State v. Mitcham

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellant,

v.

IAN MITCHAM, Appellee.

No. 1 CA-CR 23-0014
FILED 8-22-2023

Appeal from the Superior Court in Maricopa County
No. CR2018-118086-001
The Honorable Roy C. Whitehead, Judge

REVERSED AND REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Ryan Green & Nick Klingerman (argued)
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole & Alice M. Jones
Amicus Counsel for Arizona Attorney General’s Office in Support of Appellant

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey A. Kirchler, Martha Barco Penunuri (argued), Richard D.
Randall, Kevin Heade, & Mikel Steinfeld
Counsel for Appellee
 STATE v. MITCHAM
Opinion of the Court

Arizona Attorneys for Criminal Justice, Tucson
By David J. Euchner & Grant D. Wille
Amicus Counsel for Arizona Attorneys for Criminal Justice in Support of
Appellee

American Civil Liberties Union Foundation of Arizona, Phoenix
By Jared G. Keenan
Amicus Counsel for ACLU of Arizona in Support of Appellee

American Civil Liberties Union Foundation, New York
By Vera Eidelman (argued), Pro Hac Vice
Amicus Counsel for American Civil Liberties Union in Support of Appellee

OPINION

Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Michael J. Brown joined. Judge Michael S. Catlett specially
concurred.

M c M U R D I E, Judge:

¶1 The State appeals from the superior court’s order suppressing
Mitcham’s DNA profile. The State argues that developing a DNA profile
from blood lawfully in its possession does not constitute a search under the
Fourth Amendment. In the alternative, the State argues that, under the
circumstances, the use of Mitcham’s DNA profile is permitted by an
exception to the warrant requirement.

¶2 We agree with the State that creating a DNA profile from a
lawfully held blood sample does not violate the Fourth Amendment. But
here, the State’s possession was no longer lawful because the State acquired
the blood through consent and developing a DNA profile from it exceeded
the scope of that consent. Still, the superior court erred by suppressing
Mitcham’s DNA profile because (1) probable cause supported his arrest
even without the impermissible DNA match that allowed the State to obtain
a buccal swab and develop a DNA profile; and (2) once Mitcham pled guilty
to other felony charges, the profile was properly in the State’s possession.
Thus, we reverse the suppression order and remand for further
proceedings.

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FACTS AND PROCEDURAL BACKGROUND

¶3 In February 2015, a woman was found dead in her home lying
nude in a pool of blood. The victim had sustained several injuries, including
a large wound on the back of her head, ligature marks around her neck, and
several lacerations to her vagina. The police identified a strong chemical
odor throughout the house, chemical burns on the victim, and blood smears
near the furniture. Based on the evidence, the police concluded that the
killer had tried to clean up the crime scene. The police collected biological
swabs from the scene and developed an unknown male DNA profile. Police
entered the unknown DNA profile into the federal Combined DNA Index
System (“CODIS”). But the CODIS database returned no matches, and the
murder went unsolved.

¶4 In 2018, law enforcement performed a familial DNA test on
the unknown profile. The test identified an Arizona prison inmate as a close
relative of the unknown profile. The police discovered the inmate had two
brothers, one living close to the crime scene. As a result, the police began to
surveil this brother, the defendant Ian Mitcham.

¶5 Coincidentally, the police were already familiar with
Mitcham. In January 2015, they arrested Mitcham for a misdemeanor
driving under the influence (“DUI”) offense. Also, before the familial DNA
test, Mitcham had been charged with a felony narcotics possession offense
in 2016 and an aggravated DUI in 2017. See State v. Mitcham, Maricopa
County Cause No. CR2016-111513-001; State v. Mitcham, Maricopa County
Cause No. CR2017-001717-001. Mitcham would later plead guilty to both
crimes.

