State v. PoliceState v. Police
Convicted, on a conditional plea of nolo contendere, of the crimes of robbery in the first degree and assault in the first degree, the defendant appealed, challenging the trial court’s denial of his motion to dismiss the information. In 2012, the victim was shot and robbed by an unknown assailant while she was standing near her car in a parking lot. The police thereafter conducted a search of an area near the crime scene and recovered various items, which were submitted to the state forensic science laboratory for testing. In its DNA report, employees at the laboratory concluded that the DNA found on each item consisted of a mixture of DNA profiles and that the victim was not a source of or contributor to the mixed profiles. Following the release of video surveillance footage that captured images of the suspect fleeing the crime scene, an anonymous caller contacted the police and reported that the suspect in the video footage looked like his cousin, the defendant, and that the defendant had told relatives that he had shot the victim. As part of their investigation, the police compared the DNA profiles generated from the crime scene evidence with those in a database that contains the DNA profiles of convicted felons. Because the police had been erroneously informed that the defendant’s DNA profile was in the database, when the database search did not return a match, the police ceased their investigation of the defendant. In April, 2017, approximately six months before the expiration of the applicable five year statute of limitations ((Rev. to 2011) § 54-193 (b)), the police applied for a John Doe arrest warrant, alleging in an accompanying affidavit that there was probable cause for the statute of limitations to be tolled pending the arrest of an unknown male responsible for the assault and robbery of the victim, and allegedly identifiable through the DNA profiles obtained from the crime scene evidence and general descriptions given by the victim and witnesses to the attack. The trial court signed the John Doe arrest warrant on the basis of the information contained in the affidavit. In April, 2018, more than five months after the statute of limitations had expired, the mother of the defendant’s child contacted the police and reported that the defendant had confessed to her that he was the assailant. The police, pursuant to a search warrant, then obtained a DNA sample from the defendant, which they submitted to the state forensic science laboratory. The laboratory retested the crime scene evidence and compared the defendant’s DNA with the new DNA profiles generated from the retesting. In supplemental DNA reports, employees at the laboratory concluded, inter alia, that it was at least 100 billion times more likely that the defendant was a contributor to the mixed DNA profiles than if they had originated from all unknown individuals. In May, 2018, the defendant was arrested pursuant to the John Doe arrest warrant and charged with robbery and assault in connection with the attack of the victim. Thereafter, the defendant filed a motion to dismiss the information, claiming, inter alia, that the John Doe arrest warrant did not satisfy the particularly requirement of the fourth amendment to the United States constitution and, therefore, that the issuance of that warrant in April, 2017, did not toll the statute of limitations. In denying the defendant’s motion to dismiss, the trial court, specifically relying on one or both of the 2018 supplemental DNA reports, concluded that the John Doe arrest warrant identified the defendant with ‘‘nearly irrefutable precision’’ and, therefore, satisfied the particularity requirement of the fourth amendment. After the trial court accepted the defendant’s conditional plea of nolo contendere, the defendant appealed, claiming, inter alia, that the trial court improperly had denied his motion to dismiss the information because a John Doe arrest warrant that identifies a suspect on the basis of a general description and mixed partial DNA profiles violates the particularity requirement of the fourth amendment
1. The record was adequate for review of the defendant’s unpreserved claim that a John Doe arrest warrant that identifies a suspect through mixed partial DNA profiles violates the particularity requirement of the fourth amendment; there was no merit to the state’s claim that, insofar as the defendant did not raise his claim in the trial court, the state was deprived of the opportunity to present evidence that might have established that the defendant’s DNA profile would have been included in one of the 2012 mixed partial profiles if they had been compared, because, in determining the validity of an arrest warrant, the only information that a reviewing court properly may consider is that which was presented to the judicial authority that issued the warrant, which must either appear in the warrant itself or be incorporated by reference therein, and, in the present case, the record included the John Doe arrest warrant and, therefore, contained all of the facts necessary for this court’s review of the defendant’s claim.
