Exclusionary Rule & Suppression in First Circuit Unlawfully Obtained DNA Case

Law.com/National Law Journal article Monday relayed “the First Circuit Court of Appeals on Nov. 22. in U.S. v. Thomasagreed with defendant Michael Thomas that authorities violated his Fourth Amendment rights when they obtained his DNA during a Postal Inspection Service’s prior investigation of suspicious mail sent to his former school. Thomas was never charged in that case, and the investigation was closed in 2006, but the First Circuit panel none-the-less upheld U.S. District Judge D. Brock Hornby of Maine’s ruling in 2011 not to suppress that evidence and Thomas was subsequently sentenced last year to 71 months in prison on charges related to threatening the lives of various politicians.

Chief Judge Sandra Lynch of the First Circuit wrote the opinion, joined by judges William J. Kayatta Jr. and O. Rogeriee Thompson, stating in pertinances:

“… While we agree with Thomas that the method of                    obtaining his DNA, under Maryland v. King,                                 133 S. Ct. 1958(2013), violated the Fourth                                     Amendment, we affirm, under Herring v.                                      United States, 555 U.S. 135 (2009), the district                           court's denial of Thomas's motion to suppress in                         2011.

“Relying on Herring v. United States, supra, the                           court concluded that the exclusionary rule                                   should not be applied because there was no                                  flagrant or deliberate police misconduct at any                            point, deterrent value, given this absence. The                            costs of exclusion, the court reasoned, outweighed                    the benefits.

“The exclusionary rule is ‘designed to safeguard                         Fourth Amendment rights generally through its
deterrent effect.’ United States v. Calandra,                                 414 U.S. 338, 348 (1974); see Davis v. United                                States, 131 S. Ct. 2419, 2426 (2011) ("The                                         [exclusionary] rule's sole purpose . . . is to deter                        future Fourth Amendment violations." (emphasis                      added)). Exclusion is not an automatic                                             consequence of a Fourth Amendment violation,                         but rather is available only where the benefits of                        deterring the police misconduct that produced the                    violation outweigh the costs of excluding relevant
evidence. Herring, 555 U.S. at 141.

“Importantly, in Herring, a case involving a                                  negligent mistake, the Court held:

'To trigger the exclusionary rule, police                           conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence isworth the price paid by the justice system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. 555 U.S. at 144.'

“There is no serious argument presented that Herring'sdeterrence-based analytical standards arelimited to cases of error produced by negligence, and we apply those standards here.

“Significantly for our purposes, the Herring criteria also include consideration of whether thepolice error is 'attenuated' from the events that occur following the error. 'Attenuatio' ispresented by Herring as a necessary component of its deterrence analysis. Where an error "arises from nonrecurring and attenuated negligence," the Court held, it is "far removed from the coreconcerns that led us to adopt the [exclusionary] rule in the first place," and because the resultingdeterrent value is necessarily minimal, exclusion is not warranted. 555 U.S. at 144.”