy exists? If not under the 211 00:13:07.159 --> 00:13:11.120 Fourth Amendment, then under the increased protection afforded by Article I, 212 00:13:11.279 --> 00:13:16.320 Section seventeen of the Idaho Constitution. Alternatively, he argues that 213 00:13:16.399 --> 00:13:18.759 even if the trash pull was lawful, the testing of 214 00:13:18.799 --> 00:13:21.559 the DNA found on the items of trash was not 215 00:13:21.639 --> 00:13:26.240 under Skinner and Davis supra. However, after defendant filed his motion, 216 00:13:26.559 --> 00:13:30.200 the Idaho Supreme Court reaffirmed its holding in Donado and 217 00:13:30.279 --> 00:13:33.480 rejected the very argument asserted by defendant here, i e. 218 00:13:33.559 --> 00:13:36.759 That a local waste management ordinance can create a reasonable 219 00:13:36.759 --> 00:13:41.320 expectation of privacy State vers Polie, Idaho twenty twenty four. 220 00:13:42.240 --> 00:13:45.840 An objective expectation of privacy is not created simply because 221 00:13:45.879 --> 00:13:50.159 an ordinance aimed at maintaining society's interest in sanitation dictates 222 00:13:50.159 --> 00:13:53.639 how trash is to be collected. As for the subsequent 223 00:13:53.720 --> 00:13:56.960 DNA testing of the discarded items. Relevant here is the 224 00:13:57.000 --> 00:14:01.000 abandonment theory. This court is bound by the decisions of 225 00:14:01.000 --> 00:14:04.440 the Idaho Supreme Court. There are no facts presented here 226 00:14:04.480 --> 00:14:08.919 that meaningfully distinguished this case from Donato or Polizi. That 227 00:14:08.960 --> 00:14:11.240 the garbage cans may have been placed in the coburger's 228 00:14:11.320 --> 00:14:14.159 driveway for collection, as opposed to on a public road, 229 00:14:14.320 --> 00:14:18.240 and that the coburger's neighborhood was gated are legally irrelevant factors, 230 00:14:18.480 --> 00:14:20.840 given that the garbage was placed for the purpose of 231 00:14:20.919 --> 00:14:24.720 having it collected by another state. Versus McCall, Idaho eight 232 00:14:24.720 --> 00:14:28.639 eighty five, two thousand and one, finding no reasonable expectation 233 00:14:28.720 --> 00:14:31.799 of privacy in garbage placed out for collection, regardless of 234 00:14:31.840 --> 00:14:36.639 whether it was in or outside the defendant's curtilage Greenwood, 235 00:14:36.679 --> 00:14:40.200 forty six, US at forty and forty one. Privacy interest 236 00:14:40.240 --> 00:14:43.080 in trash is lost when it's deposited in an area 237 00:14:43.200 --> 00:14:47.080 particularly suited for public inspection and public consumption for the 238 00:14:47.120 --> 00:14:51.080 express purpose of having strangers take it. Therefore, the trash 239 00:14:51.120 --> 00:14:55.120 poll did not contravene defendants for the amendment rights. Moreover, 240 00:14:55.360 --> 00:14:58.440 as already discussed, it's well settled that one abandons a 241 00:14:58.480 --> 00:15:02.440 privacy interest in one's DNA by discarding an item containing 242 00:15:02.519 --> 00:15:05.960 the DNA. By throwing away an item of trash containing 243 00:15:05.960 --> 00:15:09.639 his DNA, defendant cannot object to the testing of that DNA, 244 00:15:10.240 --> 00:15:14.519 particularly given that it was a standard DNA testing. Consequently, 245 00:15:14.559 --> 00:15:17.240 no suppression is warranted with respect to the trash pull 246 00:15:17.480 --> 00:15:22.159 and subsequent testing. See. Defendant cannot establish the search of 247 00:15:22.200 --> 00:15:27.200 the genetic genealogy databases implicated his Fourth Amendment rights. Defendant's 248 00:15:27.200 --> 00:15:30.279 final argument is that law