¶6 During the 2015 DUI arrest, Mitcham consented to have his
blood drawn. Police read Mitcham the warning provided by the Admin Per
Se Implied Consent form, which provided that if Mitcham agreed to the
draw, the blood would be used “to determine alcohol concentration or drug
content.” See Ariz. Dep’t of Trans. Form #40-5807; see also A.R.S. § 28-1385.
The warning authorized no other blood testing, and Mitcham was not
informed that the police might conduct more tests. Based on the warning,
Mitcham consented to a blood draw.

¶7 The police drew two blood vials according to Mitcham’s 2015
consent. One vial allowed the police to test for alcohol or drug
concentration, and the second allowed Mitcham to test his blood
independently. Mitcham and the police officer signed a “Destruction
Notice,” which stated that if Mitcham did not pursue his opportunity to test

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within 90 days, his blood “sample will have been destroyed and
unavailable for reanalysis.” The police tested their sample and determined
Mitcham was over the legal limit, and he was later convicted of a
misdemeanor DUI for this 2015 offense.

¶8 But the police did not destroy Mitcham’s blood sample after
90 days passed and possessed it three years later when they identified that
Mitcham might be the long-sought killer. The police—without obtaining a
warrant—analyzed the blood from the 2015 DUI consent draw, creating
Mitcham’s DNA profile. Mitcham’s profile matched the unknown DNA at
the 2015 murder scene.

¶9 The police then sought a search warrant, requesting
authorization to search Mitcham’s home and place a GPS tracker on his car.
The search warrant affidavit noted that (1) the police had obtained DNA
from the crime scene left by an unknown male source, (2) a familial DNA
test of that profile revealed that the unknown DNA likely belonged to a
father, son, or brother of inmate Mark Mitcham, and (3) Ian Mitcham had
been identified as Mark Mitcham’s brother. The affidavit did not identify
Mark Mitcham’s other relatives or explain why Ian Mitcham had
specifically been selected for investigation. But the addresses of the victim
and Ian Mitcham were in the affidavit. The affidavit revealed that Ian
Mitcham’s blood sample was in the custody of the Scottsdale Police
Department from his 2015 DUI arrest and that a DNA profile from the blood
matched the unknown profile from the crime scene.

¶10 The court approved the search warrant. Mitcham was later
arrested, and a buccal swab was taken as part of a routine booking
procedure. See A.R.S. § 13-610(K), (O). The grand jury charged Mitcham
with first-degree murder, second-degree burglary, and sexual assault.

¶11 Mitcham moved pretrial to suppress the DNA evidence from
his 2015 DUI blood draw and the subsequent DNA buccal sample from his
arrest. He argued that the “extraction and creation of a DNA profile from a
consensual blood draw . . . was an unreasonable search under the Fourth
Amendment” because it “went far beyond the scope of what was permitted
by his prior consent in the unrelated DUI traffic stop.” He added that the
DNA profile from his arrest buccal swab was the fruit of the original illegal
search.

¶12 The superior court held an evidentiary hearing and granted
the suppression motion. The court reasoned that though the police “may
have been able to secure a warrant for [Mitcham’s] DNA through further

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diligent investigation,” the decision not to obtain a warrant “was at least a
reckless violation of [Mitcham’s] constitutional rights.” The court also
found it “troubling that the State essentially asserts that it has the unfettered
ability to conduct subsequent searches of items held in custody for
unrelated reasons.” The court also suppressed Mitcham’s DNA profile from
the arrest buccal swab and any profile resulting from his convictions in the
unrelated narcotics and aggravated DUI cases. Because the State intended
to appeal, the superior court vacated the trial and stayed the proceedings.

¶13 The State appealed, and we have jurisdiction under Article 6,
Section 9 of the Arizona Constitution and A.R.S. § 13-4032(6). See State v.
Limon, 229 Ariz. 22, 24, ¶ 7 (App. 2011) (“[T]he plain language of § 13-4032
allows the state to appeal from an ‘order granting a motion to suppress’
without distinguishing between interlocutory or final orders.”).

