DNA Extraction, Plain View, and the Scope of the Exclusionary Rule: The Fourth Circuit’s Decision in United States v. Davis

The Fourth Circuit decided a very interesting Fourth Amendment case last week on the constitutionality of DNA testing, the scope of the plain view exception, and the scope of the exclusionary rule. The case is United States v. Davis, decided August 16. Judge Agee wrote the majority opinion joined by Judge Keenan, and Judge Davis dissented in part. I’ll run though the facts, then turn to the law, and then offer some thoughts.

I. The Facts

Following a murder in 2004 (call this murder #1), officers conducted a DNA test of a hat and a gun used by the shooters that resulted in a DNA match in the government’s database with the DNA collected in another murder investigation. The DNA had been in the government’s database because a few months before the murder/carjacking, Davis was a suspect in an unrelated murder (call this murder #2). The officer investigating murder #2 had obtained a DNA sample from Davis by learning that the police in another county happened to have custody of a pair of pants with his blood on it. The police in the other county happened to have a pair of pants with Davis’s blood because a few years earlier, Davis showed up at a local hospital with a gunshot wound in his leg. At the time, he claimed to have been shot by someone who tried to rob him. and Davis’s pants were taken from him as evidence of the crime of which Davis was the (alleged) victim. So the officer in murder #2 got the pants from the police in the other county, had the DNA testing done, and as a result had Davis’s DNA entered into the government database. That led to a match with Davis’s DNA when the officers investigating murder #1 also happened to run Davis’s DNA, leading to a match between the DNA collected in the murder #1 investigation and the DNA collected in the murder #2 investigation.

The defendant, Davis, argued that the collection of evidence in the murder #2 case violated his Fourth Amendment rights, and that the remedy should be suppression of the DNA evidence in the murder #1 case. Specifically, he argued that his Fourth Amendment rights were violated when the officer seized his pants, took them away, and later opened the bag to obtain his pants to do the DNA test; ; that his Fourth Amendment rights were violated when the blood from his pants were tested for the murder #2 investigation; and that his Fourth Amendment rights were violated when the police maintained his DNA profile in the government database after the murder #2 investigation.

II. The Court’s Ruling

(1) The Fourth Circuit first concludes that the government did not violate Davis’s Fourth Amendment rights when the officer seized the pants and later searched the bag to recover the blood because the evidence could be seized and searched under the plain view exception. The pants were evidence of crime — of a robbery when seized, and of a murder when the bag was opened — and the officer knew what was in the bag when he collected and searched it. So the contents of the bag were known to the officer, and thus in plain view.

(2) The court next concludes that the officers violated the Fourth Amendment when they ran the DNA test on the blood found on the pants. Davis had a reasonable expectation of privacy in his DNA, and the fact that his pants containing the blood were taken from him at the hospital does not mean that he abandoned his DNA. The search was unreasonable under the totality of the circumstances: While the government had a strong interest in collecting and testing the evidence to solve criminal cases, Davis was a free man when the bloody pants were taken away and its DNA later analyzed. On balance, the court concludes, the search was unreasonable. Thus, the Fourth Amendment was violated.

(3) The court finally concludes that the exclusionary rule does not apply to the violation. Under the good faith exception, the exclusionary rule only applies when the officers acted sufficiently culpably, and here there isn’t enough evidence of culpable conduct to justify suppression. There is no evidence of the officers’ subjective intention, but it looks at most like a case of “isolated negligence.” Balancing the interests, the facts of the case seem unlikely to occur, and here the DNA evidence is critical to catching a murderer. Thus no exclusionary rule applies.

III. My Thoughts and Analysis

I find the analysis in the Davis case rather puzzling on all three of the major issues.

(1) The court’s plain view analysis strikes me as a bit odd for a few reasons. First, as Judge Davis points out in his dissent, it appears to be premised on facts that seem to be creatively reconstructed by the panel majority. Judge Agee justifies this approach based on the canon that the court must construe the record below in the light most favorable to the government because it won below. But the canon of favorable construction doesn’t justify creating facts to justify the result below; otherwise it would eliminate the government’s burden of proof that a warrantless search or seizure was lawful.

Second, I don’t know why the court is so focused on the opening of the bag given that Davis didn’t put the pants in the bag in the first place. Davis had no role in putting the pants in the bag: The hospital personnel did that. Given that Davis did not himself put the pants in the bag, I don’t see how it could violate his reasonable expectation of privacy to open the bag and see the pants that he himself had exposed to the police. More broadly, it seems to me that Davis relinquished his reasonable expectation of privacy in the exposure of what is on his pants to the government when he came to the hospital, claimed to be a victim of a robbery and shooting, and then spoke with the police about the alleged crime and let them take his pants away as evidence. Based on the totality of those circumstances, this seems like an implied consent to take away the pants.

(2) The court’s reasonableness analysis also strikes me as odd. The court engages in a general reasonableness balancing test for the “search” of extracting the DNA, influenced by the fact that courts have used that framework in disputes over DNA testing for arrestees. But the courts that have used the general reasonableness approach have done so because the searches involved arrestees: The idea was that the arrest alters the usual calculus and subjects the search to a general reasonableness balancing. But when there is no arrest, a search normally isn’t subject to a totality of the circumstances balancing inquiry. Rather, reasonableness is usually determined by default rules such as that a warrantless search or seizure ordinarily requires a warrant. So I don’t think it was right to subject the reasonableness of the search to a general reasonableness analysis. (I’ll leave aside the issue of whether the DNA testing is itself a search: A lot of lower courts have ruled on that, so it’s not a new issue in this case.)

(3) Finally, the majority’s extension of the good-faith exception strikes me as unwarranted and unfortunate. The Fourth Circuit reduces the exclusionary rule to a general test of individual culpability of the officers involved. Of course, there isn’t such evidence: Personal culpability is mostly about what the officers were subjectively thinking, and an officer’s subjective intent is irrelevant under Whren v. United States and difficult to establish even if it is considered relevant. In effect, there is little chance of exclusion without proof of state of mind, but the defense can’t get proof of state of mind so it doesn’t have much of a chance at suppression. This may be where the Supreme Court wants to take the scope of the exclusionary rule, but I don’t think it’s there yet: As Judge Davis notes in his dissent, cases like Herring and Davis were briefed, argued, and decided on much narrower grounds. Maybe the Court will get to the point of replacing the prior analysis with just a straight personal culpability test, but I don’t think it’s correct to read those case as so holding. More broadly, as I have written at some length before, it can’t be that the balancing test of the exclusionary rule is a balance about the cost/benefit of applying the exclusionary rule in that one particular case: The balance has to be over a general class of cases, like all knock-and-announce violations in Hudson v. Michigan. Considering the cost/benefit of the exclusionary rule in that one case would just mean that the exclusionary rule doesn’t apply to any important case, which would be a pretty dramatic shift in the Supreme Court’s exclusionary rule caselaw.