2. This court having concluded that the John Doe arrest warrant at issue failed to satisfy the particularity requirement of the fourth amendment, the trial court improperly denied the defendant’s motion to dismiss the information: although a John Doe arrest warrant that describes a suspect by reference to his or her unique DNA profile generally can satisfy the particularity requirement of the fourth amendment, the John Doe arrest warrant in the present case, which identified the suspect on the basis of a general physical description that could apply to any number of people and on the basis of mixed partial DNA profiles that were not positively known to include the suspect’s unique DNA profile, and which failed to state the statistical rarity of any of the profiles, did not describe with particularity the person responsible for the attack of the victim and, therefore, did not toll the applicable statute of limitations; moreover, contrary to the state’s contention, the trial court improperly relied on one or both of the 2018 supplemental DNA reports in determining that the 2012 DNA report, which the police had relied on to establish probable cause for the John Doe arrest warrant, identified the suspect with the particularity required by the fourth amendment, as the 2018 reports were not contained in the John Doe arrest warrant or incorporated therein by reference; accordingly, the judgment of conviction was reversed and the case was remanded with direction to render judgment dismissing the information.
KELLER, J. This appeal presents a significant issue of first impression not only for this state but, to our knowledge, the rest of the country as well: whether a John Doe arrest warrant that identified the suspect on the basis of a general physical description and several mixed partial DNA profiles to which the suspect may or may not have been a contributor, and that did not state the probability that a random person would match any of those profiles, satisfies the particularity requirement of the fourth amendment to the United States constitution for purposes of commencing a prosecution within the applicable statute of limitations.
After he was charged with one count each of robbery in the first degree and assault in the first degree, the defendant, Terrance Police, filed a motion to dismiss the information on the ground that the charges were time barred by the five year statute of limitations set forth in
The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. On the afternoon of October 10, 2012, Norwalk police officers responded to reports of a robbery and shooting outside of the Stop and Shop supermarket on Connecticut Avenue in Norwalk. Upon arrival, they found the victim in the parking lot, suffering from a gunshot wound to the abdomen. The victim reported that she had been standing near her car looking at her phone when an unknown black male, whom she described as approximately eighteen to thirty years old with a medium build and a light beard, wearing jeans and a dark hooded sweatshirt, attacked her. The victim informed the police that her assailant had opened the driver’s side door of her car, pushed her inside, and, during a struggle, shot her in the abdomen with a small silver handgun. Fearing for her life, the victim surrendered her wedding and engagement rings, as well as an iPhone with a pink Kate Spade phone case, to the suspect, who then fled on foot with the victim’s belongings toward a nearby Best Buy store.
In an effort to identify the perpetrator, the police released the video surveillance footage to the public. On December 29, 2012, an anonymous caller contacted the police and stated that the man seen in the video footage looked like his cousin, the defendant. Although the defendant had denied any involvement in the crime to his mother, the anonymous caller indicated that the defendant had told other relatives that he had shot the victim. In investigating this tip, the police were informed, albeit erroneously, that, in 2008, in connection with a prior felony conviction, a sample of the defendant’s DNA had been obtained and entered into the Combined DNA Index System (CODIS).3 The police thereafter submitted the DNA profiles generated from the crime scene evidence to CODIS for comparison, but there were no matches. Upon receiving the results of the search, the police contacted the laboratory to ensure that the database was current, and the laboratory indicated that it was. Because the CODIS search failed to identify the defendant as a contributor to any of the DNA profiles, and because the police were under the impression that the defendant’s DNA was in CODIS, the police ceased their investigation of him. The police nevertheless continued their investigation of the crime by conducting weekly searches of both the Connecticut and national DNA databases and by pursuing other potential suspects. Although all investigative leads were exhausted by July, 2013, the police continued to conduct periodic searches through CODIS, each time yielding a negative result.
On April 6, 2017, approximately six months before the expiration of the five year statute of limitations, the Norwalk police applied for a John Doe arrest warrant, alleging in the sworn affidavit that there was probable
Approximately one year later, on April 2, 2018, the Norwalk police received a phone call from a woman who reported that she had seen the video footage released to the public years prior and recognized the perpetrator as her child’s father, the defendant. The woman informed the police that the defendant also had confessed to her that he committed the 2012 assault and robbery of the victim. Given this new development, Sergeant Paul Podgorski of the Norwalk Police Department contacted the laboratory and spoke with forensic science examiner Jessica Best. Best explained that, although the defendant’s DNA was in CODIS,5 it was possible that no match was ever made to the DNA found at the crime scene because of the low quality of the defendant’s sample and because the DNA profiles generated from the crime scene evidence were mixtures of the DNA of several different individuals.6 Best therefore recommended a direct comparison with a sample of the defendant’s DNA via a buccal swabbing. Accordingly, the police drafted a search warrant for the defendant’s DNA, which the trial court signed on April 6, 2018.
