United States v. Thomas
2013 U.S. App. LEXIS 23564
| 1st Cir. | 2013Background
- In 2005 postal inspectors served a grand-jury-form subpoena on Michael R. Thomas (then Shawn P. Higgins) directing him either to appear in Bangor or provide DNA (cheek swab), fingerprints, and a handwriting exemplar; Thomas provided samples locally and was not told he could refuse.
- The buccal swab was analyzed by Orchid Cellmark; the swab itself was destroyed in 2006 but a two-page DNA profile (one page later missing in the file) was retained in the closed investigative file; no charges resulted from the 2004–2005 Austin Preparatory School investigation.
- In 2011 threatening letters to public officials produced recovered DNA; investigators reviewing cold files found Thomas’s retained 2005 DNA profile (one missing page later obtained from Orchid Cellmark) and matched it to the 2011 letters, producing probable cause for arrest and search warrants.
- Thomas was arrested in 2011, subsequently confessed to the 2011 offenses, and conditionally pleaded guilty; he moved to suppress all evidence derived from the 2005 DNA on Fourth Amendment grounds.
- The district court denied suppression, reasoning that even if the 2005 swab violated the Fourth Amendment, exclusion was not warranted because there was no flagrant police misconduct and suppression would provide little deterrence (relying on Herring).
- The First Circuit agreed the 2005 cheek swab violated the Fourth Amendment under the legal principles announced in Maryland v. King, but affirmed denial of suppression under Herring because the violation was attenuated, nonflagrant, and exclusion’s costs outweighed deterrent benefits.
Issues
| Issue | Thomas's Argument | Government's Argument | Held |
|---|---|---|---|
| Legality of the 2005 buccal swab obtained via grand-jury-form subpoena | Swab was a Fourth Amendment search and the subpoena process (no grand jury or judicial finding) made it unlawful | Subpoena practice was routine and investigators reasonably believed it permissible; alternatively Thomas consented | Court: Swab was a Fourth Amendment violation under Maryland v. King; assuming no consent, but suppression is not required on later use under Herring |
| Retention of 2005 DNA profile in closed file and later retrieval | Retention and later disclosure violated privacy and statutory expectations (DNA Act concerns) and warrants suppression | Retention was akin to keeping fingerprints; DNA profile was never entered into CODIS and DNA Act did not apply; no misconduct in retention | Court: Retention did not warrant suppression; DNA profile in a closed investigatory file is distinguishable from CODIS retention and posed limited privacy concerns |
| Obtaining missing page from private lab (Orchid Cellmark) in 2011 without warrant | Retrieving the missing page and sharing it with investigators violated privacy and required a warrant | Postal inspectors were entitled to complete their file; obtaining the page for investigatory purposes was not a separate Fourth Amendment event | Court: No separate Fourth Amendment violation in completing the investigative file by obtaining the missing page |
| Use of the 2005 profile to obtain 2011 warrants (exclusionary rule application) | But-for causation exists; exclusion would deter future improper use of grand-jury subpoenas and retention | Under Herring, suppression requires deliberate, reckless, or systemic misconduct; here error was attenuated and nonflagrant so deterrence is minimal and costs high | Court: Herring governs; exclusionary rule not triggered—evidence admitted because misconduct was not sufficiently deliberate or causally proximate to warrant suppression |
Key Cases Cited
- Herring v. United States, 555 U.S. 135 (2009) (exclusionary rule limited to deliberate, reckless, or systemic misconduct; attenuated/negligent errors do not warrant suppression)
- Maryland v. King, 133 S. Ct. 1958 (2013) (buccal swab to obtain DNA is a Fourth Amendment search; reasonableness inquiry applies)
- United States v. Calandra, 414 U.S. 338 (1974) (grand jury’s presumption of regularity and limits on suppression for grand-jury proceedings)
- Nardone v. United States, 308 U.S. 338 (1939) (but-for causation as a necessary element for exclusion)
- Davis v. United States, 131 S. Ct. 2419 (2011) (exclusionary rule’s sole purpose is deterrence)
- United States v. Weikert, 504 F.3d 1 (1st Cir. 2007) (discussion of privacy interests in DNA/CODIS context)