WEBVTT 1 00:00:00.160 --> 00:00:03.160 What's up everyone, and welcome back to the program. In 2 00:00:03.200 --> 00:00:05.400 this episode, we're going to spin back up to Moscow 3 00:00:05.639 --> 00:00:07.320 and we're going to start taking a look at the 4 00:00:07.480 --> 00:00:12.160 order on defendant's motion to suppress the genetic information. And 5 00:00:12.199 --> 00:00:14.960 this is all part of the court document dump that 6 00:00:15.080 --> 00:00:19.480 recently occurred up in Judge Hipler's courtroom, case number c 7 00:00:19.800 --> 00:00:23.239 R zero one twenty four three one sixty sixty five 8 00:00:24.640 --> 00:00:29.039 State of Idaho Plaintiff versus Brian C. Coberger, the defendant 9 00:00:30.000 --> 00:00:34.520 the order of Defendant's motion to suppress genetic information introduction. 10 00:00:35.159 --> 00:00:37.960 Defendant is charged with one count of burglary and four 11 00:00:38.039 --> 00:00:41.359 council murder in the first degree. It's alleged that defendant 12 00:00:41.520 --> 00:00:44.799 entered a residence at eleven twenty two King Road in Moscow, Idaho, 13 00:00:45.119 --> 00:00:48.640 in the early morning hours of November thirteenth, twenty twenty two, 14 00:00:49.000 --> 00:00:53.079 and stab Madison Mogan, Kaylee Gunsalvis, Ethan Chapin, and Xana 15 00:00:53.119 --> 00:00:57.159 Kernodle with a knife. Left at the crime scene was 16 00:00:57.200 --> 00:01:01.200 a knife sheath from which single source mail DNA was extracted. 17 00:01:01.600 --> 00:01:06.560 Using forensic investigative genetic genealogy, law enforcement was able to 18 00:01:06.599 --> 00:01:11.959 identify defendant as a possible suspect weeks after the crime occurred. Subsequently, 19 00:01:12.079 --> 00:01:15.760 law enforcement conducted a trash poll from defendant's family residence 20 00:01:16.000 --> 00:01:19.519 and obtained DNA tying defendant to the DNA found on 21 00:01:19.560 --> 00:01:24.040 the knife sheath. Defendant was subsequently arrested, pursued into a warrant, 22 00:01:24.239 --> 00:01:28.000 and charged. In this matter, defendant asserts that law enforcement 23 00:01:28.079 --> 00:01:31.640 violated his constitutional rights by failing to secure a warrant 24 00:01:31.840 --> 00:01:35.280 before conducting the IgG and trash pool. He seeks to 25 00:01:35.319 --> 00:01:38.680 suppress all evidence obtained through these searches, as well as 26 00:01:38.719 --> 00:01:43.120 evidence obtained through subsequent warrants as fruit of the poisonous tree. 27 00:01:44.159 --> 00:01:48.079 The state disputes that Defendant's constitutional rights were violated. A 28 00:01:48.120 --> 00:01:51.840 suppression hearing was held on January twenty third, twenty twenty five, 29 00:01:52.200 --> 00:01:55.200 during which the Court received testimony from members of law 30 00:01:55.280 --> 00:01:58.840 enforcement and experts in IgG, each of whom the Court 31 00:01:58.879 --> 00:02:02.879 found to be credible and reliable. Following argument, the Court 32 00:02:03.040 --> 00:02:06.480 took the matter under advisement. The Court finds defendant has 33 00:02:06.519 --> 00:02:10.400 failed to demonstrate his constitutional rights were contravened by the 34 00:02:10.439 --> 00:02:14.520 IgG and trash pull, and therefore suppression is not warranted. 35 00:02:15.719 --> 00:02:19.639 Two Standard the standard of review of emotions to suppress 36 00:02:19.719 --> 00:02:23.319 is bifurcated. The power to assess the credibility of witnesses, 37 00:02:23.479 --> 00:02:28.000 resolve factual conflicts way evidence, and draw factual inferences is 38 00:02:28.120 --> 00:02:31.520 vested in the trial court. State vers. Valdez Molina, one 39 00:02:31.639 --> 00:02:34.680 twenty seven, Idaho one O two one oh six, eight 40 00:02:34.759 --> 00:02:37.560 ninety seven, p Dot two, d nine ninety three, nine 41 00:02:37.639 --> 00:02:41.319 ninety seven, nineteen ninety five. A trial court's ruling on 42 00:02:41.360 --> 00:02:44.439 a motion to suppress evidence combines the issue of law 43 00:02:44.439 --> 00:02:47.599 in fact and the trial court's factual findings will not 44 00:02:47.639 --> 00:02:51.560 be overturned unless they are clearly erroneous. State Verse. Connate, 45 00:02:51.759 --> 00:02:55.319 one forty three, Idaho. Seven ninety seven, seven ninety nine, 46 00:02:55.400 --> 00:02:58.319 one fifty three, p Dot three d. Four seventy seven, 47 00:02:58.439 --> 00:03:02.400 four seventy nine, two thousand. When a decision on a 48 00:03:02.439 --> 00:03:06.960 motion to suppress is challenged, the application of constitutional principles 49 00:03:07.000 --> 00:03:11.240 to the facts found will be freely reviewed. State vers. Venterosa, 50 00:03:11.680 --> 00:03:16.000 two thousand and three, finding a fact. On November thirteenth, 51 00:03:16.080 --> 00:03:19.479 twenty twenty two, law enforcement found the bodies of Madison Mogan, 52 00:03:19.639 --> 00:03:23.719 Kaylee Gonsalves, Xana Kernodle, and Ethan Chapin inside a residence 53 00:03:23.759 --> 00:03:27.039 located at eleven, twenty two King Road in Moscow, Idaho. 