On April 13, 2018, approximately six months after the statute of limitations had expired, the laboratory retested the crime scene evidence and compared the defendant’s DNA against the new DNA profiles generated from the retesting. In a supplemental DNA report, the laboratory concluded as follows: (1) The results from the inside sleeve cuffs and neck hem of the sweatshirt were consistent with the DNA profile being a mixture of four contributors, with the profile being at least 100 billion times more likely to occur if it originated from the defendant and three unknown individuals than if it originated from four unknown individuals; (2) the results from the right handle of the .22 magnum handgun were consistent with the DNA profile being a mixture of three contributors, with the profile being at least 100 billion times more likely to occur if it originated from the defendant and two unknown individuals than if it originated from three unknown individuals; and (3) the results from the inside sleeve cuffs and neck hem of the sweater were consistent with the DNA profile being a mixture of four contributors with the profile being at least 100 billion times more likely to occur if it originated from the defendant and three unknown individuals than if it originated from four unknown individuals.7 The rest of the results were either inconclusive or excluded the defendant.
In response, the state argued that a John Doe DNA arrest warrant tolls the statute of limitations when ‘‘it meets the particularity requirement of the fourth amendment to the United States constitution, as well as the reasonable certainty requirement under Connecticut law.’’ The state argued that these requirements were met in the present case ‘‘by the combination of the DNA evidence with (1) a detailed and consistent physical description of the accused, (2) the description of the suspect’s attire, (3) the fact that the affidavit state[d] that the suspect was wearing a dark colored sweatshirt and had touched the victim’s cell phone [case], and (4) [the fact that] DNA evidence belonging to the suspect was found on each of [those] items of evidence.’’ Finally, the state argued that the trial court should follow the majority of jurisdictions that have previously considered the issue and allowed the use of John Doe DNA arrest warrants.
An evidentiary hearing on the defendant’s motion to dismiss was held before the trial court, after which the court issued a memorandum of decision and denied the motion. Relying on the April, 2018 supplemental DNA report,8 the court concluded that the John Doe arrest warrant satisfied both the particularity requirement of the fourth amendment and the reasonable certainty requirement under Connecticut law. Specifically, the court stated that the John Doe arrest warrant ‘‘identif[ied] the defendant with ‘nearly irrefutable precision,’ despite the initial use of the John Doe pseudonym,’’ such that ‘‘there was essentially no possibility that the DNA profile of the perpetrator originated from another human being.’’ In reaching its determination, the court specifically relied on the fact that ‘‘[t]he DNA report in the John Doe arrest warrant indicated that for both the discarded sweatshirt and [the] handgun, a mixture of
On November 4, 2019, the defendant entered a plea of nolo contendere, conditioned on his right to appeal, on one count of robbery in the first degree in violation of
On appeal, the defendant claims that the trial court improperly denied his motion to dismiss the information because an arrest warrant identifying a suspect by a general description and reference to several mixed partial DNA profiles, of which the defendant may or may not have been a contributor, violates the particularity requirement of the fourth amendment to the federal constitution and the reasonable certainty requirement under state law. Because the defendant’s claim is unpreserved,10 he seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). The state responds that the record is inadequate for review of the defendant’s claim, and, therefore, it fails under the first prong of Golding. In addition, the state argues that, even if the record is adequate for review, the defendant still cannot prevail because the DNA profiles, ‘‘coupled with the other identifying information
In Golding, this court held that ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R., supra, 317 Conn. 780–81 (modifying third prong of Golding to exclude the term ‘‘clearly’’ and clarifying that Golding review is available for first impression questions). ‘‘The first two [prongs of Golding] involve a determination of whether the claim is reviewable [and] the second two . . . involve a determination of whether the defendant may prevail.’’ (Internal quotation marks omitted.) State v. Armadore, 338 Conn. 407, 437, 258 A.3d 601 (2021).
