Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger And The IGG Order (Part 4-5) (8/11/26)

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Mega Edition: Bryan Kohberger And The IGG Order (Part 4-5) (8/11/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're getting right back to Judge Hipler's order
• 0:06
  Speaker 1: on the genetic genealogy. Second in Marylyn VERUS King decided
• 0:11
  Speaker 1: after Skinner, Riley, and Davis, the United States Supreme Court
• 0:15
  Speaker 1: confirmed that the objective reasonableness of a privacy interest in
• 0:19
  Speaker 1: DNA depends on how the DNA is actually used by
• 0:23
  Speaker 1: the government, not what it is capable of revealing. Five
• 0:26
  Speaker 1: sixty nine US four thirty five for sixty five twenty thirteen.
• 0:31
  Speaker 1: At issue in King was a Maryland statute which permitted
• 0:34
  Speaker 1: the warrantless acquisition of a buckle swab from an arrestee
• 0:38
  Speaker 1: to obtain a DNA sample. Because the testing was for
• 0:42
  Speaker 1: identification purposes, which is constitutionally permissible, and did not reveal
• 0:46
  Speaker 1: genetic traits or private medical information, the Court found that
• 0:50
  Speaker 1: it did not contravene and arrestees privacy in any way. Notably,
• 0:54
  Speaker 1: the DNA testing in King was of the str alleles, which,
• 0:59
  Speaker 1: unlike SNP time testing, are not known to have any
• 1:01
  Speaker 1: association with genetic disease or any other genetic disposition. However,
• 1:07
  Speaker 1: the Court signaled that it's how the DNA is tested
• 1:09
  Speaker 1: that is legally relevant, not what it is capable of
• 1:12
  Speaker 1: revealing to wit, and even if non coding alleles could
• 1:17
  Speaker 1: provide some information, they are not in fact tested for
• 1:20
  Speaker 1: that end. It's undisputed that law enforcement officers analyze DNA
• 1:25
  Speaker 1: for the sole purpose of generating unique identifying number against
• 1:29
  Speaker 1: which future samples may be matched. This parallels a similar
• 1:33
  Speaker 1: safeguard based on actual practice in the school drug testing context,
• 1:37
  Speaker 1: where the court deemed it significant that the tests at
• 1:40
  Speaker 1: issue here look only for drugs and not for whether
• 1:43
  Speaker 1: the student is, for example, epileptic, pregnant, or diabetic. If
• 1:48
  Speaker 1: the future police analyze samples to determine, for instance, and
• 1:52
  Speaker 1: arrestees predisposition for a particular disease or other hereditary factors
• 1:56
  Speaker 1: not relevant to identity, that case would present additional privacy
• 2:01
  Speaker 1: concerns not present here. Thus, under King, testing of lawfully
• 2:05
  Speaker 1: obtained DNA samples may run a foul of the Fourth
• 2:08
  Speaker 1: Amendment only if law enforcement uses it for purposes irrelevant
• 2:12
  Speaker 1: to identification. Otherwise, it is no more of a search
• 2:16
  Speaker 1: for Fourth Amendment purposes than the testing of fingerprints. C. Burns,
• 2:21
  Speaker 1: nine eighty eight at three sixty six, Noting that if
• 2:24
  Speaker 1: law enforcement had tested the defendants DNA to reveal physiology
• 2:28
  Speaker 1: and health conditions, such as genetic predisposition to cancer, it
• 2:31
  Speaker 1: might implicate privacy interests, but law enforcement did not do so.
• 2:36
  Speaker 1: Rain Or ninety nine A three D that petitioner's DNA
• 2:40
  Speaker 1: could have disclosed more intimate information is of no moment
• 2:44
  Speaker 1: in the present case because there is no allegation that
• 2:47
  Speaker 1: the police tested is DNA sample for that purpose State
• 2:50
  Speaker 1: versus ad Hon Washington, two thousand and seven. While DNA
• 2:54
  Speaker 1: has potential of revealing a vast amount of personal information,
• 2:57
  Speaker 1: no privacy interest was implicated where the testing of DNA
• 3:01
  Speaker 1: was limited to identification purposes. Here, defendant provided no evidence
• 3:06
  Speaker 1: that SNP profile developed from q dot one one through
• 3:09
  Speaker 1: IgG revealed any genetic predispositions or physiological or medical conditions.
• 3:16
  Speaker 1: As mister Helwig testified, the SNPs that carry such sensitive
• 3:20
  Speaker 1: information are not targeted or revealed in IgG because they
• 3:23
  Speaker 1: are neither relevant, nor probative, nor appropriate to the identification process,
• 3:29
  Speaker 1: which is the goal of IgG. Rather, IgG only implicates
• 3:33
  Speaker 1: those SNPs associated with ancestry and genealogy in order to
• 3:38
  Speaker 1: determine genetic associations, build a family tree, and identify potential
• 3:43
  Speaker 1: genetic relatives of the uploaded SNP profile. It's simply an
• 3:47
  Speaker 1: identification tool. In this regard, Carpenter is unavailing authority, as
• 3:53
  Speaker 1: has been found by other courts addressing the issue of
• 3:55
  Speaker 1: privacy interests in DNA. Generally, the CLI and Carbenter was
• 4:01
  Speaker 1: not used as an identification tool. It was used as
• 4:04
  Speaker 1: a comprehensive surveillance tool after a suspect had already been identified.
