Supreme Court, Bronx County, October 13, 2021

Bronx Defenders, Bronx (Oded Oren of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Alexander Mangano of counsel), for plaintiff.

The defendant was indicted by the grand jury of Bronx County and charged with criminal possession of a weapon in the second degree and related crimes. In his omnibus motion, the defendant moved, inter alia, to suppress the DNA evidence obtained from a cigarette butt, arguing that even if the butt was intentionally abandoned, he left whatever DNA was on it "unintentionally," that he did not waive his privacy rights in his DNA material or DNA information, and that extracting and analyzing the DNA evidence constituted a separate and second search to which he did not consent. This court rejected this argument, relying in part on People v Sterling (57 AD3d 1110, 1111-1112 [3d Dept 2008]), in which the Court found that the defendant had not subjectively exhibited an expectation of privacy in a milk carton from which he had drunk, and once the police had lawfully obtained it, "he no longer retained any expectation of privacy in the discarded genetic material [it contained]." The defendant now moves to reargue his motion.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." (CPLR 2221 [d] [2].) Explaining that he is not seeking to suppress the DNA molecule obtained from the cigarette butt, and instead "the information extracted from that DNA—the reports, analysis, and inferences obtained from the analysis of the physical molecule," the defendant insists, as he had [*2]in his omnibus motion, that the decision of the Supreme Court in Carpenter v United States (585 US —, 138 S Ct 2206 [2018]) requires a different result. The People oppose the defendant's motion, relying on their response to the defendant's omnibus motion.

In Carpenter, the government attempted to invoke the third-party exception to the Fourth Amendment to a defendant's historical cell-site location information obtained from a cell phone service provider, which the defendant had "given" to the {**73 Misc 3d at 717}service provider by using his cell phone. (See Smith v Maryland, 442 US 735, 744 [1979] ["When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and exposed that information to its equipment in the ordinary course of business" (internal quotation marks omitted)].) In rejecting the government's argument, the Court held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information]." (Carpenter, 585 US at —, 138 S Ct at 2217.) Quoting from Carpenter (585 US at —, 138 S Ct at 2223) the defendant argues that it "articulated a new rule: an individual has an expectation of privacy in their information if the information (1) is of [a] 'deeply revealing nature,' (2) of substantial 'depth, breadth, and comprehensive reach,' and (3) can easily be collected." The defendant insists that the DNA material obtained from the cigarette butt in this case fits within that new rule because

"a person's DNA holds deeply-revealing and vast amounts of information about them and their family—some of it that the person themselves might not know. To a greater or lesser extent, DNA information provides insights into a person's biological sex, sexual orientation, ethnic background, disease tendency, intelligence, political views, ancestry information and the existence of relatives that the person themselves might not be aware of, among others." (Footnotes omitted.)

In support of his argument, the defendant cites cases holding that a Fourth Amendment search occurs when a substance is obtained from which DNA can be extracted. In Skinner v Railway Labor Executives' Assn. (489 US 602, 618 [1989]), for example, the Supreme Court held that "the collection and subsequent analysis of [urine] must be deemed Fourth Amendment searches." Similarly, in Nicholas v Goord (430 F3d 652 [2d Cir 2005]), the Second Circuit concluded that requiring certain classes of convicted felons to provide DNA samples to be maintained in a state database was a search within the meaning of the Fourth Amendment, but was not unlawful because it fell within the "special needs" exception to the warrant requirement. These cases are inapposite because they concern the lawfulness of obtaining the substances, and not, as defendant argues here, only the extraction and analysis of DNA from something that was lawfully obtained.{**73 Misc 3d at 718}

The case most on point the defendant relies on is United States v Davis (690 F3d 226 [4th Cir 2012]). In Davis, DNA was extracted from the defendant's clothing, which the court found had been lawfully seized when he was a crime victim, four years before the commission of the crime of which he was convicted. The Fourth Circuit held that "the extraction of DNA and the creation of a DNA profile result i[s] a sufficiently separate invasion of privacy that such acts must be considered a separate search under the Fourth Amendment even when there is no issue concerning the collection of the DNA sample." (Id. at 246.) The court reasoned that the extraction and analysis was a search: "because the analysis of biological samples, such as those derived from blood, urine, or other bodily fluids, can reveal 'physiological data' and a 'host of private medical facts,' such analyses may 'intrude[ ] upon expectations of privacy that society has long recognized as reasonable.' " (Davis, 690 F3d at 243, quoting Skinner, 489 US at 616-617.)

