Varriale v. State: DNA Submitted Without Express Limitation on Consent Can be Used to Investigate Other Crimes

So holds Maryland's Court of Appeals (the state's court of last resort), in Varriale v. State. The opinion can be found here. Here is the abstract of the case provided by the Court:

The use of a buccal swab inside a person’s cheek to obtain DNA samples for testing is a search. Generally, a DNA sample may be obtained from an individual for testing by consent, pursuant to a warrant, or other court order. If a person’s DNA profile created from a DNA sample is in the lawful possession of the police for examination by consent and does not exceed the scope of the consent given to conduct the search, there is no Fourth Amendment violation. Moreover, the subsequent examination and use of the DNA in an unrelated investigation is not a search. Here, the defendant did not expressly limit the testing and/or use of his DNA. Any legitimate expectation of privacy that Varriale had in the identifying information contained in his DNA obtained from his cheek cells and penile area evaporated when his DNA was lawfully seized; it did not reappear when law enforcement officers compared his DNA sample to other samples and obtained a match.

Spencer Hsu at the Washington Post covers the case here. Additional coverage from the Baltimore Sun is available here.

To summarize the facts of the case: officers investigating a reported rape learned that George Varriale had been located near the scene of the crime. They asked for his consent to collect DNA evidence from his person, and Varriale agreed. While Varriale's DNA did not implicate him in the rape, his DNA ended up matching a sample collected in 2008 in a burglary. Varriale was charged with the 2008 burglary and after his motion to suppress the DNA evidence was denied, he entered a conditional guilty plea which preserved his rights to appeal.

Varriale is one of several recent cases that illustrate how evolving technologies can strain the acceptability of long-established concepts in Fourth Amendment law. An example of an earlier one of these cases is the 2014 U.S. Supreme Court case, Riley v. California, which involved officers searching the cell phone of an arrestee. Under the long-established concept of searches incident to arrest, officers are permitted to search the person, and immediate surroundings of an arrestee, including containers within that area. In Riley, however, the Court held that this doctrine does not extend to the contents of a cell phone. Noting the wealth of information cell phones contain, the Court held that the search incident to arrest doctrine did not justify the search.

In Varriale, the concept being tested is consent. Well-established Fourth Amendment doctrine states that police officers may search somebody's person, vehicle, or house as long as the person voluntarily consents to the search. Officers are not required to inform the person that he or she has the right to refuse consent. Officers' searches, however, are limited based on the scope of the person's consent. For example, if a suspect consents to a search of her car, that does not mean that officers may search her house -- they would be required to ask that suspect's consent to extend the scope of the search to her house.

Varriale illustrates a broad approach to consent in the DNA context. Mr. Varriale signed a written consent form for the collection of DNA evidence which included the following clause:

I realize that if I do consent to a body search, that any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be used in any future criminal prosecution.

Varriale argued that the phrase "any evidence found to be involved in this investigation" limited the scope of the permissible search to the investigation into the suspected rape. The prosecution argued that the phrase "can be used in any future criminal prosecution" indicated that the officers' use of the DNA was not limited to the rape investigation.

The Court held that Varriale's consent to the search was enough to remove any reasonable expectation that officers would not use the DNA to investigate additional crimes. Rather than focusing on the language of the consent form, the Court centered its reasoning around the nature of DNA, and that DNA, like fingerprints, retains the same identifying information over time. The Court held that it was reasonable to expect that officers would retain the DNA sample for future use in investigating other cases, and noted that the defendant did not expressly limit the scope of his consent to the present case. Accordingly, Varriale did not have a reasonable expectation that officers would not use his DNA sample to investigate other crimes.

Officers are not required to tell suspects that they have the right to refuse consent. And Varriale establishes that officers are not required to describe the potential scope of the investigation that may be done into evidence submitted with consent. Instead, it is reasonable for suspects to expect that their DNA may be used for identification purposes in other cases since DNA information provides identification information that remains consistently accurate over time.

Does this broad approach to consent go too far? Suspects who are asked to submit samples of their DNA may be focused on the case at hand, especially if the suspects know that the case involves a crime like rape in which DNA will likely be crucial evidence. These suspects might not realize that state governments and investigating agencies retain DNA databases like fingerprint databases, and therefore may not realize that their consent may implicate them in other matters. Without a statement that the DNA evidence may be retained and used in other cases, suspects may expect that their DNA will be used only in the present investigation.