54 00:03:27.719 --> 00:03:30.840 All four victims died from apparent knife wounds. A k 55 00:03:31.000 --> 00:03:33.479 bar knife sheath was found on a bed next to 56 00:03:33.479 --> 00:03:37.360 the bodies of Miss Mogan and Miss Gonsalves. Law enforcement 57 00:03:37.439 --> 00:03:40.240 sees the knife sheath and swabbed around the button of 58 00:03:40.280 --> 00:03:43.800 the sheath for DNA. A sample of DNA identified as 59 00:03:43.879 --> 00:03:47.360 Q one DOT one was extracted from the swab by 60 00:03:47.360 --> 00:03:51.159 the Idaho State Police Forensics Lab and subsequently tested using 61 00:03:51.240 --> 00:03:56.759 standard DNA STR short tandem repeat methods. The STR profile 62 00:03:56.840 --> 00:04:00.319 developed revealed that the DNA came from a single source 63 00:04:00.360 --> 00:04:04.159 mail profile. Law enforcement uploaded the DNA profile to the 64 00:04:04.159 --> 00:04:09.039 code's database, but it resulted in no hits to non offenders. Subsequently, 65 00:04:09.159 --> 00:04:13.039 law enforcement made the decision to pursue forensic investigative genetic 66 00:04:13.080 --> 00:04:17.160 genealogy testing on Q one one. Such testing begins with 67 00:04:17.240 --> 00:04:20.319 the generation of a large amount of raw sequencing data 68 00:04:20.519 --> 00:04:24.240 from the DNA sample, which is then organized into SNPs, 69 00:04:24.680 --> 00:04:30.879 or single nucleotide polymorphisms using bioinformatic software. The SNPs associated 70 00:04:31.120 --> 00:04:34.240 with ancestry and genealogy can then be pulled out of 71 00:04:34.240 --> 00:04:37.560 the raw data and organized into an SNP profile that 72 00:04:37.639 --> 00:04:42.839 can in turn be uploaded to commercial genetic genealogy databases 73 00:04:43.079 --> 00:04:46.439 to search for a genetic match. Depending on the strength 74 00:04:46.560 --> 00:04:49.360 of the match, law enforcement can start building a family 75 00:04:49.439 --> 00:04:54.759 tree to identify potential genetic relatives of the uploaded SNP profile. 76 00:04:56.120 --> 00:05:00.199 These genetic genealogy databases are hosted by private companies and 77 00:05:00.360 --> 00:05:03.199 populated by hundreds of thousands of members of the public 78 00:05:03.399 --> 00:05:07.439 who voluntarily submit their own DNA and publicly share personal 79 00:05:07.480 --> 00:05:10.560 information to allow the database to better match them with 80 00:05:10.680 --> 00:05:16.079 potential genetic relatives. Notably, at all relevant times, only two 81 00:05:16.120 --> 00:05:21.319 commercial genetic genealogy databases permitted searches by law enforcement, family 82 00:05:21.360 --> 00:05:25.959 Tree DNA and ged match pro. The databases my Heritage 83 00:05:25.959 --> 00:05:31.160 and ged match purported to disallow such searches. The IgG 84 00:05:31.319 --> 00:05:37.120 process essentially attempts to ascertain identity through genetic associations. Unlike 85 00:05:37.240 --> 00:05:40.600 str profiles, which can only reveal whether a person is 86 00:05:40.680 --> 00:05:44.279 genetically male or genetically female, the SNPs in their raw 87 00:05:44.399 --> 00:05:47.800 form have the ability to reveal a trove of personal information, 88 00:05:48.319 --> 00:05:52.000 including sensitive health information such as whether the person has 89 00:05:52.040 --> 00:05:57.319 traits indicating and increase risk of cancer or Alzheimer's. However, 90 00:05:57.439 --> 00:06:01.519 IgG does not target these particular SNA because, according to 91 00:06:01.600 --> 00:06:05.639 defense expert Daniel Hellwig, they are neither relevant, nor probative, 92 00:06:05.879 --> 00:06:10.759 nor appropriate to the identification process. In fact, gleaning medical 93 00:06:10.839 --> 00:06:14.000 information from SNPs is not possible for a layperson to 94 00:06:14.040 --> 00:06:17.519 do and would take a forensic scientist like mister Hellwig 95 00:06:17.639 --> 00:06:21.199 a lot of research. The IgG was first performed by 96 00:06:21.199 --> 00:06:24.600 authrom Labs, a company with which the Idaho Department of 97 00:06:24.680 --> 00:06:28.639 Purchasing had an existing contract for such work. Authrum was 98 00:06:28.680 --> 00:06:32.160 asked to develop an SNP profile from Q one dot one, 99 00:06:32.600 --> 00:06:37.240 uploaded to those public genealogy databases permitting law enforcement entry, 100 00:06:37.279 --> 00:06:41.439 and submit a