LYNCH, Chief Judge.
Michael R. Thomas conditionally pled guilty to a series of criminal charges brought in 2011, including for sending letters to public officials threatening murder. He appeals from the district court's 2011 denial of his motion to suppress the fruits of the use of his 2005 DNA profile in
The DNA was obtained during a 2005 postal service investigation of a different matter which resulted in no charges against Thomas. That profile was not destroyed but retained in closed investigative files. It was retrieved during the 2011 investigation, which focused on Thomas for other reasons. The 2005 DNA profile was a match to the DNA recovered from the threatening letters sent in 2011 and provided the basis for the 2011 warrant.
This case presents a series of Fourth Amendment issues relating to the collection of tissue by cheek swab and the resulting DNA profile, the retention of the profile in the closed case file of the 2004-2005 investigation, and later, the use of the profile in support of the warrant in the 2011 federal case.
The issue arises because the swab material was collected in 2005 by postal inspectors' service on Thomas of a grand jury subpoena, given by a clerk of court to a U.S. Attorney on request. There was no judicial or other grand jury involvement in issuance of the 2005 grand jury subpoena, and it was not issued in conjunction with an arrest or a determination of probable cause or some lesser standard. While we agree with Thomas that the method of obtaining his DNA, under Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), violated the Fourth Amendment, we affirm, under Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), the district court's denial of Thomas's motion to suppress in 2011.
The undisputed underlying facts are as follows.
In 2004, a threatening letter in an envelope containing an unidentified white powder was mailed to Austin Preparatory School in Reading, Massachusetts. The letter bore an "Eastern Maine 044" postmark, meaning that it was processed in Hampden, Maine, which processes all mail from northern Maine. Odette Kent, a school secretary, opened the letter, and then reviewed the school's alumni database to determine how many alumni lived in the area associated with the "Eastern Maine 044" postmark on the letter. After finding that Thomas
William Kent, Desrosiers's supervisor at the time, drove to Thomas's home in Madawaska, Maine on January 19, 2005 (about an eight-hour round trip drive from Bangor) to serve the subpoena. He gave Thomas the subpoena and told him that he
Thomas's buccal swab was sent by the postal inspectors for analysis to Orchid Cellmark, Inc., a private company that provides testing services to government agencies. While they were waiting for the results from Orchid Cellmark, the postal inspectors continued their investigation, and had an analyst in their forensic laboratory compare Thomas's handwriting exemplar to the handwriting on the Austin Prep letters. Based in part on the analyst's belief that Thomas was the author of the letters, Kent and Desrosiers went to Thomas's home to interview him on June 22, 2005. During that meeting, they informed him of the results of the handwriting analysis, but Thomas denied sending the letters.
In February 2006, Orchid Cellmark provided the DNA report and analysis to the U.S. Postal Inspection Service (USPIS) laboratory. The results indicated that Thomas, on the basis of his DNA, could be excluded as the source of the DNA recovered from the stamps on the threatening letters to Austin Prep. Attached to the report was Thomas's DNA profile, as depicted in tables listing the genetic markers found at a number of different locations on the genetic material. The investigation into these letters was closed in June 2006, and Thomas was not charged with any crime. The evidence was never presented to a grand jury during this investigation.
In early 2011, the offices of Maine Governor Paul LePage and Wisconsin Governor Scott Walker began receiving anonymous, threatening letters. One letter to Governor LePage stated that the sender was "READY TO VOTE WITH A BULLET" and vowed to "STRIKE WHEN YOU LEAST EXPECT IT," while one of the letters sent to Walker stated that Walker "SHOULD BE SHOT DEAD" and that his "FAMILY SHOULD BE
On March 21, 2011, Desrosiers attended a meeting with another postal inspector and the two FBI Special Agents working on the case. The agents shared that their possible suspect's address was at Loring House on Brighton Avenue in Portland, Maine; they also focused on how to obtain the suspect's DNA without arousing his suspicion. The mention of the Loring House address sparked Desrosiers's memory; he disclosed that in 2008, he had assisted in an FBI investigation in which Thomas was the target, and at that time Thomas resided at that address in Portland. During the 2008 investigation, Desrosiers had pulled the then-archived case file from the Austin Prep investigation, and the March 21, 2011 meeting prompted him to review the original 2005 file once again.
The original investigation file included a "Destruction Certificate" which indicated that the original buccal swabs obtained in 2005 were destroyed, pursuant to the USPIS protocol for officially closing investigations.
