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DNA and the Fourth Amendment: Would a Defendant Succeed on a Challenge to a Familial DNA Search?

Published online by Cambridge University Press:  06 January 2021

Elaine Ortyl
Elaine Ortyl*
Affiliation:
Boston University School of Law, Millikin University
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Abstract

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Notes & Recent Case Developments
Information
American Journal of Law & Medicine , Volume 45 , Issue 4 , November 2019 , pp. 421 - 442
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2019

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References

1 Although familial DNA searching has “search” in its name, this paper will discuss whether it qualifies as a “search” under the Fourth Amendment.

2 Sarah Zhang, How a Genealogy Website Led to the Alleged Golden State Killer, The Atlantic (Apr. 27, 2018), https://www.theatlantic.com/science/archive/2018/04/golden-state-killer-east-area-rapistdna-genealogy/559070.

3 See John, M. Butler, The Future of Forensic DNA Analysis, 370 Philo. Transactions B 1, 1 (2015)Google Scholar.

4 Our Science, 23andMe, https://www.23andme.com/genetic-science (last visited Nov. 3, 2019); DNA, Ancestry, https://www.ancestry.com/dna (last visited Nov. 3, 2019).

5 Ancestry, supra note 4; 23andMe, supra note 4.

6 Ancestry, supra note 4; 23andMe, supra note 4.

7 Ancestry, supra note 4; Privacy, 23andMe, https://www.23andme.com/privacy/?vip=true (last visited Nov. 3, 2019).

8 See Zhang, supra note 2.

9 Kathryn M. Turman, U.S. Dep't of Justice Off. For Victims of Crime, Understanding DNA Evidence: A Guide for Victim Service Providers 1 (Apr. 2000).

10 Id.

11 Id.

12 Id. at 1-2.

13 See Memorandum from Attorney Gen. Eric H. Holder, Jr., to Asst. Attorney Gen., Criminal Division (Nov. 18, 2010), https://www.justice.gov/sites/default/files/ag/legacy/2010/11/19/ag-memo-dna-collection111810.pdf.

14 See Fed. Bureau of Investigation, Quality Assurance Standards for Forensic DNA Testing Laboratories 1, 11, 23-39 (Sept. 1, 2011) (discussing accreditation standards). According to the FBI, an accredited lab is “a DNA laboratory that has received formal recognition that it meets or exceeds a list of standards, including the FBI Director's Quality Assurance Standards, to perform specific tests, by a nonprofit professional association of persons actively involved in forensic science that is nationally recognized within the forensic community in accordance with the provisions of the Federal DNA Identification Act (42 U.S.C. § 14132) or subsequent laws.” These qualifications include analysts with a minimum of a Bachelor's degree in biology, chemistry, or forensic science, standardized procedures for the organization and documentation of evidence, and being subject to audits of the DNA results and procedures.

15 CODIS and NDIS Fact Sheet, Fed. Bureau of Investigation, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet (last visited Nov. 3, 2019) [hereinafter CODIS and NDIS Fact Sheet].

16 Id.; see also Karen, Norrgard, Forensics, DNA Fingerprinting, and CODIS, 1 Nature Educ. 35, 35 (2008)Google Scholar. The PCR produces millions of copies of each test DNA segment so that very small amounts of DNA can be examined. DNA Evidence: Basics of Analyzing, Nat'l Inst. of Justice (Aug. 8, 2012), https://nij.gov/topics/forensics/evidence/dna/basics/pages/analyzing.aspx.

17 John M. Butler, Short Tandem Repeat Typing Technologies Used in Human Identity Testing, 43 BioTechniques (Supplement) at ii, ii (2007).

18 Id.

19 Norrgard, supra note 16.

20 Id. As a result, these STRs are known as “DNA fingerprints.”

21 Manfred, Kayser, Forensic Use of Y-Chromosome DNA: A General Overview, 136 Human Genetics 621, 621 (2017)Google Scholar.

22 See id. This technique allows scientists to better analyze multiple-source DNA samples, like those found in female rape kits.

23 See id.

24 Nat'l Inst. of Health, Direct-to-Consumer Genetic Testing 8 (2019). Both males and females have mtDNA passed down from their mother.

25 Id. MtDNA testing is most commonly used in genealogy tests because “it preserves information about female ancestors that may be lost from the historical record because of the way surnames are often passed down”, id.

26 See id.

27 DNA Evidence Basics: Possible Results from Testing, Nat'l Inst. of Justice (Aug. 8, 2012), https://nij.gov/topics/forensics/evidence/dna/basics/pages/possible-results.aspx.