enforcements warrantless search of the 249 00:15:30.279 --> 00:15:34.840 commercial genetic genealogy databases violated his right to privacy in 250 00:15:34.919 --> 00:15:38.919 his relatives genetic information. Observing that this issue has not 251 00:15:38.960 --> 00:15:41.960 been addressed by the United States Supreme Court or Idaho's 252 00:15:41.960 --> 00:15:44.840 appellate courts, he asks this court to recognize, as a 253 00:15:44.879 --> 00:15:47.960 matter of first impression that he has a reasonable expectation 254 00:15:48.000 --> 00:15:51.159 of privacy in the genetics he shares with his relatives, 255 00:15:51.200 --> 00:15:54.440 and further find that such privacy was not undermined when 256 00:15:54.480 --> 00:15:58.759 his relatives uploaded their genetic information to the commercial genetic 257 00:15:58.799 --> 00:16:04.080 genealogy databases. Alternatively, he claims that the FBI search of 258 00:16:04.200 --> 00:16:08.480 my heritage and ged match was unlawful because those databases 259 00:16:08.639 --> 00:16:12.080 were off limits to law enforcement both under the interim 260 00:16:12.120 --> 00:16:16.279 policy and those databases on terms. The State responds that 261 00:16:16.360 --> 00:16:20.320 defendant has failed to demonstrate our reasonable expectation of privacy 262 00:16:20.360 --> 00:16:23.919 either in any of the commercial genetic genealogy databases or 263 00:16:23.960 --> 00:16:27.279 in his relatives DNA. Even if Defendant could assert a 264 00:16:27.320 --> 00:16:30.440 privacy interest in the latter, the State contends that such 265 00:16:30.480 --> 00:16:34.200 interest was lost when such relatives shared that DNA with 266 00:16:34.320 --> 00:16:38.600 public by uploading it to the databases. Moreover, it argues 267 00:16:38.639 --> 00:16:41.360 that any violation by law enforcement of the terms of 268 00:16:41.399 --> 00:16:45.480 service of these databases or its own internal policies does 269 00:16:45.519 --> 00:16:48.919 not implicate the Fourth Amendment. The Court has already determined 270 00:16:48.919 --> 00:16:52.679 that defendant failed to show a legitimate privacy interest to 271 00:16:52.799 --> 00:16:55.679 challenge the development of the SNP profile from Q one 272 00:16:55.720 --> 00:16:59.120 dot one. If defendant does not have a reasonable expectation 273 00:16:59.200 --> 00:17:03.279 of privacy in the SNP profile, there is no basis 274 00:17:03.279 --> 00:17:06.319 to find an expectation of privacy in those portions of 275 00:17:06.359 --> 00:17:10.839 his SNP profile he shares with genetic relatives. However, to 276 00:17:10.880 --> 00:17:13.519 the extent the court's prior conclusion does not dispose of 277 00:17:13.559 --> 00:17:17.799 the issue, Defendant's assertions lack merit because one defendant has 278 00:17:17.839 --> 00:17:20.839 not shown a reasonable expectation of privacy in any of 279 00:17:20.839 --> 00:17:24.680 the commercial genetic genealogy databases or in his relatives DNA, 280 00:17:25.119 --> 00:17:28.839 and two any alleged violation by law enforcement of its 281 00:17:28.880 --> 00:17:32.160 own policies and those of the databases is not of 282 00:17:32.200 --> 00:17:37.079 constitutional importance. One defendant cannot demonstrate a reasonable expectation of 283 00:17:37.119 --> 00:17:40.920 privacy in common segments of DNA a relative as uploaded 284 00:17:40.960 --> 00:17:44.599 to the public sphere. To invoke the exclusionary rule to 285 00:17:44.599 --> 00:17:48.920 suppress evidence under the Fourth Amendment, a defendant must establish 286 00:17:49.000 --> 00:17:52.440 that his own personal rights were violated by an unlawful search. 