• 4:09
  Speaker 1: At best, Carbenter can be applied to technologies that provide
• 4:13
  Speaker 1: the government with comprehensive surveillance of known persons physical movements.
• 4:18
  Speaker 1: This is not the type of information the DNA provided
• 4:20
  Speaker 1: in this case. Law enforcement here extracted and analyzed the
• 4:24
  Speaker 1: DNA of unknown suspects solely for identification purposes. It provided
• 4:29
  Speaker 1: no information as to the location of a known person
• 4:32
  Speaker 1: and does not begin to approach the surveillance described in Carpenter.
• 4:36
  Speaker 1: Riley is distinguishable as well as it was context driven.
• 4:40
  Speaker 1: Focusing on the lack of connection between the justifications underpinning
• 4:44
  Speaker 1: the search incident to arrest, exception to the warrant requirement
• 4:48
  Speaker 1: and a search of digital data on a cell phone,
• 4:51
  Speaker 1: the court noted that after an arrestee cell phone is
• 4:53
  Speaker 1: secured by officers, the digital data it contains cannot harm
• 4:57
  Speaker 1: the officer or be destroyed. Thus the search of the
• 5:01
  Speaker 1: digital data becomes solely a phishing expedition without justification. Here,
• 5:05
  Speaker 1: by contrast, law enforcement analyzed the DNA from a crime
• 5:09
  Speaker 1: scene item associated with a weapon for purposes of identifying
• 5:13
  Speaker 1: the perpetrator. Identification is an accepted justification for testing DNA.
• 5:19
  Speaker 1: Thus Riley is unavailing. Moreover, even assuming that there were
• 5:23
  Speaker 1: sensitive genetic details revealed by the IgG performed here, the
• 5:27
  Speaker 1: fact that the DNA was obtained from a crime scene
• 5:30
  Speaker 1: and analyzed for purposes of identifying the perpetrator displaces any
• 5:35
  Speaker 1: reasonable expectation of privacy. The Court of Appeals of Washington
• 5:39
  Speaker 1: recently came to the same conclusion under similar facts. In
• 5:43
  Speaker 1: state Verus Hartman, law enforcement extracted DNA from seamen and
• 5:46
  Speaker 1: hairror left on a murdered victim's body. The DNA was
• 5:50
  Speaker 1: then sent to a genealogy consultant, who uploaded a genetic
• 5:54
  Speaker 1: profile to various genealogy databases for analysis. From that analysis,
• 5:59
  Speaker 1: law enforcement learned that the suspect had alleles related to
• 6:02
  Speaker 1: substance abuse, bipolar disorder, and baldness and was approximately nine
• 6:07
  Speaker 1: percent Native American idea nine sixty. The genealogists use the
• 6:12
  Speaker 1: information obtained from the databases and other resources to begin
• 6:16
  Speaker 1: building a family tree, from which he learned there was
• 6:19
  Speaker 1: an instance of misattributed paternity in the suspect's family. Her
• 6:23
  Speaker 1: research ultimately appointed law enforcement toward the defendant. Like here,
• 6:28
  Speaker 1: the defendant and Hartman argued he had a reasonable privacy
• 6:31
  Speaker 1: interest in the DNA extracted from the seamen, which law
• 6:34
  Speaker 1: enforcement violated through its analysis revealing private personal details. In
• 6:39
  Speaker 1: declining to recognize his privacy interest as reasonable, the court
• 6:43
  Speaker 1: observed it was a well established rule that analysis of
• 6:47
  Speaker 1: evidence left behind at a crime scene does not require
• 6:49
  Speaker 1: a warrant where the abandoned evidence contains DNA. Even though
• 6:53
  Speaker 1: DNA contains a wealth of personal information, the court observed
• 6:57
  Speaker 1: that the DNA was not only abandoned. The analysis performed
• 7:01
  Speaker 1: by law enforcement was to determine the killer's identity and
• 7:04
  Speaker 1: nothing more. Thus, even though the analysis reveal personal details,
• 7:08
  Speaker 1: they were identifying characteristics that served to narrow the suspect
• 7:12
  Speaker 1: pool and therefore did not run a foul of the
• 7:15
  Speaker 1: Fourth Amendment. This holding highlights another important point. It is
• 7:20
  Speaker 1: the status of the individuals whose DNA is tested that
• 7:23
  Speaker 1: helps frame the reasonableness of the privacy expectation In Davis
• 7:28
  Speaker 1: relied upon heavily by defendant, the Fourth Circuits holding arrested
• 7:32
  Speaker 1: entirely on the fact that the DNA tested was taken
• 7:35
  Speaker 1: from clothing police seized years earlier, when the defendant was
• 7:39
  Speaker 1: a crime victim, noting, we agree with the District Court
• 7:42
  Speaker 1: that a person who is solely a crime victim does
• 7:44
  Speaker 1: not lose all reasonable expectation of privacy in his or
• 7:48
  Speaker 1: her DNA material simply because it has come into the
• 7:51
  Speaker 1: lawful possession of the police. And although Davis later was
• 7:54
  Speaker 1: arrested because the police seized his clothing when he was
• 7:57
  Speaker 1: solely a crime victim, we conclude that his latter arrest
• 8:01
  Speaker 1: does not eradicate his expectation of privacy in his DNA material.