28 Id.

29 See United States v. Jakobetz, 955 F.2d 786, 789 (2d Cir. 1992) (discussing how the FBI calculated that “there was one chance in 300 million” that the DNA came from a source other than the defendant).

30 DNA Evidence Basics: Possible Results from Testing, Nat'l Inst. of Justice (Aug. 8, 2012), https://nij.gov/topics/forensics/evidence/dna/basics/pages/possible-results.aspx.

31 See id.

32 Turman, supra note 9, at 4; see also id.

33 42 U.S.C. § 14132 (1994).

34 Office of the Inspector Gen., Audit Report 06-32, Statement on Compliance with Laws and Regulations (May 2006).

35 Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260, 2269 (codified in part as amended 42 U.S.C. § 14132).

36 Office of the Inspector Gen., supra note 34.

37 CODIS and NDIS Fact Sheet, supra note 15.

38 Combined DNA Index System (CODIS), Fed. Bureau of Investigation, https://www.fbi.gov/services/laboratory/biometric-analysis/codis (last visited Nov. 3, 2019) [hereinafter Combined DNA Index System (CODIS)].

39 Id. The FBI officially implemented NDIS in October 1998.

40 Id.

41 CODIS and NDIS Fact Sheet, supra note 15. Currently, NDIS contains over 13,000,000 offender profiles, 3,000,000 arrestee profiles, and 885,000 forensic profiles. These statistics are current as of the FBI's August 2019 report. CODIS – NDIS Statistics, Fed. Bureau of Investigation, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/ndis-statistics (last visited Nov. 3, 2019) [hereinafter CODIS – NDIS Statistics].

42 CODIS and NDIS Fact Sheet, supra note 15. However, Y STR and mtDNA data are only searched in missing person cases.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id. These requirements come from the DNA Identification Act as well FBI requirements as to record-keeping and operational procedures.

48 Id.

49 Id.

50 Id. These safeguards ensure the privacy of individuals whose data is stored in the CODIS software. Additionally, the CODIS software is contained on servers physically located in a secure location, and access is limited only to authorized individuals. Federal, state, and local laboratory communications can only be accessed by criminal justice agencies approved by the FBI

51 Combined DNA Index System (CODIS), supra note 38.

52 See CODIS and NDIS Fact Sheet, supra note 15.

53 Id.

54 Id.

55 Id.

56 Id.

57 Convicted Offenders Required to Submit DNA Samples, Nat'l Conference of State Legislatures, http://www.ncsl.org/Documents/cj/ConvictedOffendersDNALaws.pdf (2013).

58 Id. Missouri and Minnesota are the only states that do not require DNA collection from all felony convicts. 42 states require DNA collection from some, if not all, misdemeanor convictions.

59 DNA Arrestee Laws, Nat'l Conference of State Legislatures, http://www.ncsl.org/Documents/cj/ArresteeDNALaws.pdf (2018). Notable exclusions include New York, Massachusetts, and the District of Columbia.

60 See id. A minority of states require expungement or destruction of the DNA sample from an arrestee if the arrestee is not convicted of a crime or if it is determined there was no probable cause for the arrest. A majority of states require the arrestee to request expungement of their DNA sample if not convicted.

61 Sara Debus-Sherrill & Michael B. Field, Understanding Familial DNA Searching: Policies, Procedures, and Potential Impact, ICF Int'l 3 (June 2017), https://www.ncjrs.gov/pdffiles1/nij/grants/251043.pdf. See also Jennifer L. Doleac, The Effects of DNA Databases on Crime, 9 Am. Econ. J. 165, 168 (2017).

62 See CODIS – NDIS Statistics, supra note 41 (compiling statistics from all NDIS participating labs across states).

63 See Lauren Kirchner, DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit, ProPublica (Sept. 12, 2016, 8:00 AM), https://www.propublica.org/article/dna-dragnet-in-some-cities-police-go-from-stop-and-frisk-to-stop-and-spit.

64 Id. The criteria used by private labs in determining which samples to upload to the database are often unknown and vary from private lab to private lab.

65 Id.

66 Id.

67 Id.

68 Id.

69 Id.

70 Jan Ransom & Ashley Southall, N.Y.P.D. Detectives Gave a Boy, 12, a Soda. He Landed in a DNA Database., N.Y. Times (Aug. 15, 2019), https://www.nytimes.com/2019/08/15/nyregion/nypd-dna-database.html.. New York is not alone in this operation—the article authors note that California, Connecticut, and Maryland also have similar genetic databases.