DISCUSSION

¶14 The State challenges the superior court’s application of the
exclusionary rule to suppress the DNA evidence extracted from Mitcham’s
2015 consensual blood draw. First, the State argues there was no Fourth
Amendment violation because developing a DNA profile from lawfully
obtained evidence is not a “second search.” Second, the State argues that
even if there were a Fourth Amendment violation, Mitcham’s DNA profile
should not have been suppressed because several exceptions applied.

¶15 We review a court’s factual findings on a motion to suppress
for an abuse of discretion, State v. Smith, 250 Ariz. 69, 80, ¶ 16 (2020), and
consider “only the evidence presented at the suppression hearing . . .
viewing it in the light most favorable to sustaining the trial court’s ruling,”
State v. Thompson, 252 Ariz. 279, 290, ¶ 26 (2022). But we review de novo the
legal question of whether a search complied with the Fourth Amendment.
Smith, 250 Ariz. at 80, ¶ 16.

¶16 The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S. Const.
amend. IV; see also Ariz. Const. art. 2, § 8 (“No person shall be disturbed in

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his private affairs, or his home invaded, without authority of law.”).1
Traditionally, courts viewed search and seizure cases through a lens of
“common-law trespass,” considering whether the state “obtain[ed]
information by physically intruding on a constitutionally protected area.”
See United States v. Jones, 565 U.S. 400, 405, 406, n.3 (2012). But this narrow
approach has since been expanded. See id. at 405–06. Because “the Fourth
Amendment protects people, not places,” Katz v. United States, 389 U.S. 347,
351 (1967), it applies when an individual reasonably “seeks to preserve
something as private,” Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018)
(quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)). “A ‘search’ occurs
when an expectation of privacy that society is prepared to consider
reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984).

¶17 Under the Fourth Amendment, the basic rule is that “searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable . . . subject only to a few specifically
established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332,
338 (2009) (quoting Katz, 389 U.S. at 357); accord State v. Valenzuela, 239 Ariz.
299, 302, ¶ 10 (2016). But “[t]he touchstone of the Fourth Amendment is
reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991).

¶18 It is well-settled that the drawing of blood by law
enforcement, involving “intrusions into the human body,” is a search under
the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 767 (1966).
But whether DNA identification analysis of a blood sample originally
drawn for a non-identification purpose is a search has not yet been decided.
See Maryland v. King, 569 U.S. 435, 464–65 (2013). In determining this issue,
we are guided by two cases, King and Mario W. v. Kaipio, 230 Ariz. 122
(2012).

1 In the superior court, the parties did not address whether the
creation of Mitcham’s DNA profile violated his state constitutional rights
as distinct from his rights under the federal Fourth Amendment. On appeal,
Mitcham asserts that the right to privacy under the Arizona Constitution
“is broader than its federal counterpart against searches and seizures,”
providing an independent state ground to uphold the suppression. We do
not consider this contour, as the Arizona Supreme Court has declined “to
expand the Private Affairs Clause’s protections beyond the Fourth
Amendment’s reach, except in cases involving warrantless home entries.”
State v. Mixton, 250 Ariz. 282, 290, ¶ 32 (2021).

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A. Under Mario W., the Creation of a DNA Profile from State-Held
Evidence Is a Search, but It Does Not Require a Warrant If There Is
Probable Cause or Reasonable Suspicion.

