Judicial Watch Asks Supreme Court to Consider Whether the Fourth Amendment Permits the Taking of an Individual’s DNA for Exclusionary Reasons

Three Phoenix Police Officers were forced to give their DNA without probable cause or individualized suspicion

(Washington, DC) – Judicial Watch announced today that it has filed a petition for a writ of certiorari with the U.S. Supreme Court on behalf of Daniel Bill, Bryan Hanania, and Michael Malpass, three officers of the Phoenix Police Department, who were forced to give their DNA in the controversial “death unknown” case of fellow police officer, Sergeant Sean Drenth (Daniel Bill, et al., v. Warren Brewer, et al. (No. 15-720)).

On October 18, 2010, Bill, Hanania, and Malpass responded to an “officer down” call involving the gunshot death of Drenth, who was found dead outside of his vehicle in a vacant lot one-half mile south of the State Capitol building. Drenth had been shot in the head. His shotgun was lying lengthwise on his body, centered on his chest with the muzzle pointed toward his chin. A single bullet from the gun had entered just under his chin and burst out through the top of his skull. Drenth’s secondary weapon was on the ground next to his right ankle, with his handcuffs, cell phone, and flashlight nearby.

Bill, Hanania, and Malpass all reported to the crime scene; however, none of the officers ever got closer than 15 feet from Drenth’s body. They never touched or were closer than 15 feet from the shotgun that lay across Drenth’s chest or the secondary weapon that lay near Drenth’s ankle. They did not touch or enter Drenth’s patrol car. The Phoenix Police Department also repeatedly stated that Bill, Hanania, and Malpass were not suspects in Drenth’s death.

Yet, the Phoenix Police Department wanted the officers’ DNA “for exclusionary purposes.” On August 8, 2011, the police department applied to a judge of the Maricopa County Superior Court for orders of detention authorizing the temporary detention of the officers for purposes of taking their DNA. The police department’s applications and supporting affidavits were completely devoid of any facts establishing individualized suspicion that the officers had committed criminal wrongdoing or were otherwise responsible for the death of Drenth.

The detention orders were issued later that day and were also completely devoid of any conclusions that individualized suspicion existed or that the officers had committed criminal wrongdoing or were otherwise responsible for the death of Drenth. Subsequently, between August 15, 2011, and August 17, 2011, the Phoenix Police Department used buccal swabs to take the officers’ DNA and impounded it as evidence. The Phoenix Police Department then had the DNA analyzed and intends to continue to maintain possession of both the DNA and the results of the analysis for as long as fifty-five years, or until 2066.

In December 2012, Judicial Watch filed a federal civil rights lawsuit in the United States District Court for the District of Arizona on behalf of Bill, Hanania, and Malpass (Bill, et al. v. Brewer, et al. (No. 2:12-cv-02613)). In April 2013, the District Court dismissed the complaint. In August 2015, a panel of U.S. Court of Appeals for the Ninth Circuit upheld the District Court’s decision.

Judicial Watch attorneys argue that the Supreme Court should take the case to decide “what standard governs the collection and analysis of DNA from an individual neither charged nor even suspected of committing a serious crime, but whom police seek to exclude as the source of unknown DNA.”

Judicial Watch also argues that the appellate court turned the Fourth Amendment on its head to justify the search of the officers’ DNA:

[T]he Ninth Circuit concluded that “there was probable cause to believe the evidence sought could be found in the place to be searched (inside of [P]laintiffs’ mouths).” Of course there was probable cause that Plaintiffs’ DNA would be found in Plaintiffs’ mouths. The assertion is practically a tautology. It is a scientific certainty that if an individual’s mouth is swabbed, that individual’s DNA will be found. If the police only need to show that there is probable cause that an individual’s DNA will be found in that individual’s mouth, the Fourth Amendment becomes meaningless. That is not a protection against invasion of privacy; it is a license for it.

This case and the issue of DNA privacy generally is of national importance because:

DNA is left by everyone. It can be found everywhere. Because it contains the most private, intimate information of an individual, the Fourth Amendment cannot allow the police to haphazardly search an individual’s DNA simply because it may assist in identifying unknown DNA.

“The Fourth Amendment protects police officers in Phoenix as it does everyone else. Simply because officers swear their allegiance to uphold the law doesn’t mean they surrender their rights to be protected under it,” said Judicial Watch President Tom Fitton. “Our police officer clients would have been subject to lawsuits and criminal sanctions if they took a citizen’s DNA without probable cause or individualized suspicion (i.e., a search warrant). Why on Earth would any court or police official think it could detain and seize evidence from individuals known to have nothing to do with a crime. The Supreme Court should agree to take this case to uphold the Fourth Amendment against the collection and analysis of DNA from an individual neither charged nor even suspected of committing a crime.”

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