On March 24, 2011, the FBI obtained a criminal complaint, a warrant for Thomas's arrest, along with search warrants for Thomas's Portland, Maine apartment and another cheek swab. The warrant and complaint were obtained entirely on the basis of an affidavit from FBI Special Agent Pamela Flick. Flick's affidavit was based entirely on the match between the retrieved 2004-2005 DNA profile and the DNA profile taken from the 2011 threatening letters. Further, the 2011 Flick affidavit, written six years after the initial DNA swab was obtained, was the first time that the 2005 profile was presented to a federal magistrate. Thomas was arrested the next day.
After his arrest, Thomas confessed to the 2011 crimes. He also confessed to having sent the threatening letters to Austin Prep. The disconnect between this confession and the findings of the 2005 DNA
In an order dated September 30, 2011, the district court denied Thomas's motion to suppress. The court found it unnecessary to decide whether the taking of the swab violated the Fourth Amendment. Thomas, 815 F.Supp.2d at 388-89. It did conduct an evidentiary hearing and analyzed the law on issuance of grand jury subpoenas. Such subpoenas could clearly be used to obtain handwriting exemplars and fingerprints. United States v. Dionisio, 410 U.S. 1, 14-15, 93 S.Ct. 774, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). But as to the issue of obtaining DNA by bodily intrusion, the lower courts were split as to what standard should be used to obtain such evidence by grand jury subpoena. The court found that it need not resolve whether Thomas consented to the search. The court also assumed that if there was a Fourth Amendment violation in the obtaining of the DNA in 2005, the exclusionary rule would have applied to a prosecution for the 2004 mailings.
However, the court concluded that even if there were errors and inadequacies in the 2005 legal process that obtained the DNA profile, the exclusionary rule did not call for its exclusion in this new and unrelated 2011 charge for criminal conduct that occurred in 2011.
Relying on Herring v. United States, supra, the court concluded that the exclusionary rule should not be applied because there was no flagrant or deliberate police misconduct at any point, and application of the exclusionary rule would have little deterrent value, given this absence. The costs of exclusion, the court reasoned, outweighed the benefits. Thomas, 815 F.Supp.2d at 389.
In an appeal from the district court's denial of a motion to suppress, we review de novo the district court's conclusions of law. United States v. Barnes, 506 F.3d 58, 61-62 (1st Cir.2007). We review findings of fact for clear error. United States v. Infante, 701 F.3d 386, 392 (1st Cir.2012). The facts are largely agreed upon; we review de novo the legal conclusions drawn from them. The structure of our analysis follows those arguments presented on appeal and does not engage in issues not appealed by Thomas.
Thomas seeks exclusion of all evidence derived from the taking, retention, disclosure, or use of the DNA sample or profile obtained in 2005. This includes the 2011 search and arrest warrants.
The Fourth Amendment cause requirement will bar the use of the exclusionary rule if there is no but-for causal connection between the Fourth Amendment violation and later discovery of evidence. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The causation nexus has been met here. The government concedes that but for the use of the retained DNA profile, the police would not have been able to supply probable cause to search Thomas's home, arrest him, or obtain a new DNA sample from him in 2011.
The exclusionary rule is "designed to safeguard Fourth Amendment rights generally through its deterrent effect." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); see Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) ("The [exclusionary] rule's sole purpose ... is to deter future Fourth Amendment violations." (emphasis added)). Exclusion is not an automatic consequence of a Fourth Amendment violation, but rather is available only where the benefits of deterring the police misconduct that produced the violation outweigh the costs of excluding relevant evidence. Herring, 555 U.S. at 141, 129 S.Ct. 695.
Importantly, in Herring, a case involving a negligent mistake, the Court held:
555 U.S. at 144, 129 S.Ct. 695.
Significantly for our purposes, the Herring criteria also include consideration of whether the police error is "attenuated" from the events that occur following the error. "Attenuation" is presented by Herring as a necessary component of its deterrence analysis. Where an error "arises from nonrecurring and attenuated negligence," the Court held, it is "far removed from the core concerns that led us to adopt the [exclusionary] rule in the first place," and because the resulting deterrent value is necessarily minimal, exclusion is not warranted. 555 U.S. at 144, 129 S.Ct. 695.
Thomas mounts Fourth Amendment attacks on the police conduct at every stage: the original conduct in obtaining the swab, the retention of the DNA profile material in the closed case file of the 2004-2005 investigation (including the obtaining a replacement copy from Orchid Cellmark in 2011), and the transmission of the material to investigators in 2011.
