United States v. Thomas

United States Court of Appeals
For the First Circuit

No. 12-2438

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL R. THOMAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.

J. Hilary Billings, Assistant Federal Defender, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahunty II, United States Attorney, was on brief, for
appellee.

November 22, 2013
 LYNCH, Chief Judge. Michael R. Thomas conditionally pled

guilty to a series of criminal charges brought in 2011, including

for sending letters to public officials threatening murder. He

appeals from the district court's 2011 denial of his motion to

suppress the fruits of the use of his 2005 DNA profile in securing

a 2011 warrant. United States v. Thomas, 815 F. Supp. 2d 384 (D.

Me. 2011).

The DNA was obtained during a 2005 postal service

investigation of a different matter which resulted in no charges

against Thomas. That profile was not destroyed but retained in

closed investigative files. It was retrieved during the 2011

investigation, which focused on Thomas for other reasons. The 2005

DNA profile was a match to the DNA recovered from the threatening

letters sent in 2011 and provided the basis for the 2011 warrant.

This case presents a series of Fourth Amendment issues

relating to the collection of tissue by cheek swab and the

resulting DNA profile, the retention of the profile in the closed

case file of the 2004-2005 investigation, and later, the use of the

profile in support of the warrant in the 2011 federal case.

The issue arises because the swab material was collected

in 2005 by postal inspectors' service on Thomas of a grand jury

subpoena, given by a clerk of court to a U.S. Attorney on request.

There was no judicial or other grand jury involvement in issuance

of the 2005 grand jury subpoena, and it was not issued in

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conjunction with an arrest or a determination of probable cause or

some lesser standard. While we agree with Thomas that the method

of obtaining his DNA, under Maryland v. King, 133 S. Ct. 1958

(2013), violated the Fourth Amendment, we affirm, under Herring v.

United States, 555 U.S. 135 (2009), the district court's denial of

Thomas's motion to suppress in 2011.

I.

The undisputed underlying facts are as follows.

A. The 2004-2005 Investigation

In 2004, a threatening letter in an envelope containing

an unidentified white powder was mailed to Austin Preparatory

School in Reading, Massachusetts. The letter bore an "Eastern

Maine 044" postmark, meaning that it was processed in Hampden,

Maine, which processes all mail from northern Maine. Odette Kent,

a school secretary, opened the letter, and then reviewed the

school's alumni database to determine how many alumni lived in the

area associated with the "Eastern Maine 044" postmark on the

letter. After finding that Thomas1 lived in the area of northern

Maine associated with this postmark, Kent passed on his name to her

husband, U.S. Postal Inspector William Kent. When the school

received a second threatening letter from the same postal area

where Thomas lived, Michael Desrosiers, another Postal Inspector

1
At the time, Thomas's name was Shawn P. Higgins, though he
has since changed it to Michael Thomas. We refer to him as
"Thomas" throughout.

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stationed in Portland, Maine, drafted a letter requesting a grand

jury subpoena of Thomas from the U.S. Attorney's Office in

Portland. The request was granted. The U.S. Attorney's Office,

without consulting a federal grand jury, obtained a subpoena from

a court on January 18, 2005. The subpoena, given to the postal

inspectors, ordered Thomas either to appear before the grand jury

sitting in Bangor, Maine on February 7, 2005, or to comply with the

subpoena by providing a DNA sample, fingerprints, and a handwriting

exemplar directly to the postal inspectors.

William Kent, Desrosiers's supervisor at the time, drove

to Thomas's home in Madawaska, Maine on January 19, 2005 (about an

eight-hour round trip drive from Bangor) to serve the subpoena. He

gave Thomas the subpoena and told him that he could either make the

round trip to Bangor to comply with the subpoena or provide the

required materials at the local police station. Thomas chose the

local option and provided the requisite samples, including a cheek

swab for the DNA.2 During this exchange, Thomas was not advised he

2
The Supreme Court recently described the nature of the swab
used to obtain a DNA sample:
A buccal swab is a far more gentle process than a
venipuncture to draw blood. It involves but a light
touch on the inside of the cheek; and although it can be
deemed a search within the body of the arrestee, it
requires no "surgical intrusions beneath the skin." The
fact that an intrusion is negligible is of central
relevance to determining reasonableness, although it is
still a search as the law defines that term.
Maryland v. King, 133 S. Ct. 1958, 1969 (2013) (quoting Winston v.
Lee, 470 U.S. 753, 760 (1985)).