¶19 Our supreme court in Mario W. addressed whether juveniles
facing delinquency charges could be compelled to submit to DNA
extraction and profiling before those charges were adjudicated as a
statutory condition of release. 230 Ariz. at 125, ¶ 12; see A.R.S. § 8-238(A).
The court noted that the process involved “two separate intrusions on [the
juveniles’] privacy,” distinguishing between the seizing of the buccal cells
and the processing of the seized cells to create a DNA profile. Id. at 126–27,
¶ 18. Applying a “two-tiered approach,” id. at 127, ¶ 20, the court first held
that the seizure of the cells was a justifiable measure to ensure that the
juveniles did not abscond, id. at 128, ¶ 24. “A judicial order to provide a
buccal cell sample occasions no constitutionally distinguishable intrusion”
from an order to provide fingerprints. Id. at ¶ 25. But the court rejected the
statute’s authorization to create profiles because DNA reveals “uniquely
identifying information” and there was “no strong governmental interest
in creating DNA profiles.” Id. at 127, 129, ¶¶ 20, 28.

¶20 The State asserts that Maryland v. King “necessarily modified”
Mario W. It argues that Mario W. “cannot be reconciled with King’s express
holding that ‘the processing of respondent’s DNA sample’s 13 CODIS loci
did not intrude on respondent’s privacy in a way that would make his DNA
identification unconstitutional.’” King, 569 U.S. at 464. The State reads King
too broadly.

¶21 In King, the United States Supreme Court considered the
constitutionality of a Maryland statutory requirement that arrestees
charged with “serious crimes” have buccal swabs taken and a CODIS
profile created. King, 569 U.S. at 443–45. The Court held that taking and
analyzing buccal swabs was a search but that the search was a reasonable
“routine booking procedure.” Id. at 465–66. The Court first noted that
arrestees had diminished expectations of privacy. Id. at 462. The Court then
evaluated the degree of the intrusion, deciding that it was minimal. Id. at
463–64. The Court reasoned that “CODIS loci come from noncoding parts
of the DNA that do not reveal the genetic traits of the arrestee.” Id. at 464.
But the Court acknowledged that “science can always progress further,”
which “may have Fourth Amendment consequences.” Id. The Court upheld
the Maryland statute by balancing the reduced privacy interest against the
minimal privacy invasion—given the “statutory protections that guard
against further invasion of privacy.” Id. at 465–66.

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¶22 King overruled Mario W. to a degree.2 But King did not hold
that taking a buccal swab was not a search. The King Court only decided
that taking and processing a swab for DNA identification was reasonable
upon arrest for a serious crime. 569 U.S. at 465–66. Because King did not
address whether DNA profiling—divorced from the physical process of its
collection upon arrest—is a search, we are still bound by Mario W.’s
conclusion that it is.3 See Mario W., 230 Ariz. at 129, ¶ 32. So we begin our
analysis with Mario W.

¶23 In Mario W., our supreme court did not hold that DNA
analysis always requires a warrant. Instead, Mario W. held that the State
could not extract a DNA profile from buccal swabs “absent either probable
cause or reasonable suspicion.” 230 Ariz. at 129, ¶ 31. And Mario W. further
suggested that the absconding of a charged juvenile would provide
sufficient justification to create a DNA profile. Id. at ¶ 30. Thus, Mario W.
and King harmonize in concluding that whether DNA profiling violates the

2 We must follow Arizona Supreme Court decisions absent conflicting
United States Supreme Court decisions on the same subject. See State v.
Crowley, 202 Ariz. 80, 90, ¶ 30 (App. 2002); Hernandez-Gomez v. Volkswagen
of Am., Inc., 201 Ariz. 141, 143–44, ¶ 8 (App. 2001). As much as King and
Mario W. addressed the same subject, we are bound to follow King.