In arguing that the record is inadequate for review, the state asserts that, because the defendant did not argue in the trial court that a John Doe arrest warrant that identifies a suspect through mixed partial DNA profiles violates the particularity requirement of the fourth amendment, the state was deprived of the opportunity to present evidence that might have established that the defendant’s DNA profile would have been included in one of the 2012 mixed partial profiles had they been compared. The state’s argument is unavailing because, in determining the validity of an arrest warrant, the only information that a reviewing court properly may consider is that which was presented to the judicial authority that issued the warrant, which must appear either on the face of the warrant or be incorporated by reference therein.11 See, e.g., Aguilar v. Texas, 378 U.S. 108, 109 n.1, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) (‘‘[i]t is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention’’ (emphasis in original)); United States v. Jarvis, 560 F.2d 494, 497 (2d Cir. 1977) (‘‘[t]o comply with . . . the fourth amendment the name or a particularized description of the person to be arrested must appear on the face of the ‘John Doe’ warrant’’ (emphasis added)), cert. denied, 435 U.S. 934, 98 S. Ct. 1511, 55 L. Ed. 2d 532 (1978); id. (‘‘[t]he warrant requirement exists in order to permit a neutral magistrate to make the decision whether to authorize arrest, rather than leaving this decision up to the prosecutor or officer’’); State v. Colon, 230 Conn. 24, 34, 644 A.2d 877 (1994) (‘‘in determining the adequacy of an affidavit in support of a . . . warrant, the information to establish probable cause must
In State v. Browne, 291 Conn. 720, 970 A.2d 81 (2009), this court explained that ‘‘[t]he protections afforded by the particularity [requirement of the fourth amendment] focus primarily on, and restrict the process of, issuing a warrant. . . . This focus makes sense in light of the chief purpose of the [requirement], which is to prevent general searches by requiring a neutral judicial officer to cabin the scope of the search to those areas and items for which there exists probable cause that a crime has been committed. . . . It does this in two steps. The police or other law enforcement officer who is seeking the warrant must submit to the judicial officer a precise description of what is sought to be seized, so that the judicial officer can determine whether a valid law enforcement purpose would be served by the seizure of all items fitting the description. The description is then written into (or attached to or otherwise incorporated in) the warrant in order to make sure that the law enforcement officer who executes the warrant stays within the bounds set by the issuer.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 729–30. Because the sufficiency of the description of the person to be seized is determined by the judicial officer at the time of the issuance of the warrant, the state’s contention that the record is inadequate for review of the defendant’s claim is without merit.12 ‘‘To the extent that there are gaps in the record created by the unpreserved nature of [a] claim, they affect the defendant’s burden of establishing the existence of a constitutional violation under the third prong of Golding, rather than the reviewability of the claim under the first prong.’’ State v. Gray, 342 Conn. 657, 669–70, 271 A.3d 101 (2022).
In light of our determination that the record is adequate for review, and because the second prong of Golding—whether the unpreserved claim is of constitutional magnitude—is clearly satisfied; see State v. Browne, supra, 291 Conn. 729; we turn to Golding’s third prong, namely, whether the claimed constitutional violation in fact exists. We conclude that it does.
The following legal principles guide our analysis of this issue.
‘‘Thus, although the precise length of any statutory limitation period is necessarily somewhat arbitrary, such statutes nevertheless reflect the will of the legislature that, at least in the absence of special or compelling circumstances, the limitation period shall serve as a firm bar to prosecution. . . . It is also well established that statutes of limitations are not primarily concerned with demonstrable prejudice. . . . Instead, after the passage of the specified period of time, evidence of prejudice becomes less important than the virtues of predictability, repose, and societal stability. See, e.g., United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971) ([S]tatutes [of limitations] represent legislative assessments of relative interests of the [s]tate and the defendant in administering and receiving justice; they are made for the repose of society and the protection of those who may [during the limitation period] . . . have lost their means of [defense]. . . . These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced. . . .) . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. A. B., supra, 341 Conn. 64.
‘‘In State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), this court held that the issuance of an arrest warrant within the limitation period set forth in . . .
