Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger And The IGG Order (Part 1-3) (8/10/26)

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Mega Edition: Bryan Kohberger And The IGG Order (Part 1-3) (8/10/26) · 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 going to spin back up to Moscow
• 0:05
  Speaker 1: and we're going to start taking a look at the
• 0:07
  Speaker 1: order on defendant's motion to suppress the genetic information. And
• 0:12
  Speaker 1: this is all part of the court document dump that
• 0:15
  Speaker 1: recently occurred up in Judge Hipler's courtroom, case number c
• 0:19
  Speaker 1: R zero one twenty four three one sixty sixty five
• 0:24
  Speaker 1: State of Idaho Plaintiff versus Brian C. Coberger, the defendant
• 0:30
  Speaker 1: the order of Defendant's motion to suppress genetic information introduction.
• 0:35
  Speaker 1: Defendant is charged with one count of burglary and four
• 0:38
  Speaker 1: council murder in the first degree. It's alleged that defendant
• 0:41
  Speaker 1: entered a residence at eleven twenty two King Road in Moscow, Idaho,
• 0:45
  Speaker 1: in the early morning hours of November thirteenth, twenty twenty two,
• 0:49
  Speaker 1: and stab Madison Mogan, Kaylee Gunsalvis, Ethan Chapin, and Xana
• 0:53
  Speaker 1: Kernodle with a knife. Left at the crime scene was
• 0:57
  Speaker 1: a knife sheath from which single source mail DNA was extracted.
• 1:01
  Speaker 1: Using forensic investigative genetic genealogy, law enforcement was able to
• 1:06
  Speaker 1: identify defendant as a possible suspect weeks after the crime occurred. Subsequently,
• 1:12
  Speaker 1: law enforcement conducted a trash poll from defendant's family residence
• 1:16
  Speaker 1: and obtained DNA tying defendant to the DNA found on
• 1:19
  Speaker 1: the knife sheath. Defendant was subsequently arrested, pursued into a warrant,
• 1:24
  Speaker 1: and charged. In this matter, defendant asserts that law enforcement
• 1:28
  Speaker 1: violated his constitutional rights by failing to secure a warrant
• 1:31
  Speaker 1: before conducting the IgG and trash pool. He seeks to
• 1:35
  Speaker 1: suppress all evidence obtained through these searches, as well as
• 1:38
  Speaker 1: evidence obtained through subsequent warrants as fruit of the poisonous tree.
• 1:44
  Speaker 1: The state disputes that Defendant's constitutional rights were violated. A
• 1:48
  Speaker 1: suppression hearing was held on January twenty third, twenty twenty five,
• 1:52
  Speaker 1: during which the Court received testimony from members of law
• 1:55
  Speaker 1: enforcement and experts in IgG, each of whom the Court
• 1:58
  Speaker 1: found to be credible and reliable. Following argument, the Court
• 2:03
  Speaker 1: took the matter under advisement. The Court finds defendant has
• 2:06
  Speaker 1: failed to demonstrate his constitutional rights were contravened by the
• 2:10
  Speaker 1: IgG and trash pull, and therefore suppression is not warranted.
• 2:15
  Speaker 1: Two Standard the standard of review of emotions to suppress
• 2:19
  Speaker 1: is bifurcated. The power to assess the credibility of witnesses,
• 2:23
  Speaker 1: resolve factual conflicts way evidence, and draw factual inferences is
• 2:28
  Speaker 1: vested in the trial court. State vers. Valdez Molina, one
• 2:31
  Speaker 1: twenty seven, Idaho one O two one oh six, eight
• 2:34
  Speaker 1: ninety seven, p Dot two, d nine ninety three, nine
• 2:37
  Speaker 1: ninety seven, nineteen ninety five. A trial court's ruling on
• 2:41
  Speaker 1: a motion to suppress evidence combines the issue of law
• 2:44
  Speaker 1: in fact and the trial court's factual findings will not
• 2:47
  Speaker 1: be overturned unless they are clearly erroneous. State Verse. Connate,
• 2:51
  Speaker 1: one forty three, Idaho. Seven ninety seven, seven ninety nine,
• 2:55
  Speaker 1: one fifty three, p Dot three d. Four seventy seven,
• 2:58
  Speaker 1: four seventy nine, two thousand. When a decision on a
• 3:02
  Speaker 1: motion to suppress is challenged, the application of constitutional principles
• 3:07
  Speaker 1: to the facts found will be freely reviewed. State vers. Venterosa,
• 3:11
  Speaker 1: two thousand and three, finding a fact. On November thirteenth,
• 3:16
  Speaker 1: twenty twenty two, law enforcement found the bodies of Madison Mogan,
• 3:19
  Speaker 1: Kaylee Gonsalves, Xana Kernodle, and Ethan Chapin inside a residence
• 3:23
  Speaker 1: located at eleven, twenty two King Road in Moscow, Idaho.
• 3:27
  Speaker 1: All four victims died from apparent knife wounds. A k
• 3:31
  Speaker 1: bar knife sheath was found on a bed next to
• 3:33
  Speaker 1: the bodies of Miss Mogan and Miss Gonsalves. Law enforcement
• 3:37
  Speaker 1: sees the knife sheath and swabbed around the button of
• 3:40
  Speaker 1: the sheath for DNA. A sample of DNA identified as
• 3:43
  Speaker 1: Q one DOT one was extracted from the swab by
• 3:47
  Speaker 1: the Idaho State Police Forensics Lab and subsequently tested using
• 3:51
  Speaker 1: standard DNA STR short tandem repeat methods. The STR profile
• 3:56
  Speaker 1: developed revealed that the DNA came from a single source
• 4:00
  Speaker 1: mail profile. Law enforcement uploaded the DNA profile to the
• 4:04
  Speaker 1: code's database, but it resulted in no hits to non offenders. Subsequently,
• 4:09
  Speaker 1: law enforcement made the decision to pursue forensic investigative genetic
• 4:13
  Speaker 1: genealogy testing on Q one one. Such testing begins with
• 4:17
  Speaker 1: the generation of a large amount of raw sequencing data
• 4:20
  Speaker 1: from the DNA sample, which is then organized into SNPs,
• 4:24
  Speaker 1: or single nucleotide polymorphisms using bioinformatic software. The SNPs associated
• 4:31
  Speaker 1: with ancestry and genealogy can then be pulled out of
• 4:34
  Speaker 1: the raw data and organized into an SNP profile that
• 4:37
  Speaker 1: can in turn be uploaded to commercial genetic genealogy databases
• 4:43
  Speaker 1: to search for a genetic match. Depending on the strength
• 4:46
  Speaker 1: of the match, law enforcement can start building a family
• 4:49
  Speaker 1: tree to identify potential genetic relatives of the uploaded SNP profile.
