A Square Double Helix in a Round Hole: Forensic Genetic Genealogy Searches and the Fourth Amendment

JurisdictionUnited States,Federal
CitationVol. 39 No. 2
Publication year2023

A Square Double Helix in a Round Hole: Forensic Genetic Genealogy Searches and the Fourth Amendment

Matthew Sweat
msweat4@student.gsu.edu

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A SQUARE DOUBLE HELIX IN A ROUND HOLE: FORENSIC GENETIC GENEALOGY SEARCHES AND THE FOURTH AMENDMENT


Matthew Sweat*


Abstract

A forensic genetic genealogy search (FGGS) involves law enforcement's use of consumer DNA databases to generate leads to solve cold cases. As a result of more modern technological processes, the DNA profiles kept in consumer databases are far more revealing than the DNA profiles stored in the FBI's Combined DNA Index System (CODIS). Accordingly, each DNA profile in a consumer database can be used to identify hundreds of relatives related to the DNA's contributor.

The government's use of consumer DNA databases to locate the perpetrators of horrific, unsolved crimes has generated fans and critics. Supporters of FGGSs argue that, in light of the hundreds of thousands of unsolved crimes, this technique should be used in the name of justice and public safety. Critics of FGGSs argue that the government's access to this kind of information is a Fourth Amendment violation, creating nationwide privacy risks since DNA profiles from only a small portion of the population could enable the government to identify nearly every citizen.

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This Note analyzes FGGSs in light of current Fourth Amendment jurisprudence. In particular, this Note examines FGGSs under the Katz v. United States framework in light of the uncertainty generated from the landmark Supreme Court decision of Carpenter v. United States. Ultimately, this Note concludes that the Katz framework cannot provide a satisfactory answer for the constitutionality of FGGSs and that state-based positive law fails to provide a workable regulatory framework for FGGSs.

This Note proposes a pragmatic compromise. Similar to the Massachusetts Forensic Science Oversight Board, other states should create interdisciplinary oversight boards to monitor the use of FGGSs at the state level. These boards can implement policy consistent with the 2019 Department of Justice FGGS interim guidelines and update their programs as the federal government develops a more robust regulatory framework to guide the use of this novel and powerful technology.

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CONTENTS

Introduction.................................................................................608

I. Background.............................................................................612

A. The Prosecutor's Silver Bullet: DNA................................612
B. The Fourth Amendment and Genetic Information.............617

II. Analysis...................................................................................622

A. Maryland v. King Frames the Debate...............................623
B. Carpenter v. United States and the Fourth Amendment's Application to Modern Technology....................................626
C. Positive Law and FGGSs..................................................629

III. Proposal.................................................................................632

A. Probable Cause and Third-Party DNA Databases...........632
B. The Katz Framework: A Balancing of Competing Interests ............................................................................................633
1. The Government Has an Exceptionally Strong Interest in Using FGGSs...............................................................634
2. DNA Consumers Have an Expectation of Privacy in Their Genetic Information ........................................... 636
C. Positive Law Can Guide the Judiciary..............................638
1. The Limitations of a State-Based Solution...................638
2. The Unlikely Prospect of a Comprehensive Federal Solution ........................................................................ 640
3. The Middle Path...........................................................641

Conclusion....................................................................................642

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Introduction

A young couple visiting Seattle from British Columbia were brutally murdered in the fall of 1987.1 Law enforcement collected DNA from the crime scene but were unable to identify suspects for more than thirty years.2 In 2018, investigators shared the source DNA from the crime scene with Parabon NanoLabs (Parabon), a DNA technology company in Virginia, in search of a breakthrough.3 Parabon used the DNA in two ways: It generated a description of what the killer might look like, and it uploaded the DNA profile to GEDmatch, a "DNA comparison and analysis website" that aggregates DNA profiles created by direct-to-consumer DNA testing companies.4 Cece Moore, the self-taught "citizen scientist" who has become Parabon's chief genetic genealogist, used two second-cousin matches from GEDmatch to build a family tree that indicated William Earl Talbott II was the source of the DNA left at the Seattle crime scene.5 Armed with a