In applying this provision, courts universally have held that ‘‘an arrest warrant that correctly names the person to be arrested is . . . constitutionally sufficient and need not contain any additional identifying information.’’ (Internal quotation marks omitted.) Rivera v. Los Angeles, 745 F.3d 384, 388 (9th Cir.), cert. denied, 574 U.S. 1061, 135 S. Ct. 870, 19 L. Ed. 2d 730 (2014), quoting White v. Olig, 56 F.3d 817, 819 (7th Cir. 1995); see also, e.g., Wanger v. Bonner, 621 F.2d 675, 682 (5th Cir. 1980) (‘‘the inclusion of the name of the person to be arrested [in] the arrest warrant constitutes a sufficient description to satisfy the fourth amendment requirement that the person to be seized be described with particularity’’). In West v. Cabell, 153 U.S. 78, 14 S. Ct. 752, 38 L. Ed. 643 (1894), the United States Supreme Court considered the particularity requirement as it related to an arrest warrant that incorrectly named the arrestee. The plaintiff in error, Vandy M. West, challenged the legality of his arrest on a warrant issued for the arrest of ‘‘James West,’’ a name that he had never gone by. Id., 85. Adhering to the common-law principle that ‘‘a warrant for the arrest of a person charged with [a] crime must truly name him, or describe him sufficiently to identify him’’; id.; the court held that the warrant for the arrest of ‘‘James West,’’ without further description, was constitutionally invalid for the arrest of a ‘‘Vandy M. West.’’ Id., 85, 88.
Since West, numerous courts have addressed the fourth amendment particularity requirement as it relates to the validity of arrest warrants. ‘‘Generally, arrest warrants either describing the suspect only as ‘John Doe’ or inaccurately naming an individual without some other identifying description have been ruled insuffi
‘‘The advent of DNA analysis introduced a new layer of consideration, not only as to the particularity requirements of the [f]ourth [a]mendment, but also as to statutory provisions and procedural rules requiring that a suspect be described with ‘reasonable certainty.’ ’’ State v. Burdick, supra, 395 S.W.3d 127. Although an issue of first impression for this court, courts that have considered the constitutionality of a John Doe arrest warrant that described the suspect by reference to his unique DNA profile overwhelmingly have held that it satisfies state and federal constitutional particularity requirements.14 See State v. Neese, 239 Ariz. 84, 87–88, 366 P.3d 561 (App. 2016) (filing of ‘‘John Doe’’ indictment that identified defendant by his unique DNA profile satisfied particularity requirement and, therefore, commenced criminal prosecution within statute of limitations), review denied, Arizona Supreme Court, Docket No. CR-16-0067-PR (September 20, 2016); People v. Robinson, 47 Cal. 4th 1104, 1129, 1137, 1142–43, 224 P.3d 55, 104 Cal. Rptr. 3d 727 (arrest warrant incorporating by reference complaint describing suspect as ‘‘ ‘John Doe, unknown male’ ’’ with unique thirteen loci DNA profile adequately identified defendant under fourth amendment, thereby timely commencing prosecution), cert. denied, 562 U.S. 842, 131 S. Ct. 72, 178 L. Ed. 2d 49 (2010); State v. Belt, 285 Kan. 949, 960, 179 P.3d 443 (2008) (‘‘a warrant identifying the person to be arrested for a sexual offense by description of the person’s unique
As the Massachusetts Supreme Judicial Court stated in Commonwealth v. Dixon, supra, 458 Mass. 446, ‘‘[when] a general John Doe indictment, bereft of any particularity, must fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous. A properly generated DNA profile is a string of
We agree with the many courts that have held that ‘‘a warrant identifying the person to be arrested for [an] . . . offense by description of the person’s unique DNA profile, or incorporating by reference an affidavit containing such a unique profile, can satisfy constitutional . . . particularity requirements.’’ State v. Belt, supra, 285 Kan. 960; see id., 960–62 (arrest warrants identifying suspect in sexual assault cases as ‘‘John Doe’’ and listing only two DNA loci common to all humans lacked particularity for purposes of commencing prosecution within statute of limitations). In all of those cases, however, the DNA used to describe the suspect was from a single source sample collected directly from an individual’s body or bodily fluids, which is ‘‘[the] type of DNA evidence that has been referred to as the gold standard.’’ B. Stiffelman, ‘‘No Longer the Gold Standard: Probabilistic Genotyping Is Changing the Nature of DNA Evidence in Criminal Trials,’’ 24 Berkeley J. Crim. L. 110, 114 (2019). ‘‘When one . . . speaks of [this type of evidence], what’s described is a single source sample, usually from blood, semen, or saliva. A profile is deduced from the sample, a profile is obtained from a suspect, and a comparison is made. The analyst then calculates how rare that profile is, based on databases estimating the frequency of the specific genetic markers in a given population. The analyst then testifies as to both the
In the present case, however, the DNA evidence used to describe the suspect was not a single source sample known to have come from the perpetrator. Rather, it was ‘‘touch DNA,’’ also known as ‘‘trace DNA,’’ from multiple sources that might or might not have come from the perpetrator—something the police simply had no way of knowing when they applied for the John Doe arrest warrant.15 Notably, the state has not identified a single case, and our research has failed to uncover one, in which mixed partial DNA profiles from touch DNA provided the description of a suspect in a John Doe arrest warrant. Touch DNA ‘‘is a term used to describe DNA that is left behind just by touching an object . . . . Notwithstanding its name, however, touch DNA does not necessarily indicate a person’s direct contact with the object. Rather, according to [experts], abandoned skin cells, which make up touch DNA, can be left behind through primary transfer, secondary transfer, or aerosolization.’’ (Internal quotation marks omitted.) State v. Dawson, 340 Conn. 136, 153, 263 A.3d 779 (2021). Even when a person touches an object, ‘‘DNA is not always detectable, meaning that it is possible to have someone touch an object but not leave behind detectable DNA because . . . some people leave more of their skin cells behind than others, i.e., some people are better ‘shedders’ of their DNA than others. There are also other factors that affect the amount of DNA left on an object, such as the length of contact, the roughness or smoothness of the surface, the type of contact, the existence or nonexistence of fluids, such as sweat, and degradation on the object.’’ Id., 154.