preliminary report of its findings. Authroom was 101 00:06:41.439 --> 00:06:45.360 not asked to ascertain medical information associated with Q one 102 00:06:45.360 --> 00:06:48.319 dot one, nor is there any evidence it tested for such. 103 00:06:48.879 --> 00:06:52.079 Law enforcement did not obtain a warrant for Authrum's work. 104 00:06:52.680 --> 00:06:55.360 The Idaho State Police delivered Q one dot one to 105 00:06:55.399 --> 00:06:59.600 Authorm on November twenty two, twenty twenty two. Authorum developed 106 00:06:59.600 --> 00:07:02.360 an SNA MP profile for Q one dot one and 107 00:07:02.439 --> 00:07:06.480 search family Tree, DNA and ged match pro. This work 108 00:07:06.560 --> 00:07:09.399 revealed for brothers of interest, all of whom were low 109 00:07:09.439 --> 00:07:12.319 matches to Q one dot one to further its family 110 00:07:12.319 --> 00:07:16.160 tree building. AUTHORM as the Idaho State Police to contact 111 00:07:16.279 --> 00:07:19.199 one of the identified brothers to provide a DNA sample 112 00:07:19.439 --> 00:07:23.519 to upload it into either of the two databases. Despite 113 00:07:23.600 --> 00:07:27.240 Idaho State Police request, the contacted brother declined to provide 114 00:07:27.240 --> 00:07:30.959 a sample. On December tenth, twenty twenty two, members of 115 00:07:31.000 --> 00:07:33.959 law enforcement and including the FBI, had a meeting to 116 00:07:34.000 --> 00:07:37.439 discuss Authoram's work. As a result of decision was made 117 00:07:37.600 --> 00:07:40.720 to turn over the IgG work to the FBI. That 118 00:07:40.800 --> 00:07:44.160 same day, AUTHORM was instructed to stop work and turn 119 00:07:44.160 --> 00:07:47.360 over its SNP profile and search results to the Idaho 120 00:07:47.399 --> 00:07:51.439 State Police. AUTHRM did so along with a preliminary report 121 00:07:51.480 --> 00:07:55.560 of its findings. The preliminary report did not contain any 122 00:07:55.680 --> 00:08:00.920 medical information associated with the SNP profile. Daho State Police 123 00:08:01.040 --> 00:08:03.879 then turned the information over to the FBI, which was 124 00:08:03.920 --> 00:08:08.000 able to use Authoram's profile to develop a significantly larger 125 00:08:08.319 --> 00:08:13.519 SNP profile. The FBI uploaded the larger SNP profile to 126 00:08:13.639 --> 00:08:18.759 multiple genetic genealogy databases, including ged match and my Heritage, 127 00:08:19.000 --> 00:08:23.480 which purport to disallow law enforcement searches. At the time, 128 00:08:23.560 --> 00:08:26.360 the FBI had an interim policy issued by the United 129 00:08:26.399 --> 00:08:30.519 States Department of Justice related to IgG analysis and searches 130 00:08:30.680 --> 00:08:35.240 by its agencies. On the one hand, the interim policy 131 00:08:35.279 --> 00:08:40.879 required that investigative agencies conduct IgG searches in genetic genealogy databases, 132 00:08:41.080 --> 00:08:44.759 permitting law enforcement use. However, on the other hand, the 133 00:08:44.759 --> 00:08:48.399 interim policy also stated it was intended only as an 134 00:08:48.440 --> 00:08:52.240 internal guidance and did not impose any legal restrictions on 135 00:08:52.360 --> 00:08:57.519 investigative agencies, noting the interim policy is not intended to 136 00:08:57.799 --> 00:09:00.600 does not and may not be relied upon to create 137 00:09:00.639 --> 00:09:04.960 any substantative or procedural rights or benefits enforceable at law 138 00:09:05.200 --> 00:09:08.039 or in equity by any party against the United States 139 00:09:08.399 --> 00:09:13.000 or its departments, agencies, entities, officers, employees, or agents, or 140 00:09:13.039 --> 00:09:17.120 any other person in any matter civil or criminal. This 141 00:09:17.240 --> 00:09:21.080 interim policy does not impose any legal limitations on otherwise 142 00:09:21.159 --> 00:09:26.759 lawful investigative or prosecutorial activities or techniques utilized by the 143 00:09:26.799 --> 00:09:31.240 Department of Justice, or limit the prerogatives, choices, or decisions 144 00:09:31.279 --> 00:09:34.840 available to or made by the Department in its discretion 145 00:09:36.279 --> 00:09:39.519 from the information it acquired through the databases search, the 146 00:09:39.600 --> 00:09:42.360 FBI was able to build a family tree and arrive 147 00:09:42.399 --> 00:09:45.679 at a potential match. On December nineteenth, twenty twenty two, 148 00:09:45.960 --> 00:09:49.840 the FBI provided defendant's name to Idaho law enforcement as 149 00:09:49.840 --> 00:09:53.440 a possible source of the DNA. The FBI instructed that 150 00:09:53.480 --> 00:09:56.799 the identification of defendant as a person of interest was 151 00:09:56.799 --> 00:10:00.840 to be