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could refuse to comply with the subpoena. The district court held

that the record did not support a finding that Thomas was aware of

his right to refuse to give the samples.3

Thomas's buccal swab was sent by the postal inspectors

for analysis to Orchid Cellmark, Inc., a private company that

provides testing services to government agencies. While they were

waiting for the results from Orchid Cellmark, the postal inspectors

continued their investigation, and had an analyst in their forensic

laboratory compare Thomas's handwriting exemplar to the handwriting

on the Austin Prep letters. Based in part on the analyst's belief

that Thomas was the author of the letters, Kent and Desrosiers went

to Thomas's home to interview him on June 22, 2005. During that

meeting, they informed him of the results of the handwriting

analysis, but Thomas denied sending the letters.

In February 2006, Orchid Cellmark provided the DNA report

and analysis to the U.S. Postal Inspection Service (USPIS)

laboratory. The results indicated that Thomas, on the basis of his

DNA, could be excluded as the source of the DNA recovered from the

stamps on the threatening letters to Austin Prep. Attached to the

report was Thomas's DNA profile, as depicted in tables listing the

3
The government argued that Thomas's past criminal history
and previous interactions with law enforcement indicated that his
compliance with the subpoena was voluntary. In 1998 he was
convicted of making a false application on a firearms offense, and
in 1999 he was convicted of stalking, an offense for which he
served one year in prison.

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genetic markers found at a number of different locations on the

genetic material. The investigation into these letters was closed

in June 2006, and Thomas was not charged with any crime. The

evidence was never presented to a grand jury during this

investigation.4

B. The 2011 Investigation

In early 2011, the offices of Maine Governor Paul LePage

and Wisconsin Governor Scott Walker began receiving anonymous,

threatening letters. One letter to Governor LePage stated that the

sender was "READY TO VOTE WITH A BULLET" and vowed to "STRIKE WHEN

YOU LEAST EXPECT IT," while one of the letters sent to Walker

stated that Walker "SHOULD BE SHOT DEAD" and that his "FAMILY

SHOULD BE KILLED." Similarly threatening letters were also sent to

Senator Joseph Lieberman and Congressman Steve King. Investigators

were able to recover a DNA sample from at least one of the Governor

LePage letters. The FBI contacted Desrosiers, who was still a

Postal Inspector in Maine, for assistance in parsing the postmarks

and other characteristics of the mailings.

On March 21, 2011, Desrosiers attended a meeting with

another postal inspector and the two FBI Special Agents working on

4
Indeed, had the DNA evidence been presented to a grand jury
in 2004-2005, the exclusionary rule would not have precluded the
use of the DNA swab in that context, even had there been a Fourth
Amendment violation. United States v. Calandra, 414 U.S. 338, 349-
53 (1974). Had the grand jury issued an indictment, we have no way
of knowing whether additional process would have been followed to
obtain DNA samples for use at trial.

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the case. The agents shared that their possible suspect's address

was at Loring House on Brighton Avenue in Portland, Maine; they

also focused on how to obtain the suspect's DNA without arousing

his suspicion. The mention of the Loring House address sparked

Desrosiers's memory; he disclosed that in 2008, he had assisted in

an FBI investigation in which Thomas was the target, and at that

time Thomas resided at that address in Portland. During the 2008

investigation, Desrosiers had pulled the then-archived case file

from the Austin Prep investigation, and the March 21, 2011 meeting

prompted him to review the original 2005 file once again.

The original investigation file included a "Destruction

Certificate" which indicated that the original buccal swabs

obtained in 2005 were destroyed, pursuant to the USPIS protocol for

officially closing investigations.5 Desrosiers also discovered

that a page of Thomas's DNA profile from the Orchid Cellmark report

was missing from the file; after receiving permission to request

the profile page from the USPIS lab, Desrosiers acquired the

missing page of the report from Orchid Cellmark. The Maine State

Police Laboratory concluded that Thomas's DNA profile from the

2004-2005 investigation matched the DNA profile of the saliva found

on three of the 2011 letters. Apparently the investigators did not

5
During the suppression hearing before the district court,
Desrosiers explained that the DNA sample was destroyed pursuant to
USPIS policy pertaining to certain physical evidence. He was never
asked about any policies governing the retention of investigative
files.

