Supreme Court, Monroe County, November 21, 2022

Easton Thompson Kasperek Shiffrin, LLP (Donald M. Thompson of counsel) for defendant.

Sandra Doorley, District Attorney (Lisa Gray of counsel), for plaintiff.

Defendant Timothy Williams (hereinafter Williams) moves to suppress statements made by him to law enforcement as well as DNA evidence which identifies him as the person who likely committed indicted offenses. For the reasons that follow, the motion is denied.

Relevant Facts

On November 24, 1984, the body of 14-year-old W.J. was discovered in the City of Rochester. She had suffered significant injuries and during the course of the investigation and autopsy, spermatozoa were recovered from her vagina.

In 1999 the Monroe County Crime Lab obtained a DNA profile from the spermatozoa recovered from Ms. J. That profile was uploaded to the Combined DNA Index System (commonly referred to as CODIS) to determine whether it matched profiles from known offenders. There were no matches.

In October of 2017 the New York State Division of Criminal Justice Services (hereinafter DCJS) promulgated regulations^[FN1] permitting "familial DNA searches." "The phrases familial DNA search and familial search refer to a targeted evaluation of offenders' DNA profiles in the DNA databank which generates a list of candidate profiles based on kinship indices to indicate potential biologically related individuals to one or more sources of evidence." (9 NYCRR 6192.1 [ab].) In essence, the search that is conducted under a familial DNA search is comparing [*2]the DNA sample to the profiles in the DNA data bank to determine if one or more persons in the DNA data bank are closely related to the individual that provided the source of the evidence.{**77 Misc 3d at 784}

A DNA profile from the spermatozoa recovered from Ms. J. was submitted to DCJS in April of 2019 to conduct a familial DNA search. The search resulted in two people being identified as potential biologically related individuals to the man who provided the spermatozoa recovered from Ms. J. Those two individuals were Arthur Williams, who was later identified as defendant Williams' brother, and Michael Murray, who was Arthur Williams' son and thus, defendant Williams' nephew.

Based upon this information, the investigating officers determined that defendant Williams was a possible suspect as he had lived in the area of the murder at the time Ms. J. was killed. This eventually led to investigators obtaining DNA evidence from Williams, as well as incriminating statements.

On September 9, 2020, Williams was arrested and later indicted on three counts of murder in the second degree for the death of Ms. J.

On May 5, 2022, the Appellate Division, First Department invalidated the regulations promulgated by DCJS allowing familial DNA searches holding that DCJS violated the separation of powers doctrine in enacting the regulations without legislative authority. (Matter of Stevens v New York State Div. of Criminal Justice Servs., 206 AD3d 88 [1st Dept 2022].) Salient to the issues herein, the First Department held that although the petitioners had standing to challenge the propriety of an administrative determination, it was highly unlikely a defendant who challenged a familial DNA search would have standing to do so. (Id. at 100-101.)

Williams now argues that the decision in Stevens mandates suppression of the DNA evidence and statements obtained from Williams as the fruit of an unconstitutional search (the familial DNA search).

Conclusions of Law

The familial search that occurred in the case at bar was to compare the DNA profile created from the spermatozoa recovered from Ms. J. against DNA profiles from all offenders contained in CODIS, including the profiles of Arthur Williams (defendant Williams' brother) and Michael Murray (defendant Williams' nephew). Important to the resolution herein is the fact that the search did not include a search of defendant Williams, as his DNA profile was not contained in the CODIS data bank. The search at issue here was the search of Arthur Williams' and Michael Murray's profiles.{**77 Misc 3d at 785}

Defendant Williams does not have standing to challenge the search of Arthur Williams' or Michael Murray's DNA profiles.