In rejecting the holding in Davis, the Court of Appeals of Maryland concluded that

"DNA testing of the 13 identifying junk loci within genetic material, not obtained by means of a physical intrusion into the person's body, is no more a search for purposes of the Fourth Amendment, than is the testing of fingerprints, or the observation of any other identifying feature revealed to the public—visage, apparent age, body type, skin color." (Raynor v State, 440 Md 71, 96, 99 A3d 753, 767 [2014].)

Similarly, the Supreme Judicial Court of Massachusetts concluded that "where . . . DNA analysis is limited to the creation of a DNA profile from lawfully seized evidence of a crime, and where the profile is used only to identify its unknown source, the DNA analysis is not a search in the constitutional sense." (Commonwealth v Arzola, 470 Mass 809, 820, 26 NE3d 185, 194 [2015]; see also Lovchik v Commonwealth, 2020 WL 6139896, *4, 2020 Va App LEXIS 249, *9 [Va Ct App, Oct. 20, 2020, Record No. 1094-19-4] ["when appellant abandoned the items that carried his DNA, he not only relinquished any objectively reasonable right to privacy in those items, but also any such right to privacy in the DNA profile developable from those items to identify him"]; United States v Hicks, 2020 WL 7311607, *2, 2020 US Dist LEXIS 232749, *4 [WD Tenn, Dec. 11, 2020, Case No. 2:18-cr-20406-JTF-7] ["Defendant abandoned the cigarette butt containing his DNA sample and in doing{**73 Misc 3d at 719} so, surrendered any expectation of privacy he had in the DNA profile that could be extracted from the sample"].)

Like the courts quoted above, I disagree with the conclusion in Davis that extracting and analyzing DNA for the purpose of developing a DNA profile—in and of itself, and apart from the legality of the means by which the item from which the DNA is extracted is obtained—is a search within the meaning of the Fourth Amendment. While Raynor and Arzola were decided before Carpenter, the extraction and analysis of DNA for the sole purpose of developing a profile is not, like the cell-site location information at issue there, "deeply revealing" or of substantial "depth, breadth, and comprehensive reach," since the genetic information obtainable from DNA that is deeply revealing and comprehensive is neither sought nor revealed in the process.^[FN*]

In Maryland v King (569 US 435, 464 [2013]), the Supreme Court held that taking a buccal swab from a person arrested for a serious offense in order to obtain the person's DNA sample was reasonable under the Fourth Amendment. In so holding, the Court noted that "the CODIS loci [that comprise a DNA profile] come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee" and "are not at present revealing information beyond identification," and that whether "the testing at issue in this case reveals any private medical information at all is open to dispute." (Id.) "[E]ven if noncoding alleles could provide some information," the Court added, "they are not in fact tested for that end," and "law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched." (Id.)

Thus, the court in Raynor reasoned that

"[t]he Davis Court's conclusion that the DNA testing at issue in that case constituted a Fourth Amendment search rested on what may now be a [*4]faulty premise, given the discussion in King that DNA analysis limited to the 13 junk loci within a{**73 Misc 3d at 720} person's DNA discloses only such information as identifies with near certainty that person as unique." (Raynor, 440 Md at 90, 99 A3d at 764; see also Arzola, 470 Mass at 820, 26 NE3d at 194 [agreeing with Raynor that "it is likely that the limited information provided by a DNA profile and the limited purpose of identification will lead the Supreme Court to reach a conclusion that is different from that of the Davis court"].)

Like both courts, I "doubt that the Fourth Amendment reasoning of the Davis court will be adopted by the United States Supreme Court." (Arzola, 470 Mass at 819, 26 NE3d at 193-194.)

Accordingly, while the defendant's motion to reargue is granted, upon reconsideration, the motion to suppress the information obtained from that DNA extracted from the cigarette butt is again summarily denied.