287 00:17:53.279 --> 00:17:57.680 Fourth Amendment rights or personal rights, which, like other constitutional rights, 288 00:17:57.720 --> 00:18:02.400 may not be vicariously asserted. Date vers Rebo one sixty eight, Idaho, 289 00:18:02.400 --> 00:18:05.000 two thirty four, two thirty eight, four eighty two p 290 00:18:05.119 --> 00:18:08.519 Dot three D five sixty nine, five seventy three, twenty 291 00:18:08.519 --> 00:18:12.680 twenty one. Citing Rachis vers Illinois four thirty nine, US 292 00:18:12.759 --> 00:18:15.559 one twenty eight, one thirty three and thirty four nineteen 293 00:18:15.640 --> 00:18:19.680 seventy eight, defendant acknowledges that the search challenged is that 294 00:18:19.720 --> 00:18:22.839 of his relatives uploaded DNA and not his own. To 295 00:18:22.880 --> 00:18:25.920 get around this hurdle, he claims a reasonable expectation of 296 00:18:25.960 --> 00:18:29.599 privacy in the segments of shared DNA is relatives uploaded 297 00:18:29.640 --> 00:18:34.039 to the databases. This argument requires accepting that one, an 298 00:18:34.039 --> 00:18:37.119 individual has a privacy interest in the genetic makeup of 299 00:18:37.160 --> 00:18:41.960 another individual, and two that such privacy interest persisted despite 300 00:18:42.279 --> 00:18:46.000 the other individual sharing his or her genetic makeup with 301 00:18:46.079 --> 00:18:50.559 the public at large. The court will not make this leap. First, 302 00:18:50.559 --> 00:18:53.720 there is no authority for defendant's position, granted, given the 303 00:18:53.759 --> 00:18:58.119 novelty of using commercial genomic platforms as an investigative tool, 304 00:18:58.440 --> 00:19:01.559 there are a few cases addressing it. However, not one 305 00:19:01.599 --> 00:19:04.680 has found that a defendant has a reasonable privacy interest 306 00:19:04.720 --> 00:19:08.960 in a relative shared DNA. The primary case cited by 307 00:19:09.000 --> 00:19:11.839 both parties and his Hartman, where the State of Washington 308 00:19:11.880 --> 00:19:15.119 Court of Appeals rejected the defendant's contention that he had 309 00:19:15.119 --> 00:19:17.880 a privacy interest in those segments of his DNA he 310 00:19:17.960 --> 00:19:21.640 shared with relatives that was violated when law enforcement search 311 00:19:21.680 --> 00:19:25.599 commercial genealogy databases to find a familial match to the 312 00:19:25.640 --> 00:19:28.799 crime scene and the DNA that was found there. Like here, 313 00:19:28.880 --> 00:19:32.200 the defendant like in DNA to c Sli at issue 314 00:19:32.200 --> 00:19:35.160 in Carpenter and urge the court to follow Carpenter to 315 00:19:35.240 --> 00:19:38.759 find that his relatives voluntarily upload of their shared DNA 316 00:19:39.079 --> 00:19:42.519 did not forfeit his expectation of privacy in the information. 317 00:19:43.720 --> 00:19:47.079 The Court's determination that the defendant lacked a reasonable privacy 318 00:19:47.119 --> 00:19:50.839 interest in segments of shared DNA rested on multiple grounds. 319 00:19:51.359 --> 00:19:54.039 The Court first observed that the sole purpose of a 320 00:19:54.079 --> 00:19:57.880 genealogy database is to let others search for and share 321 00:19:57.960 --> 00:20:02.119 private information about the user's personal and family history for 322 00:20:02.200 --> 00:20:05.680 the purpose of finding relatives. To this end, the Court 323 00:20:05.720 --> 00:20:09.440 found shared DNA is unlike the CSLI and Carpenter, which 324 00:20:09.519 --> 00:20:13.119 was not shared for the purpose of public perusal. The 325 00:20:13.160 --> 00:20:16.480 Court further noted that the comparison of the DNA