• 4:56
  Speaker 1: These genetic genealogy databases are hosted by private companies and
• 5:00
  Speaker 1: populated by hundreds of thousands of members of the public
• 5:03
  Speaker 1: who voluntarily submit their own DNA and publicly share personal
• 5:07
  Speaker 1: information to allow the database to better match them with
• 5:10
  Speaker 1: potential genetic relatives. Notably, at all relevant times, only two
• 5:16
  Speaker 1: commercial genetic genealogy databases permitted searches by law enforcement, family
• 5:21
  Speaker 1: Tree DNA and ged match pro. The databases my Heritage
• 5:25
  Speaker 1: and ged match purported to disallow such searches. The IgG
• 5:31
  Speaker 1: process essentially attempts to ascertain identity through genetic associations. Unlike
• 5:37
  Speaker 1: str profiles, which can only reveal whether a person is
• 5:40
  Speaker 1: genetically male or genetically female, the SNPs in their raw
• 5:44
  Speaker 1: form have the ability to reveal a trove of personal information,
• 5:48
  Speaker 1: including sensitive health information such as whether the person has
• 5:52
  Speaker 1: traits indicating and increase risk of cancer or Alzheimer's. However,
• 5:57
  Speaker 1: IgG does not target these particular SNA because, according to
• 6:01
  Speaker 1: defense expert Daniel Hellwig, they are neither relevant, nor probative,
• 6:05
  Speaker 1: nor appropriate to the identification process. In fact, gleaning medical
• 6:10
  Speaker 1: information from SNPs is not possible for a layperson to
• 6:14
  Speaker 1: do and would take a forensic scientist like mister Hellwig
• 6:17
  Speaker 1: a lot of research. The IgG was first performed by
• 6:21
  Speaker 1: authrom Labs, a company with which the Idaho Department of
• 6:24
  Speaker 1: Purchasing had an existing contract for such work. Authrum was
• 6:28
  Speaker 1: asked to develop an SNP profile from Q one dot one,
• 6:32
  Speaker 1: uploaded to those public genealogy databases permitting law enforcement entry,
• 6:37
  Speaker 1: and submit a preliminary report of its findings. Authroom was
• 6:41
  Speaker 1: not asked to ascertain medical information associated with Q one
• 6:45
  Speaker 1: dot one, nor is there any evidence it tested for such.
• 6:48
  Speaker 1: Law enforcement did not obtain a warrant for Authrum's work.
• 6:52
  Speaker 1: The Idaho State Police delivered Q one dot one to
• 6:55
  Speaker 1: Authorm on November twenty two, twenty twenty two. Authorum developed
• 6:59
  Speaker 1: an SNA MP profile for Q one dot one and
• 7:02
  Speaker 1: search family Tree, DNA and ged match pro. This work
• 7:06
  Speaker 1: revealed for brothers of interest, all of whom were low
• 7:09
  Speaker 1: matches to Q one dot one to further its family
• 7:12
  Speaker 1: tree building. AUTHORM as the Idaho State Police to contact
• 7:16
  Speaker 1: one of the identified brothers to provide a DNA sample
• 7:19
  Speaker 1: to upload it into either of the two databases. Despite
• 7:23
  Speaker 1: Idaho State Police request, the contacted brother declined to provide
• 7:27
  Speaker 1: a sample. On December tenth, twenty twenty two, members of
• 7:31
  Speaker 1: law enforcement and including the FBI, had a meeting to
• 7:34
  Speaker 1: discuss Authoram's work. As a result of decision was made
• 7:37
  Speaker 1: to turn over the IgG work to the FBI. That
• 7:40
  Speaker 1: same day, AUTHORM was instructed to stop work and turn
• 7:44
  Speaker 1: over its SNP profile and search results to the Idaho
• 7:47
  Speaker 1: State Police. AUTHRM did so along with a preliminary report
• 7:51
  Speaker 1: of its findings. The preliminary report did not contain any
• 7:55
  Speaker 1: medical information associated with the SNP profile. Daho State Police
• 8:01
  Speaker 1: then turned the information over to the FBI, which was
• 8:03
  Speaker 1: able to use Authoram's profile to develop a significantly larger
• 8:08
  Speaker 1: SNP profile. The FBI uploaded the larger SNP profile to
• 8:13
  Speaker 1: multiple genetic genealogy databases, including ged match and my Heritage,
• 8:19
  Speaker 1: which purport to disallow law enforcement searches. At the time,
• 8:23
  Speaker 1: the FBI had an interim policy issued by the United
• 8:26
  Speaker 1: States Department of Justice related to IgG analysis and searches
• 8:30
  Speaker 1: by its agencies. On the one hand, the interim policy
• 8:35
  Speaker 1: required that investigative agencies conduct IgG searches in genetic genealogy databases,
• 8:41
  Speaker 1: permitting law enforcement use. However, on the other hand, the
• 8:44
  Speaker 1: interim policy also stated it was intended only as an
• 8:48
  Speaker 1: internal guidance and did not impose any legal restrictions on
• 8:52
  Speaker 1: investigative agencies, noting the interim policy is not intended to
• 8:57
  Speaker 1: does not and may not be relied upon to create
• 9:00
  Speaker 1: any substantative or procedural rights or benefits enforceable at law
• 9:05
  Speaker 1: or in equity by any party against the United States