considered solely as a tip. Warrant was obtained 152 00:10:00.840 --> 00:10:04.480 for the FBI's work, and subsequent warrant applications did not 153 00:10:04.559 --> 00:10:09.360 include the IgG results to inform probable cause. As the 154 00:10:09.399 --> 00:10:14.039 investigation ensued, law enforcement discovered that defendant had driven from Pullman, 155 00:10:14.159 --> 00:10:16.799 Washington to his parents' home in a gated community in 156 00:10:16.840 --> 00:10:21.559 Monroe County, Pennsylvania. At the time, Monroe County's municipal Waste 157 00:10:21.720 --> 00:10:25.759 Ordnance required homeowners to dispose of their garbage by placing 158 00:10:25.799 --> 00:10:28.519 it out for collection or delivering it directly to a 159 00:10:28.559 --> 00:10:33.000 licensed watehauler. Only an authorized trash collector could collect garbage 160 00:10:33.080 --> 00:10:37.080 left out for collection. Law enforcement decided to conduct a 161 00:10:37.080 --> 00:10:41.000 warrantless trash pull from the Coburger residence. Arrangements were made 162 00:10:41.039 --> 00:10:44.120 with the local trash collector to isolate and turn over 163 00:10:44.159 --> 00:10:48.000 the Coburger's garbage to law enforcement for testing. Articles of 164 00:10:48.000 --> 00:10:50.559 trash were retrieved and sent to the Idaho State Police 165 00:10:50.600 --> 00:10:55.039 Forensic Lab to conduct standard DNA testing. A DNA profile 166 00:10:55.120 --> 00:10:58.399 developed from one article of trash was determined to be 167 00:10:58.440 --> 00:11:01.960 from the biological father of the source of Q one one. 168 00:11:02.320 --> 00:11:05.200 Another article of trash revealed a mixture of male and 169 00:11:05.240 --> 00:11:11.120 female DNA. According to defendant expert Gary Schulter, PhD. The 170 00:11:11.159 --> 00:11:15.120 mal DNA from a mixture was consistent with Q one 171 00:11:15.159 --> 00:11:19.240 dot one profile. Importantly, defendant is not claimed ownership or 172 00:11:19.279 --> 00:11:22.000 knowledge of the knife sheath from which Q one one 173 00:11:22.200 --> 00:11:26.559 was taken. After obtaining a search warrant, law enforcement collected 174 00:11:26.639 --> 00:11:30.559 DNA from a buckle swab obtained from defendant. A traditional 175 00:11:30.679 --> 00:11:34.440 str DNA comparison was done between the Q one one 176 00:11:34.480 --> 00:11:39.799 profile and defendant's DNA. The comparison showed a statistical match. Specifically, 177 00:11:39.840 --> 00:11:44.360 defendant was five zero point three seven octillion times more 178 00:11:44.519 --> 00:11:46.679 likely to be the source of the Q one one 179 00:11:46.720 --> 00:11:51.480 profile than an unrelated individual randomly selected from the general population. 180 00:11:52.279 --> 00:11:56.200 Defendant was subsequently charged in this case. All right, we're 181 00:11:56.200 --> 00:11:57.960 going to wrap up right here, and in the next 182 00:11:57.960 --> 00:12:00.840 episode we're going to pick up with conclusions of law. 183 00:12:01.840 --> 00:12:03.480 If you'd like to contact me, you can do that 184 00:12:03.519 --> 00:12:08.039 at Bobby Kapuci at ProtonMail dot com. That's Bobby cap 185 00:12:08.480 --> 00:12:12.200 u Cci at ProtonMail dot com, or if you prefer, 186 00:12:12.240 --> 00:12:17.960 you can find me on x at Bobby Underscore capu Cci. 187 00:12:18.720 --> 00:12:20.679 All of the links that go with this episode can 188 00:12:20.720 --> 00:12:23.960 be found in the description box. What's up everyone, and 189 00:12:24.000 --> 00:12:26.679 welcome back to the program. In this episode, we're going 190 00:12:26.759 --> 00:12:29.279 to pick up where he left off with Judge Hibler's 191 00:12:29.360 --> 00:12:35.559 order on the IgG information Conclusions of law. The Fourth 192 00:12:35.600 --> 00:12:38.960 Amendment of the United States Constitution protects the right of 193 00:12:39.000 --> 00:12:42.399 the people to be secure in their persons, houses, papers, 194 00:12:42.559 --> 00:12:47.799 and effects against unreasonable searches and seizures. US Constitution Amendment 195 00:12:48.080 --> 00:12:51.480 number four. In seeking suppression of evidence based on a 196 00:12:51.519 --> 00:12:55.559 warrantless search, a defendant bears the evidentiary burden to show 197 00:12:55.559 --> 00:12:58.080 that he had a legitimate expectation of privacy in the 198 00:12:58.120 --> 00:13:02.320 item or play searched. Did the defendant have a subjective 199 00:13:02.399 --> 00:13:05.960 expectation of privacy in the object of the challenge search, 200 00:13:06.279 --> 00:13:11.320 and is society willing to recognize that expectation as reasonable. 