STANDING TO CHALLENGE FAMILIAL SEARCHES OF COMMERCIAL DNA DATABASES.

• Author: Kody, Hillary L.

TABLE OF CONTENTS INTRODUCTION 288 I. DNA AND THE FOURTH AMENDMENT 290 A. Basics of DNA and DNA Fingerprinting 291 B. How the Courts Have Treated DNA Under the Fourth 293 C. CODIS and the Rise of Consumer DNA Databases 294 II. THIRD-PARTY DOCTRINE, CARPENTER, AND STANDING 295 A. Third-Party Doctrine Before Carpenter 295 B. Carpenter v. United States and Cell-Site Location Information 297 1. Privacy Interest in Location Information 298 2. Third-Party Doctrine 300 3. Expectation of Privacy and Third-Party Doctrine: The Court's Application in Carpenter 300 C. "Standing" Doctrine 302 III. DNA AND CSLI 306 A. Expectation of Privacy in DNA 306 B. Involuntary Transfer of DNA 310 C. Sufficient Safeguards and Comparable Limitations 312 IV. STANDING TO CHALLENGE FAMILIAL DNA SEARCHES OF THIRD-PARTY DATABASES 313 V. COUNTERARGUMENTS 315 A. A Person Has No Reasonable Expectation of Privacy in a Family Member's DNA 315 B. An Individual Has Standing to Challenge Any Familial 316 DNA Search CONCLUSION 318 INTRODUCTION

In April 2018, police officers arrested Joseph James DeAngelo. (1) DeAngelo, the officers claimed, was the "Golden State Killer," a man who committed dozens of murders and over fifty sexual assaults in California in the 1970s and 1980s. (2) The Golden State Killer had long eluded police, even though his DNA profile linked him to dozens of violent crimes. (3) While law enforcement officials from several jurisdictions in California had collected his DNA from crime scenes, the Golden State Killer's crimes predated modern DNA analysis. (4) Police found little use for the profile without a suspect's profile to compare to it. (5)

Nearly forty years later, the break in the case that ultimately implicated DeAngelo came when officers ran the Golden State Killer's DNA profile through an online genealogical DNA database, GEDMatch, and located a familial match--one of DeAngelo's third cousins. (6) Police traced DeAngelo through his family tree, eventually narrowing in on DeAngelo specifically. (7) Police then obtained DeAngelo's actual DNA sample by search warrant, and confirmed that DeAngelo and the Golden State Killer are one and the same. (8)

DeAngelo's apprehension and subsequent examples of police using similar tactics to solve cold cases--including the NorCal Rapist (9)--spurred a national debate on DNA and privacy. (10) Direct-to-consumer DNA services, such as 23andMe and AncestryDNA, have dramatically expanded in recent years. (11) Over seven million at-home DNA kits were sold in 2017 alone. (12) As of April 2018, more than fifteen million people have undergone direct-to-consumer DNA testing. (13) Some scientists predict that 60 percent of Americans of European descent have a familial match as close as a third cousin in a commercial DNA database. (14)

Based on these statistics and the recent success tracking down the Golden State Killer and NorCal Rapist, police will likely see third-party DNA and ancestry databases as a valuable resource to assist in closing cold cases. (15) Law enforcement agencies across the country have thousands of unsolved cases involving DNA with no suspect profile to conduct a comparison. (16) But what are the Fourth Amendment implications of passing a perpetrator's DNA profile through an ancestry database or compelling a third-party company to do so? Is such a process considered a search or does it otherwise implicate an expectation of privacy sufficient to trigger the warrant requirement of the Fourth Amendment? If this process constitutes a search, could an individual challenge the search of a family member's DNA profile if it eventually implicates them? This Note will address these questions.

In Part I, this Note will provide an overview of DNA and its use in criminal investigations and prosecutions. Part II will survey both the Supreme Court's third-party doctrine, including the Court's recent decision Carpenter v. United States, and the evolution of the Fourth Amendment "standing" doctrine. (17) Part III will compare DNA and cell-site location information, which the Court analyzed in Carpenter, concluding that individuals have an expectation of privacy in their own DNA profile even when shared with a third party. In Part IV, this Note will push the concept of standing, arguing that the nature of DNA--specifically the interconnectedness of DNA among family members--should allow a related individual to challenge the legality of a search of his familial DNA. Part V will address counterarguments.