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have fingerprints from these letters to match against the

fingerprints taken from Thomas earlier.

On March 24, 2011, the FBI obtained a criminal complaint,

a warrant for Thomas's arrest, along with search warrants for

Thomas's Portland, Maine apartment and another cheek swab. The

warrant and complaint were obtained entirely on the basis of an

affidavit from FBI Special Agent Pamela Flick. Flick's affidavit

was based entirely on the match between the retrieved 2004-2005 DNA

profile and the DNA profile taken from the 2011 threatening

letters. Further, the 2011 Flick affidavit, written six years

after the initial DNA swab was obtained, was the first time that

the 2005 profile was presented to a federal magistrate. Thomas was

arrested the next day.6

After his arrest, Thomas confessed to the 2011 crimes.

He also confessed to having sent the threatening letters to Austin

Prep. The disconnect between this confession and the findings of

the 2005 DNA analysis could have been produced by Thomas simply

having another person lick the stamps on those envelopes.

6
Thomas entered a conditional plea of guilty to the following
counts: two counts of threatening to murder members of Congress in
violation of 18 U.S.C. §§ 115(a)(1)(B) and 115(b)(4), one count of
mailing threatening communications in violation of 18 U.S.C.
§ 876(c), one count of possession of a firearm by a felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one count of
internet stalking in violation of 18 U.S.C. § 2261A(2). The court
sentenced him to 71 months' imprisonment; he is presently in
prison. The suppression question is the only issue before us in
this appeal.

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C. District Court Proceedings

In an order dated September 30, 2011, the district court

denied Thomas's motion to suppress. The court found it unnecessary

to decide whether the taking of the swab violated the Fourth

Amendment. Thomas, 815 F. Supp. 2d at 388-89. It did conduct an

evidentiary hearing and analyzed the law on issuance of grand jury

subpoenas. Such subpoenas could clearly be used to obtain

handwriting exemplars and fingerprints. United States v. Dionisio,

410 U.S. 1, 14-15 (1973); United States v. Mara, 410 U.S. 19, 21

(1973). But as to the issue of obtaining DNA by bodily intrusion,

the lower courts were split as to what standard should be used to

obtain such evidence by grand jury subpoena. The court found that

it need not resolve whether Thomas consented to the search. The

court also assumed that if there was a Fourth Amendment violation

in the obtaining of the DNA in 2005, the exclusionary rule would

have applied to a prosecution for the 2004 mailings.7

However, the court concluded that even if there were

errors and inadequacies in the 2005 legal process that obtained the

DNA profile, the exclusionary rule did not call for its exclusion

in this new and unrelated 2011 charge for criminal conduct that

occurred in 2011.

7
The court rejected the arguments that a separate violation
occurred when the postal inspectors obtained the missing page of
the profile to complete their file in 2011 or when the information
was retained.

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 Relying on Herring v. United States, supra, the court

concluded that the exclusionary rule should not be applied because

there was no flagrant or deliberate police misconduct at any point,

and application of the exclusionary rule would have little

deterrent value, given this absence. The costs of exclusion, the

court reasoned, outweighed the benefits. Thomas, 815 F. Supp. 2d

at 389.

II.

A. Standard of Review

In an appeal from the district court's denial of a motion

to suppress, we review de novo the district court's conclusions of

law. United States v. Barnes, 506 F.3d 58, 61-62 (1st Cir. 2007).

We review findings of fact for clear error. United States v.

Infante, 701 F.3d 386, 392 (1st Cir. 2012). The facts are largely

agreed upon; we review de novo the legal conclusions drawn from

them. The structure of our analysis follows those arguments

presented on appeal and does not engage in issues not appealed by

Thomas.

B. Exclusionary Rule

Thomas seeks exclusion of all evidence derived from the

taking, retention, disclosure, or use of the DNA sample or profile

obtained in 2005. This includes the 2011 search and arrest

warrants.

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 The Fourth Amendment cause requirement will bar the use

of the exclusionary rule if there is no but-for causal connection

between the Fourth Amendment violation and later discovery of

evidence. Nardone v. United States, 308 U.S. 338, 341 (1939). The

causation nexus has been met here. The government concedes that

but for the use of the retained DNA profile, the police would not

have been able to supply probable cause to search Thomas's home,

arrest him, or obtain a new DNA sample from him in 2011.

