535 P.3d 948
Ariz. Ct. App.2023Background
- In 2015 a woman was murdered; investigators developed an unknown male STR DNA profile from the scene and entered it into CODIS with no match.
- A 2018 familial CODIS search identified a close relative (inmate Mark Mitcham); police focused surveillance on his brother Ian Mitcham, who had a 2015 DUI arrest where he consented to a blood draw limited to alcohol/drug testing.
- Police retained Mitcham’s 2015 blood beyond the 90‑day testing window, and in 2018 — without a warrant — created an STR DNA profile from that vial, which matched the crime‑scene profile.
- After obtaining a warrant and arresting Mitcham, police took a buccal swab at booking and generated a second profile; Mitcham moved to suppress the 2015 blood‑derived profile, the buccal profile, and any profiles arising from later convictions. The superior court granted suppression.
- The court of appeals held: creating a DNA profile from state‑held blood can be a Fourth Amendment search, and here the 2018 profiling exceeded the scope of Mitcham’s 2015 consent; but suppression was erroneous because (1) police had probable cause independent of the illegal DNA match to arrest Mitcham (so the booking swab was lawful), and (2) Mitcham’s subsequent felony convictions made his DNA inevitably available to CODIS. The suppression order was reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether creating a DNA profile from lawfully possessed blood is a Fourth Amendment search | Mitcham: generating an STR profile is a distinct, privacy‑invading search | State: once blood is lawfully possessed, profiling is not a new search | Court: profiling can be a search (Mario W. control) but is context‑dependent; here it was a search because it exceeded consent |
| Whether 2018 DNA profiling exceeded the scope of Mitcham’s 2015 consent | Mitcham: consent was limited to alcohol/drug testing; DNA profiling for unrelated crimes exceeded that scope | State: lawful possession of the vial made scope irrelevant | Court: consent limited to intoxication testing; creating a profile for unrelated investigation exceeded that consent |
| Whether evidence from the buccal swab (and subsequent profiles) must be suppressed as fruit of the illegal search | Mitcham: buccal profile is fruit of the 2018 unlawful profile and must be suppressed | State: police had independent probable cause; booking swab mandated by statute and thus not tainted | Court: suppression was improper — police had probable cause absent the 2018 profile and booking swab was required on arrest, so the buccal profile is admissible |
| Whether the State’s later possession/use of Mitcham’s DNA is justified by inevitable discovery/independent source | Mitcham: his guilty pleas were strategic and flow from the illegal search, so convictions can’t justify inevitable discovery | State: Mitcham later convicted of unrelated felonies and statute required DNA submission to CODIS, so the profile would inevitably be obtained | Court: rejected Mitcham’s argument; convictions were valid and CODIS submission made the profile an inevitable/independent source, supporting reversal |
Key Cases Cited
- Mario W. v. Kaipio, 230 Ariz. 122 (Ariz. 2012) (holding extraction and separate profiling can be distinct searches and profiling requires at least probable cause or reasonable suspicion in that juvenile context)
- Maryland v. King, 569 U.S. 435 (2013) (upholding arrestee DNA profiling as reasonable during booking for serious offenses; STR CODIS loci used only for identification)
- Schmerber v. California, 384 U.S. 757 (1966) (drawing blood is a Fourth Amendment search because it intrudes on the person)
- Katz v. United States, 389 U.S. 347 (1967) (Fourth Amendment protects reasonable privacy expectations; search occurs when those expectations are infringed)
- Nix v. Williams, 467 U.S. 431 (1984) (inevitable discovery doctrine as a limitation on exclusionary rule)
- Wong Sun v. United States, 371 U.S. 471 (1963) (fruit of the poisonous tree principle governs derivative evidence suppression)
- Walter v. United States, 447 U.S. 649 (1980) (lawful possession of property by government does not license searching its contents without authorization)
- Florida v. Jimeno, 500 U.S. 248 (1991) (scope of consent measured by objective reasonableness)