3 Mario W.’s holding does conflict with other jurisdictions that have
addressed this question after King. See, e.g., Commonwealth v. Arzola, 26
N.E.3d 185, 191 (Mass. 2015) (“[T]he DNA analysis of the unknown sample
taken from the defendant’s lawfully seized shirt revealed nothing more
than the identity of the source, which is what an analysis of latent
fingerprints would have revealed (albeit with less accuracy) had they been
found on the clothing. Therefore, the DNA analysis was no more a search
than an analysis of latent fingerprints would be.”); Raynor v. State, 99 A.3d
753, 767–68 (Md. 2014) (“[W]e hold that DNA testing of the 13 identifying
junk loci within genetic material, not obtained by means of a physical
intrusion into the person’s body, is no more a search for purposes of the
Fourth Amendment, than is the testing of fingerprints, or the observation
of any other identifying feature revealed to the public—visage, apparent
age, body type, skin color. That Petitioner’s DNA could have disclosed
more intimate information is of no moment in the present case because
there is no allegation that the police tested his DNA sample for that
purpose.”); accord People v. Mendez, 155 N.Y.S.3d 534, 536–37 (Sup. Ct. 2021);
Hedvall v. State, 283 So.3d 901, 920 (Fla. Dist. Ct. App. 2019).

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Fourth Amendment turns on the reasonableness of the process. Against this
backdrop, we consider the arguments before us.

¶24 First, we reject the broad position urged by amici supporting
the defense—that analyzing genetic material and generating a DNA profile
“constitutes a search and seizure” and always requires a warrant. Such a
restrictive view would “impose[] substantial burdens on law enforcement
without vindicating any significant values of privacy.” See Robbins v.
California, 453 U.S. 420, 429 (1981) (Powell, J., concurring). Moreover, a
holding that “[t]he government must therefore obtain a warrant to search
or seize DNA” cannot be harmonized with King, which permitted
warrantless, suspicionless DNA profiling of arrestees charged with
“serious crimes,” or Mario W., which permitted it under some
circumstances for juveniles taken into custody facing delinquency charges.

¶25 Of course, we agree that courts must take caution when it
comes to DNA, as a “vast amount of sensitive information . . . can be
mined,” United States v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007), that
“reveal[s] a host of private medical facts,” Skinner v. Ry. Lab. Execs.’ Ass’n,
489 U.S. 602, 617 (1989). And it may be true that the DNA analyzed for
CODIS4 contains medical information that will become accessible as
technology advances. See King, 569 U.S. at 464 (Though noncoding parts of
the DNA are used, “science can always progress further, and those
progressions may have Fourth Amendment consequences.”). But as King
explained, the identification profile generated from the DNA does not
reveal any medical data. See id. at 445. The identification number
comprising the profile is no more intrusive than a nametag on a suitcase or
a license plate number on a car.

¶26 Furthermore, unlike a blood-alcohol report, cell phone
records, or a contraband package, this “string of numbers” alone is not
evidence of a crime. See King, 569 U.S. at 445, 451 (“Like a fingerprint, the
13 CODIS loci are not themselves evidence of any particular crime, in the
way that a drug test can by itself be evidence of illegal narcotics use. A DNA

4 “The CODIS database is based on 13 loci at which the STR [short
tandem repeat] alleles are noted and compared. . . . The CODIS loci are from
the non-protein coding junk regions of DNA” and are “only useful for
human identity testing.” King, 569 U.S. at 445. “STR information is recorded
only as a ‘string of numbers’; and the DNA identification is accompanied
only by information denoting the laboratory and the analyst responsible for
the submission.” Id.

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profile is useful to the police because it gives them a form of identification
to search the records already in their valid possession. In this respect the
use of DNA for identification is no different than matching an arrestee’s
face to a wanted poster of a previously unidentified suspect; or matching
tattoos to known gang symbols to reveal a criminal affiliation; or matching
the arrestee’s fingerprints to those recovered from a crime scene.”). Decades
ago, the United States Supreme Court approved using an identity-based
rule-out test if there is particularized suspicion and the test is minimally
intrusive. See Hayes v. Florida, 470 U.S. 811, 817 (1985) (“[T]he Fourth
Amendment would permit seizures for the purpose of fingerprinting, if
there is reasonable suspicion that the suspect has committed a criminal act,
if there is a reasonable basis for believing that fingerprinting will establish
or negate the suspect’s connection with that crime, and if the procedure is
carried out with dispatch.”).