• 8:06
  Speaker 1: In fact, the District Court affirmed in Davis drew a
• 8:10
  Speaker 1: distinction between the analysis of crime scene DNA and other DNA,
• 8:13
  Speaker 1: stating this finding would not, as the government argues, require
• 8:17
  Speaker 1: the police to seek a warrant in order to analyze
• 8:20
  Speaker 1: any items recovered from the crime scene for a DNA evidence,
• 8:24
  Speaker 1: no one would argue, for example, that a rapist retains
• 8:27
  Speaker 1: a reasonable expectation of privacy in the DNA contained in
• 8:31
  Speaker 1: the semen that he leaves on his victim. Society considers
• 8:35
  Speaker 1: it reasonable that if one has committed a crime, any
• 8:38
  Speaker 1: evidence one leaves behind while doing so is fair game.
• 8:41
  Speaker 1: The intentional volitional act of committing a crime itself supports
• 8:46
  Speaker 1: the theory, and the criminal intends to abandon any privacy
• 8:49
  Speaker 1: interests he has in his blood, fluid cells, etc. That
• 8:52
  Speaker 1: he may leave behind at the crime scene. Furthermore, the
• 8:55
  Speaker 1: very fact that a given area is a crime scene
• 8:58
  Speaker 1: changes the balance of interest relevant to a Fourth Amendment
• 9:01
  Speaker 1: analysis of the crime scene evidence. This distinction between crime
• 9:06
  Speaker 1: scene DNA and other DNA likewise renders Skinner of no
• 9:10
  Speaker 1: use to defendant. In Skinner, the urine was collected from
• 9:13
  Speaker 1: employees for workplace purposes and subjected to testing. It was
• 9:17
  Speaker 1: not obtained to be tested for identification purposes. It was
• 9:20
  Speaker 1: obtained to test whether the employees had drugs or alcohol
• 9:23
  Speaker 1: in their system. Had it been urine that was left
• 9:26
  Speaker 1: by an unknown suspect out a crime scene and then
• 9:29
  Speaker 1: tested to determine identity, the result will undoubtedly be different.
• 9:33
  Speaker 1: Even legal Commentators who advocate for increased protection over DNA
• 9:37
  Speaker 1: evidence agree that the Fourth Amendment does not prevent law
• 9:40
  Speaker 1: enforcement from analyzing genetic evidence left at a crime scene.
• 9:44
  Speaker 1: See Adrian and Kitchen genetic privacy and latent crime scene
• 9:48
  Speaker 1: DNA of non suspects. How the law can protect an
• 9:50
  Speaker 1: individual's right to genetic privacy while respecting the government's important
• 9:54
  Speaker 1: interest in combating crime. If the DNA was found on
• 9:58
  Speaker 1: the victim, on a murder weapon, or on another object
• 10:00
  Speaker 1: closely related to the crime, that DNA may be analyzed
• 10:04
  Speaker 1: without implicating the Fourth Amendment. In some defendant's arguments find
• 10:08
  Speaker 1: no support under the law any privacy interests he can
• 10:11
  Speaker 1: claim in his DNA was abandoned along with the sheath
• 10:15
  Speaker 1: to which he claims no ownership or knowledge. Even if
• 10:18
  Speaker 1: no such abandonment occurred, defendant has not demonstrated it is
• 10:21
  Speaker 1: reasonable to recognize a privacy interest in DNA left at
• 10:25
  Speaker 1: a crime scene, particularly when it's analyzed for identification purposes
• 10:29
  Speaker 1: and nothing more. Further, to find that defendant retained a
• 10:32
  Speaker 1: reasonable privacy interest in DNA left at the crime scene, indeed,
• 10:36
  Speaker 1: on an item intimately associated with the suspected weapon, would
• 10:40
  Speaker 1: have the untenable effect of eliminating the use of abandoned
• 10:43
  Speaker 1: DNA as an investigative tool. As observed by the United
• 10:47
  Speaker 1: States Supreme Court and King. This tool has utmost importance
• 10:51
  Speaker 1: since the first use of forensic DNA analysis to catch
• 10:54
  Speaker 1: a rapist and murderer in England in nineteen eighty six.
• 10:57
  Speaker 1: Law enforcement, the defense bar, and the courts of ignite
• 11:00
  Speaker 1: knowledge DNA testings on paralleled ability both to exonerate the
• 11:03
  Speaker 1: wrongly convicted and to identify the guilty. It has potential
• 11:07
  Speaker 1: to significantly improve both the criminal justice system and police
• 11:11
  Speaker 1: investigative practices. Neither society nor the court are prepared to
• 11:15
  Speaker 1: go where defendant seeks to take us. Therefore, because the
• 11:19
  Speaker 1: development of the SNP profile did not contravene defendants Forth
• 11:22
  Speaker 1: Amendment rights suppression is not warranted. All right, We're going
• 11:26
  Speaker 1: to wrap up right here, and in the next episode
• 11:28
  Speaker 1: we're gonna pick up with b. Defendant is not established
• 11:31
  Speaker 1: a forth Amendment violation with regard to the trash pull
• 11:34
  Speaker 1: and testing of DNA. Therefrom If you'd like to contact me,
• 11:38
  Speaker 1: you can do that at Bobby Kopuci at ProtonMail dot com.
