Appeals Ruling Clarifies What’s Needed in a DNA-Related Search Warrant Affidavit

• Search warrants and probable cause
• DNA evidence and a person of interest vs. probable cause 
• Residential trash can searches 

Legal issues: 

• Search warrants and probable cause 

For a search warrant to be legally sufficient, it need only be established that the information in the warrant’s affidavit establishes a fair probability that the search will uncover evidence of criminal wrongdoing. Probable cause for purposes of a search warrant affidavit requires that a “fair probability” exists that a search will uncover wrongdoing, i.e., something less than a preponderance of the evidence or even a prima facie case.  

• DNA evidence and a person of interest vs. probable cause 

A match of a person’s DNA with evidence obtained from a rape victim’s vaginal swabs, plus other suspicious circumstances, are sufficient to establish probable cause for a search warrant.  

• Residential trash can searches 

Searches of a resident’s trash can within the curtilage of a home (the area immediately around it), absent an exception (e.g., consent or an exigency), require a ....