• 9:08
  Speaker 1: or its departments, agencies, entities, officers, employees, or agents, or
• 9:13
  Speaker 1: any other person in any matter civil or criminal. This
• 9:17
  Speaker 1: interim policy does not impose any legal limitations on otherwise
• 9:21
  Speaker 1: lawful investigative or prosecutorial activities or techniques utilized by the
• 9:26
  Speaker 1: Department of Justice, or limit the prerogatives, choices, or decisions
• 9:31
  Speaker 1: available to or made by the Department in its discretion
• 9:36
  Speaker 1: from the information it acquired through the databases search, the
• 9:39
  Speaker 1: FBI was able to build a family tree and arrive
• 9:42
  Speaker 1: at a potential match. On December nineteenth, twenty twenty two,
• 9:45
  Speaker 1: the FBI provided defendant's name to Idaho law enforcement as
• 9:49
  Speaker 1: a possible source of the DNA. The FBI instructed that
• 9:53
  Speaker 1: the identification of defendant as a person of interest was
• 9:56
  Speaker 1: to be considered solely as a tip. Warrant was obtained
• 10:00
  Speaker 1: for the FBI's work, and subsequent warrant applications did not
• 10:04
  Speaker 1: include the IgG results to inform probable cause. As the
• 10:09
  Speaker 1: investigation ensued, law enforcement discovered that defendant had driven from Pullman,
• 10:14
  Speaker 1: Washington to his parents' home in a gated community in
• 10:16
  Speaker 1: Monroe County, Pennsylvania. At the time, Monroe County's municipal Waste
• 10:21
  Speaker 1: Ordnance required homeowners to dispose of their garbage by placing
• 10:25
  Speaker 1: it out for collection or delivering it directly to a
• 10:28
  Speaker 1: licensed watehauler. Only an authorized trash collector could collect garbage
• 10:33
  Speaker 1: left out for collection. Law enforcement decided to conduct a
• 10:37
  Speaker 1: warrantless trash pull from the Coburger residence. Arrangements were made
• 10:41
  Speaker 1: with the local trash collector to isolate and turn over
• 10:44
  Speaker 1: the Coburger's garbage to law enforcement for testing. Articles of
• 10:48
  Speaker 1: trash were retrieved and sent to the Idaho State Police
• 10:50
  Speaker 1: Forensic Lab to conduct standard DNA testing. A DNA profile
• 10:55
  Speaker 1: developed from one article of trash was determined to be
• 10:58
  Speaker 1: from the biological father of the source of Q one one.
• 11:02
  Speaker 1: Another article of trash revealed a mixture of male and
• 11:05
  Speaker 1: female DNA. According to defendant expert Gary Schulter, PhD. The
• 11:11
  Speaker 1: mal DNA from a mixture was consistent with Q one
• 11:15
  Speaker 1: dot one profile. Importantly, defendant is not claimed ownership or
• 11:19
  Speaker 1: knowledge of the knife sheath from which Q one one
• 11:22
  Speaker 1: was taken. After obtaining a search warrant, law enforcement collected
• 11:26
  Speaker 1: DNA from a buckle swab obtained from defendant. A traditional
• 11:30
  Speaker 1: str DNA comparison was done between the Q one one
• 11:34
  Speaker 1: profile and defendant's DNA. The comparison showed a statistical match. Specifically,
• 11:39
  Speaker 1: defendant was five zero point three seven octillion times more
• 11:44
  Speaker 1: likely to be the source of the Q one one
• 11:46
  Speaker 1: profile than an unrelated individual randomly selected from the general population.
• 11:52
  Speaker 1: Defendant was subsequently charged in this case. All right, we're
• 11:56
  Speaker 1: going to wrap up right here, and in the next
• 11:57
  Speaker 1: episode we're going to pick up with conclusions of law.
• 12:01
  Speaker 1: If you'd like to contact me, you can do that
• 12:03
  Speaker 1: at Bobby Kapuci at ProtonMail dot com. That's Bobby cap
• 12:08
  Speaker 1: u Cci at ProtonMail dot com, or if you prefer,
• 12:12
  Speaker 1: you can find me on x at Bobby Underscore capu Cci.
• 12:18
  Speaker 1: All of the links that go with this episode can
• 12:20
  Speaker 1: be found in the description box. What's up everyone, and
• 12:24
  Speaker 1: welcome back to the program. In this episode, we're going
• 12:26
  Speaker 1: to pick up where he left off with Judge Hibler's
• 12:29
  Speaker 1: order on the IgG information Conclusions of law. The Fourth
• 12:35
  Speaker 1: Amendment of the United States Constitution protects the right of
• 12:39
  Speaker 1: the people to be secure in their persons, houses, papers,
• 12:42
  Speaker 1: and effects against unreasonable searches and seizures. US Constitution Amendment
• 12:48
  Speaker 1: number four. In seeking suppression of evidence based on a
• 12:51
  Speaker 1: warrantless search, a defendant bears the evidentiary burden to show
• 12:55
  Speaker 1: that he had a legitimate expectation of privacy in the
• 12:58
  Speaker 1: item or play searched. Did the defendant have a subjective
• 13:02
  Speaker 1: expectation of privacy in the object of the challenge search,
• 13:06
  Speaker 1: and is society willing to recognize that expectation as reasonable.