That concession does not dictate the result of our

exclusionary rule analysis. Hudson v. Michigan, 547 U.S. 586, 592

(2006) ("Our cases show that but-for causality is only a necessary,

not a sufficient, condition for suppression."); see also United

States v. Diehl, 276 F.3d 32, 44-45 (1st Cir. 2002) (declining to

apply the exclusionary rule in the absence of police misconduct

even where the "critical piece of evidence for the search warrant"

was obtained via a Fourth Amendment violation).

The exclusionary rule is "designed to safeguard Fourth

Amendment rights generally through its deterrent effect." United

States v. Calandra, 414 U.S. 338, 348 (1974); see Davis v. United

States, 131 S. Ct. 2419, 2426 (2011) ("The [exclusionary] rule's

sole purpose . . . is to deter future Fourth Amendment violations."

(emphasis added)). Exclusion is not an automatic consequence of a

Fourth Amendment violation, but rather is available only where the

benefits of deterring the police misconduct that produced the

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violation outweigh the costs of excluding relevant evidence.

Herring, 555 U.S. at 141.

Importantly, in Herring, a case involving a negligent

mistake, the Court held:

To trigger the exclusionary rule, police
conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is
worth the price paid by the justice
system. . . . [T]he exclusionary rule serves
to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances
recurring or systemic negligence.

555 U.S. at 144.8 There is no serious argument presented that

Herring's deterrence-based analytical standards are limited to

cases of error produced by negligence, and we apply those standards

here.

Significantly for our purposes, the Herring criteria also

include consideration of whether the police error is "attenuated"

from the events that occur following the error. "Attenuation" is

presented by Herring as a necessary component of its deterrence

analysis. Where an error "arises from nonrecurring and attenuated

negligence," the Court held, it is "far removed from the core

concerns that led us to adopt the [exclusionary] rule in the first

place," and because the resulting deterrent value is necessarily

minimal, exclusion is not warranted. 555 U.S. at 144.

8
This case does not involve any claim of systemic negligence,
record-keeping errors, or government use of false information. Cf.
Herring, 555 U.S. at 145-46.

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 Thomas mounts Fourth Amendment attacks on the police

conduct at every stage: the original conduct in obtaining the swab,

the retention of the DNA profile material in the closed case file

of the 2004-2005 investigation (including the obtaining a

replacement copy from Orchid Cellmark in 2011), and the

transmission of the material to investigators in 2011.

1. 2004-2005 Postal Inspector Conduct

The Supreme Court has recently held that the taking of a

DNA sample from an arrestee using a buccal swab on the inside of a

person's cheek is a search. Maryland v. King, 133 S. Ct. 1958,

1968-69 (2013). Certain consequences follow from the holding that

is a search. We agree with Thomas that the obtaining of the buccal

swab is a violation of the Fourth Amendment on the facts of this

case. That is because since this was a search, under present law

the mere use of a grand jury form, without any judicial or even

grand jury involvement and no determination of the basis for such

an intrusion, is inadequate. We bypass the issue of whether

Thomas, to assert the claim, was required to object to the subpoena

or seek a hearing to that effect at the time, and assume he is free

to present the claim now.9

9
Thomas never challenged the grand jury subpoena either
before or after his compliance with it in 2005. The government
further contends that even assuming the taking of the DNA sample
pursuant to the grand jury subpoena was a search, Thomas consented
to it. See Vale v. Louisiana, 399 U.S. 30, 35 (1970) (no Fourth
Amendment violation where a search is authorized by consent). But
as the district court stated, the passage of time also makes it

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 Though grand jury proceedings are entitled to a

"presumption of regularity," In re Lopreato, 511 F.2d 1150, 1152

(1st Cir. 1975), the grand jury is also "without power to invade a

legitimate privacy interest protected by the Fourth Amendment,"

Calandra, 414 U.S. at 346. In order to decide whether Thomas's

rights were violated here, we do not need to decide under what

Fourth Amendment standard a grand jury may obtain a DNA sample

through intrusive personal samples by investigative means.