• 11:41
  Speaker 1: That's bo B B y C. Ap u Cci at
• 11:44
  Speaker 1: proton mail dot com, or if you prefer, you can
• 11:47
  Speaker 1: find me on x at Bobby Underscore capu Cci. All
• 11:53
  Speaker 1: of the links that go with this episode can be
• 11:54
  Speaker 1: found in the description box. What's up everyone, and welcome
• 11:58
  Speaker 1: back to the program. In this episode, we're going to
• 12:01
  Speaker 1: spin back out to Moscow and we're going to pick
• 12:03
  Speaker 1: up where we left off with Judge Hipler's ruling on
• 12:06
  Speaker 1: the genetic information b Defendant has not established a Fourth
• 12:10
  Speaker 1: Amendment violation with regard to the trash poll and testing
• 12:14
  Speaker 1: of DNA therefrom. Defendant next asserts that law enforcement's trash
• 12:19
  Speaker 1: poll from his parents Pennsylvania residence and subsequent DNA testing
• 12:22
  Speaker 1: thereon constituted warrantless and on reasonable searches mandating suppression. He
• 12:28
  Speaker 1: argues he had a reasonable expectation of privacy in his
• 12:31
  Speaker 1: parents' garbage that was violated when the law enforcement arranged
• 12:34
  Speaker 1: for a trash poll. The privacy interest, according to defendant,
• 12:38
  Speaker 1: is predicated on not only Monroe County's municipal ordinance prohibiting
• 12:43
  Speaker 1: anyone other than a garbage collector from collecting the Coburger's
• 12:46
  Speaker 1: family's curbside trash, but also from the fact that the
• 12:50
  Speaker 1: coburgers resided in a gated neighborhood and the garbage cans
• 12:53
  Speaker 1: were on the driveway as opposed to a public area.
• 12:56
  Speaker 1: While defending a knowledges minding precedent holds otherwise, he is
• 13:00
  Speaker 1: ERTs is it time to rethink these decisions and find
• 13:03
  Speaker 1: a reasonable expectation of privacy exists? If not under the
• 13:07
  Speaker 1: Fourth Amendment, then under the increased protection afforded by Article I,
• 13:11
  Speaker 1: Section seventeen of the Idaho Constitution. Alternatively, he argues that
• 13:16
  Speaker 1: even if the trash pull was lawful, the testing of
• 13:18
  Speaker 1: the DNA found on the items of trash was not
• 13:21
  Speaker 1: under Skinner and Davis supra. However, after defendant filed his motion,
• 13:26
  Speaker 1: the Idaho Supreme Court reaffirmed its holding in Donado and
• 13:30
  Speaker 1: rejected the very argument asserted by defendant here, i e.
• 13:33
  Speaker 1: That a local waste management ordinance can create a reasonable
• 13:36
  Speaker 1: expectation of privacy State vers Polie, Idaho twenty twenty four.
• 13:42
  Speaker 1: An objective expectation of privacy is not created simply because
• 13:45
  Speaker 1: an ordinance aimed at maintaining society's interest in sanitation dictates
• 13:50
  Speaker 1: how trash is to be collected. As for the subsequent
• 13:53
  Speaker 1: DNA testing of the discarded items. Relevant here is the
• 13:57
  Speaker 1: abandonment theory. This court is bound by the decisions of
• 14:01
  Speaker 1: the Idaho Supreme Court. There are no facts presented here
• 14:04
  Speaker 1: that meaningfully distinguished this case from Donato or Polizi. That
• 14:08
  Speaker 1: the garbage cans may have been placed in the coburger's
• 14:11
  Speaker 1: driveway for collection, as opposed to on a public road,
• 14:14
  Speaker 1: and that the coburger's neighborhood was gated are legally irrelevant factors,
• 14:18
  Speaker 1: given that the garbage was placed for the purpose of
• 14:20
  Speaker 1: having it collected by another state. Versus McCall, Idaho eight
• 14:24
  Speaker 1: eighty five, two thousand and one, finding no reasonable expectation
• 14:28
  Speaker 1: of privacy in garbage placed out for collection, regardless of
• 14:31
  Speaker 1: whether it was in or outside the defendant's curtilage Greenwood,
• 14:36
  Speaker 1: forty six, US at forty and forty one. Privacy interest
• 14:40
  Speaker 1: in trash is lost when it's deposited in an area
• 14:43
  Speaker 1: particularly suited for public inspection and public consumption for the