71 Id.

72 Id.

73 Id.

74 Kirchner, supra note 63.

75 Id.

76 See GEDmatch, https://www.gedmatch.com (last visited Nov. 20, 2019).

77 Sarah Zhang, The Coming Wave of Murders Solved by Genealogy, The Atlantic (May 19, 2018), https://www.theatlantic.com/science/archive/2018/05/the-coming-wave-of-murders-solved-by-genealogy/560750.

78 Id.; see also Sarah Zhang, How a Tiny Website Became the Police's Go-To Genealogy Database, The Atlantic (June 1, 2018), https://www.theatlantic.com/science/archive/2018/06/gedmatch-police-genealogy-database/561695.

79 Sarah Zhang, supra note 77.

80 Cf. Debus-Sherrill & Field, supra note 61, at 2 (discussing the use of CODIS and the other DNA matching techniques used when there is no match in the CODIS database).

81 See id. at 2-3.

82 Id. at 2. The report defines familial DNA searching as, “A deliberate search of a DNA database using specialized software (separate from CODIS) to detect and statistically rank a list of potential candidates in the DNA database who may be close biological relatives (e.g., parent, child, sibling) to the unknown individual contributing the evidence DNA profile, combined with lineage testing to help confirm or refute biological relatedness.”

83 Matthew Haag, FamilyTreeDNA Admits to Sharing Genetic Data With F.B.I., N.Y. Times (Feb. 4, 2019); https://www.nytimes.com/2019/02/04/business/family-tree-dna-fbi.html.

84 See id.

85 Id.

86 Id.

87 See Debus-Sherrill & Field, supra note 61, at 1-4.. The software looks for DNA profiles that share at least one allele at each locus, which indicates a potential family match.

88 Id. at 2.

89 Id.

90 Yaniv, Erlich et al., Identity Inference of Genomic Data Using Long-Range Familial Searches, 362 Science 690, 690 (2018)Google Scholar.

91 Id.

92 Cf. id. (discussing the theoretic reach of familial DNA searching in identifying suspects).

93 Zhang, supra note 2.

94 Id.

95 Id.

96 Avi Selk, The Ingenious and ‘Dystopian’ DNA Technique Police Used to Hunt the ‘Golden State Killer’ Suspect, Wash. Post. (Apr. 28, 2018, 9:50 AM), https://www.washingtonpost.com/news/true-crime/wp/2018/04/27/golden-state-killer-dna-website-gedmatch-was-used-to-identify-joseph-deangelo-as-suspect-police-say.

97 Id.

98 See id.

99 See e.g., Matthew Haag, Decades After Killing of April Tinsley, 8, DNA Leads to Suspect, N.Y. Times (July 16, 2018); Christine Hauser, A Dead Baby Was Found in a Ditch in 1981. DNA Helped Charge the Mother With Murder., N.Y. Times (Mar. 12, 2019); Sarah Mervosh, Jerry Westrom Threw Away a Napkin Last Month. It Was Used to Charge Him in a 1993 Murder., N.Y. Times (Feb. 17, 2019).

100 Marisa Gerber & James Queally, The ‘Grim Sleeper’ is Sentenced to Death For a String of Murders, L.A. Times (Aug. 10, 2016).

101 Rori V. Rohlfs, et al., The Influence of Relatives on the Efficiency and Error Rate of Familial Searching, PLoS One, Aug. 2013, at 2.. In April 2008, California formally adopted rules for conducting familial DNA searching. Colorado, Virginia, and Texas are actively using familial DNA searching while Pennsylvania, Minnesota, and Tennessee are considering legislation.

102 Anne-Marie Green, Who Killed Idaho Teen Angie Dodge?, CBS News (June 16, 2018), https://www.cbsnews.com/news/the-dna-of-a-killer-who-murdered-idaho-teen-angie-dodge.

103 Id.

104 Jane Moira Taupin, Interpreting Complex Forensic DNA Evidence 138 (2019).

105 Id.

106 Jim Mustian, New Orleans filmmaker cleared in cold-case murder; false positive highlights limitations of familial DNA searching, New Orleans Advocate (Mar. 12, 2015, 7:20 AM), https://www.nola.com/article_d58a3d17-c89b-543f-8365-a2619719f6f0.html

107 Anne-Marie Green, supra note 102.

108 Rohlfs et al., supra note 101, at 1.

109 See id.; see also Michael B. Field & Sara Debus-Sherril, Study of Familial DNA Searching Policies and Practices: National Survey of CODIS Laboratories Brief 2-5 (2017).