And while DNA may be analogized to fingerprints, DNA contains more information than fingerprints provide. For example, somebody's DNA may be a close, but not exact, match to another sample. Such a close match might indicate that the person whose DNA was collected is related to the person who provided the other sample. These so-called "familial" matches may be used to investigate crimes as well. For instance, had Varriale's DNA been a close match to a sample in the database, officers may have inquired as to whether Varriale had any close family members and investigated their potential involvement in the 2008 burglary. The wide scope of possible uses for DNA samples requires courts to stretch the assumption that those consenting to the collection of their DNA are truly aware of what their consent entails.

As DNA continues to become a more commonly-used tool to investigate crimes, I would not be surprised to see more cases like Varriale make their way through the courts. It will be interesting to see how other courts address the doctrine of consent in DNA cases, And if courts end up reaching different conclusions, I would not be surprised to see the Supreme Court ultimately take up this issue.

"Bitcoin's Dark Side Could Get Darker"

That's the title of this interesting article by Tom Simonite over at the MIT Technology review. Simonite outlines a myriad of ways that online, "smart-contract" platforms such as Ethereum may be used to facilitate activities that, at best, are difficult to regulate, and at worst, are criminal.

From the article:

In a paper to be released today, Juels, fellow Cornell professor Elaine Shi, and University of Maryland researcher Ahmed Kosba present several examples of what they call “criminal contracts.” They wrote them to work on the recently launched smart-contract platform Ethereum. 

One example is a contract offering a cryptocurrency reward for hacking a particular website. Ethereum’s programming language makes it possible for the contract to control the promised funds. It will release them only to someone who provides proof of having carried out the job, in the form of a cryptographically verifiable string added to the defaced site. 

Contracts with a similar design could be used to commission many kinds of crime, say the researchers. Most provocatively, they outline a version designed to arrange the assassination of a public figure. A person wishing to claim the bounty would have to send information such as the time and place of the killing in advance. The contract would pay out after verifying that those details had appeared in several trusted news sources, such as news wires. A similar approach could be used for lesser physical crimes, such as high-profile vandalism.

Admittedly, not all uses of bitcoin and smart-contract platforms are criminal. But many non-criminal uses may still be very difficult to regulate. The article concludes:

“The potential for Ethereum to alter aspects of society is of significant magnitude,” says Wood. “This is something that would provide a technical basis for all sorts of social changes and I find that exciting.” 

For example, Wood says that Ethereum’s software could be used to create a decentralized version of a service such as Uber, connecting people wanting to go somewhere with someone willing to take them, and handling the payments without the need for a company in the middle. Regulators like those harrying Uber in many places around the world would be left with nothing to target. “You can implement any Web service without there being a legal entity behind it,” he says. “The idea of making certain things impossible to legislate against is really interesting.”

"Arbitration by Combat"

An article on Game of Thrones, trial by combat, and arbitration that I coauthored with Raj Shah is now available on SSRN. You can download the full paper here. Here is the abstract:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. While modern legal systems reject trial by combat as an unjust and barbaric practice, this article examines whether trial by combat may be employed as a means of private dispute resolution in the United States. This article evaluates whether ‘arbitration by combat’ provisions based on Game of Thrones and various historical approaches to trial by combat would be upheld by state laws and protected under the United States’ Federal Arbitration Act (FAA). This article concludes that while Game of Thrones-style arbitration by combat may violate state contract and criminal laws, arbitration by combat that conforms to less-violent historic practices may survive state law challenges and may even fall under the protection of the FAA.

Raj and I wrote this for a special issue of the Media and Arts Law Review dedicated to the subject of "Law and Law Breaking in Game of Thrones." Melissa de Zwart of the University of Adelaide Law School was extremely helpful throughout the editing process, as was an anonymous peer reviewer who provided numerous insightful suggestions and comments. Raj was extremely helpful and patient as a coauthor, as several deadlines in the editing process tended to coincide with me being in trial. Even when my schedule became hectic, Raj managed to provide thoughtful edits for the paper as a whole, making the final article far superior to what I alone could have produced.

