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DNA Evidence Violates 4th Amend, But Still Admissible Under Herring

By Gabriella Khorasanee, JD on December 02, 2013 | Last updated on March 21, 2019

In 2009, the Supreme Court decided Herring v. United States, a 5-4 decision that held the exclusionary rule does not apply to evidence that is obtained by police mistake and negligence, "rather than systemic error or reckless disregard of constitutional requirements."

We are now seeing the Herring-effect make its way through the circuit courts.

The DNA Cheek Swab

In 2005, a school in Maine received anonymous letters containing white powder. An investigation by the local postal authorities led to the home of Michael Thomas. The U.S. attorney issued a grand jury subpoena, even though a federal grand jury was not consulted, and the postal officers received a DNA cheek swab from Thomas. After receiving the results of the DNA test, they did not match the DNA on the stamps used to mail the letters, and the investigation was closed.

Six years later, state government officials, including the Governors of Maine and Wisconsin, received anonymous letters threatening murder. The ensuing investigation zeroed in on an address -- one that one of the postal officers remembered as Thomas' from an unrelated, 2008 investigation. The old file, from the 2005 investigation was obtained, which included one of two pages of the DNA test results, though the actual DNA sample had been destroyed. Officials requested the missing page from the lab, and after a review, the lab concluded that the 2005 DNA sample matched the saliva on three of the 2011 letters.

Based on the DNA match, the FBI obtained a warrant to arrest Thomas. Thomas confessed to sending the 2005 and 2011 letters. At trial, he moved to suppress the initial 2005 DNA cheek swab, and all evidence that followed as a result of using the illegally obtained evidence. The district court disagreed.

Fourth Amendment Violations and Herring

Though both the district court, and First Circuit found that DNA cheek swab was taken in violation of Thomas' Fourth Amendment rights, both courts concluded that the exclusionary rule did not apply here. Relying on Herring, the First Circuit found the exclusionary rule did not apply because there was no evidence that the postal officials engaged in misconduct in obtaining the evidence. Thus, any deterrent effect was attenuated. The fact that the initial investigation took place six years before, and the 2011 investigation was a result of "happenstance," led the court to conclude that the district court properly denied Thomas' motion to suppress.

We are likely to see more and more of these unfortunate cases making their way through the circuits. As the Fourth Amendment gets sliced and diced, let's hope that the exclusionary rule still has some bite.

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