More generally, the Supreme Court has said that the

standard governing grand jury subpoenas is something less than

probable cause, reasoning that "the Government cannot be required

to justify the issuance of a grand jury subpoena by presenting

evidence sufficient to establish probable cause because the very

purpose of requesting the information is to ascertain whether

probable cause exists." United States v. R. Enters., Inc., 498

U.S. 292, 297 (1991). Of course, there is a qualitative difference

between the documents compelled by the subpoena in R. Enterprises

and the DNA sample compelled here; R. Enterprises involved the

production of documents in which the company did not have a Fourth

more difficult to assess whether Thomas voluntarily consented to
give the DNA sample when he complied with the subpoena. Whether an
individual consented to a search is "a question of fact to be
determined from the totality of all the circumstances."
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The
prosecution bears the burden of proof on this inquiry. Id. at 222.
While we do not resolve the issue, we assume, in Thomas's favor, he
did not consent.

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Amendment interest. What is clear here is that there was no

determination by a grand jury or a judge of whether any particular

level of Fourth Amendment justification had been met to justify the

grand jury subpoena for the DNA sample. On that basis alone, we

conclude his Fourth Amendment rights were then violated.

Our issue, though, is not whether Thomas's rights were

violated, but whether the Herring test for application of the

exclusionary rule has been satisfied. The district court's

determination, after a hearing and supported by the evidence, found

that the police conduct "was not flagrant or deliberate" within the

meaning of Herring. Thomas, 815 F. Supp. 2d at 38. There is no

evidence here that the postal inspectors involved in obtaining and

executing the subpoena knowingly engaged in any misconduct.10

William Kent testified during the suppression hearing that he

recalled other investigators requesting DNA samples by use of grand

jury subpoenas before the Austin Prep investigation, and that those

requests had produced useful information. Kent's testimony was

that while requesting a DNA sample in a grand jury subpoena may not

10
There has been an "established practice" of allowing the
U.S. Attorney to issue subpoenas in order to secure and bring
evidence before a grand jury. In re Lopreato, 511 F.2d at 1153;
see also In re Grand Jury Matters, 751 F.2d 13, 16 (1st Cir. 1984)
("Although grand jury subpoenas are issued in the name of the
district court, they are issued pro forma and in blank to anyone
requesting them without prior court approval or control."). When
Desrosiers requested a grand jury subpoena from the U.S. Attorney's
Office in Maine, at least for fingerprint data, he was acting
within the scope of normal law enforcement conduct.

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have been everyday practice, it was not considered an illegal

action at the time.11

Thomas argues that applying the exclusionary rule in this

2011 case would deter any future use of mere forms for grand jury

subpoenas obtained by the U.S. Attorney's Office to obtain DNA

swabs. If that practice as to grand juries has continued (and we

do not know if it has), exclusion arguably could deter such conduct

as to grand jury practice. Even so, the Supreme Court has said

that would not justify exclusion at the grand jury level.

Calandra, 414 U.S. at 349-53.

The deterrence question here is different. Turning, as

we must under Herring, to the attenuation and larger deterrence

questions, there is a major attenuation problem with his deterrence

argument. Had there been a prosecution resulting from the 2004-

2005 investigation which used that DNA sample, we agree that there

would have been some deterrence value in excluding such evidence if

it then had been obtained by nothing more than use of a subpoena

form. No such prosecution ultimately occurred, so the issue of

possible violation of Thomas's rights never came up. And he never

sought destruction of the data.

11
In 2005, neither our circuit nor the Supreme Court had
spoken decisively on the Fourth Amendment implications of a cheek
swab like the one used here. The Supreme Court characterized the
process of "using a buccal swab on the inner tissues of a person's
cheek in order to obtain DNA samples" as a search for the first
time in 2013. King, 133 S. Ct. at 1968-69.

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 It is difficult to see why suppression in this later and

unforeseen prosecution of an offense not yet committed at the time

of the search would have acted to deter the law enforcement agents

in the 2011 case from acting improperly any more than they would

have already been deterred by knowledge that the results of the

search would likely have been excluded at trial of the offense

being investigated.

Thomas's hypothesized deterrent effect is simply too

attenuated to justify applying the exclusionary rule under Herring.

The underlying conduct that violated the Fourth Amendment took

place six or seven years ago, and the connection between the 2005

investigation and the 2011 letters was largely a result of

happenstance. First, the connection turned on the Loring House

address, which Desrosiers happened to remember from a 2008

investigation, not the 2005 investigation, during the 2011 meeting

with FBI agents. Second, it was happenstance that it was

Desrosiers who was involved in both the 2005 and 2011

investigations.