• 14:47
  Speaker 1: express purpose of having strangers take it. Therefore, the trash
• 14:51
  Speaker 1: poll did not contravene defendants for the amendment rights. Moreover,
• 14:55
  Speaker 1: as already discussed, it's well settled that one abandons a
• 14:58
  Speaker 1: privacy interest in one's DNA by discarding an item containing
• 15:02
  Speaker 1: the DNA. By throwing away an item of trash containing
• 15:05
  Speaker 1: his DNA, defendant cannot object to the testing of that DNA,
• 15:10
  Speaker 1: particularly given that it was a standard DNA testing. Consequently,
• 15:14
  Speaker 1: no suppression is warranted with respect to the trash pull
• 15:17
  Speaker 1: and subsequent testing. See. Defendant cannot establish the search of
• 15:22
  Speaker 1: the genetic genealogy databases implicated his Fourth Amendment rights. Defendant's
• 15:27
  Speaker 1: final argument is that law enforcements warrantless search of the
• 15:30
  Speaker 1: commercial genetic genealogy databases violated his right to privacy in
• 15:34
  Speaker 1: his relatives genetic information. Observing that this issue has not
• 15:38
  Speaker 1: been addressed by the United States Supreme Court or Idaho's
• 15:41
  Speaker 1: appellate courts, he asks this court to recognize, as a
• 15:44
  Speaker 1: matter of first impression that he has a reasonable expectation
• 15:48
  Speaker 1: of privacy in the genetics he shares with his relatives,
• 15:51
  Speaker 1: and further find that such privacy was not undermined when
• 15:54
  Speaker 1: his relatives uploaded their genetic information to the commercial genetic
• 15:58
  Speaker 1: genealogy databases. Alternatively, he claims that the FBI search of
• 16:04
  Speaker 1: my heritage and ged match was unlawful because those databases
• 16:08
  Speaker 1: were off limits to law enforcement both under the interim
• 16:12
  Speaker 1: policy and those databases on terms. The State responds that
• 16:16
  Speaker 1: defendant has failed to demonstrate our reasonable expectation of privacy
• 16:20
  Speaker 1: either in any of the commercial genetic genealogy databases or
• 16:23
  Speaker 1: in his relatives DNA. Even if Defendant could assert a
• 16:27
  Speaker 1: privacy interest in the latter, the State contends that such
• 16:30
  Speaker 1: interest was lost when such relatives shared that DNA with
• 16:34
  Speaker 1: public by uploading it to the databases. Moreover, it argues
• 16:38
  Speaker 1: that any violation by law enforcement of the terms of
• 16:41
  Speaker 1: service of these databases or its own internal policies does
• 16:45
  Speaker 1: not implicate the Fourth Amendment. The Court has already determined
• 16:48
  Speaker 1: that defendant failed to show a legitimate privacy interest to
• 16:52
  Speaker 1: challenge the development of the SNP profile from Q one
• 16:55
  Speaker 1: dot one. If defendant does not have a reasonable expectation
• 16:59
  Speaker 1: of privacy in the SNP profile, there is no basis
• 17:03
  Speaker 1: to find an expectation of privacy in those portions of
• 17:06
  Speaker 1: his SNP profile he shares with genetic relatives. However, to
• 17:10
  Speaker 1: the extent the court's prior conclusion does not dispose of
• 17:13
  Speaker 1: the issue, Defendant's assertions lack merit because one defendant has
• 17:17
  Speaker 1: not shown a reasonable expectation of privacy in any of
• 17:20
  Speaker 1: the commercial genetic genealogy databases or in his relatives DNA,
• 17:25
  Speaker 1: and two any alleged violation by law enforcement of its
• 17:28
  Speaker 1: own policies and those of the databases is not of
• 17:32
  Speaker 1: constitutional importance. One defendant cannot demonstrate a reasonable expectation of
• 17:37
  Speaker 1: privacy in common segments of DNA a relative as uploaded
• 17:40
  Speaker 1: to the public sphere. To invoke the exclusionary rule to
• 17:44
  Speaker 1: suppress evidence under the Fourth Amendment, a defendant must establish
• 17:49
  Speaker 1: that his own personal rights were violated by an unlawful search.