The Supreme Court has recently held that the taking of a DNA sample from an arrestee using a buccal swab on the inside of a person's cheek is a search. Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 1968-69, 186 L.Ed.2d 1 (2013). Certain consequences follow from the holding that is a search. We agree with Thomas that the obtaining of the buccal swab is a violation of the Fourth Amendment on the facts of this case. That is because since this was a search, under present law the mere use of a grand jury form, without
Though grand jury proceedings are entitled to a "presumption of regularity," In re Lopreato, 511 F.2d 1150, 1152 (1st Cir.1975), the grand jury is also "without power to invade a legitimate privacy interest protected by the Fourth Amendment," Calandra, 414 U.S. at 346, 94 S.Ct. 613. In order to decide whether Thomas's rights were violated here, we do not need to decide under what Fourth Amendment standard a grand jury may obtain a DNA sample through intrusive personal samples by investigative means.
More generally, the Supreme Court has said that the standard governing grand jury subpoenas is something less than probable cause, reasoning that "the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists." United States v. R. Enters., Inc., 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). Of course, there is a qualitative difference between the documents compelled by the subpoena in R. Enterprises and the DNA sample compelled here; R. Enterprises involved the production of documents in which the company did not have a Fourth Amendment interest. What is clear here is that there was no determination by a grand jury or a judge of whether any particular level of Fourth Amendment justification had been met to justify the grand jury subpoena for the DNA sample. On that basis alone, we conclude his Fourth Amendment rights were then violated.
Our issue, though, is not whether Thomas's rights were violated, but whether the Herring test for application of the exclusionary rule has been satisfied. The district court's determination, after a hearing and supported by the evidence, found that the police conduct "was not flagrant or deliberate" within the meaning of Herring. Thomas, 815 F.Supp.2d at 389. There is no evidence here that the postal inspectors involved in obtaining and executing the subpoena knowingly engaged in any misconduct.
Thomas argues that applying the exclusionary rule in this 2011 case would deter any future use of mere forms for grand jury subpoenas obtained by the U.S. Attorney's Office to obtain DNA swabs. If that practice as to grand juries has continued (and we do not know if it has), exclusion arguably could deter such conduct as to grand jury practice. Even so, the Supreme Court has said that would not justify exclusion at the grand jury level. Calandra, 414 U.S. at 349-53, 94 S.Ct. 613.
The deterrence question here is different. Turning, as we must under Herring, to the attenuation and larger deterrence questions, there is a major attenuation problem with his deterrence argument. Had there been a prosecution resulting from the 2004-2005 investigation which used that DNA sample, we agree that there would have been some deterrence value in excluding such evidence if it then had been obtained by nothing more than use of a subpoena form. No such prosecution ultimately occurred, so the issue of possible violation of Thomas's rights never came up. And he never sought destruction of the data.
It is difficult to see why suppression in this later and unforeseen prosecution of an offense not yet committed at the time of the search would have acted to deter the law enforcement agents in the 2011 case from acting improperly any more than they would have already been deterred by knowledge that the results of the search would likely have been excluded at trial of the offense being investigated.
Thomas's hypothesized deterrent effect is simply too attenuated to justify applying the exclusionary rule under Herring. The underlying conduct that violated the Fourth Amendment took place six or seven years ago, and the connection between the 2005 investigation and the 2011 letters was largely a result of happenstance. First, the connection turned on the Loring House address, which Desrosiers happened to remember from a 2008 investigation, not the 2005 investigation, during the 2011 meeting with FBI agents. Second, it was happenstance that it was Desrosiers who was involved in both the 2005 and 2011 investigations.
The circumstances surrounding the issuance and service of this subpoena and the subpoena's attenuated relationship to the 2011 investigation plainly do not justify exclusion under Herring.
Thomas separately contends that the district court erred in concluding that there was also no wrongdoing inherent in the unobjected-to retention of the DNA profile after the 2004-2005 investigation was closed. He so concludes, based largely on the fact no charges were brought
First, the buccal swab sample itself was destroyed in 2006, leaving only one page of the two-page DNA profile in Thomas's file.
Second, it is true that "fingerprints and other personal records are routinely maintained in law enforcement files once taken," United States v. Weikert, 504 F.3d 1, 16 (1st Cir.2007) (quoting United States v. Kincade, 379 F.3d 813, 842 n. 3 (9th Cir. 2004)) (internal quotation marks omitted), and on the facts of this case it is plain that the report on Thomas's DNA profile was retained (and later used) in much the same fashion as a fingerprint exemplar. And the retention of that profile in these circumstances violated no statute, thus giving rise to no claims of even departure from statutory norms.
In support of his argument that his rights were violated by the government's retention of his DNA profile, Thomas argues, incorrectly, that the police circumvented and undermined the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), Pub.L. No. 106-546, 114 Stat. 2726 (2000) (codified as amended in scattered sections of 10 U.S.C., 18 U.S.C., 28 U.S.C. and 42 U.S.C.). This, he says, was misconduct.
By its terms the DNA Act does not apply here.