The circumstances surrounding the issuance and service of

this subpoena and the subpoena's attenuated relationship to the

2011 investigation plainly do not justify exclusion under Herring.

2. Retention of the DNA Report

Thomas separately contends that the district court erred

in concluding that there was also no wrongdoing inherent in the

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unobjected-to retention of the DNA profile after the 2004-2005

investigation was closed. He so concludes, based largely on the

fact no charges were brought against him from that investigation.

We disagree with his conclusion. Even were we to assume he held

some Fourth Amendment interest in the non-retention of the data, it

would still be insufficient to warrant exclusion.

First, the buccal swab sample itself was destroyed in

2006, leaving only one page of the two-page DNA profile in Thomas's

file.12 That DNA profile, which is comprised of 13 loci taken from

the "non-protein coding junk regions of DNA," is useful only for

identification purposes. King, 133 S. Ct. at 1968. Thomas's DNA

sample could not have been used to discern anything other than his

identity.13 That is because such "junk DNA," "while useful and even

dispositive for purposes like identity, does not show more far-

reaching and complex characteristics like genetic traits." Id. at

1967.

12
As a result of a 2005 clerical error, the DNA report that
Orchid Cellmark originally sent to the postal inspectors was
missing one of the pages of Thomas's DNA profile. Once it became
clear to Desrosiers and others in 2011 that their file was
incomplete, Desrosiers contacted Orchid Cellmark to request the
complete profile. Orchid Cellmark fulfilled that request in late
March 2011.
13
We do not reach hypothetical concerns not presented by this
case. Accord United States v. Weikert, 504 F.3d 1, 13 (1st Cir.
2007) (while the possibility that junk DNA may someday be used to
discern traits beyond a person's identity could eventually change
the privacy implications of collecting a DNA sample, that
hypothetical concern does not change Fourth Amendment analysis
under present conditions).

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 Second, it is true that "fingerprints and other personal

records are routinely maintained in law enforcement files once

taken," United States v. Weikert, 504 F.3d 1, 16 (1st Cir. 2007)

(quoting United States v. Kincade, 379 F.3d 813, 842 n.3 (9th Cir.

2004)) (internal quotation marks omitted), and on the facts of this

case it is plain that the report on Thomas's DNA profile was

retained (and later used) in much the same fashion as a fingerprint

exemplar. And the retention of that profile in these circumstances

violated no statute, thus giving rise to no claims of even

departure from statutory norms.

In support of his argument that his rights were violated

by the government's retention of his DNA profile, Thomas argues,

incorrectly, that the police circumvented and undermined the DNA

Analysis Backlog Elimination Act of 2000 ("DNA Act"), Pub. L. No.

106-546, 114 Stat. 2726 (2000) (codified as amended in scattered

sections of 10 U.S.C., 18 U.S.C., 28 U.S.C. and 42 U.S.C.). This,

he says, was misconduct.

By its terms the DNA Act does not apply here.14 The Act

governs the collection and retention of DNA samples of individuals

who have been convicted of "a qualifying Federal offense," and who

14
Thomas argues that suppression is warranted here in part
because exclusion could "deter police avoidance of the DNA Act."
This argument is clearly without merit. As we explain, it is plain
that none of the activity in this case came within the ambit of the
Act, and we reject Thomas's assertion that the postal inspectors
were somehow "avoiding" a statute to which they simply were not
subject.

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are incarcerated or on parole, probation, or supervised release.

42 U.S.C. § 14135a(a)(1)(B), (a)(2). Once a DNA sample is

collected under the Act, the FBI uses the sample to create a unique

DNA profile, which is entered into the Combined DNA Index System

(CODIS), a centralized database that includes profiles of state and

federal offenders, as well as forensic profiles obtained from crime

scene evidence.15 Boroian v. Mueller, 616 F.3d 60, 63 (1st Cir.

2010). Because Thomas was not charged with nor convicted of a

qualifying offense in 2005, his DNA sample was neither collected

nor retained pursuant to the DNA Act. On a plain text reading of

the statute, the Act's requirements, including its expungement

provisions,16 do not apply to Thomas, as his DNA profile was never

entered into CODIS in the first place.