• 13:11
  Speaker 1: The former is a question of fact, the latter a
• 13:14
  Speaker 1: question of law. When a defendant makes such a showing,
• 13:17
  Speaker 1: the burden will shift to the state to show an
• 13:20
  Speaker 1: exception to the warrant requirement exists, or that the search
• 13:23
  Speaker 1: was reasonable under the circumstances. Here, defendant challenges three allegedly
• 13:29
  Speaker 1: unlawful DNA related searches. One the development of an SNP
• 13:34
  Speaker 1: profile from q dot one to one to the trash
• 13:36
  Speaker 1: pull from the Coburger residence and subsequent DNA testing thereon,
• 13:41
  Speaker 1: and three the search of the commercial genetic databases using
• 13:46
  Speaker 1: the SNP profile. He seeks to suppress not only the
• 13:49
  Speaker 1: genetic information obtained by law enforcement, but all other evidence
• 13:53
  Speaker 1: obtained as a result of the alleged legal behavior. In response,
• 13:58
  Speaker 1: the State argues defendant has not met his threshold burden
• 14:01
  Speaker 1: of demonstrating that a constitutional violation occurred with regard to
• 14:05
  Speaker 1: any of the three searches. The State is correct, a
• 14:09
  Speaker 1: defendant is not established the fourth Amendment violation with regard
• 14:12
  Speaker 1: to the development of the SNP profile. Defendant first asserts
• 14:17
  Speaker 1: that the extraction and testing of DNA from the sheath
• 14:20
  Speaker 1: to develop the SNP profile constituted an unreasonable search mandating suppression,
• 14:26
  Speaker 1: noting recent advances that have made DNA capable of revealing
• 14:30
  Speaker 1: prolific and sensitive information, as well as the fact that
• 14:34
  Speaker 1: humans continually shed DNA into the environment. Defendant asked this
• 14:38
  Speaker 1: court to find that a reasonable expectation of privacy in
• 14:42
  Speaker 1: his DNA, the testing of which through SNP methods required
• 14:46
  Speaker 1: a warrant, despite the fact that law enforcement was lawfully
• 14:49
  Speaker 1: in possession of the object containing the DNA i e.
• 14:52
  Speaker 1: The sheath. He further posits that his privacy interest is
• 14:57
  Speaker 1: not subject to the doctrine of abandonment because the sh
• 15:00
  Speaker 1: setting of DNA into an environment is not a voluntary
• 15:03
  Speaker 1: or knowing act. The state denies that the testing of
• 15:06
  Speaker 1: the DNA from the sheath was a search, pointing out
• 15:09
  Speaker 1: the DNA was lawfully seized evidence from the scene of
• 15:12
  Speaker 1: a crime. The state further contends defendant has not demonstrated
• 15:16
  Speaker 1: he had a reasonable expectation of privacy in this DNA
• 15:20
  Speaker 1: because he abandoned it, or because he has not shown
• 15:24
  Speaker 1: the existence of a reasonable privacy interest, society is willing
• 15:27
  Speaker 1: to recognize. This is a matter of first impression in Idaho. However,
• 15:32
  Speaker 1: applying a well settled principle of Fourth Amendment law, the
• 15:35
  Speaker 1: Corps finds no constitutional violation. First, defendant abandoned any privacy
• 15:40
  Speaker 1: interest in his DNA by disclaiming knowledge or ownership of
• 15:44
  Speaker 1: the sheath from which the DNA was extracted. Second, even
• 15:48
  Speaker 1: if no such abandonment occurred, there is no reasonable expectation
• 15:51
  Speaker 1: of privacy in DNA found at a crime scene which
• 15:55
  Speaker 1: is subsequently analyzed to identify an unknown suspect. Defendant cannot
• 16:01
  Speaker 1: establish a subjection expectation of privacy in the DNA found
• 16:05
  Speaker 1: on the sheath due to abandonment. It's well settled that
• 16:08
  Speaker 1: a person who voluntarily abandons property prior to a search
• 16:12
  Speaker 1: cannot be said to possess the requisite privacy interest under
• 16:15
  Speaker 1: the Fourth Amendment. When one abandons property, there can be
• 16:19
  Speaker 1: nothing unlawful in the government's appropriation of such abandoned property
• 16:23
  Speaker 1: Able versus. United States nineteen sixty. In the Fourth Amendment context,
• 16:28
  Speaker 1: abandonment occurs through words, acts, and other objective facts indicating
• 16:33
  Speaker 1: that the defendant voluntarily discarded, left behind, or otherwise relinquish
• 16:38
  Speaker 1: his or her interest in his or her property Stark
• 16:41
  Speaker 1: supra citation omitted. Disclaiming ownership or knowledge of an item
• 16:46
  Speaker 1: constitutes abandonment state versu. Melling, Idaho, twenty sixteen. In Melling,
• 16:53
  Speaker 1: for example, officers reported to the defendant's house after reports
• 16:57
  Speaker 1: of a fight. While officers were speaking to the defendant,
• 17:00
  Speaker 1: his girlfriend gave officers a lock box that she said
• 17:03
  Speaker 1: belonged to the defendant. The defendant old officers he had
• 17:07
  Speaker 1: never seen the box before and had no idea who
• 17:09
  Speaker 1: it belonged to, that nothing in the box was his,
• 17:12
  Speaker 1: and he did not know what was inside of it.
• 17:14
  Speaker 1: The court held that by disclaiming ownership of the lock
• 17:17
  Speaker 1: box and its contents, the defendant abandoned any privacy interests therein. Moreover,
• 17:23
  Speaker 1: a person need not specifically disclaim knowledge or ownership of
• 17:27
  Speaker 1: the contents of a container to result in abandonment thereof,
• 17:30
  Speaker 1: it's sufficient to disclaim knowledge or ownership of the container
• 17:34
  Speaker 1: itself see State versus Ayatseva two thousand and By denying
• 17:41
  Speaker 1: ownership of the bag in response to the officer's inquiry
• 17:44
  Speaker 1: prior to the search, the defendant essentially relinquished or abandoned
• 17:48
  Speaker 1: any privacy interests in the contents of the bag. There's
• 17:52
  Speaker 1: no dispute here that the defendant has not claimed any
• 17:55
  Speaker 1: knowledge or ownership of the sheath, thus resulting in its abandonment.