• 17:53
  Speaker 1: Fourth Amendment rights or personal rights, which, like other constitutional rights,
• 17:57
  Speaker 1: may not be vicariously asserted. Date vers Rebo one sixty eight, Idaho,
• 18:02
  Speaker 1: two thirty four, two thirty eight, four eighty two p
• 18:05
  Speaker 1: Dot three D five sixty nine, five seventy three, twenty
• 18:08
  Speaker 1: twenty one. Citing Rachis vers Illinois four thirty nine, US
• 18:12
  Speaker 1: one twenty eight, one thirty three and thirty four nineteen
• 18:15
  Speaker 1: seventy eight, defendant acknowledges that the search challenged is that
• 18:19
  Speaker 1: of his relatives uploaded DNA and not his own. To
• 18:22
  Speaker 1: get around this hurdle, he claims a reasonable expectation of
• 18:25
  Speaker 1: privacy in the segments of shared DNA is relatives uploaded
• 18:29
  Speaker 1: to the databases. This argument requires accepting that one, an
• 18:34
  Speaker 1: individual has a privacy interest in the genetic makeup of
• 18:37
  Speaker 1: another individual, and two that such privacy interest persisted despite
• 18:42
  Speaker 1: the other individual sharing his or her genetic makeup with
• 18:46
  Speaker 1: the public at large. The court will not make this leap. First,
• 18:50
  Speaker 1: there is no authority for defendant's position, granted, given the
• 18:53
  Speaker 1: novelty of using commercial genomic platforms as an investigative tool,
• 18:58
  Speaker 1: there are a few cases addressing it. However, not one
• 19:01
  Speaker 1: has found that a defendant has a reasonable privacy interest
• 19:04
  Speaker 1: in a relative shared DNA. The primary case cited by
• 19:09
  Speaker 1: both parties and his Hartman, where the State of Washington
• 19:11
  Speaker 1: Court of Appeals rejected the defendant's contention that he had
• 19:15
  Speaker 1: a privacy interest in those segments of his DNA he
• 19:17
  Speaker 1: shared with relatives that was violated when law enforcement search
• 19:21
  Speaker 1: commercial genealogy databases to find a familial match to the
• 19:25
  Speaker 1: crime scene and the DNA that was found there. Like here,
• 19:28
  Speaker 1: the defendant like in DNA to c Sli at issue
• 19:32
  Speaker 1: in Carpenter and urge the court to follow Carpenter to
• 19:35
  Speaker 1: find that his relatives voluntarily upload of their shared DNA
• 19:39
  Speaker 1: did not forfeit his expectation of privacy in the information.
• 19:43
  Speaker 1: The Court's determination that the defendant lacked a reasonable privacy
• 19:47
  Speaker 1: interest in segments of shared DNA rested on multiple grounds.
• 19:51
  Speaker 1: The Court first observed that the sole purpose of a
• 19:54
  Speaker 1: genealogy database is to let others search for and share
• 19:57
  Speaker 1: private information about the user's personal and family history for
• 20:02
  Speaker 1: the purpose of finding relatives. To this end, the Court
• 20:05
  Speaker 1: found shared DNA is unlike the CSLI and Carpenter, which
• 20:09
  Speaker 1: was not shared for the purpose of public perusal. The
• 20:13
  Speaker 1: Court further noted that the comparison of the DNA obtained
• 20:16
  Speaker 1: from the crime scene to the genetic profiles of the
• 20:19
  Speaker 1: defendant's relatives was limited to identification purposes and therefore did
• 20:23
  Speaker 1: not support of privacy interest. In addition, the court found
• 20:27
  Speaker 1: no historical protection for voluntarily share genetic material or for
• 20:31
  Speaker 1: information posted on websites intended for public access Idea nine,
• 20:36
  Speaker 1: seventy eight, and seventy nine. Consequently, the Court concluded that
• 20:40
  Speaker 1: because law enforcement's investigation of the genealogy databases did not
• 20:45
  Speaker 1: disturb a reasonable privacy interest, the defendant had no standing
• 20:48
  Speaker 1: to challenge the search. Other courts addressing the issue have
• 20:53
  Speaker 1: held similarly. Cee State versus west In twenty twelve WL
• 20:58
  Speaker 1: one two two two nine eight AIS eight six' One District,
• 21:01
  Speaker 1: Court october, first twenty twenty, One, minnesota finding no reasonable
• 21:05
  Speaker 1: expectation of privacy in genetic identifying information voluntarily uploaded to
• 21:10
  Speaker 1: genealogy database by defendant's. Relatives people Versus, williams seventy Seven
• 21:15
  Speaker 1: Miscellaneous dot three d seven eighty, two seven eighty five
• 21:20
  Speaker 1: one seventy eight N ys three d four twenty four
• 21:23
  Speaker 1: to twenty. Three New York Supreme court twenty twenty, two
• 21:27
  Speaker 1: finding that the defendant lacks standing to suppress evidence obtained
• 21:31
  Speaker 1: through investigative genealogy search Because williams cannot assert a personal
• 21:35
  Speaker 1: privacy interest in his RELATIVES dna. Profiles United states Versus,
• 21:39
  Speaker 1: mitchell six fifty two F dot THREE d three eighty,
• 21:42
  Speaker 1: seven four oh, Nine Third, circuit two thousand and. One
• 21:45
  Speaker 1: in responding to the defendant's argument that collection of HIS
• 21:48
  Speaker 1: dna upon arrest was improper because andrelia it could be
• 21:53
  Speaker 1: used to investigate biological relationships between, Individuals court observed that
• 21:57
  Speaker 1: he had no standing to assert the fourth the man
• 22:00
  Speaker 1: rights of his. Relatives other than claiming That Hartman court
• 22:04
  Speaker 1: fail to appreciate its. Holding defendant has not offered any
• 22:07
  Speaker 1: basis or even reasonable analog from which The court could
• 22:11
  Speaker 1: make the unprecedented finding that he has a personal privacy
• 22:15
  Speaker 1: interest in someone ELSE'S. Dna while he may share segments
• 22:19
  Speaker 1: of THIS, dna it's not his OWN dna that was
• 22:22
  Speaker 1: searched in the genetic. Databases, further there is no evidence
• 22:25
  Speaker 1: he took efforts to shield his genetic RELATIVES dna from
• 22:28
  Speaker 1: the public. View See rebo one sixty, Eight. Idaho at
• 22:32
  Speaker 1: two thirty nine forty two. P three D at five seventy,
• 22:36
  Speaker 1: four noting that a defendant must show he sought to
• 22:39
  Speaker 1: preserve the object of the search as. Private, thus since
• 22:43
  Speaker 1: he cannot establish a personal expectation of privacy in the item,
• 22:46
  Speaker 1: searched he cannot challenge the. Search, moreover any subjective privacy
• 22:51
  Speaker 1: interest he claims in his RELATIVES dna is not. Reasonable
• 22:55
  Speaker 1: one cannot have a reasonable expectation of privacy in what
• 22:58
  Speaker 1: is knowingly exposed a public View state. Vers, christiansen one thirty, One.