110 Field & Sherril, supra note 109, at 5-6. Additionally, “[c]onvictions resulting from partial matching are very rare. Only 20% of labs that reported disclosing/proceeding with partial matches reported any convictions resulting from those cases.” Id. at 5.

111 See Taupin, supra note 104, at 138.

112 Cf. Eric Rosenbaum, 5 Biggest Risks of Sharing Your DNA with Consumer Genetic-Testing Companies, CNBC (June 16, 2018, 2:18 PM), https://www.cnbc.com/2018/06/16/5-biggest-risks-of-sharing-dna-with-consumer-genetic-testing-companies.html (explaining the risks of sharing genetic information with companies and the lack of understanding about how the companies can use your DNA).

113 See id.

114 See Ehrlich et al., supra note 90, at 690 (“More broadly, a genetic database needs to cover only 2% of the target population to provide a third-cousin match to nearly any person.”).

115 See id. (“Using this model, we predict that with a database size of ~3 million U.S. individuals of European descent (2% of the adults of this population), more than 99% of the people of this ethnicity would have at least a single third-cousin match and more than 65% are expected to have at least one second-cousin match.”).

116 See Rosenbaum, supra note 112.

117 See id.

118 Turman, supra note 9, at 1.

119 See id.

120 Francie Diep, Scientists Create First Cloned Human Embryo, Popular Science (May 15, 2013), https://www.popsci.com/science/article/2013-05/scientists-create-human-clone-embryo-stem-cell-harvesting.

121 Maryland v. King, 569 U.S. 435 (2013).

122 Id. at 443 (citing Md. Code Ann., Pub. Safety § 2-504(a)(3)(i) (LexisNexis 2011)). A crime of violence includes acts such as murder, rape, first-degree assault, kidnapping, arson, and sexual assault. Id. (citing Md. Code Ann., Crim. Law § 14-101 (LexisNexis 2012)).

123 Id. at 439-44.

124 Id. at 440-42.

125 Id.

126 Md. Code Ann., Pub. Safety § 2-504(d)(2)(i) (LexisNexis 2019).

127 Md. Code Ann., Pub. Safety § 2-511(a)(1) (LexisNexis 2019).

128 King, 569 U.S. at 444. See also Md. Code Ann., Pub. Safety § 2-505(b); 2-512(c) (LexisNexis 2019).

129 Id. Justice Kennedy's characterization of the statue is incorrect, however. The Maryland statute allows law enforcement to use DNA for identification of missing persons and human remains, not for the identification of individuals taken into custody by the police.

130 Md. Code Ann., Pub. Safety § 2-506(d) (LexisNexis 2019),

131 King, 569 U.S. at 446.

132 Id. at 447-48.

133 Id. at 446-48.

134 Id. at 435.

135 Id. at 446-48.

136 Id. at 449; see also United States v. Robinson, 414 U.S. 218, 223-24 (1973) (upholding search incident to arrest without individualized suspicion).

137 King, 569 U.S. at 449.

138 Id.

139 Id. at 450-457.

140 Id. at 449.

141 Id. at 451.

142 Id. at 452.

143 Id. at 452-53.

144 Id. at 453-54.

145 Id. at 441-44.

146 Id. at 459.

147 See id. at 446.

148 Id.

149 Id. at 458-61.

150 Id. at 462.

151 Id. at 462-63.

152 Id. at 462-63.

153 Id. at 481-82 (Scalia, J., dissenting).

154 Id.

155 Id.

156 Rakas v. Illinois, 439 U.S. 128, 137-39 (1978).

157 Id.

158 Id. The Court explicitly rejected the “target theory” of standing. It is no longer enough that the defendant was the target of the search, there must still be a legitimate expectation of privacy to get standing.

159 Alderman v. United States, 394 U.S. 165, 174 (1969) (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted”).

160 Id. at 172.

161 Katz v. United States, 389 U.S. 347, 352-53 (1967).

162 Id.

163 Rackas, 439 U.S. at 148-49.

164 Rawlings v. Kentucky, 448 U.S. 98 (1980).

165 Id. at 105-06.

166 Id.; Rakas, 439 U.S. at 148-49.

167 See generally Smith v. Maryland, 442 U.S. 735 (1979) (rejecting defendant's Fourth Amendment claim that installing and using a pen register was a “search”); United States v. Miller, 425 U.S. 435 (1976) (rejecting defendant's Fourth Amendment claim in regards to his bank records kept by the bank).

