Warrantless DNA testing; Search; Const 1963, art 1, § 11; Fourth Amendment; Trespass approach; Inventory-search exception; Search-incident-to-arrest exception; People v Trudeau; People v Carr; United States v Edwards; Ineffective assistance of counsel; Failure to file a motion to suppress

The court held that warrantless DNA testing of defendant’s pants violated Const 1963, art 1, § 11, and that trial counsel was ineffective for failing to move to suppress the DNA evidence. Defendant was arrested on an unrelated misdemeanor warrant during a murder investigation, and while he remained in jail, police took his pants from the jail property room and later submitted them for DNA testing without a warrant or his consent. The test found a small blood stain consistent with the victim’s DNA. The evidence was admitted at defendant’s second trial, where he was convicted of first-degree murder. On appeal, the court first held that DNA testing was a search under the trespass approach because “a search occurs when the government ‘occupie[s] private property for the purpose of obtaining information,’” and defendant’s pants were constitutionally protected effects. The court next held that the search was unreasonable because no warrant exception applied. The inventory-search exception did not apply because “DNA testing is not part of established inventory procedure,” and the later forensic testing did not serve the administrative purposes of protecting property, preventing claims, or ensuring jail safety. The search-incident-to-arrest exception also did not apply because defendant was arrested on an unrelated misdemeanor, and under Carr and Trudeau, that exception permits a search for evidence “‘to prove the charge on which the prisoner has been arrested,’” not evidence of a different crime. The court then held that counsel performed deficiently by failing to seek suppression because existing caselaw supported the motion, and it was unreasonable to choose only to explain the blood evidence to the jury when counsel could have first tried to exclude it and used the same theory if suppression failed. The court also held that the error was prejudicial because, without the DNA evidence, there was “almost nothing tying defendant to the victim’s murder,” and the DNA was “the only physical evidence that connected defendant to the scene of the crime.” Reversed and remanded.

Justice Zahra dissented. He would have held that no search occurred because defendant had no reasonable expectation of privacy in pants lawfully held by police after booking, and there was no trespass where police “initially received possession lawfully.” He also would have held that counsel was not ineffective because any suppression motion would have been futile.