201 00:13:11.879 --> 00:13:14.159 The former is a question of fact, the latter a 202 00:13:14.240 --> 00:13:17.559 question of law. When a defendant makes such a showing, 203 00:13:17.600 --> 00:13:20.039 the burden will shift to the state to show an 204 00:13:20.080 --> 00:13:23.799 exception to the warrant requirement exists, or that the search 205 00:13:23.919 --> 00:13:29.240 was reasonable under the circumstances. Here, defendant challenges three allegedly 206 00:13:29.639 --> 00:13:33.960 unlawful DNA related searches. One the development of an SNP 207 00:13:34.120 --> 00:13:36.840 profile from q dot one to one to the trash 208 00:13:36.840 --> 00:13:40.879 pull from the Coburger residence and subsequent DNA testing thereon, 209 00:13:41.320 --> 00:13:46.120 and three the search of the commercial genetic databases using 210 00:13:46.120 --> 00:13:49.679 the SNP profile. He seeks to suppress not only the 211 00:13:49.720 --> 00:13:53.840 genetic information obtained by law enforcement, but all other evidence 212 00:13:53.879 --> 00:13:58.120 obtained as a result of the alleged legal behavior. In response, 213 00:13:58.159 --> 00:14:01.039 the State argues defendant has not met his threshold burden 214 00:14:01.080 --> 00:14:05.039 of demonstrating that a constitutional violation occurred with regard to 215 00:14:05.159 --> 00:14:09.120 any of the three searches. The State is correct, a 216 00:14:09.159 --> 00:14:12.799 defendant is not established the fourth Amendment violation with regard 217 00:14:12.919 --> 00:14:17.639 to the development of the SNP profile. Defendant first asserts 218 00:14:17.679 --> 00:14:20.480 that the extraction and testing of DNA from the sheath 219 00:14:20.559 --> 00:14:26.000 to develop the SNP profile constituted an unreasonable search mandating suppression, 220 00:14:26.639 --> 00:14:30.600 noting recent advances that have made DNA capable of revealing 221 00:14:30.639 --> 00:14:34.039 prolific and sensitive information, as well as the fact that 222 00:14:34.120 --> 00:14:38.639 humans continually shed DNA into the environment. Defendant asked this 223 00:14:38.759 --> 00:14:42.039 court to find that a reasonable expectation of privacy in 224 00:14:42.120 --> 00:14:46.200 his DNA, the testing of which through SNP methods required 225 00:14:46.240 --> 00:14:49.679 a warrant, despite the fact that law enforcement was lawfully 226 00:14:49.720 --> 00:14:52.559 in possession of the object containing the DNA i e. 227 00:14:52.679 --> 00:14:57.120 The sheath. He further posits that his privacy interest is 228 00:14:57.159 --> 00:14:59.879 not subject to the doctrine of abandonment because the sh 229 00:15:00.000 --> 00:15:03.080 setting of DNA into an environment is not a voluntary 230 00:15:03.159 --> 00:15:06.440 or knowing act. The state denies that the testing of 231 00:15:06.480 --> 00:15:09.559 the DNA from the sheath was a search, pointing out 232 00:15:09.600 --> 00:15:12.320 the DNA was lawfully seized evidence from the scene of 233 00:15:12.360 --> 00:15:16.759 a crime. The state further contends defendant has not demonstrated 234 00:15:16.960 --> 00:15:20.279 he had a reasonable expectation of privacy in this DNA 235 00:15:20.960 --> 00:15:24.320 because he abandoned it, or because he has not shown 236 00:15:24.360 --> 00:15:27.679 the existence of a reasonable privacy interest, society is willing 237 00:15:27.720 --> 00:15:32.279 to recognize. This is a matter of first impression in Idaho. However, 238 00:15:32.360 --> 00:15:35.360 applying a well settled principle of Fourth Amendment law, the 239 00:15:35.440 --> 00:15:40.480 Corps finds no constitutional violation. First, defendant abandoned any privacy 240 00:15:40.519 --> 00:15:44.159 interest in his DNA by disclaiming knowledge or ownership of 241 00:15:44.159 --> 00:15:48.159 the sheath from which the DNA was extracted. Second, even 242 00:15:48.320 --> 00:15:51.639 if no such abandonment occurred, there is no reasonable expectation 243 00:15:51.720 --> 00:15:55.120 of privacy in DNA found at a crime scene which 244 00:15:55.159 --> 00:16:01.120 is subsequently analyzed to identify an unknown suspect. Defendant cannot 245 00:16:01.240 --> 00:16:05.240 establish a subjection expectation of privacy in the DNA found 246 00:16:05.279 --> 00:16:08.720 on the sheath due to abandonment. It's well settled that 247 00:16:08.759 --> 00:16:12.000 a person who voluntarily abandons property prior to a search 248 00:16:12.279 --> 00:16:15.879 cannot be said to possess the requisite privacy interest under 249 00:16:15.919 --> 00:16:19.360 the Fourth Amendment. When one abandons property, there can be 250 00:16:19.440 --> 00:16:23.600 nothing unlawful in the government's appropriation of such abandoned property 251 00:16:23.960 --> 00:16:28.639 Able versus. United States nineteen sixty. In the Fourth