• 18:00
  Speaker 1: Defendant concedes as much, but argues that abandonment of any
• 18:03
  Speaker 1: privacy interest in the sheath did not result in the
• 18:05
  Speaker 1: abandonment of the DNA found on the sheath. He contends that,
• 18:10
  Speaker 1: unlike the voluntary act leaving the sheath, leaving DNA on
• 18:14
  Speaker 1: the sheath is not voluntary because a person has no
• 18:17
  Speaker 1: way to know that their DNA has been left behind. DNA,
• 18:21
  Speaker 1: points out, is shed everywhere humans have no ability to
• 18:24
  Speaker 1: keep their biological material from the environment. Consequently, he reasons
• 18:29
  Speaker 1: of finding that the DNA on the sheath was abandoned
• 18:32
  Speaker 1: would mean that the person voluntarily gives up privacy in
• 18:35
  Speaker 1: their entire genetic makeup every time they interact with the public.
• 18:40
  Speaker 1: In support of his argument, defendant relies exclusively on a
• 18:43
  Speaker 1: concurring opinion in State versus Carbo, which is factually similar
• 18:47
  Speaker 1: to this case. In Carbo, the evidence that issue was
• 18:50
  Speaker 1: seemen deposited inside the deceased crime victim and skin scrapings
• 18:55
  Speaker 1: from underneath hearth fingernails. In an attempt to identify a suspect,
• 18:59
  Speaker 1: law Enforce contracted with a lab to conduct a genetic
• 19:03
  Speaker 1: analysis of the DNA extracted from this evidence. Like here,
• 19:06
  Speaker 1: the lab created an SNP profile from the DNA and
• 19:10
  Speaker 1: utilized commercial genealogical databases to determine a potential source. It
• 19:16
  Speaker 1: also generated a report that provided information about the suspects
• 19:19
  Speaker 1: physical traits and ancestral origin. This information ultimately led law
• 19:25
  Speaker 1: enforcement to the defendant. Law enforcement then created a DNA
• 19:29
  Speaker 1: profile from trash discarded by the defendant which matched the
• 19:32
  Speaker 1: DNA profile from the crime scene. Subsequently, the defendant provided
• 19:37
  Speaker 1: a voluntary DNA sample which matched the profile from the
• 19:40
  Speaker 1: crime scene and the garbage. The defendant moved to suppress
• 19:44
  Speaker 1: the evidence of his genetic information left behind at the
• 19:47
  Speaker 1: crime scene. He argued, as defendant does here, that although
• 19:51
  Speaker 1: he may have abandoned his privacy interest in his seamen
• 19:54
  Speaker 1: and skin cells, it did not equate to abandonment of
• 19:57
  Speaker 1: the vast troves of genetic information that biological material contained.
• 20:03
  Speaker 1: Making short work of this argument, the Minnesota Supreme Court
• 20:06
  Speaker 1: found that by voluntarily leaving his semen in skin at
• 20:09
  Speaker 1: the crime scene, he abandoned any subjective privacy interest and
• 20:13
  Speaker 1: his genetic information contained therein. In the concurring opinion relied
• 20:18
  Speaker 1: upon by defendant, one justice disagreed with the majority on
• 20:21
  Speaker 1: this issue. Because the sensitive genetic information revealed BIASNP testing,
• 20:26
  Speaker 1: he would have required a warrant before allowing such testing.
• 20:30
  Speaker 1: He further opined that the concept of abandonment, which requires voluntariness,
• 20:35
  Speaker 1: is an ill fit for genetic information because it's virtually
• 20:39
  Speaker 1: impossible for humans to prevent leaving personal genetic information everywhere
• 20:43
  Speaker 1: they go. To this end, he analogized DNA to the
• 20:47
  Speaker 1: cell phone site location information at issue in Carpenter versus
• 20:51
  Speaker 1: United States, five eighty five US two ninety six, three ten,
• 20:54
  Speaker 1: and eleven twenty eighteen, where the United States Supreme Court
• 20:58
  Speaker 1: reasoned that E SLI is not voluntarily exposed, given that
• 21:03
  Speaker 1: virtually any activity on a phone, which is essential to
• 21:06
  Speaker 1: participation in modern life, will leave a trail of location data.
• 21:11
  Speaker 1: While there are safeguards to prevent the dissemination of CSLI
• 21:16
  Speaker 1: ie turning off a phone, he observed, there are no
• 21:18
  Speaker 1: similar safeguards for DNA, thus rendering the case against abandonment
• 21:23
  Speaker 1: all the more clear. When we venture into public spaces,
• 21:26
  Speaker 1: we simply cannot help but shed our DNA. The majority, however,
• 21:30
  Speaker 1: pointed out that the inquiry as to whether the defendant
• 21:33
  Speaker 1: abandoned his subjective privacy interests looks to his specific actions.
• 21:38
  Speaker 1: When viewed in this way, the majority found just as
• 21:41
  Speaker 1: pro Chawne's logic inapt given that the defendant's DNA was
• 21:45
  Speaker 1: collected not from a shed skin cell, or flake or dandriff,
• 21:48
  Speaker 1: nor was it a mere consequence of the defendant venturing
• 21:51
  Speaker 1: into the public sphere. It was collected from semen he
• 21:55
  Speaker 1: voluntarily left inside the victim and dead skin cells he
• 21:58
  Speaker 1: voluntarily left on under her fingernails. Defendant argues that the
• 22:03
  Speaker 1: justice case against abandonment is particularly appropriate here. Defendant argues
• 22:08
  Speaker 1: the biological material left on the sheath was not blood
• 22:12
  Speaker 1: or semen or some bodily fluid that the Carbo court
• 22:15
  Speaker 1: found could be voluntarily left behind instead of argues it
• 22:19
  Speaker 1: was more likely shed cells, which humans cannot help but discard. However,
• 22:24
  Speaker 1: as the state points out, there is nothing that distinguishes
• 22:27
  Speaker 1: semen voluntarily left at a crime scene from the sheath.
• 22:31
  Speaker 1: Both were abandoned vehicles carrying DNA. Stated another way, the
• 22:34
  Speaker 1: semen in Carbo and the sheath were both containers of DNA.
