No Search Warrant for Lawful Gun Owner's DNA in Prosecution of Felon Who Was Fighting with Him

From a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last month but just released Tuesday):

The videos [of the arrest] showed the defendant and [redacted] on top of each other, falling down the stairs while being tackled by police officers. While they all were tumbling down, a gun fell from their area. Defendant’s [redacted] exclaimed right away that the gun was [redacted]. The gun was in fact registered to [redacted] and [redacted] had a license to carry it.

The underlying criminal prosecution of the defendant was for that defendant’s allegedly possessing a firearm as a felon, but the government applied for a search warrant seeking, among other things, [redacted]‘s DNA, which in context appears to be the DNA of the person who was fighting with defendant. (As is often the case with opinions that contain multiple redactions, one needs to guess at what each redaction relates to.)

[Redacted] has lived, worked, and survived in challenging circumstances. [Redacted] testified at the detention hearing why [redacted] obtained the firearm in question: to protect [redacted] and [redacted] home. In so doing, [redacted] dutifully followed the Supreme Court’s direction that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

But despite [redacted] doing things the right way—legally purchasing and licensing [redacted] firearm—the government seeks court authorization to violate [redacted] bodily autonomy for DNA evidence. But evidence of what? A crime? There is no cause to believe [redacted] has committed or participated in a crime. The only purpose of the search is to disprove [redacted] possession of the firearm [redacted] is authorized to carry.

In an email to the Court, the government called this an “exclusionary search.” But that is not a thing. “The government cannot, for example, search every unit in an apartment building because it has probable cause to believe that some unknown part of the building holds evidence of a crime.”

“At bottom, the search warrant [would] authorize[] the search of [redacted] based on nothing more than [redacted] proximity to a place where criminal activity may or may not have occurred. And, as the Supreme Court has explained, ‘a person’s mere propinquity’ to suspected criminal activity ‘does not, without more, give rise to probable cause to search that person.’” Thus, the Court rejects the government’s request.

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