¶27 Given the limited information currently available from a
CODIS DNA profile, creating a DNA profile from evidence in the State’s
possession does not always require a search warrant.

B. Searches Beyond the Scope of Authorization Are Unreasonable
Under the Fourth Amendment.

¶28 The first step in applying King and Mario W. is determining
how the genetic material came into the State’s possession. In King and
Mario W., the State obtained the genetic material under statutory authority
on arrest. See King, 569 U.S. at 441; Mario W., 230 Ariz. at 124, ¶ 2.5 Unlike
King and Mario W., the State possessed Mitcham’s blood sample via consent
from the 2015 DUI arrest.

¶29 Mitcham argues that the subsequent DNA analysis in 2018
exceeded the scope of that consent. The State counters that the Fourth
Amendment is no longer implicated once a biological sample has been
lawfully and physically extracted from a suspect. The State minimizes the

5 “The Attorney General may, as prescribed by the Attorney General
in regulation, collect DNA samples from individuals who are arrested.” 34
U.S.C. § 40702(a)(1)(A). And the Attorney General may provide grants to
state and local governments that analyze DNA profiles under local
authority for inclusion in CODIS. 34 U.S.C. § 40701(a)(1). As of the date of
the decision in King, it was noted: “Twenty-eight States and the Federal
Government have adopted laws . . . authorizing the collection of DNA from
some or all arrestees.” 569 U.S. at 445.

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consent issue, emphasizing that consent’s scope “no longer matter[s]” once
the blood is in the State’s lawful possession.

¶30 As much as the State asserts that lawful possession is always
sufficient to justify warrantless DNA analysis, the law provides otherwise.
See United States v. Davis, 690 F.3d 226, 246 (4th Cir. 2012) (Supreme Court
precedent did “not give a law enforcement agency carte blanche [authority]
to perform DNA extraction and analysis derived from clothing lawfully
obtained from the victim of a crime in relation to the investigation of other
crimes.”). The Supreme Court has long clarified that even lawful possession
of a suspect’s property does not allow the State to do whatever it wants
with that property. See, e.g., Walter v. United States, 447 U.S. 649, 654 (1980)
(“The fact that FBI agents were lawfully in possession of the boxes of film
did not give them authority to search their contents.”); United States v.
Chadwick, 433 U.S. 1, 15–16 (1977) (A steamer trunk was lawfully seized but
a warrant was needed to open and determine its contents.), abrogated on
other grounds by California v. Acevedo, 500 U.S. 565 (1991); Riley v. California,
573 U.S. 373, 401 (2014) (The seizure of a cell phone does not permit
warrantless access to information within the phone.). This is because a
person’s interest in keeping information private does not vanish once the
vessel of that information is held in police custody. A biological sample
containing extractable DNA is no different.

C. DNA Testing that Exceeds the Scope of Consent or Warrant
Renders the State’s Possession Unlawful.

¶31 The State argues that the way it obtains evidence, so long as it
is done lawfully, is irrelevant. We disagree. See Terry v. Ohio, 392 U.S. 1, 29
(1968) (“[E]vidence may not be introduced if it was discovered by means of
a seizure and search which were not reasonably related in scope to the
justification for their initiation.”). In other contexts, a suspect may grant
limited consent to a police search but retain an expectation of privacy in
areas beyond the scope of that consent. See, e.g., State v. Swanson, 172 Ariz.
579, 584 (App. 1992) (“[C]onsent to ‘take a look in the vehicle’ does not
encompass the further intrusion of ‘tearing a car apart’ by removing the
door panels.”); State v. Paredes, 167 Ariz. 609, 612 (App. 1991) (“The scope
of a consensual search is limited to the scope of the consent given.”); State
v. Florez, 195 Ariz. 199, 205, ¶ 26 (App. 1999) (same). And the same rule
applies to searches authorized by warrant or exigency. See Walter, 447 U.S.
at 656 (“When an official search is properly authorized—whether by
consent or by the issuance of a valid warrant—the scope of the search is
limited by the terms of its authorization.”); see also Arizona v. Hicks, 480 U.S.
321, 325 (1987) (“[A]ction, unrelated to the objectives of the authorized

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intrusion . . . produce[d] a new invasion of respondent’s privacy unjustified
by the exigent circumstance that validated the entry.”).