15
CODIS is a highly valuable investigative tool for law
enforcement, as it permits "state and local forensic laboratories
to exchange and compare DNA profiles electronically in an attempt
to link evidence from crime scenes for which there are no suspects
to DNA samples of convicted offenders on file in the system."
Boroian v. Mueller, 616 F.3d 60, 66 (1st Cir. 2010) (quoting H.R.
Rep. No. 106-900, pt. 1, at 27 (2000)) (internal quotation marks
omitted); see also King, 133 S. Ct. at 1968 ("In short, CODIS sets
uniform national standards for DNA matching and then facilitates
connections between local law enforcement agencies who can share
more specific information about matched [DNA] profiles.").
16
The DNA Act's expungement provisions require the FBI to
"promptly expunge from the [CODIS] index . . . the DNA analysis of
a person included in the index" who, per a court order, has been
acquitted, has had charges dismissed, or has had his or her
qualifying conviction overturned. 42 U.S.C. § 14132(d)(1)
(emphases added). The statute is silent on the question of
expungement from individual police investigation files.

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 In Weikert, we noted that the combination of a blood

draw, the creation of the DNA profile, and the entry of a DNA

profile into CODIS implicates an individual's privacy interests.

504 F.3d at 12. But because a CODIS profile "simply functions as

an additional, albeit more technologically advanced, means of

identification," we later held in Boroian that "the government's

retention and matching of [an individual]'s profile against other

profiles in CODIS does not violate an expectation of privacy that

society is prepared to recognize as reasonable, and thus does not

constitute a separate search under the Fourth Amendment." 616 F.3d

at 67-68 (emphasis added). This dismantles Thomas's argument that

the retention and matching of his data here was a separate search

within the meaning of the Fourth Amendment.

Because the DNA Act by its terms applies only to DNA

samples taken from individuals already convicted of "qualifying"

crimes, individuals subject to the DNA Act have a "substantially

diminished expectation of privacy." Weikert, 504 F.3d at 11

(discussing the privacy expectations of individuals on conditional

release following a qualifying conviction). Thomas relies on this

concept from Weikert.

Thomas's argument ignores the distinguishing facts that

his DNA data was not in CODIS or any other database and was

retained only in an old closed case file on an investigation (and

not even on him individually). His argument also sidesteps the

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fact that the old file was not easily or widely available to

police, and that there was no disclosure except to relevant law

enforcement officials. Thomas points to Weikert as supporting his

argument that the retention of his data invades his reasonable

expectation of privacy. And it does so, he argues, even more

strongly for him than for the convicted prisoners. The police

needed to focus on Thomas first to find the DNA, not vice versa as

is the case with a database.

We think there is a difference between the situation in

Weikert17 discussing the CODIS database, which is widely available

and used, and the retention of an individual suspect's DNA data in

an old investigatory file about an unrelated crime. We are

unwilling to make the leap Thomas urges as to whether society would

view him as having a reasonable expectation of privacy preventing

later disclosure of the retained profile to other relevant

investigatory law enforcement personnel.18 We need not decide the

issue of whether retention of DNA profile data--in the file of an

investigation which does not result in charges in other

17
Weikert in fact assumes that use by law enforcement of CODIS
DNA profiles does not violate the Fourth Amendment and the mere
possibility of unauthorized abuse, in violation of the DNA Act,
"does not significantly increase Weikert's privacy interest." 504
F.3d at 12. Here, there is no claim the use was "unauthorized."
18
We do agree with Judge Easterbrook's observation in Green
v. Berge, that "what is 'reasonable' under the Fourth Amendment for
a person on conditional release, or a felon, may be unreasonable
for the general population." 354 F.3d 675, 680 (7th Cir. 2004)
(Easterbrook, J., concurring).

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circumstances--endangers a person's reasonable expectation of

privacy protected by the Fourth Amendment. That is not the

question before us. Even if we assume there is such an interest,

the question is whether to apply the exclusionary rule to the

retention of this data. But there was no misconduct in retention

of the report, and so nothing to deter.