168 Miller, 425 U.S. at 443.

169 Smith, 442 U.S. at 743 (explaining that a telephone user generally knows that the phone company does record the numbers dialed for legitimate business purposes).

170 Carpenter v. United States, 138 S. Ct. 2206 (2018).

171 Id. at 2217 (citing United States v. Jones, 565 U.S. 400, 430 (2012) (holding that attaching a GPS tracking device to a car constitutes a search under the Fourth Amendment)).

172 United States v. Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring); see also Carpenter, 138 S. Ct. at 2247-61 (Alito, J., dissenting). The Chief Justice in Carpenter characterizes Alito's concurring opinion in Jones as standing for the proposition that individuals have a reasonable expectation of privacy in the whole of their physical movements. However, Alito did not agree with this characterization in his dissent in Carpenter. In his dissent, Alito explained that the Court's decision in Jones was based in the law, meaning “the traditional approach” of determining whether an individual has a property interest in the object of the search. Alito argued that individuals have no property interest in information turned over to third parties, like the CSLI, and therefore, have no Fourth Amendment claim.

173 Carpenter, 138 S. Ct. at 2218.

174 Id. at 2217 (citation omitted). The Court then compares the CSLI data to an ankle monitor that is attached to the phone's user.

175 Id. at 2218.

176 Id. at 2216-17.

177 Id. at 2219.

178 Id.

179 Id.

180 Id. at 2220.

181 Id.(explaining that the decision does not call into question conventional surveillance techniques like security cameras nor does it address foreign affairs or national security cases).

182 Rohlfs et al., Familial Searching, supra note 101, at 2 (“In June of 2013, the U.S. Supreme Court in Maryland v. King upheld DNA collection from arrestees for serious offense. Although the Court noted that Maryland forbids familial searches, that observation did not seem central to its holding, and no lower courts have ruled on the issue.”).

183 See id.

184 Alderman v. United States, 394 U.S. 165, 174 (1969). See also Rakas v. Illinois, 439 U.S. 128, 134 (1978) (“And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.”)

185 Rakas, 439 U.S. at 143-44.

186 Rakas, 439 U.S. at 143-44, 148-50.

187 Raynor v. State, 99 A.3d 753, 765 (Md. 2014) (cert denied, Raynor v. Maryland, 135 S.Ct. 1509 (2015) (mem.)). See also Mike Silvestri, Naturally Shed DNA: The Fourth Amendment Implications in the Trial of Intimate Information We All Cannot Help but Leave Behind, 41 U. Balt. L. Rev. 165, 165-66 (2011). Silvestri argues that when a person “abandons” his DNA, then he loses all rights to privacy in his DNA, at which point the government can analyze that DNA without implicating the Fourth Amendment.

188 Rakas, 439 U.S. at 143-44 (citing Katz, 389 U.S. 347 (1967)).

189 See id. at 148-49.

190 Silvestri, supra note 187, at 165-66.

191 Id.

192 Rakas, 439 U.S. at 148-49.

193 Id. at 138.

194 Id. at 134-38.

195 Id. at 138.

196 See Illinois v. McArthur, 531 U.S. 326, 331 (2001) (“[R]ather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.”); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (“[T]he ultimate measure of the constitutionality of a governmental search is reasonableness.”).

197 United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976); see also Maryland v. King, 569 U.S. 435, 447 (2013).

198 McArthur, 531 U.S. at 330.

199 See Samson v. California, 547 U.S. 843, 846 (2006); see also Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-17 (1989).

200 David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 50 Am. Crim. L. Rev.109, 139 (2013); see also Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009) (recognizing DNA testing's “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.”).

201 Raynor v. State, 99 A.3d 753, 755 (Md. 2014), cert. denied, Raynor v. Maryland, 574 U.S. 1192 (2015) (mem.)).

202 Privacy Statement, 23andMe, https://www.23andme.com/about/privacy (last visited Mar. 23, 2019) [hereinafter “23andMe, Privacy Statement”]; Your Privacy, Ancestry, https://www.ancestry.com/cs/legal/privacystatement (last visited Mar. 23, 2019) [hereinafter Ancestry, Your Prviacy”]; GEDMatch.com Terms of Service and Privacy Policy, GEDmatch, https://www.gedmatch.com (last visited Mar. 23, 2019).