• 22:38
  Speaker 1: As discussed, disclaiming ownership or knowledge of a container results
• 22:42
  Speaker 1: in abandonment of privacy interest in its contents. Thus, by
• 22:46
  Speaker 1: effectively disclaiming knowledge or ownership of the sheath, defendant necessarily
• 22:52
  Speaker 1: abandons any privacy interest in the DNA it contains. Indeed,
• 22:56
  Speaker 1: Carbo is not an anomaly in finding abandoned. Courts uniformly
• 23:01
  Speaker 1: hold that a person abandons any privacy interests in their
• 23:04
  Speaker 1: DNA for purposes of the Fourth Amendment when they abandoned
• 23:07
  Speaker 1: property that contains their DNA. In State Verse Burns, for example,
• 23:12
  Speaker 1: law enforcement extracted DNA from a bloodstain dress of the
• 23:15
  Speaker 1: victim and created a genetic profile, which was run through
• 23:19
  Speaker 1: genetic genealogy. The defendant was identified as a suspect through
• 23:23
  Speaker 1: this process. Officers then followed him to a restaurant and
• 23:27
  Speaker 1: collected a straw the suspect deposited in the trash. Testing
• 23:31
  Speaker 1: of the DNA on the straw indicated that the DNA
• 23:34
  Speaker 1: extracted from the dress could be the defendants. A subsequent
• 23:38
  Speaker 1: test confirmed it. The defendant did not move to suppress
• 23:42
  Speaker 1: the extraction and analysis of his DNA from the bloodstained dress,
• 23:46
  Speaker 1: but he did unsuccessfully seek suppression of the DNA extracted
• 23:51
  Speaker 1: from the straw. On appeal to court had little difficulty
• 23:54
  Speaker 1: finding that any privacy interest he had in his DNA
• 23:57
  Speaker 1: profile developed from the straw was abandoned first by failing
• 24:01
  Speaker 1: to make any effort to preserve the straw as private,
• 24:04
  Speaker 1: he relinquished any subjective privacy interests therein. Secondly, if he
• 24:09
  Speaker 1: retained a subjective privacy interest, it was not one society
• 24:12
  Speaker 1: would recognize as reasonable, considering he voluntarily left the straw
• 24:17
  Speaker 1: behind in the restaurant. Further, the court rejected the defendant's
• 24:21
  Speaker 1: attempt to distinguish the DNA on the straw from the
• 24:24
  Speaker 1: straw itself, finding no practical differences between the two. By
• 24:29
  Speaker 1: abandoning the straw, he also abandoned the DNA on the straw.
• 24:33
  Speaker 1: All right, we're going to wrap up right here, and
• 24:35
  Speaker 1: in the next episode we're going to pick up with
• 24:37
  Speaker 1: the Burns. Court additionally rejected. If you'd like to contact me,
• 24:41
  Speaker 1: you can do that at Bobby Kopuchi at Protonmeil dot com.
• 24:44
  Speaker 1: That's Bobby capu Cci at Protonmeil dot com, or if
• 24:50
  Speaker 1: you prefer, you can find me on x at Bobby
• 24:54
  Speaker 1: Underscore cap use Cci. All of the links that go
• 24:58
  Speaker 1: with this episode can be found in the description box.
• 25:01
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 25:04
  Speaker 1: this episode, we're heading back up to Moscow and we're
• 25:07
  Speaker 1: going to pick up where we left off with Judge
• 25:09
  Speaker 1: Hipler's order on genetic information. The Court finds the analysis
• 25:14
  Speaker 1: and Burns compelling and consistent with the Fourth Amendment law.
• 25:18
  Speaker 1: The Court recognizes that a distinction can be drawn given
• 25:21
  Speaker 1: the fact that in Burns, there was no question that
• 25:24
  Speaker 1: the defendant abandoned the straw, and here defendant argues it
• 25:27
  Speaker 1: cannot be conclusively stated that he abandoned the sheath. However,
• 25:32
  Speaker 1: as the State notes, this distinction does not preclude a
• 25:34
  Speaker 1: finding of abandonment for two reasons. First, is discussed abandonment
• 25:39
  Speaker 1: does not occur slowly by discarding an item. It also
• 25:42
  Speaker 1: occurs by disclaiming ownership or knowledge or otherwise relinquishing an
• 25:46
  Speaker 1: interest in property Zitsiva Supra. By not claiming ownership of
• 25:51
  Speaker 1: the sheath or any knowledge as to how this DNA
• 25:54
  Speaker 1: arrived on the sheath, defend and abandon any privacy interest
• 25:57
  Speaker 1: in the DNA. Second, the fact fact that a person
• 26:00
  Speaker 1: does not knowingly expose his DNA to the public does
• 26:03
  Speaker 1: not contravene a finding of abandonment. Like DNA fingerprints and
• 26:08
  Speaker 1: bodily fluids are left unknowingly on surfaces of public places
• 26:12
  Speaker 1: merely as a consequence of venturing into the public sphere. Yet,
• 26:15
  Speaker 1: as noted in Burns, this does not raise constitutional concerns Burns,
• 26:21
  Speaker 1: nine eighty eight NW two d At three sixty three.