To invoke the exclusionary rule to suppress evidence under the 4th Amendment to the US Constitution or the New York Constitution, a defendant must establish that he was the victim of an unlawful search. As the Court of Appeals observed in People v Wesley (73 NY2d 351, 355 [1989]):

"The decision as to who is, or should be, entitled to enforce the prohibition against unreasonable searches and seizures necessarily entails balancing the cost of the loss of probative evidence against the gain in deterring lawless police conduct. Courts in other States have chosen to weigh these factors differently, but in this State, as in the Federal courts, it has long been held that the policy best serving these competing interests is one that—recognizing the rights protected by the Fourth Amendment as personal rights—limits invocation of the exclusionary remedy to persons whose own protection [*3]has been infringed by the search and seizure. (Rakas v Illinois, 439 US 128, 138; People v Cefaro, 21 NY2d 252, revd on rearg on other grounds 23 NY2d 283; compare, People v Martin, 45 Cal 2d 755, 290 P2d 855.) 'In order to qualify as a "person aggrieved by an unlawful search and seizure" one must have been a victim of a search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' (Jones v United States, 362 US 257, 261.)"

As the search that was conducted did not impact any privacy right of defendant Williams, he does not have standing to invoke the exclusionary rule to suppress the statements and the DNA evidence obtained because of the investigative efforts taken after the familial DNA search. Williams cannot assert a personal privacy interest in his relatives' DNA profiles.^[FN2] (People v Ponder, 54 NY2d 160 [1981]; see also People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996] ["A defendant seeking suppression {**77 Misc 3d at 786}of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched (People v Wesley, 73 NY2d 351, 358-359; People v Reynolds, 71 NY2d 552, 557; People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160; see, Rawlings v Kentucky, 448 US 98, 106; United States v Salvucci, 448 US 83; Rakas v Illinois, 439 US 128; Katz v United States, 389 US 347; see generally, 5 LaFave, Search and Seizure § 11.3 [3d ed])"].)

Assuming, arguendo, that Williams does have standing to challenge the familial search and argue that the results of the search (and any evidence derived therefrom) must be suppressed due to the holding of Stevens, the court declines to so hold. Stevens did not mandate the suppression of evidence discovered under familial DNA searches, and its decision in invalidating the regulations authorizing familial DNA searches does not require suppression here.

It is undisputed that at the time the DNA profile was submitted for a familial DNA search the regulations authorizing familial searches had been promulgated, and the search itself was conducted in accordance with those regulations. Williams argues, through citation to People v Bigelow (66 NY2d 417 [1985]), that an agent of the government is not entitled to the "good faith" exception (i.e., relying upon improperly promulgated regulations) and thus the evidence here must be suppressed. That argument misses the mark.

The issue is not whether the government agents here acted in good faith, but whether at the time they submitted the DNA profile and conducted the familial search were their collective actions lawful under the previously promulgated regulations. The answer is clearly yes. At best, the agents herein would be exercising a reasonable belief that their actions in conducting the familial search were lawful and their actions are comparable to instances where police officers engage in a 4th Amendment search or stop based upon a mistaken belief a violation of the law had [*4]occurred. (See e.g. People v Turner, 176 AD3d 1623, 1624 [4th Dept 2019] ["In light of ' "the reality that an officer may suddenly confront a situation in the field as to which the application of a statute is unclear—however clear it may later become(,)" ' an officer's misreading of a statute that is susceptible of multiple interpretations and has not been definitively construed by New York appellate courts may amount to a reasonable mistake of law justifying a traffic stop (Guthrie, 25{**77 Misc 3d at 787} NY3d at 134-135, quoting Heien v North Carolina, 574 US 54, 66 [2014])"].)

It would be incongruous to hold that the agents herein, acting under regulations that had not yet been invalidated, engaged in an unconstitutional search while New York courts in other cases have excused actions of police officers who engaged in conduct subject to 4th Amendment protections under a mistake of law. (See e.g. People v Guthrie, 25 NY3d 130 [2015]; People v Estrella, 10 NY3d 945 [2008], cert denied 555 US 1032 [2008].) The government agents herein did not operate under an erroneous interpretation of the law (see e.g. People v Gonzalez, 88 NY2d 289 [1996]); at the time they conducted the familial search their actions were lawful. The subsequent invalidation of the regulations by Stevens does not convert their previously lawful actions into an unconstitutional search.

Defendant Williams' motion to suppress is denied.