C. Miscellaneous Arguments Regarding the Transfer of the DNA
Profile Across Law Enforcement Agencies

Thomas mounts an additional set of arguments regarding

the transmission of his DNA profile in 2011. First, he contends

that it was improper for Desrosiers to obtain the missing page of

the DNA profile simply by calling Orchid Cellmark, and that without

a separate warrant, this was an impermissible violation of Thomas's

reasonable expectation of privacy. Here, he cites the government's

concession that individuals do not lose a reasonable expectation of

privacy in their lawfully obtained DNA profile as to "any"

subsequent use of it. See Boroian, 616 F.3d at 68; Weikert, 504

F.3d at 12-13.

We do not decide the broader questions raised by the

government's concession. However, on these facts, the "subsequent

use" of the DNA profile--completing an investigative file where the

retention of the file itself was not improper--was not a separate

violation of Thomas's Fourth Amendment rights.19 We agree with the

19
In this context, Thomas also reiterates his statutory
argument: he disputes the government's assertion that DNA profiles

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district court that the "Postal Service was entitled to that page

from the outset, and no separate legal event . . . occurred by

virtue of its completing its file."

Second, Thomas claims that because the DNA sample was

initially collected "through a Grand Jury Process," the disclosures

(first to Desrosiers by Orchid Cellmark and later to the Maine

State Police) of the DNA profile violated the rules governing grand

jury secrecy.

Desrosiers did not violate Rule 6(e) of the Federal Rules

of Criminal Procedure when he gave the DNA profile to the Maine

State Police for comparison purposes. First, Thomas fails to

establish that Rule 6(e)--which governs grand jury secrecy--was

implicated when the report was forwarded. Rule 6(e) imposes

secrecy requirements regarding any "matter occurring before the

grand jury." Fed. R. Crim. P. 6(e)(2)(B). Thomas does not provide

any support for the proposition that this evidence, which was never

presented to a grand jury, was subject to the restrictions of Rule

6(e). See, e.g., United States v. Phillips, 843 F.2d 438, 441

function similarly to fingerprints, and notes that once
fingerprints are secured by law enforcement, "there are no
statutory provisions requiring their expungement." That is an
accurate characterization of the law's treatment of fingerprint
exemplars; however, Thomas is incorrect to imply that there is a
statute requiring the expungement of the DNA profile here. The DNA
Act did not apply to the events of this case, and plainly that
statute's expungement provisions do not reach beyond CODIS to
individual police files whose contents are not governed by the Act
in the first place. See 42 U.S.C. § 14132(d)(1).

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(11th Cir. 1988) (holding that evidence not presented to the grand

jury does not implicate its secrecy rules).

In any event, outside of severe cases, the authorized

remedy for a secrecy violation is contempt, and not suppression of

evidence. See Fed. R. Crim. P. 6(e)(7) ("A knowing violation of

Rule 6 . . . may be punished as a contempt of court."). We have

held that this remedy "focuses, as it should, 'on the culpable

individual rather than granting a windfall to the unprejudiced

defendant.'" In re United States, 441 F.3d 44, 60 (1st Cir. 2006)

(quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 263

(1988)). Even if we were to find that there was a violation of

Rule 6 here, Thomas does not offer any evidence or cite any

authority that would require exclusion, a remedy well beyond the

one prescribed in Rule 6(e).

D. Cumulative Analysis

Under Herring we also consider the costs to society from

application of the exclusionary rule, and whether any marginal

deterrence value outweighs the social costs. 555 U.S. at 141;

United States v. Leon, 468 U.S. 897, 910 (1984). Having found the

Fourth Amendment violated in the taking of the 2004 sample, even

assuming the retention of the DNA profile in a closed case file

raises some privacy concerns, and that there is some marginal value

even in attenuated deterrence, we agree with the district court

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that exclusion is not "worth the price paid by the justice system."

Herring, 555 U.S. at 144.

The experienced district court judge pointed out one such

cost: "it will be very cumbersome if the use of items in law

enforcement files can be challenged years later, in a different

investigation. How is a current investigator to know the

circumstances of the original acquisition and therefore whether

particular items of evidence can be used?" Further, as we

commented in Weikert, the use of DNA profiles has both the capacity

to solve crimes efficiently, and to "exonerate those wrongfully

suspected of criminal activity." 504 F.3d at 14.

We are confident that application of the exclusionary

rule would be outweighed by the resulting costs to the criminal

justice system. We affirm the district court's denial of Thomas's

motion to suppress.

III.

We affirm.

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