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 search warrant. 

In 1980, a 79-year-old woman was murdered in her Anaheim, California, apartment. She was found naked on her bed with legs spread apart and a pillowcase stuffed into her mouth. She had bruises on her body and bite marks on her lower chest and thigh. An autopsy revealed two broken ribs and tears to her vagina. She appeared to have been violently raped. The cause of death was listed as asphyxia. Vaginal swabs were subsequently taken and the resulting sexual assault “rape kit” was booked into evidence. No suspects were identified at the time as the case went cold.  

Then in 2002, the victim’s rape kit was retrieved from the Orange County Crime Lab by a forensic scientist, who extracted DNA from the victim’s vaginal swabs, creating a male DNA profile. Advances in DNA technology over the subsequent years enabled forensic scientists to further identify ....