Readers should know that I have not read any of the Game of Thrones books and that I have only seen a few episodes of the series. Raj is to thank for the sections of the paper regarding Game of Thrones (although I have seen some clips of the show's trial by combat to understand how violent the practice can be). Raj also primarily wrote the sections pertaining to the Federal Arbitration Act -- my contributions to the paper include the discussion of historic trial by combat and state-level obstacles to arbitration by combat provisions.

Finally, I would like to note the inadvertently timely publication of this article. A New York attorney recently invoked trial by combat in his own litigation proceedings. While that instance of trial by combat is unlikely to take place, I hope that our article can provide some insight into how trial by combat proceedings may find their way into the litigation process.

Trial By Combat in New York?

A friend sent me this post by Eugene Volokh commenting on a colorful brief filed by Richard Luthmann, a Staten Island attorney. This paragraph from near the end of the document sums up the attorney's position:

The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

Luthmann is seeking to resolve the dispute through trial by combat, and throughout his brief he goes into great detail about the history of trial by combat in England. He argues that trial by combat is a permitted method of dispute resolution in the United States because trial by combat was legal in England when the original United States colonies were formed, and United States law inherited the English common law of the time. Accordingly, Luthmann argues that under the Ninth Amendment, he has the right to have the case decided through trial by combat.

Full coverage of the case can be found here. Above the Law also summarizes the case here.

While Luthmann may be correct that trial by combat was never officially outlawed in the United States, I suspect that his quest to have his case decided through trial by combat is doomed to fail. Adam Winkler, quoted in this Business Insider article, notes that while the common law inheritance argument may be technically correct, no court would adopt the trial by combat approach. And I suspect that Luthmann's claims of a Ninth Amendment right to trial by combat would run into Seventh Amendment problems were the other party to the suit to invoke the right to a trial by jury, since the Seventh Amendment preserves the right to a trial by jury in civil cases involving a dispute greater than $20.

If Luthmann or another party really wishes to have disputes resolved through trial by combat, a better course of action may be to enter into a contract that states that trial by combat is the agreed-upon method for resolving disputes that may arise under the contract. This is what Raj Shah and I argue in our article, Arbitration by Combat, which was very recently published in the Media and Arts Law Review and which I summarize in this post. I will be sure to announce when the full article becomes available on SSRN, so trial by combat enthusiasts should stay tuned!

New Jersey Court Reportedly Bars Woman From Entering All Walmart Stores in Country

The ABA Journal has this story about a court that may have gone too far to protect Walmart from a shoplifter:

A judge in Mount Olive Township, New Jersey, has banned a shoplifter from ever shopping at a Wal-Mart store anywhere in the country. 

The defendant, 64-year-old Johanna Cassimore of Hopatcong, New Jersey, tells the New York Daily News she plans to appeal the sentence. “It was stupid. I disagree and I’m appealing it,” Cassimore said. “The judge can’t say that. He doesn’t own Wal-Mart.” 

The sentence by Judge Brian Levine also requires Cassimore to pay $258 in fines and to complete 10 hours of community service, according to the New York Daily News, NewJerseyHills.com and NJ.com.

Other reports on this case can be found here and here. The New York Daily News clarifies that the court involved was the Mount Olive Municipal Court.

Under New Jersey Law (specifically, NJSA 2B: 12-16), a New Jersey Municipal Court's jurisdiction is limited to the territory of the municipality in which the court is located. This means that the Mount Olive Municipal Court would have jurisdiction over the Walmart stores within the boundaries of the Mount Olive Township, but not over stores outside of the township.

I initially suspected that somewhere along the line, the word "county" became misspelled or misheard so that it transformed into "country." While I am not aware of any reports that verify this suspicion, I would not be surprised if it ended up being the case. But even if this alternative is correct and the court meant to bar Cassimore from all Walmart stores in the county, that order would also appear to overstep the boundaries of the court's jurisdiction. While Central Municipal Courts have jurisdiction over matters arising within the boundaries in the county, it does not appear that the Mount Olive Township Municipal Court is such a central municipal court. The jurisdiction of that court appears to be limited to all locations within the boundaries of the township.

The court's stay-away order appears to be reasonably related to the crime that Cassimore committed, and I would not be surprised to see a probation condition requiring Cassimore to stay away from Walmart locations in Mount Olive. But requiring Cassimore to stay away from all Walmart stores in the country would be an overly broad probation condition, and an appeal would likely result in the reduction of the order's scope.