obtained 326 00:20:16.480 --> 00:20:19.079 from the crime scene to the genetic profiles of the 327 00:20:19.119 --> 00:20:23.519 defendant's relatives was limited to identification purposes and therefore did 328 00:20:23.599 --> 00:20:27.319 not support of privacy interest. In addition, the court found 329 00:20:27.319 --> 00:20:31.799 no historical protection for voluntarily share genetic material or for 330 00:20:31.880 --> 00:20:36.880 information posted on websites intended for public access Idea nine, 331 00:20:36.920 --> 00:20:40.480 seventy eight, and seventy nine. Consequently, the Court concluded that 332 00:20:40.559 --> 00:20:45.200 because law enforcement's investigation of the genealogy databases did not 333 00:20:45.240 --> 00:20:48.880 disturb a reasonable privacy interest, the defendant had no standing 334 00:20:48.920 --> 00:20:53.319 to challenge the search. Other courts addressing the issue have 335 00:20:53.440 --> 00:20:57.880 held similarly. Cee State versus west In twenty twelve WL 336 00:20:58.160 --> 00:21:01.640 one two two two nine eight AIS eight six' One District, 337 00:21:01.640 --> 00:21:05.599 Court october, first twenty twenty, One, minnesota finding no reasonable 338 00:21:05.680 --> 00:21:10.799 expectation of privacy in genetic identifying information voluntarily uploaded to 339 00:21:10.839 --> 00:21:15.839 genealogy database by defendant's. Relatives people Versus, williams seventy Seven 340 00:21:15.920 --> 00:21:20.119 Miscellaneous dot three d seven eighty, two seven eighty five 341 00:21:20.240 --> 00:21:23.759 one seventy eight N ys three d four twenty four 342 00:21:23.720 --> 00:21:26.720 to twenty. Three New York Supreme court twenty twenty, two 343 00:21:27.519 --> 00:21:30.799 finding that the defendant lacks standing to suppress evidence obtained 344 00:21:31.000 --> 00:21:35.240 through investigative genealogy search Because williams cannot assert a personal 345 00:21:35.279 --> 00:21:39.720 privacy interest in his RELATIVES dna. Profiles United states Versus, 346 00:21:39.759 --> 00:21:42.920 mitchell six fifty two F dot THREE d three eighty, 347 00:21:42.960 --> 00:21:45.720 seven four oh, Nine Third, circuit two thousand and. One 348 00:21:45.880 --> 00:21:48.640 in responding to the defendant's argument that collection of HIS 349 00:21:48.720 --> 00:21:52.960 dna upon arrest was improper because andrelia it could be 350 00:21:53.039 --> 00:21:57.799 used to investigate biological relationships between, Individuals court observed that 351 00:21:57.799 --> 00:21:59.960 he had no standing to assert the fourth the man 352 00:22:00.359 --> 00:22:04.440 rights of his. Relatives other than claiming That Hartman court 353 00:22:04.440 --> 00:22:07.519 fail to appreciate its. Holding defendant has not offered any 354 00:22:07.559 --> 00:22:11.599 basis or even reasonable analog from which The court could 355 00:22:11.640 --> 00:22:15.359 make the unprecedented finding that he has a personal privacy 356 00:22:15.359 --> 00:22:19.519 interest in someone ELSE'S. Dna while he may share segments 357 00:22:19.599 --> 00:22:22.519 of THIS, dna it's not his OWN dna that was 358 00:22:22.559 --> 00:22:25.759 searched in the genetic. Databases, further there is no evidence 359 00:22:25.759 --> 00:22:28.880 he took efforts to shield his genetic RELATIVES dna from 360 00:22:28.880 --> 00:22:32.480 the public. View See rebo one sixty, Eight. Idaho at 361 00:22:32.480 --> 00:22:36.880 two thirty nine forty two. P three D at five seventy, 362 00:22:36.920 --> 00:22:39.640 four noting that a defendant must show he sought to 363 00:22:39.680 --> 00:22:43.359 preserve the object of the search as. Private, thus