• 26:24
  Speaker 1: See also Holland side tech at three thirty one. The
• 26:28
  Speaker 1: manner in which humans shed cellular material is not fundamentally
• 26:31
  Speaker 1: different from the manner in which the oil is comprising
• 26:34
  Speaker 1: fingerprints are shed. What matters is that the material was
• 26:38
  Speaker 1: left in the public domain. Applying this rationale, the Maryland
• 26:42
  Speaker 1: Supreme Court concluded that the defendant abandoned any privacy interest
• 26:46
  Speaker 1: he had in his shed DNA collected from a chair
• 26:49
  Speaker 1: in which he had been sitting Reynard versus State Maryland,
• 26:53
  Speaker 1: twenty fourteen. In doing so, the Court rejected that notion
• 26:57
  Speaker 1: that abandonment required and explicitly volunteer very knowing act. Noting
• 27:02
  Speaker 1: the fact that one has not knowingly exposed to the
• 27:04
  Speaker 1: public certain evidence does not by itself demonstrate a reasonable
• 27:08
  Speaker 1: expectation of privacy in that evidence. While Katz says it
• 27:12
  Speaker 1: is no search to discover what one knowingly exposes, it
• 27:16
  Speaker 1: does not declare the exact reverse of this proposition. That is,
• 27:20
  Speaker 1: the Supreme Court did not say that discovery of what
• 27:23
  Speaker 1: was knowingly exposed is inevitably a search. Wayne R. Lefay
• 27:28
  Speaker 1: Search and Seizure Section two dot two d At six
• 27:30
  Speaker 1: forty nine, Fifth edition, twenty twelve. Likewise, here, at some point,
• 27:35
  Speaker 1: defendant apparently interacted with the sheath to a sufficient enough
• 27:39
  Speaker 1: degree that he left his DNA thereon whether he knew
• 27:42
  Speaker 1: he left his DNA behind is of no consequence. It
• 27:45
  Speaker 1: is only relevant that he exposed his DNA to the
• 27:48
  Speaker 1: public by leaving it on the sheath, thus forfeiting any
• 27:51
  Speaker 1: reasonable expectation of privacy in the DNA left behind. Even
• 27:56
  Speaker 1: if not abandoned, defendant has not established wi subjective privacy
• 28:01
  Speaker 1: interests in his DNA is objectively reasonable. A Fourth Amendment
• 28:05
  Speaker 1: search occurs when the government seeks to gain information by
• 28:09
  Speaker 1: infringing upon a person's reasonable expectation of privacy Cats versus
• 28:13
  Speaker 1: United States, nineteen sixty seven. An expectation of privacy is
• 28:18
  Speaker 1: objectively reasonable when it's legitimate, justifiable, and one society should
• 28:22
  Speaker 1: both recognize and protect state versus Fontor Appeals Court, two
• 28:26
  Speaker 1: thousand and eight. It's true that DNA testing, particularly SNP testing,
• 28:31
  Speaker 1: can unlock a wealth of intensely private information about an individual,
• 28:35
  Speaker 1: including family relationships, ancestry, genetic disorders, and the propensity for
• 28:40
  Speaker 1: health related risks victoria, romine crime, DNA and family protecting
• 28:45
  Speaker 1: genetic privacy in the world of twenty three in me
• 28:48
  Speaker 1: Spring of twenty twenty one. Such highly private information is
• 28:52
  Speaker 1: already protected under the law in other contexts, including in
• 28:56
  Speaker 1: Idaho through the Genetic Testing Privacy Act I see section
• 28:59
  Speaker 1: three thirty nine Dash eight three zero one, which prohibits
• 29:03
  Speaker 1: genetic discrimination in employment. Given the privacy interest implicated by
• 29:07
  Speaker 1: DNA testing, defendant argues that DNA, even lawfully in possession
• 29:11
  Speaker 1: of law enforcement, cannot be tested absent probable cause and
• 29:15
  Speaker 1: a warrant. In Defendant's view, the breadth of information SNP
• 29:19
  Speaker 1: testing can reveal is analogous to the CSLI at issue
• 29:24
  Speaker 1: in Carpenter, where the United States Supreme Court held that
• 29:27
  Speaker 1: a person maintains a legitimate expectation of privacy in the
• 29:30
  Speaker 1: record of his physical movements as captured through CSLI data
• 29:35
  Speaker 1: maintained by the person's wireless carrier. The Carpenter Court reasoned
• 29:40
  Speaker 1: that those detailed encyclopedic records, which provided an all encompassing
• 29:44
  Speaker 1: record of the defendant's location over a course of one
• 29:47
  Speaker 1: hundred and twenty seven consecutive days, can give law enforcement
• 29:51
  Speaker 1: an intimate window into a person's life, revealing not only
• 29:54
  Speaker 1: his particular movements, but through them, his familial, political, professional, religious,
• 29:59
  Speaker 1: and sexual associations Idea three ten and eleven. These location
• 30:05
  Speaker 1: records hold for many Americans the privacies of life. Quoting
• 30:09
  Speaker 1: Riley versus California, twenty fourteen, Defendant also relies on Riley,
• 30:14
  Speaker 1: where the United States Supreme Court held that police may
• 30:17
  Speaker 1: not search digital information from a cell phone seize pursuant
• 30:20
  Speaker 1: to the search incident to arrest exception to the warrant requirement.
