UPDATES & ANALYSIS

Analyzing DNA voluntarily abandoned in public is not a search under the United States or Iowa Constitution, according to the Iowa Supreme Court

by Ami Penquite | June 9, 2023

In a 5-2 decision, the Iowa Supreme Court held that police officers’ collection and testing of DNA on a drinking straw abandoned by a suspect in a restaurant did not constitute a search under the Fourth Amendment of the United States Constitution or article I, section 8 of the Iowa Constitution. Two dissenting Justices expressed concern about the intimate nature of DNA and its ability to be abandoned in public.

In 1979, Michelle Martinko was found dead in Cedar Rapids. The police were able to obtain blood samples of a suspect from the crime scene, but without DNA technology, the case went cold.

By 2005, police were able to create a male DNA profile based on the blood at the scene and in 2018 a private lab was able to identify a relative of the suspect. The relative of the suspect had three first cousins who became suspects, including Jerry Lynn Burns. Police where able to follow Burns to a local restaurant, obtain a drinking straw he left behind as trash, and create a DNA profile.

Based on the profile, the police obtained a warrant for Burns’s DNA, which after testing was a 1 out of 100 billion match to the DNA found at the crime scene in 1979. A jury, presented with this information and testimony from one of Burns’s cellmates, found Burns guilty of first-degree murder.

On appeal to the Iowa Supreme Court, Burns contended the DNA found on the straw should have been excluded from evidence under the Fourth Amendment or article I, section 8. Justice David May, writing for the Court, disagreed.

Under the Fourth Amendment, which protects a person’s reasonable expectations of privacy, the defendant must have sought to preserve something as private and that expectation must be one society is prepared to recognized as reasonable. The District Court concluded these criteria were not met and the Court agreed.

Justice May noted Burns made no effort to preserve the straw as private, leaving it behind at the restaurant. Once an item is voluntarily abandoned, society will not recognize an expectation of privacy as reasonable.

However, Burns asserted the DNA on the straw should be treated differently than the abandoned straw itself. The Court disagreed, reasoning that DNA left on the abandoned straw should not be treated any differently from a Fourth Amendment perspective. Once the straw was voluntarily abandoned, so was any DNA attached to the straw. Although the DNA was not visible to individuals at the restaurant and had to be identified through lab analysis, it could still be abandoned.

Burns also argued he could not voluntarily abandoned DNA because humans involuntarily leave DNA everywhere. The Court also rejected this argument, noting that Burns voluntarily placed the straw in his mouth and left it at the table. Justice May analogized this fact pattern to fingerprints involuntarily left in public and developed through special technology, where analysis of fingerprints has never been considered a Fourth Amendment search.

Burns contended DNA is different than fingerprints because of the vast amounts of information DNA analysis can provide. But in this case, the police did not get vast amounts of information from Burns’s DNA, only his identity. But, Justice May did not “foreclose the possibility that other kinds of warrantless DNA analysis might require a different result.”

Under the Iowa Constitution, Justice May followed the same analysis stating article 1, section 8 does not categorically provide greater protection than the Fourth Amendment. First, the police did not commit a trespass under the Iowa Constitution and the statute relied on by Burns, Iowa Code § 729.6(3), provides an explicit exception for collecting DNA during criminal investigations. Second, under the reasonable expectation of privacy test, “the collection and analysis of Burns’s DNA did not invade any privacy expectations that are protected by section 8.”

Burns also raised a different issue concerning jury instructions. One of Burns’s cellmates, Michael Allison, testified at trial about incriminating statements Burns made while in jail. Allison was facing a federal indictment, but at the time of trial had no active plea deal in place. Burns contended a required instruction in federal court about Allison’s possibility of a plea deal should have been required in the Iowa District Court, but the Court disagreed.

The trial court must instruct the jury on any legal issues in the case, but the federal sentencing instructions favored by Burns would have simply provided the jury with additional facts. According to Justice May, those were the “same kind of facts that Burns’s counsel successfully obtained from Allison on cross-examination.”

Finally, Justice May determined there was a sufficient amount of evidence to sustain the conviction and the judgment of the District Court was affirmed.

Justice Christopher McDonald wrote a concurrence questioning the constitutional foundation of the exclusionary rule, whereby evidence obtained in violation of the Fourth Amendment is inadmissible in criminal proceedings. He argued the exclusionary rule is not a remedy available under the United States or Iowa Constitution and Iowa courts are not required to use it. Justice McDonald urged, “this court should reconsider the state exclusionary rule under article I, section 8 of the Iowa Constitution in the appropriate case.”

Justice Matthew McDermott and Justice Dana Oxley each filed separate dissenting opinions. In his dissent, Justice McDermott argues that unlike trash or abandoned property, DNA, or human genetic material, falls in the category of the “person” protected from unlawful search and seizure by the Fourth Amendment and article 1, section 8. Similarly, Justice McDermott concluded that the information encoded within DNA qualifies as one’s “papers” also protected by these constitutional provisions. Justice McDermott therefore contended collection and analysis of DNA must be protected from unreasonable searches.

Justice McDermott also argued that it does not make sense to consider DNA as something that could be abandoned. According to Justice McDermott, DNA could also not be abandoned voluntarily as it is involuntarily shed by all people and it could not be compared to fingerprints as it contained far more information. Justice McDermott compared the analysis of DNA to the analysis of cell phone data, which the Supreme Court has held requires a warrant.

Justice McDermott feared if abandoned DNA is not being protected it would open the door for the government to create repositories of every person’s DNA for crime solving purposes.

Justice Oxley agreed with Justice McDermott’s concerns about DNA being abandoned. She wrote that the Court must consider if an expectation of privacy was violated, not if the police conduct was reasonable in the immediate instance. Justice Oxley wrote, “only once we’ve determined whether an expectation of privacy exists here and what it looks like should we then look to the information received from Burns’s DNA and how officers used it to analyze whether that use violated any reasonable expectation of privacy.”

Justice Oxley contrasted the facts in this case with a prior United States Supreme Court case, Maryland v. King, where the DNA analysis only permissible because the defendant had already been arrested, lessening their expectation of privacy. Overall, “[t]he expectation that police will not warrantlessly analyze an individual’s DNA is one that society is prepared to recognize as reasonable—at least where, as here, that person does not have a diminished expectation of privacy.”

Thus, both Justice McDermott and Justice Oxley concluded information gleaned from Burns’s DNA collected at the restaurant should have been excluded from evidence.

Tags: Iowa Supreme Court 2022-23