Iowa Supreme Court Upholds the Warrantless DNA Analysis of a Drinking Straw Collected from a Fast-Food Restaurant

In State v. Burns, the Iowa Supreme Court considered whether police violated the U.S. or Iowa constitutions by collecting a used drinking straw from a public restaurant, and then analyzing DNA attached to that straw, without a search warrant.[1]

In 1979, someone murdered Michelle Martinko, an eighteen-year-old from Cedar Rapids.[2] Nearly forty years later, advances in DNA technology allowed police to forward a bloodstain found at the crime scene to a private lab for kinship analysis and genetic testing.[3] The lab analysis pointed to descendants of four sets of great-great-grandparents; police contacted one of those descendants, Janice Burns, who agreed to provide a sample of her DNA.[4] That sample was sent to a lab which concluded that the bloodstain likely came from one of Janice’s first cousins: brothers Jerry, Donald, or Kenneth Burns.[5] Police eliminated Donald and Kenneth as potential matches after surreptitiously collecting discarded items (a drinking straw from Donald and a toothbrush from Kenneth) for DNA analysis.[6]

In 2018, Jerry Burns was drinking soda through a straw at a Pizza Ranch in Manchester, Iowa.[7] After Burns finished his meal and left the restaurant, investigators sitting at a nearby booth bagged the cup and sent the straw for DNA testing.[8] The lab report said that Burns’s DNA profile “could NOT be eliminated” as a match to the bloodstain found at the scene of Michelle Martinko’s murder.[9] Using that lab report, police obtained a search warrant to swab Burns’s mouth directly and confirmed the DNA match.[10] A jury found Burns guilty of first-degree murder.[11] Burns appealed, arguing[12] that the warrantless collection and DNA analysis of his used drinking straw violated his rights under the U.S. and Iowa constitutions.

In a 5-2 decision, the court held that neither the Fourth Amendment to the U.S. Constitution nor Article I, § 8 of the Iowa Constitution required police to obtain a search warrant before collecting Burns’s drinking straw from the restaurant. The majority opinion—written by Justice David May and joined by Chief Justice Susan Christensen and Justices Thomas Waterman, Edward Mansfield, and Christopher McDonald—began by describing the relationship between the Fourth Amendment and Article I, § 8. Consistent with its recent decisions, the court observed that Article I, § 8 “as originally understood, was meant to provide the same protections as the Fourth Amendment, as originally understood.”[13] Because “the Iowa Supreme Court is the final arbiter of what the Iowa Constitution means,” the court recognized its “duty to interpret our constitution consistent with the text given to us by our founders . . . and to give the words used by the framers their natural and commonly-understood meaning in light of the circumstances at the time of adoption.”[14] Accordingly, “if a federal interpretation of the Fourth Amendment is not consistent with the text and history of section 8, we may conclude that the federal interpretation should not govern our interpretation of section 8.”[15]

Beginning with Burns’s Fourth Amendment claim, the court noted that Burns did not argue that the straw or DNA qualified as his “person,” “house,” “papers,” or “effects.”[16] Instead, Burns argued that he had a “reasonable expectation of privacy” under Katz v. United States, an argument which required him to establish that: (1) he sought to “preserve something as private”; and (2) society recognizes his expectation of privacy as “reasonable.”[17] The court disagreed that Burns had a reasonable expectation of privacy in either the straw or his “straw-bound DNA” because he “voluntarily abandoned” both at the restaurant.[18]

Burns argued that he could not have “voluntarily abandoned” his DNA because humans constantly and involuntarily shed DNA.[19] The court rejected that argument, noting that impression evidence, including fingerprints, footwear impressions, and tire tracks, are also unintentionally left “everywhere.”[20] Yet “no one suggests” that obtaining and using such evidence without a search warrant raises Fourth Amendment concerns.[21] Burns attempted to distinguish DNA from impression evidence by analogizing DNA to the collection of cell phone site location information (CSLI) at issue in Carpenter v. United States,.[22] The court, however, read Carpenter as limited to circumstances involving “comprehensive surveillance of a person’s physical movements.”[23] The court also reasoned that, while CSLI can reveal “familial, political, professional, religious, and sexual associations,” the analysis of Burns’s DNA did not “reveal the kinds of personal information—like ‘genetic defects’ or ‘predispositions to disease’—that free citizens might expect to keep private.”[24]