As a result, touch DNA ‘‘poses potential problems that are not present, or are less often present, with DNA obtained from evidence consisting of bodily fluids . . . .’’ 7 C. Fishman & A. McKenna, Jones on Evidence (7th Ed. 2019) § 60:9, p. 785. For example, ‘‘[t]ouch DNA will often be available in much smaller quantities than DNA extracted from blood, semen, or hair’’; id.; and ‘‘the presence of touch DNA may often be far less probative of a defendant’s guilt than DNA derived from bodily fluids.’’ Id., p. 787. Indeed, ‘‘trace samples lack the clarity of the more straightforward DNA evidence that can lead to a clear match to a specific individual. An object is found at or near a crime scene. A technician swabs the object to test for that DNA. These trace samples are usually quite small, there is often more than one person’s DNA, and the evidence is of a much poorer
Complicating the matter further, as previously indicated, the DNA profiles in the present case were mixed partial DNA profiles. ‘‘A DNA profile is determined by looking at different locations on a genetic chain. The current standard, based on [Federal Bureau of Investigation] protocols, is to look at [twenty-two] specific locations on the genetic chain. A person has, at most, two distinct genetic markers (alleles) at any location—one from her mother and one from her father. A person will often have the same genetic marker from both [her] mother and [her] father, so a single location on an individual DNA profile can have either one or two alleles. If there are three alleles at a location, then the sample contains DNA from more than one person.’’ Id., 114.
A mixed sample is ‘‘very common with forensic samples and . . . can occur for a variety of reasons . . . [including] if [the sample is from] an object that multiple people have touched, especially if [the object is] something that is found in a public place . . . .’’ (Internal quotation marks omitted.) State v. Dawson, supra, 340 Conn. 155. ‘‘[T]he conclusion that [a] sample [is] a mixed sample [is] based on the fact that there [are] alleles present at certain loci that [match] the evidentiary profile but [do] not match the defendant’s known profile.’’ Id., 156. When a mixed source DNA profile is produced, ‘‘examiners can draw three types of conclusions: inclusion, exclusion, and inconclusive. . . . [E]xaminers [also] generate a statistic—called a likelihood ratio—that helps give weight to [their] conclusions. A likelihood ratio is a mathematical comparison of two different explanations for the DNA evidence that supports the strength of the inclusion.’’ (Internal quotation marks omitted.) 7 C. Fishman & A. McKenna, Jones on Evidence (7th Ed. January, 2022 update) § 60:26, quoting United States v. Caldwell, 963 F.3d 1067, 1071–72 (11th Cir.), cert. denied, ___ U.S. ___, 141 S. Ct. 836, 208 L. Ed. 2d 410 (2020). ‘‘The combined probability of inclusion is employed when there is a mixed DNA profile, which indicates the presence of genetic material from two or more contributors. . . . This method takes all of the observed data and considers all possible profiles that could produce that data. Then, it generates a statistic, which expresses the probability that a random person would have any of those generated profiles.’’ (Citation
We note, finally, that, ‘‘[w]hen some [locations on the genetic chain] yield full results and some do not, the incomplete pattern of alleles is sometimes referred to as a partial profile.’’ 7 C. Fishman & A. McKenna, Jones on Evidence (7th Ed. 2019) § 60:25, p. 854. ‘‘When a comparison is made between the suspect’s or complainant’s DNA and a partial profile of crime-relevant DNA at . . . only a few cites, the odds of a random match can be much higher and the inference that the source of the known sample was also the source of the unknown sample much weaker.’’ (Internal quotation marks omitted.) Id., pp. 854–55.