203 See Samsoni, 547 U.S. at 843; Skinner, 489 U.S. at 616.

204 Smith v. Maryland, 442 U.S. 735, 743-44 (1979); United States v. Miller, 425 U.S. 435, 443 (1976).

205 See Smith, 442 U.S. at 743; Miller, 425 U.S. at 443.

206 23andMe, Privacy Statement, supra note 202; Ancestry, Your Privacy, supra note 202; GEDmatch, supra note 202.

207 This is clearly seen in GEDMatch.com since it is a public database that anyone can have access to using the internet. GEDmatch, supra note 202. There could be questions of privacy interests with the semi-private companies like 23andMe and Ancestry.com that do not grant the public access for free. 23andMe, Privacy Statement, supra note 202; Ancestry, Your Privacy, supra note 202.

208 Carpenter v. United States, 138 S. Ct. 2206, 2216-17 (2018).

209 Id; see also Turman, supra note 9; 23andMe, supra note 4; Ancestry, supra note 4.

210 Carpenter, 138 S. Ct. at 2216-17, 2220.

211 Id. at 2219-20 (citing United States v. Knotts, 460 U.S. 276, 281 (1983)).

212 Id. at 2220.

213 Id. at 2218 (citing Riley v. California, 134 S. Ct. 2473, 2490 (2014)).

214 GEDmatch, supra note 202.

215 Rosenbaum, supra note 112 (explaining that many individuals do not understand that law enforcement may use their DNA data to solve crimes before submitting their DNA to consumer genetic-testing companies).

216 Carpenter v. United States, 138 S. Ct. 2206, 2219 (2018) (citing Smith v. Maryland, 442 U.S. 735, 742 (1979)).

217 Id. at 2219-20.

218 Id. at 2223.

219 See id. at 2220.

220 See Turman, supra note 9; 23andMe, supra note 4; Ancestry, supra note 4.

221 Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018).

222 Id. at 2217

223 Turman, supra note 9; 23andMe, supra note 4; Ancestry, supra note 4.

224 Carpenter, 138 S. Ct. at 2220; Smith v. Maryland, 442 U.S. 735, 743 (1979); United States v. Miller, 425 U.S. 435, 443 (1976).

225 See 23andMe, Privacy Statement, supra note 202; Ancestry, Your Privacy, supra note 202; GEDmatch, GEDMatch.com Terms of Service and Privacy Policy, supra note 202.

226 See 23andMe, Privacy Statement, supra note 202; Ancestry, Your Privacy, supra note 202; GEDmatch, GEDMatch.com Terms of Service and Privacy Policy, supra note 202.

227 Smith, 442 U.S. at743; United States v. Miller, 425 U.S. 435, 443 (1976).

228 GEDmatch, GEDMatch.com Terms of Service and Privacy Policy, supra note 202.

229 Smith, 442 U.S. at 743; Miller, 425 U.S. at 443. See generally Kaye, supra note 200.

230 See Erin, E. Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 332-40 (2010)Google Scholar. Erin E. Murphy is a Professor of Law at New York University School of Law. Id. at 291 n.a1. Professor Murphy also suggests that there is a potential claim under the Equal Protection Clause against the use of familial DNA searches.

231 Id. at 334. Professor Murphy does concede “standing problems might prevent any person from raising a cognizable claim.” Id.

232 Id. at 336.

233 Id. at 332. Professor Murphy breaks down the different steps as “offender sample collection, sample testing, sample retention, sample databasing, database searching, possible sample restesting, and so on.”

234 Id. at 334.

235 Id.

236 Id.

237 Id. at 335 (quoting United States v. Pool, No. 09-10303, 2010 WL 3554049, at *6 (9th Cir. Sept. 14, 2010)).

238 Id. at 336. Professor Murphy says that the partial match search would be the search in violation of the Fourth Amendment.

239 Id.

240 Id. at 335-36.

241 Id. at 337 n.178.

242 Id. at 336 (citing Georgia v. Randolph, 547 U.S. 103, 106 (2006)). Georgia v. Randolph held that consent by one co-occupant of a property does not override the denial of consent of the other co-occupant.

243 Id. at 337 (citing Steagald v. United States, 451 U.S. 204, 219 (1981)).

244 Id. at 337.

245 Steagald v. United States, 451 U.S. 204, 219 (1981).

246 See Smith v. Maryland, 442 U.S. 735, 743 (1979); United States v. Miller, 425 U.S. 435, 443 (1976).

247 Smith, 442 U.S. at 743; Miller, 425 U.S. at 443.

248 See Randolph, 547 U.S. at 106; Steagald, 451 U.S. at 219.

249 Smith, 442 U.S. at 743; Miller, 425 U.S. at 443.