case law update

Court-Ordered DNA Collection to Exclude Officers from Investigation Permissible

Court orders for collection of DNA evidence from police officers for the sole purpose of excluding those officers as sources of DNA found at a crime scene is constitutionally permissible, according to the Ninth Circuit.

Phoenix Police Sergeant Sean Drenth died from a gunshot wound to his head, on October 18, 2010. The investigation into his death revealed unknown male DNA profiles on Drenth’s patrol car and weapons. To eliminate them as contributors of the unknown DNA, investigators received consent to collect DNA samples from each of the approximately fifty Phoenix Police Department officers who entered the crime scene, except five.

The lead investigator met with the five refusing officers, she explained that they were not suspects based on reliable evidence of their location at the time of Drenth’s death and that police sought their DNA for the sole purpose of excluding them as sources of the unknown DNA in the Drenth investigation. The officers still refused.

Investigators then sought and received orders from an Arizona Superior Court judge for a mouth swab of each refusing officer. The swabs were taken and analyzed, and the police department maintained the officers were not suspected of having committed any crime.

Three of the five swabbed officers then filed a §1983 action in federal court, alleging the orders for their DNA failed to satisfy the warrant requirement of the Fourth Amendment. After a district court judge dismissed their complaint, the plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit.

Whether the Superior Court orders satisfied the Fourth Amendment, “turn[ed] on whether the submitted affidavits [requesting the orders] demonstrated probably cause to believe that the evidence sought would aid in an apprehension or conviction for a particular offense,” the Ninth Circuit wrote. Because the orders were issued as part of a homicide investigation, the key issue was whether law enforcement had demonstrated a nexus between the plaintiffs’ DNA and the homicide, explained the court.

The court concluded, “[t]hat plaintiffs had themselves already been excluded as suspects does not undermine the nexus between the evidence desired and the crime investigated; excluding public safety personnel as the source of DNA would plainly ‘aid in’ the conviction of an eventual criminal defendant, by negating any contention at trial that police had contaminated relevant evidence.” Therefore, the orders authorizing collection of the plaintiffs’ DNA satisfied the Warrant Clause of the Fourth Amendment, the court held.

Read the full case: Bill v. Brewer


This case law update was written by James P. Garay Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

Posted in Case Law Update

Tags: case law update, michael s causey


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