In the present case, the arrest warrant affidavit did not alert the judicial authority to the fact that the DNA profiles did not include the perpetrator’s unique DNA profile but, rather, were mixed partial profiles generated from the touch DNA of at least four different individuals, three of whom evidently had no involvement in the crimes at issue whatsoever. Nor did it apprise the judicial authority of the statistical probability that any person chosen at random from the general population would have those DNA profiles. See State v. Rodriguez, supra, 337 Conn. 190 (‘‘a match means little without statistical evidence that will allow the fact finder to determine the strength of the match and, thus, the strength of the inferential fact that the defendant is the person whose DNA is present in the actual evidentiary sample’’); National Research Council, DNA Technology in Forensic Science (1992) p. 74 (‘‘[t]o say that two patterns match, without providing any scientifically valid estimate (or, at least, an upper bound) of the frequency with which such matches might occur by chance, is meaningless’’). In light of the foregoing, we agree with the defendant that no judge reasonably could have concluded that the DNA profiles listed in the arrest warrant affidavit described the person responsible for the crimes, much less with the particularity required by the fourth amendment.
In arguing to the contrary, the state asserts that the DNA profiles ‘‘[were] not the only identifying information in the warrant. It also contained a physical description of the perpetrator, which included his height, race, general age, and attire.’’ As previously indicated, although
The state contends nonetheless that the particularity requirement is satisfied in this case in light of the trial court’s finding that a subsequent comparison of the defendant’s DNA with the DNA profiles generated in 2018 ‘‘revealed that there was essentially no possibility that the DNA profile of the perpetrator originated from another human being.’’ (Emphasis in original; internal quotation marks omitted.) In furtherance of this argument, the state asserts that ‘‘[i]t is of no moment that [the] information [on which the trial court relied in making this finding] was derived from a subsequent, more sophisticated DNA testing procedure.’’ To the contrary, it is of critical importance that the trial court relied on information from outside the four corners of the arrest warrant in determining whether the warrant satisfied the particularity requirement of the fourth amendment. See, e.g., Aguilar v. Texas, supra, 378 U.S. 109 n.1 (‘‘[i]t is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention’’) (emphasis in original); United States v. Jarvis, supra, 560 F.2d 497 (‘‘[t]o comply with . . . the fourth amendment the name or a particularized description of the person to be arrested must appear on the face of the ‘John Doe’ warrant’’ (emphasis added)).
In arguing to the contrary, the state cites to language in State v. Belt, supra, 285 Kan. 949, which, as previously discussed, held that John Doe arrest warrants that failed to describe or incorporate by reference the suspect’s unique DNA profile failed to satisfy the particularity requirement of the fourth amendment. Id., 962. In reaching its determination, the court in Belt stated that ‘‘[the omitted] genetic information was necessary to provide an evidentiary baseline for probable cause. The fact that it would need to be verified scientifically once [the] defendant was seized did not eliminate the need for this baseline to be drawn in the warrant in the first place.’’ Id. The state fails to explain how this language—or any other statement in Belt—supports its contention that the trial court properly relied on the 2018 DNA
In light of the foregoing, we conclude that, to satisfy the particularity requirement of the fourth amendment, the affidavit accompanying a John Doe DNA arrest warrant application must contain information assuring the judicial authority issuing the warrant that the DNA profile identifies the person responsible for the crime on the basis of his or her unique DNA profile and should include information as to the statistical rarity of that DNA profile. See, e.g., Commonwealth v. Dixon, supra, 458 Mass. 453 (‘‘[u]nlike [a] general John Doe indictment . . . an indictment of a person identified by a DNA profile accuses a singular and ascertained, but simply unnamed individual’’ (citations omitted)); see also M. Chin et al., Forensic DNA Evidence: Science and the Law (2019) § 9.8, p. 9-11 (‘‘[John] Doe arrest warrant premised on the suspect’s DNA profile should include . . . [t]he actual DNA alleles possessed by the perpetrator . . . on a locus-by-locus basis . . . [and] [t]he rarity of the perpetrator’s DNA profile should be expressed statistically on the face of the warrant, as well as in the warrant affidavit, to establish the particularity of the identification and [to] assure the magistrate that there will be no discretion on the part of law enforcement in the execution of the warrant’’). Otherwise, the judicial authority cannot fulfill its gatekeeping role of preventing the harms that the particularity requirement was intended to prevent, namely, the issuance of general warrants and ‘‘the seizure of one thing under a warrant describing another.’’ (Internal quotation marks omitted.) Andresen v. Maryland, supra, 427 U.S. 480.