The court next addressed Burns’s arguments under Article I, § 8 of the Iowa Constitution. Burns argued that the warrantless collection and analysis of his DNA constituted a “trespass” under State v. Wright.[25] In Wright, the court held that government officials violate Art. I, § 8 when they “engage[] in an investigative act that would be unlawful for a similarly situated private actor to perform.”[26] There, a local ordinance made it illegal for anyone other than licensed collectors to handle trash, so officers violated the Iowa Constitution by searching and seizing the defendant’s trash without a warrant.[27] Relying on Wright, Burns argued that officers violated a statute prohibiting anyone from obtaining and testing any individual’s DNA without their consent.[28] The court noted, however, that the statute did not apply where DNA is collected or analyzed “[t]o identify an individual in the course of a criminal investigation by a law enforcement agency.”[29] Alternatively, the court held that the statute was inapplicable because Wright applies only where an individual asserts a cognizable interest in “their” person, house, papers, or effects rather than in abandoned property.[30]

Finally, Burns argued that he had a reasonable expectation of privacy in “the straw-bound DNA” under Art. I, § 8. [31] The court disagreed, reiterating its conclusion that Burns did not possess a privacy interest in either the straw or the DNA that he had voluntarily abandoned.[32] The court also pointed to the statutory exception permitting officers to collect and analyze genetic material as evidence that Iowans should “fully expect that law enforcement agencies would use that technology to solve difficult cases like Martinko’s murder.”[33]

Justice McDonald joined the majority opinion but wrote separately to criticize the application of the federal exclusionary rule in state courts. Justice McDonald traced the rule’s origin and development, noting that, under the Fourth Amendment, “[t]he significant costs of this rule make it applicable only where its deterrence benefits outweigh its substantial social costs.”[34] Justice McDonald opined that the officers were not culpable enough to justify applying the exclusionary rule to Burns’s DNA, particularly in light of a statute permitting officers to obtain and analyze DNA as part of criminal investigations.[35] Justice McDonald further argued that the exclusionary rule is inconsistent with the Iowa Constitution in two ways. First, while Art. I, § 8 protects “‘[t]he right of the people’ and not merely the right of the criminally accused,” the exclusionary rule “frames article I, section 8 as a rule of criminal procedure contrary to the constitution’s design.”[36] Second, Justice McDonald wrote that the rule interferes with the criminal jury system by hiding “relevant and reliable evidence” from jurors.[37] Justice McDonald called on the Court to reconsider the state exclusionary rule under Art. I, § 8 in the appropriate case.

In a dissenting opinion, Justice Matthew McDermott criticized the majority’s Fourth Amendment[38] analysis and concluded that the warrantless search of Burns’s DNA was unconstitutional. Justice McDermott argued that two separate searches occurred—the collection of Burns’s straw and the subsequent analysis of his DNA—and that Burns’s DNA could be considered his “person” or “papers” under the U.S. Supreme Court’s interpretation of the Fourth Amendment.[39] Justice McDermott further argued that the majority’s abandonment analysis failed to account for differences between the distinct searches that occurred and ignored that DNA is unintentionally shed, not intentionally abandoned.[40] He also found the majority’s comparison to fingerprint evidence unconvincing because “DNA is that much richer, that much more laden with information, by orders of magnitude, than fingerprints.”[41]

Justice Dana Oxley dissented separately, arguing that officers violated Burns’s Fourth Amendment rights by searching his DNA without a warrant, regardless of whether his DNA can be considered his “person” or “papers.”[42] First, Justice Oxley opined that, in Carpenter, the U.S. Supreme Court applied the Fourth Amendment to protect CSLI—information owned by a third party—rather than focusing on the defendant’s “persons, houses, papers, and effects.”[43] Second, she argued that Maryland v. King controls the outcome of Burns’s Fourth Amendment claim.[44] There, the U.S. Supreme Court upheld a Maryland statute allowing officers to collect DNA from arrestees for identification purposes.[45] Justice Oxley wrote that even the King majority “recognized that the Fourth Amendment protects against a person’s DNA being used to match that person to a general criminal investigation.”[46] Justice Oxley concluded:

When police used sophisticated technology to obtain unique identifying information from Burns’s DNA to compare it to the unidentified blood left in Martinko’s car all those years ago, Carpenter, read in light of King, says they intruded into Burns’s private sphere, making that a search under the Fourth Amendment that required a warrant.[47]

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