• 23:02
  Speaker 1: Idaho even information exposed to just a single person results
• 23:07
  Speaker 1: in forfeiture of a reasonable privacy interest under the third party. Doctrine,
• 23:12
  Speaker 1: here defendant's relatives did not voluntarily share their genetic information
• 23:16
  Speaker 1: with just a single. Entity they voluntarily shared it with
• 23:19
  Speaker 1: hundreds of thousands of other participants See, hartmann five thirty
• 23:23
  Speaker 1: four at four thirty. Four consumers frequently upload THEIR dna
• 23:28
  Speaker 1: to consumer databases like ged match for the very purpose
• 23:31
  Speaker 1: of learning and sharing with strangers the exact private information
• 23:35
  Speaker 1: details about their ancestry and familial relations at issue. Here,
• 23:40
  Speaker 1: consequently defendant cannot claim any subjective expectation of privacy he
• 23:45
  Speaker 1: had was. Reasonable defendant warns that applying the third party
• 23:48
  Speaker 1: doctrine mechanically TO dna would have disastrous. Results he points
• 23:53
  Speaker 1: out THAT dna can reveal avasked array of private details
• 23:57
  Speaker 1: about a. Person, further he argues it is not truly.
• 24:00
  Speaker 1: Shared he notes that when one individual PROVIDES dna to
• 24:04
  Speaker 1: a consumer genomic, platform the identities of hundreds of genomic
• 24:08
  Speaker 1: relatives can be revealed through SHARED dna. Sequences, finally he
• 24:13
  Speaker 1: observes that While idaho law protects genetic privacy in some,
• 24:16
  Speaker 1: circumstances there are no comparable limits over law enforcement's use
• 24:20
  Speaker 1: OF dna taken from a crime. Scene noting THAT dna
• 24:24
  Speaker 1: can be left everywhere and last in the environment for
• 24:27
  Speaker 1: a long, time he warns that the entire population could
• 24:30
  Speaker 1: find themselves the targets of police investigation absent some. Control
• 24:35
  Speaker 1: despite the defendants dystopian, warnings The court does not find
• 24:38
  Speaker 1: a departure from settled Forth amendment principles is. Warranted In.
• 24:42
  Speaker 1: Carboner The United States Supreme court observe that the application
• 24:46
  Speaker 1: of third party doctrine does not turn solely on the
• 24:48
  Speaker 1: act of. Sharing other factors to consider are the nature
• 24:52
  Speaker 1: of the information sought and limitations on the revealing nature
• 24:55
  Speaker 1: of the information five eighty FIVE us at three fourteen and.
• 24:59
  Speaker 1: Fifteen doing, so The court declined to apply the third
• 25:02
  Speaker 1: party doctrine to C sli data obtained from the defendant cellular. Carrier,
• 25:08
  Speaker 1: first The court noted that THE csli data is not truly.
• 25:11
  Speaker 1: Shared it logs the cell site record by virtue of
• 25:15
  Speaker 1: its operation without any affirmative action on the user's part
• 25:18
  Speaker 1: beyond powering. Up second, at it observed there are no
• 25:21
  Speaker 1: limits on WHAT csli can reveal about a. Person the
• 25:26
  Speaker 1: shared portions OF dna defendant relatives uploaded to genetic databases
• 25:30
  Speaker 1: do not merit the same. Treatment while the court agrees
• 25:33
  Speaker 1: THAT dna can be, revealing LIKE, csli SUCH dna was
• 25:37
  Speaker 1: affirmatively shared in this. Case UNLIKE, csli defendant's relatives did
• 25:42
  Speaker 1: not simply reveal the information as a byproduct of the
• 25:45
  Speaker 1: participating in modern. Society they engaged in an affirmative act
• 25:49
  Speaker 1: of uploading THEIR dna to public databases for the very
• 25:53
  Speaker 1: purpose of sharing it with. Others, consequently the reasoning In
• 25:56
  Speaker 1: carpenter does not. Apply, moreover A na suggestion that defendant's
• 26:01
  Speaker 1: relatives preserve their expectation of privacy against law enforcement by
• 26:05
  Speaker 1: sharing genetic information on databases that excluded law enforcement is also. Unavailing,
• 26:12
  Speaker 1: first consent or non consent to a search goes to
• 26:15
  Speaker 1: the reasonableness of the, search not whether a privacy interest
• 26:18
  Speaker 1: is objectively. Reasonable, second as, discussed a privacy interest can
• 26:23
  Speaker 1: be lost by sharing information with even a single entity
• 26:27
  Speaker 1: under the third party. Doctrine even though the relatives may
• 26:30
  Speaker 1: not have consented to law enforcements searching their genetic, information
• 26:34
  Speaker 1: it was nevertheless shared with other members of the, public
• 26:37
  Speaker 1: which is all that is required to remove Any Fourth amendment. Protections.