since 364 00:22:43.400 --> 00:22:46.720 he cannot establish a personal expectation of privacy in the item, 365 00:22:46.799 --> 00:22:51.680 searched he cannot challenge the. Search, moreover any subjective privacy 366 00:22:51.680 --> 00:22:54.839 interest he claims in his RELATIVES dna is not. Reasonable 367 00:22:55.319 --> 00:22:58.160 one cannot have a reasonable expectation of privacy in what 368 00:22:58.279 --> 00:23:02.839 is knowingly exposed a public View state. Vers, christiansen one thirty, One. 369 00:23:02.880 --> 00:23:07.720 Idaho even information exposed to just a single person results 370 00:23:07.720 --> 00:23:11.759 in forfeiture of a reasonable privacy interest under the third party. Doctrine, 371 00:23:12.079 --> 00:23:15.759 here defendant's relatives did not voluntarily share their genetic information 372 00:23:16.160 --> 00:23:19.599 with just a single. Entity they voluntarily shared it with 373 00:23:19.720 --> 00:23:23.799 hundreds of thousands of other participants See, hartmann five thirty 374 00:23:23.799 --> 00:23:27.960 four at four thirty. Four consumers frequently upload THEIR dna 375 00:23:28.200 --> 00:23:31.640 to consumer databases like ged match for the very purpose 376 00:23:31.680 --> 00:23:35.319 of learning and sharing with strangers the exact private information 377 00:23:35.559 --> 00:23:39.480 details about their ancestry and familial relations at issue. Here, 378 00:23:40.799 --> 00:23:45.240 consequently defendant cannot claim any subjective expectation of privacy he 379 00:23:45.319 --> 00:23:48.920 had was. Reasonable defendant warns that applying the third party 380 00:23:48.960 --> 00:23:53.599 doctrine mechanically TO dna would have disastrous. Results he points 381 00:23:53.599 --> 00:23:57.079 out THAT dna can reveal avasked array of private details 382 00:23:57.079 --> 00:24:00.400 about a. Person, further he argues it is not truly. 383 00:24:00.440 --> 00:24:04.319 Shared he notes that when one individual PROVIDES dna to 384 00:24:04.359 --> 00:24:08.440 a consumer genomic, platform the identities of hundreds of genomic 385 00:24:08.599 --> 00:24:13.119 relatives can be revealed through SHARED dna. Sequences, finally he 386 00:24:13.160 --> 00:24:16.680 observes that While idaho law protects genetic privacy in some, 387 00:24:16.720 --> 00:24:20.480 circumstances there are no comparable limits over law enforcement's use 388 00:24:20.720 --> 00:24:24.319 OF dna taken from a crime. Scene noting THAT dna 389 00:24:24.359 --> 00:24:27.480 can be left everywhere and last in the environment for 390 00:24:27.480 --> 00:24:30.440 a long, time he warns that the entire population could 391 00:24:30.440 --> 00:24:34.359 find themselves the targets of police investigation absent some. Control 392 00:24:35.440 --> 00:24:38.920 despite the defendants dystopian, warnings The court does not find 393 00:24:38.920 --> 00:24:42.640 a departure from settled Forth amendment principles is. Warranted In. 394 00:24:42.759 --> 00:24:46.279 Carboner The United States Supreme court observe that the application 395 00:24:46.319 --> 00:24:48.880 of third party doctrine does not turn solely on the 396 00:24:48.880 --> 00:24:52.039 act of. Sharing other factors to consider are the nature 397 00:24:52.279 --> 00:24:55.559 of the information sought and limitations on the revealing nature 398 00:24:55.839 --> 00:24:59.480 of the information five eighty FIVE us at three fourteen and. 399 00:24:59.559 --> 00:25:02.680 Fifteen doing, so The court declined to apply the third 400 00:25:02.680 --> 00:25:07.559 party doctrine to C sli data obtained from the defendant cellular. Carrier, 401 00:25:08.200 --> 00:25:11.720