• 30:25
  Speaker 1: The Court observed that unlike physical objects, digital data on
• 30:29
  Speaker 1: a cell phone does not implicate the same government interests
• 30:32
  Speaker 1: justifying searches incident to arrest, ie preventing loss of evidence,
• 30:37
  Speaker 1: and threats to officer safety Idea four oh one. Further,
• 30:41
  Speaker 1: the Court found that the extent of personal information digital
• 30:44
  Speaker 1: data would reveal about a person implicated significant privacy issues,
• 30:49
  Speaker 1: noting that while an arrestee has diminished privacy interests, it
• 30:53
  Speaker 1: does not mean the arreste has no Fourth Amendment protections
• 30:56
  Speaker 1: Idea three ninety two. By analogy to Riley, defending contends
• 31:00
  Speaker 1: that law enforcement should be required to obtain a search
• 31:03
  Speaker 1: warrant to analyze the DNA from the sheath despite being
• 31:07
  Speaker 1: in lawful possession thereof. With regard to the SNP testing
• 31:11
  Speaker 1: of DNA in particular, Defendant relies on Skinner versus Railway
• 31:15
  Speaker 1: Labor Executives, where the United States Supreme Court held that
• 31:19
  Speaker 1: collection and subsequent testing of an employees legally obtained urine
• 31:23
  Speaker 1: constitutes a Fourth Amendment search. The Court observed that while
• 31:27
  Speaker 1: physical intrusion into an employee's body to collect the urine
• 31:31
  Speaker 1: is an obvious infringement of the employee's reasonable expectational privacy,
• 31:35
  Speaker 1: the subsequent chemical analysis of the urine sample to obtain
• 31:39
  Speaker 1: physiological data about the employee is a further invasion of
• 31:43
  Speaker 1: the employee's privacy interest, given that such testing can reveal
• 31:47
  Speaker 1: a host of private medical facts about an employee, including
• 31:50
  Speaker 1: whether he or she is epileptic, pregnant, or diabetic. Based
• 31:54
  Speaker 1: on Carpenter, Riley, and Skinner, defendant contends that because SNP
• 31:58
  Speaker 1: testing of DNA is even more revealing than CLSI data
• 32:03
  Speaker 1: or urine testing, it should be allowed only upon a warrant,
• 32:06
  Speaker 1: regardless whether the DNA was lawfully obtained. Defendant argues that
• 32:11
  Speaker 1: this is precisely what the Fourth Circuit did in the
• 32:13
  Speaker 1: United States first Davis, when it held that the extraction
• 32:16
  Speaker 1: of DNA and the creation of DNA profiles result in
• 32:20
  Speaker 1: a sufficiently separate invasion of privacy that such acts must
• 32:24
  Speaker 1: be considered a separate search under the Fourth Amendment, even
• 32:27
  Speaker 1: when there is no issue concerning the collection of the
• 32:30
  Speaker 1: DNA sample. At issue in Davis was DNA extracted from
• 32:35
  Speaker 1: the defendant's clothing, which had been lawfully seized four years
• 32:39
  Speaker 1: earlier when the defendant was a crime victim in an
• 32:41
  Speaker 1: unrelated case. Relying on Skinner, the court reasoned that the
• 32:45
  Speaker 1: extraction and analysis was a search because the analysis of
• 32:49
  Speaker 1: biological samples, such as those derived from blood, urine, or
• 32:53
  Speaker 1: other bodily fluids, can reveal the physiological data and a
• 32:56
  Speaker 1: host of private medical facts. Such analysis may intrude u
• 33:00
  Speaker 1: upon expectations of privacy that society has long recognized as reasonable,
• 33:05
  Speaker 1: quoting Skinner for eighty nine US at six, sixteen, and seventeen. However,
• 33:10
  Speaker 1: these cases lend no support to defendant when applied to
• 33:13
  Speaker 1: the specific circumstances presented here, for three reasons. One, there
• 33:17
  Speaker 1: is no reasonable expectation of privacy and identity. Two, defendant
• 33:21
  Speaker 1: is not shown as DNA was tested for anything other
• 33:24
  Speaker 1: than identifying purposes. And three, even if the DNA analysis
• 33:28
  Speaker 1: revealed sensitive personal details, there is no reasonable expectation of
• 33:32
  Speaker 1: privacy in crime scene DNA. First, there is no reasonable
• 33:36
  Speaker 1: expectation of privacy, and are identifying characteristics such as fingerprints
• 33:41
  Speaker 1: US FIRS DNACO four ten, nineteen seventy three. This is
• 33:46
  Speaker 1: because analysis of such physical characteristics involves none of the
• 33:49
  Speaker 1: probing into an individual's private life and thoughts that marks
• 33:53
  Speaker 1: a Fourth Amendment search. On this basis, courts have held
• 33:57
  Speaker 1: that testing of DNA for identification per purposes does not
• 34:01
  Speaker 1: run a foul of the Fourth Amendment because it's no
• 34:03
  Speaker 1: more revealing than fingerprints. Where DNA testing is not obtained
• 34:07
  Speaker 1: by means of a physical intrusion into the person's body,
• 34:10
  Speaker 1: there is more of a search for purpose of the
• 34:13
  Speaker 1: Fourth Amendment than is the testing of fingerprints or the
• 34:16
  Speaker 1: observation of any other identifying feature revealed to the public
• 34:20
  Speaker 1: visage apparent, age, body type, skin color, Burns nine eighty eight,
• 34:25
  Speaker 1: n W two d AT three sixty four, and sixty five.
• 34:29
  Speaker 1: Likening DNA analysis used for identification purposes to analyzing latent fingerprints.
• 34:35
  Speaker 1: The Idaho Court of Appeals has all but followed suit
• 34:38
  Speaker 1: in pure overse state a post conviction action. The Court
• 34:41
  Speaker 1: of Appeals addressed whether the petitioner's council was deficient by
• 34:45
  Speaker 1: failing to argue as client had a reasonable expectation of
• 34:48
  Speaker 1: privacy in his genetic material left behind on a water bottle.
• 34:52
  Speaker 1: In rejecting the claim, the court first noted that since
• 34:55
  Speaker 1: the issue of genetic privacy in DNA was a novel
• 34:58
  Speaker 1: theory in an undeveloped area of law, council was not
• 35:02
  Speaker 1: ineffective by failing to raise it. Moreover, the court cast
• 35:05
  Speaker 1: doubt of the substandative value of the argument, noting that
• 35:09
  Speaker 1: in other jurisdictions, courts have held that the use of
• 35:12
  Speaker 1: DNA for identification purposes only does not infringe on a
• 35:17
  Speaker 1: privacy interest in one's genetic identity because the DNA is
• 35:21
  Speaker 1: not being used to reveal personal information. All Right, we're
• 35:24
  Speaker 1: gonna wrap up right here, and in the next episode
• 35:27
  Speaker 1: we're going to pick up with second in Marilyn Verus King.
• 35:31
  Speaker 1: If you'd like to contact me, you can do that
• 35:33
  Speaker 1: at Bobby Kapuci at ProtonMail dot com. That's Bobby cap
• 35:37
  Speaker 1: U Cci at Protonmeil dot com, or if you prefer,
• 35:41
  Speaker 1: you can find me on x at Bobby Underscore cap Ucci.
• 35:47
  Speaker 1: All of the links that go with this episode can
• 35:49
  Speaker 1: be found in the description box.