• 26:41
  Speaker 1: Cats three eighty NINE us at three fifty. One in
• 26:44
  Speaker 1: some even if defendant could vicariously assert constitutional rights of,
• 26:48
  Speaker 1: others a dubious claim at, Best he has not shown
• 26:51
  Speaker 1: that any subjective privacy right he may have had in
• 26:54
  Speaker 1: his relatives SHARED dna was. Reasonable, Therefore defendant lack standing
• 26:59
  Speaker 1: to challenge aw enforcement search of the genetic genealogy. Databases,
• 27:04
  Speaker 1: Two defendant has no basis to challenge law enforcements alleged
• 27:08
  Speaker 1: violation of its own policies and those of the genealogy
• 27:12
  Speaker 1: databases in conducting the. Search defendant next argues that even
• 27:16
  Speaker 1: if the court were to Find SHARED dna falls within
• 27:19
  Speaker 1: Traditional Fourth amendment, rules as it, has law, enforcement alleged
• 27:23
  Speaker 1: search of databases and violation of both the database's terms
• 27:27
  Speaker 1: and inn own policy cries out for judicial. Intervention defendant
• 27:31
  Speaker 1: has provided no authority that these alleged violations of policy
• 27:35
  Speaker 1: or user agreements bear on The Fourth. Amendment, again because
• 27:38
  Speaker 1: defendant has not demonstrated reasonable privacy interest in his RELATIVES,
• 27:42
  Speaker 1: dna defendant has no basis to challenge the propriety of the. Search,
• 27:47
  Speaker 1: second even if he could establish a reasonable privacy, interest
• 27:51
  Speaker 1: these alleged violations are of no significance with regard to
• 27:55
  Speaker 1: the violation of the database user. Policies while this may
• 27:58
  Speaker 1: give rise to a civil action between THE fbi and
• 28:01
  Speaker 1: the particular, database or perhaps the individuals WHOSE dna profiles were,
• 28:05
  Speaker 1: used defendant is not explained how this implicates The Fourth.
• 28:09
  Speaker 1: Amendment at least one state district court is found that
• 28:12
  Speaker 1: it does. Not See state Versus westrom twenty twenty ONE
• 28:16
  Speaker 1: wl one two two nine eight eight six y', One
• 28:19
  Speaker 1: Minnesota District, Court october, fourth twenty twenty. One law enforcement's
• 28:23
  Speaker 1: possible violation Of My Heritage Service agreement may subject them
• 28:27
  Speaker 1: to action From My, heritage but the court does not
• 28:29
  Speaker 1: see any reason why this violation of a private company's
• 28:32
  Speaker 1: terms would implicate constitutional. Protections with regard to the FBI's
• 28:37
  Speaker 1: alleged violation of its own policies or, guidelines the state
• 28:40
  Speaker 1: correctly points out that non compliance with law enforcement policy
• 28:44
  Speaker 1: does not provide a basis for A Fourth amendment challenge
• 28:47
  Speaker 1: See ren VERSUS us ninety. Six police enforcement, practices even
• 28:52
  Speaker 1: if they could practiceably assessed by a, judge vary from
• 28:55
  Speaker 1: place to place and from time to. Time we cannot
• 28:58
  Speaker 1: accept that the search and seizure protections of The Fourth
• 29:00
  Speaker 1: amendment are so. Variable in, addition the interim policy at
• 29:04
  Speaker 1: issue here expressly states it's intended to provide internal guidance
• 29:08
  Speaker 1: only and does not create a substantative or procedural rights or,
• 29:12
  Speaker 1: benefits or impose any legal limitations on otherwise lawful investigative. Techniques,
• 29:19
  Speaker 1: therefore violation of its terms can not alone give rise
• 29:22
  Speaker 1: to A Fourth amendment. Challenge Where as The court has
• 29:24
  Speaker 1: already found the search of the databases was otherwise, lawful
• 29:29
  Speaker 1: suppression therefore is not warranted with regard to the database search.
• 29:34
  Speaker 1: Conclusion based on the, foregoing The court Denies defendant's motion
• 29:38
  Speaker 1: to suppress genetic. Information this document was Dated february nineteenth
• 29:43
  Speaker 1: and it was signed By Judge. Hitler if you'd like
• 29:46
  Speaker 1: to contact, me you can do that At Bobby kapuci
• 29:48
  Speaker 1: at ProtonMail dot. Com that's Bobbycapu cci at ProtonMail dot,
• 29:54
  Speaker 1: com or if you, prefer you can find me on
• 29:57
  Speaker 1: x At Bobby underscore bap U. Cci all of the
• 30:02
  Speaker 1: links that go with this episode can be found in
• 30:05
  Speaker 1: the description. Box