Amendment context, 252 00:16:28.639 --> 00:16:33.200 abandonment occurs through words, acts, and other objective facts indicating 253 00:16:33.240 --> 00:16:38.000 that the defendant voluntarily discarded, left behind, or otherwise relinquish 254 00:16:38.120 --> 00:16:41.840 his or her interest in his or her property Stark 255 00:16:41.960 --> 00:16:46.879 supra citation omitted. Disclaiming ownership or knowledge of an item 256 00:16:46.960 --> 00:16:53.200 constitutes abandonment state versu. Melling, Idaho, twenty sixteen. In Melling, 257 00:16:53.240 --> 00:16:57.039 for example, officers reported to the defendant's house after reports 258 00:16:57.039 --> 00:17:00.399 of a fight. While officers were speaking to the defendant, 259 00:17:00.600 --> 00:17:03.559 his girlfriend gave officers a lock box that she said 260 00:17:03.600 --> 00:17:07.079 belonged to the defendant. The defendant old officers he had 261 00:17:07.119 --> 00:17:09.480 never seen the box before and had no idea who 262 00:17:09.519 --> 00:17:11.920 it belonged to, that nothing in the box was his, 263 00:17:12.200 --> 00:17:13.960 and he did not know what was inside of it. 264 00:17:14.720 --> 00:17:17.519 The court held that by disclaiming ownership of the lock 265 00:17:17.559 --> 00:17:23.759 box and its contents, the defendant abandoned any privacy interests therein. Moreover, 266 00:17:23.799 --> 00:17:27.079 a person need not specifically disclaim knowledge or ownership of 267 00:17:27.119 --> 00:17:30.279 the contents of a container to result in abandonment thereof, 268 00:17:30.720 --> 00:17:34.119 it's sufficient to disclaim knowledge or ownership of the container 269 00:17:34.119 --> 00:17:41.559 itself see State versus Ayatseva two thousand and By denying 270 00:17:41.559 --> 00:17:44.359 ownership of the bag in response to the officer's inquiry 271 00:17:44.440 --> 00:17:48.519 prior to the search, the defendant essentially relinquished or abandoned 272 00:17:48.519 --> 00:17:52.160 any privacy interests in the contents of the bag. There's 273 00:17:52.200 --> 00:17:55.039 no dispute here that the defendant has not claimed any 274 00:17:55.079 --> 00:17:59.799 knowledge or ownership of the sheath, thus resulting in its abandonment. 275 00:18:00.119 --> 00:18:03.319 Defendant concedes as much, but argues that abandonment of any 276 00:18:03.359 --> 00:18:05.920 privacy interest in the sheath did not result in the 277 00:18:05.960 --> 00:18:10.720 abandonment of the DNA found on the sheath. He contends that, 278 00:18:10.839 --> 00:18:14.240 unlike the voluntary act leaving the sheath, leaving DNA on 279 00:18:14.319 --> 00:18:17.440 the sheath is not voluntary because a person has no 280 00:18:17.519 --> 00:18:21.480 way to know that their DNA has been left behind. DNA, 281 00:18:21.640 --> 00:18:24.599 points out, is shed everywhere humans have no ability to 282 00:18:24.680 --> 00:18:29.319 keep their biological material from the environment. Consequently, he reasons 283 00:18:29.599 --> 00:18:32.200 of finding that the DNA on the sheath was abandoned 284 00:18:32.359 --> 00:18:35.720 would mean that the person voluntarily gives up privacy in 285 00:18:35.799 --> 00:18:39.640 their entire genetic makeup every time they interact with the public. 286 00:18:40.519 --> 00:18:43.640 In support of his argument, defendant relies exclusively on a 287 00:18:43.680 --> 00:18:47.400 concurring opinion in State versus Carbo, which is factually similar 288 00:18:47.440 --> 00:18:50.559 to this case. In Carbo, the evidence that issue was 289 00:18:50.599 --> 00:18:55.079 seemen deposited inside the deceased crime victim and skin scrapings 290 00:18:55.119 --> 00:18:59.480 from underneath hearth fingernails. In an attempt to identify a suspect, 291 00:18:59.559 --> 00:19:03.079 law Enforce contracted with a lab to conduct a genetic 292 00:19:03.119 --> 00:19:06.799 analysis of the DNA extracted from this evidence. Like here, 293 00:19:06.880 --> 00:19:10.559 the lab created an SNP profile from the DNA and 294 00:19:10.680 --> 00:19:15.960 utilized commercial genealogical databases to determine a potential source. It 295 00:19:16.000 --> 00:19:19.720 also generated a report that provided information about the suspects 296 00:19:19.759 --> 00:19:25.079 physical traits and ancestral origin. This information ultimately led law 297 00:19:25.160 --> 00:19:29.039 enforcement to the defendant. Law enforcement then created a DNA 298 00:19:29.119 --> 00:19:32.640 profile from trash discarded by the defendant which matched the 299 00:19:32.759 --> 00:19:37.000 DNA profile from the crime scene. Subsequently, the defendant provided 300 00:19:37.039 --> 00:19:40.680 a voluntary DNA sample which matched the profile from the 301 00:19:40.720 --> 00:19:44.400 crime scene and the garbage. The defendant moved to suppress 302 00:19:44.440 --> 00:19:47.519 the evidence of his genetic information left behind at the 303 00:19:47.519 --> 00:19:51.400 crime scene. He argued, as defendant does here, that although 304 00:19:51.440 --> 00:19:54.039 he may have abandoned his privacy interest in his seamen 305 00:19:54.240 --> 00:19:57.279 and skin cells, it did not equate to abandonment of 306 00:19:57.359 --> 00:20:01.960 the vast troves of genetic information that biological material contained. 