Finally, we note that our decision today in no way diminishes the probative value of DNA in the determination of guilt or innocence. See, e.g., State v. Rodriguez, supra, 337 Conn. 203 (Kahn, J., concurring) (recognizing ‘‘powerful tool’’ that DNA has become in determining ‘‘from blood, skin, sweat, semen, hair, or other DNA-containing cells . . . the likelihood that an individual is reasonably tied to a crime scene, victim, weapon, or other object’’). Nor should it be read to imply that the 2012 mixed partial DNA profiles would not have been probative of the defendant’s guilt if the case had gone to trial. It could be that those profiles were adequate for an expert to determine (1) that they included the defendant’s DNA profile, and (2) the probability that a random person would also be included, thus allowing the state to argue that they tied the defendant to the crime. See, e.g., People v. Pike, supra, 53 N.E.3d 170 (‘‘[n]ormally the probability of inclusion is admissible, even if that probability is rather high’’); People v. Smith, 978 N.E.2d 324, 333, 337 (Ill. App. 2012) (holding that expert testimony that probability of inclusion for partial
The judgment is reversed and the case is remanded with direction to render judgment dismissing the information.
In this opinion the other justices concurred.
Notes
Hereinafter, unless otherwise indicated, all references to
The John Doe arrest warrant application provided no interpretative guidance as to the meaning of the results of the DNA database search report set forth in paragraph 20. Independent research by this court informs us that the number-letter combinations that appear in the report refer to certain loci on the DNA molecule that are present in all human beings. See M. Chin et al., Forensic DNA Evidence: Science and the Law (2019) § 2.2, pp. 2-2 through 2-4 (‘‘[DNA] is a large molecule coiled up tightly inside the nucleus of most cells in the human body. . . . [E]ach cell that contains DNA . . . has two copies of each autosome and two sex chromosomes. . . . Each human chromosome contains coding and [noncoding] regions. . . . [Noncoding] regions of DNA . . . are sequences of bases that do not translate into information for protein synthesis. A number of these [noncoding] regions are of specific interest in forensic DNA typing, and have been chosen as the standardized markers used for identification purposes. . . . These [noncoding] regions (or ‘loci’) are represented in all human DNA molecules, but there is a high degree of variability in type between unrelated individuals. . . . Between individuals and in human populations, different alleles can exist at given locations (loci) on the DNA molecule. These differences are called polymorphisms, and are the reason forensic DNA identification is possible. The most common forensic DNA test in use today targets a core set of [thirteen] loci that are highly variable between individuals . . . .’’ (Citations omitted.)); see also National Institute of Standards and Technology, FBI CODIS Core STR Loci, (last modified August 26, 2015), available at https://strbase.nist.gov/fbicore.htm (last visited May 4, 2022) (stating that thirteen core loci for CODIS purposes are CFS1PO, FGA, THO1, TPOX, VWA, D3S1358, D5S818, D7S820, D8S1179, D13S317, D16S539, D18S51, and D21S11). The corresponding numbers set out after each locus are the alleles found at those locations. See 7 C. Fishman & A. McKenna, Jones on Evidence (7th Ed. 2019) § 60:26, p. 856 (‘‘DNA from a single individual can have no more than two alleles at each locus. This follows from the fact that individuals inherit chromosomes in pairs, one from each parent. An individual who inherits the same allele from each parent (a homozygote) can contribute only that one allele to a sample, and an individual who inherits a different allele from each parent (a heterozygote) will contribute those two alleles. Finding three or more alleles at [any given] locus therefore indicates a mixture of DNA from more than one person.’’ (Internal quotation marks omitted.)). Because a majority of the loci listed in paragraph 20 contain more than two alleles, it is apparent that the DNA profiles were generated from a mixture of the DNA of multiple individuals.