1. DNA AND THE FOURTH AMENDMENT

   Today, deoxyribonucleic acid (DNA) analysis occupies an indispensable place in the criminal justice system--connecting suspects to the DNA they leave behind at crime scenes. Police in the United States first utilized DNA analysis in 1986. (18) Since that time, law enforcement officials have regularly relied on matching a suspect's DNA profile to a DNA sample. (19) Courts have responded to the pervasive DNA collection and use as evidence, laying some groundwork for consideration of DNA under the Fourth Amendment. (20)

   1. Basics of DNA and DNA Fingerprinting

      Almost all human cells contain, in their nuclei, forty-six chromosomes made up of DNA. (21) Individuals inherit one half of their chromosomes from each of their parents. (22) DNA is made up of individual molecules known as nucleotides. (23) Four types of nucleotides--adenine (A), thymine (T), guanine (G), and cytosine (C)--in sequence form one half of a strand of DNA. (24) The DNA sequence matches up with a complementary sequence to form a DNA strand. (25) When matching up nucleotides, A always pairs with T, and G always pairs with C. (26) These couplings are known as "base pairs." (27) Base pairs form the basic structure of DNA, known as the "double helix." (28)

      For genetic identification purposes, analysts look to identifiable patterns in the genetic code, known as short tandem repeats (STRs). (29) Individual STRs, averaging between two to five base pairs, form a sequence which repeats a set number of times. (30) STRs occupy a fixed point on a chromosome. (31) By looking at the location of the STRs on the chromosome (32) and the number of repetitions, analysts can compare one DNA sample to another. (33)

      In order to compare DNA samples--a process called DNA finger-printing--crime laboratories in the United States look to a set of twenty STRs. (34) The twenty STRs are known as "CODIS core loci," after the Combined DNA Index System, the FBI's national DNA database. (35) Although STRs vary significantly between individuals, they are not unique in and of themselves. (36) However, when the twenty loci are analyzed together, the profile is unique when compared to other full profiles. (37)

      Once analysts identify the twenty markers, they compare them to other profiles to see how closely they match. (38) On average, two unrelated people will share, at most, two or three markers. (39) First degree relatives share, on average, about half of the twenty pairs. (40) By comparing all twenty markers, the probability of a false positive is very small. (41) An exact match indicates that the two samples came from the same individual. (42) A partial match indicates a familial connection. (43)

      Commercial DNA companies, rather than looking just at the twenty STR markers, conduct different forms of analysis (44) that expose substantially more information. For example, AncestryDNA states that it uses "microarray-based autosomal DNA testing" to analyze over 700,000 locations of a person's genome. (45) Such analysis provides customers with genetic, ancestry, and medical information. Courts have not yet grappled with how this vast increase in access to information should interact with the Fourth Amendment.

   2. How the Courts Have Treated DNA Under the Fourth Amendment

      Most court decisions on DNA searches have concerned law enforcement collection of DNA from convicts, arrestees, and others in the presence of police. The Supreme Court weighed in on the issue of preconviction DNA collection in Maryland v. King. (46) The Maryland DNA Collection Act allowed law enforcement to take a cheek swab DNA sample from any "individual who is charged with... a crime of violence or an attempt to commit a crime of violence; or... burglary or an attempt to commit burglary." (47) After arresting King for assault, police took his DNA and uploaded it to their database. (48) King's DNA profile matched to DNA gathered from a six-year-old rape case, for which King was later convicted. (49) The Court held that the Fourth Amendment allowed police to collect DNA by cheek swab from a person arrested for a "serious offense." (50) The police's actions were reasonable, according to the King Court, because the government interest in identifying an arrestee outweighed the minimal intrusion to the individual. (51)

      Maryland is not the only state that allows DNA collection from arrestees. (52) California, Texas, Virginia, and Louisiana are among states that require preconviction DNA collection from individuals charged with felonies. (53) Lower courts have also wrestled with the scope of permissible DNA searches under the Fourth Amendment. (54)

   3. CODIS and the Rise of Consumer DNA Databases

      In 1990, the Federal Bureau of Investigation piloted CODIS to assist federal and state law enforcement agencies in solving violent crimes. (55) The DNA Identification Act of 1994 solidified the CODIS project by establishing the National DNA Index System to match DNA profiles to known offenders. (56) When law enforcement enters a DNA profile into the CODIS database, searches can return a full match or a partial match. (57) A perfect match indicates that the DNA sample came from the offender listed in CODIS. (58) A partial match, however, indicates that the crime scene DNA originated from a family member of that offender. (59)

      In addition to law enforcement databases, third-party consumer databases hold growing numbers of DNA profiles. As of April 2018, more than fifteen million...