307 00:20:03.440 --> 00:20:06.599 Making short work of this argument, the Minnesota Supreme Court 308 00:20:06.839 --> 00:20:09.640 found that by voluntarily leaving his semen in skin at 309 00:20:09.680 --> 00:20:13.319 the crime scene, he abandoned any subjective privacy interest and 310 00:20:13.359 --> 00:20:18.039 his genetic information contained therein. In the concurring opinion relied 311 00:20:18.119 --> 00:20:21.519 upon by defendant, one justice disagreed with the majority on 312 00:20:21.559 --> 00:20:26.160 this issue. Because the sensitive genetic information revealed BIASNP testing, 313 00:20:26.680 --> 00:20:29.559 he would have required a warrant before allowing such testing. 314 00:20:30.519 --> 00:20:35.160 He further opined that the concept of abandonment, which requires voluntariness, 315 00:20:35.640 --> 00:20:38.960 is an ill fit for genetic information because it's virtually 316 00:20:39.000 --> 00:20:43.519 impossible for humans to prevent leaving personal genetic information everywhere 317 00:20:43.559 --> 00:20:47.160 they go. To this end, he analogized DNA to the 318 00:20:47.200 --> 00:20:51.000 cell phone site location information at issue in Carpenter versus 319 00:20:51.079 --> 00:20:54.680 United States, five eighty five US two ninety six, three ten, 320 00:20:54.720 --> 00:20:58.799 and eleven twenty eighteen, where the United States Supreme Court 321 00:20:58.920 --> 00:21:03.160 reasoned that E SLI is not voluntarily exposed, given that 322 00:21:03.279 --> 00:21:06.359 virtually any activity on a phone, which is essential to 323 00:21:06.440 --> 00:21:10.359 participation in modern life, will leave a trail of location data. 324 00:21:11.519 --> 00:21:15.559 While there are safeguards to prevent the dissemination of CSLI 325 00:21:16.200 --> 00:21:18.799 ie turning off a phone, he observed, there are no 326 00:21:18.880 --> 00:21:22.880 similar safeguards for DNA, thus rendering the case against abandonment 327 00:21:23.160 --> 00:21:26.720 all the more clear. When we venture into public spaces, 328 00:21:26.759 --> 00:21:30.880 we simply cannot help but shed our DNA. The majority, however, 329 00:21:30.960 --> 00:21:33.880 pointed out that the inquiry as to whether the defendant 330 00:21:33.920 --> 00:21:38.079 abandoned his subjective privacy interests looks to his specific actions. 331 00:21:38.640 --> 00:21:41.279 When viewed in this way, the majority found just as 332 00:21:41.359 --> 00:21:45.279 pro Chawne's logic inapt given that the defendant's DNA was 333 00:21:45.319 --> 00:21:48.480 collected not from a shed skin cell, or flake or dandriff, 334 00:21:48.680 --> 00:21:51.599 nor was it a mere consequence of the defendant venturing 335 00:21:51.640 --> 00:21:54.920 into the public sphere. It was collected from semen he 336 00:21:55.079 --> 00:21:58.480 voluntarily left inside the victim and dead skin cells he 337 00:21:58.559 --> 00:22:03.519 voluntarily left on under her fingernails. Defendant argues that the 338 00:22:03.640 --> 00:22:08.839 justice case against abandonment is particularly appropriate here. Defendant argues 339 00:22:08.880 --> 00:22:11.880 the biological material left on the sheath was not blood 340 00:22:12.200 --> 00:22:15.160 or semen or some bodily fluid that the Carbo court 341 00:22:15.440 --> 00:22:18.880 found could be voluntarily left behind instead of argues it 342 00:22:19.039 --> 00:22:24.039 was more likely shed cells, which humans cannot help but discard. However, 343 00:22:24.200 --> 00:22:27.400 as the state points out, there is nothing that distinguishes 344 00:22:27.480 --> 00:22:30.720 semen voluntarily left at a crime scene from the sheath. 