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laptop, a notebook, and a whiteboard, Moore did in two hours what Snohomish County investigators failed to do for decades.6

Acting on this lead, detectives surveilled Talbott.7 When he inadvertently dropped a used paper coffee cup from his truck, law enforcement confirmed that DNA from the cup matched the source DNA from the Seattle crime scene that had been given to Parabon.8 As a result, Talbott, who did not share his DNA with GEDmatch, became the first defendant tried and convicted by a jury based on a lead generated by a forensic genetic genealogy search (FGGS).9 Criminal investigators are increasingly turning to FGGSs to generate leads for cold cases; in fact, FGGSs generated twenty-eight cold case suspects in 2018 alone.10 However, not everyone is thrilled about this emerging law enforcement "gold mine" as concerns proliferate regarding privacy and unchecked policing power.11 Legal commentators are divided over whether law enforcement's use of commercial DNA

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profiles in third-party (private or open-source) databases to generate investigatory leads violates the Fourth Amendment's protection against unreasonable search and seizure.12

A Fourth Amendment search is valid when conducted within the scope of a warrant issued on the basis of probable cause.13 The Supreme Court considers searches lacking judicial sanction, "without prior approval by judge or magistrate, per se unreasonable" and in violation of the Fourth Amendment.14 The Court, however, has also recognized that absent a warrant, Fourth Amendment protections can vary depending on the overall reasonableness of the search.15 Such reasonableness is determined by balancing the government's interest against the individual's expectation of privacy in that activity.16 Some commentators consider law enforcement's warrantless use of

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commercial DNA housed in third-party databases an unreasonable search in violation of the Fourth Amendment.17 Conversely, others argue that warrantless use of FGGSs does not amount to an unreasonable search because of the government's considerable interest in solving crime.18 Finally, other commentators conclude that current Fourth Amendment jurisprudence cannot accommodate FGGSs, necessitating legislation or updated Supreme Court doctrine.19

This Note argues that the Fourth Amendment and the traditional warrant system are ill-equipped to accommodate commercial DNA stored in private databases. Furthermore, states are ill-equipped to regulate the use of this information due to the shared nature of genetic information20 and the ubiquity and ease of access of online databases. Considering these realities, this Note contributes to the growing literature by proposing that states who wish to use this technology in criminal investigations pass legislation to establish civilian forensic science oversight boards that can monitor law enforcement's use of FGGSs pursuant to the 2019 Department of Justice (DOJ) interim guidelines.21 Part I familiarizes the reader with the evolution of forensic DNA and the existing legal frameworks that could bear on this technology, including case law, state statutes, and the 2019 DOJ interim guidelines for FGGSs. Part II analyzes Fourth Amendment jurisprudence relating to DNA and other emerging technologies and

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considers how the Court might analyze FGGSs. Part III examines the problem with a state-based regulatory approach and proposes that state civilian forensic science oversight boards present the best path forward until a federal regulatory scheme for the forensic use of commercial DNA is established.

I. Background

The Supreme Court has said that "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty."22 This Section will explain the history of this technology, how DNA is treated in constitutional law, and recent attempts to regulate the use of FGGSs in criminal investigations.

A. The Prosecutor's Silver Bullet: DNA

In 1984, Alec Jeffreys produced the first "DNA fingerprint"—a sequence of bars on photographic film corresponding to an individual's unique DNA that revealed kinships when compared against other DNA fingerprints.23 In 1987, Jeffreys developed the first DNA profile—a unit of information which "require[s] smaller forensic samples" than a DNA fingerprint and can be turned into a personal identifier in the form of "a sequence of numbers."24 This breakthrough enabled DNA databases to be created.25 Considered the "pinnacle" of forensic evidence, DNA analysis quickly proved capable of both

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solving crimes and exonerating the wrongly accused.26 In 1994, the FBI launched the Combined DNA Index System (CODIS), a system that has "revolutionized criminal investigation" by serving as a central database through which police can compare DNA evidence from local crime scenes to all other DNA profiles in the system.27 CODIS matches DNA from a crime scene with DNA already in the database by...

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