In Weikert, we noted that the combination of a blood draw, the creation of the DNA profile, and the entry of a DNA profile into CODIS implicates an individual's privacy interests. 504 F.3d at 12. But because a CODIS profile "simply functions as an additional, albeit more technologically advanced, means of identification," we later held in Boroian that "the government's retention and matching of [an individual]'s profile against other profiles in CODIS does not violate an expectation of privacy that society is prepared to recognize as reasonable, and thus does not constitute a separate search under the Fourth Amendment." 616 F.3d at 67-68 (emphasis added). This dismantles Thomas's argument that the retention and matching of his data here was a separate search within the meaning of the Fourth Amendment.
Because the DNA Act by its terms applies only to DNA samples taken from individuals already convicted of "qualifying" crimes, individuals subject to the DNA Act have a "substantially diminished expectation of privacy." Weikert, 504 F.3d at 11 (discussing the privacy expectations of individuals on conditional release following a qualifying conviction). Thomas relies on this concept from Weikert.
Thomas's argument ignores the distinguishing facts that his DNA data was not in CODIS or any other database and was retained only in an old closed case file on an investigation (and not even on him individually). His argument also sidesteps the fact that the old file was not easily or widely available to police, and that there was no disclosure except to relevant law enforcement officials. Thomas points to Weikert as supporting his argument that the retention of his data invades his reasonable expectation of privacy. And it does so, he argues, even more strongly for him than for the convicted prisoners. The police needed to focus on Thomas first to find the DNA, not vice versa as is the case with a database.
We think there is a difference between the situation in Weikert
Thomas mounts an additional set of arguments regarding the transmission of his DNA profile in 2011. First, he contends that it was improper for Desrosiers to obtain the missing page of the DNA profile simply by calling Orchid Cellmark, and that without a separate warrant, this was an impermissible violation of Thomas's reasonable expectation of privacy. Here, he cites the government's concession that individuals do not lose a reasonable expectation of privacy in their lawfully obtained DNA profile as to "any" subsequent use of it. See Boroian, 616 F.3d at 68; Weikert, 504 F.3d at 12-13.
We do not decide the broader questions raised by the government's concession. However, on these facts, the "subsequent use" of the DNA profile— completing an investigative file where the retention of the file itself was not improper—was not a separate violation of Thomas's Fourth Amendment rights.
Second, Thomas claims that because the DNA sample was initially collected "through a Grand Jury Process," the disclosures (first to Desrosiers by Orchid Cellmark and later to the Maine State Police) of the DNA profile violated the rules governing grand jury secrecy.
Desrosiers did not violate Rule 6(e) of the Federal Rules of Criminal Procedure when he gave the DNA profile to the Maine State Police for comparison purposes. First, Thomas fails to establish that Rule 6(e)—which governs grand jury secrecy—was implicated when the report was forwarded. Rule 6(e) imposes secrecy requirements regarding any "matter occurring
In any event, outside of severe cases, the authorized remedy for a secrecy violation is contempt, and not suppression of evidence. See Fed.R.Crim.P. 6(e)(7) ("A knowing violation of Rule 6 ... may be punished as a contempt of court."). We have held that this remedy "focuses, as it should, `on the culpable individual rather than granting a windfall to the unprejudiced defendant.'" In re United States, 441 F.3d 44, 60 (1st Cir.2006) (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 263, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988)). Even if we were to find that there was a violation of Rule 6 here, Thomas does not offer any evidence or cite any authority that would require exclusion, a remedy well beyond the one prescribed in Rule 6(e).
Under Herring we also consider the costs to society from application of the exclusionary rule, and whether any marginal deterrence value outweighs the social costs. 555 U.S. at 141, 129 S.Ct. 695; United States v. Leon, 468 U.S. 897, 910, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Having found the Fourth Amendment violated in the taking of the 2004 sample, even assuming the retention of the DNA profile in a closed case file raises some privacy concerns, and that there is some marginal value even in attenuated deterrence, we agree with the district court that exclusion is not "worth the price paid by the justice system." Herring, 555 U.S. at 144, 129 S.Ct. 695.
The experienced district court judge pointed out one such cost: "it will be very cumbersome if the use of items in law enforcement files can be challenged years later, in a different investigation. How is a current investigator to know the circumstances of the original acquisition and therefore whether particular items of evidence can be used?" Further, as we commented in Weikert, the use of DNA profiles has both the capacity to solve crimes efficiently, and to "exonerate those wrongfully suspected of criminal activity." 504 F.3d at 14.
We are confident that application of the exclusionary rule would be outweighed by the resulting costs to the criminal justice system. We affirm the district court's denial of Thomas's motion to suppress.
We affirm.
Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 1969, 186 L.Ed.2d 1 (2013) (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985)).