345 00:22:31.119 --> 00:22:34.880 Both were abandoned vehicles carrying DNA. Stated another way, the 346 00:22:34.920 --> 00:22:38.359 semen in Carbo and the sheath were both containers of DNA. 347 00:22:38.920 --> 00:22:42.680 As discussed, disclaiming ownership or knowledge of a container results 348 00:22:42.680 --> 00:22:46.599 in abandonment of privacy interest in its contents. Thus, by 349 00:22:46.640 --> 00:22:51.960 effectively disclaiming knowledge or ownership of the sheath, defendant necessarily 350 00:22:52.000 --> 00:22:56.440 abandons any privacy interest in the DNA it contains. Indeed, 351 00:22:56.640 --> 00:23:01.559 Carbo is not an anomaly in finding abandoned. Courts uniformly 352 00:23:01.559 --> 00:23:04.640 hold that a person abandons any privacy interests in their 353 00:23:04.720 --> 00:23:07.640 DNA for purposes of the Fourth Amendment when they abandoned 354 00:23:07.640 --> 00:23:12.400 property that contains their DNA. In State Verse Burns, for example, 355 00:23:12.519 --> 00:23:15.839 law enforcement extracted DNA from a bloodstain dress of the 356 00:23:15.920 --> 00:23:19.160 victim and created a genetic profile, which was run through 357 00:23:19.200 --> 00:23:23.839 genetic genealogy. The defendant was identified as a suspect through 358 00:23:23.920 --> 00:23:27.000 this process. Officers then followed him to a restaurant and 359 00:23:27.039 --> 00:23:31.440 collected a straw the suspect deposited in the trash. Testing 360 00:23:31.480 --> 00:23:34.319 of the DNA on the straw indicated that the DNA 361 00:23:34.440 --> 00:23:38.160 extracted from the dress could be the defendants. A subsequent 362 00:23:38.200 --> 00:23:42.720 test confirmed it. The defendant did not move to suppress 363 00:23:42.759 --> 00:23:46.759 the extraction and analysis of his DNA from the bloodstained dress, 364 00:23:46.960 --> 00:23:50.880 but he did unsuccessfully seek suppression of the DNA extracted 365 00:23:51.039 --> 00:23:54.559 from the straw. On appeal to court had little difficulty 366 00:23:54.640 --> 00:23:57.400 finding that any privacy interest he had in his DNA 367 00:23:57.480 --> 00:24:01.440 profile developed from the straw was abandoned first by failing 368 00:24:01.480 --> 00:24:04.240 to make any effort to preserve the straw as private, 369 00:24:04.559 --> 00:24:08.960 he relinquished any subjective privacy interests therein. Secondly, if he 370 00:24:09.000 --> 00:24:12.640 retained a subjective privacy interest, it was not one society 371 00:24:12.680 --> 00:24:17.000 would recognize as reasonable, considering he voluntarily left the straw 372 00:24:17.079 --> 00:24:21.519 behind in the restaurant. Further, the court rejected the defendant's 373 00:24:21.559 --> 00:24:24.400 attempt to distinguish the DNA on the straw from the 374 00:24:24.400 --> 00:24:28.960 straw itself, finding no practical differences between the two. By 375 00:24:29.000 --> 00:24:32.720 abandoning the straw, he also abandoned the DNA on the straw. 376 00:24:33.440 --> 00:24:35.200 All right, we're going to wrap up right here, and 377 00:24:35.240 --> 00:24:37.039 in the next episode we're going to pick up with 378 00:24:37.160 --> 00:24:41.759 the Burns. Court additionally rejected. If you'd like to contact me, 379 00:24:41.839 --> 00:24:44.839 you can do that at Bobby Kopuchi at Protonmeil dot com. 380 00:24:44.880 --> 00:24:50.799 That's Bobby capu Cci at Protonmeil dot com, or if 381 00:24:50.839 --> 00:24:54.000 you prefer, you can find me on x at Bobby 382 00:24:54.240 --> 00:24:58.599 Underscore cap use Cci. All of the links that go 383 00:24:58.720 --> 00:25:01.680 with this episode can be found in the description box. 384 00:25:01.880 --> 00:25:04.920 What's up, everyone, and welcome back to the program. In 385 00:25:04.960 --> 00:25:07.359 this episode, we're heading back up to Moscow and we're 386 00:25:07.359 --> 00:25:09.759 going to pick up where we left off with Judge 387 00:25:09.799 --> 00:25:14.680 Hipler's order on genetic information. The Court finds the analysis 388 00:25:14.680 --> 00:25:17.759 and Burns compelling and consistent with the Fourth Amendment law. 389 00:25:18.119 --> 00:25:21.680 The Court recognizes that a distinction can be drawn given 390 00:25:21.680 --> 00:25:24.319 the fact that in Burns, there was no question that 391 00:25:24.359 --> 00:25:27.799 the defendant abandoned the straw, and here defendant argues it 392 00:25:27.839 --> 00:25:31.960 cannot be conclusively stated that he abandoned the sheath. However, 393 00:25:32.000 --> 00:25:34.839 as the State notes, this distinction does not preclude a 394 00:25:34.880 --> 00:25:39.039 finding of abandonment for two reasons. First, is discussed abandonment 395 00:25:39.319 --> 00:25:42.319 does not occur slowly by discarding an item. It also 396 00:25:42.359 --> 00:25:46.799 occurs by disclaiming ownership or knowledge or otherwise relinquishing an 397 00:25:46.880 --> 00:25:51.480 interest in property Zitsiva Supra. By not claiming ownership of 398 00:25:51.519 --> 00:25:54.200 the sheath or any knowledge as to how this DNA 399 00:25:54.359 --> 00:25:57.720 arrived on the sheath, defend and abandon any privacy interest 400 00:25:57.799 --> 00:26:00.759 in the DNA. Second, the fact fact that a person 401 00:26:00.799 --> 00:26:03.720