¶32 A hypothetical helps clarify this point. A homeowner’s
consent to police to enter a home to seize a briefcase would not authorize
the police to begin collecting hair or skin cells from the homeowner’s carpet.
This is true even though (1) the collection of cells left in public is generally
permissible, and (2) the officers had permission to enter the home. Under
the consent, the officers would only be authorized to do what they
requested permission to do—seize the briefcase.6

¶33 Consent to a blood draw for testing for intoxicants does not
authorize the police to create a DNA profile from the cells in that blood to
investigate unrelated offenses. It does not matter that (1) blood cells found
in public can be DNA tested or (2) the police had lawfully obtained the
blood for chemical analysis. Under the consent provided, the police could
search for drugs or alcohol. But the later creation of a DNA profile is as
much an unconsented privacy violation as the unrequested collection of
DNA samples from within a home.

¶34 Still, the State claims, without explanation, that it is “hard to
analogize blood or one’s DNA profile to a portion of a home, package,
vehicle, clothing, cell phone, computer or other private piece of property to
which one usually may want the ability to ‘limit’ the ‘scope’ of their
consent.” Given the medical information in one’s blood, we have no such
difficulty. See Mario W., 230 Ariz. at 127, ¶ 20 (DNA analysis “is, in effect,
the analog to opening the steamer trunk in Chadwick and the purse in
Tiffany O. to see what is inside.”). See generally In re Tiffany O., 217 Ariz. 370
(App. 2007).

¶35 Mitcham consented to a blood draw during the 2015 DUI
arrest. Thus, the relevant question is whether the later creation of the DNA
profile for use independent of the DUI fell within Mitcham’s consent. See
State v. Becerra, 239 Ariz. 90, 92, ¶ 8 (App. 2016). “The standard for
measuring the scope of a suspect’s consent under the Fourth Amendment
is that of ‘objective’ reasonableness.” Jimeno, 500 U.S. at 251. And “[w]hether
a consensual search remained within the bounds of the actual consent is a

6 Of course, the police may also seize evidence of a crime in plain view
if the police are lawfully within the home. See generally Coolidge v. New
Hampshire, 403 U.S. 443, 465–66 (1971). For simplicity, we omit discussion
of this exception because it is not relevant here.

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question of fact to be determined from the totality of circumstances.”
Swanson, 172 Ariz. at 583.

¶36 Under the Admin Per Se Implied Consent agreement,
Mitcham consented to the taking and analyzing of his blood “to determine
alcohol concentration or drug content.” The written consent admonition
did not authorize the creation of a DNA profile to investigate unrelated
offenses or for unrelated crime detection. The consent form allowed the
police to determine only what percentage of the sample comprised alcohol
or intoxicating drugs. Given these facts, the superior court did not abuse its
discretion by finding that creating a DNA profile from Mitcham’s 2015
blood draw exceeded the scope of his consent to draw the blood. And action
outside the scope of consent renders the State’s evidence unlawful, no
matter how minimally intrusive. See Hicks, 480 U.S. at 325 (“A search is a
search, even if it happens to disclose nothing but the bottom of a
turntable.”).

D. Despite the Fourth Amendment Violation, the Superior Court
Erred by Suppressing Mitcham’s DNA Profile.

¶37 “[T]o say that the Fourth Amendment applies here is the
beginning point, not the end of the analysis.” King, 569 U.S. at 446; see also
Nix v. Williams, 467 U.S. 431, 444 (1984). “The Fourth Amendment protects
the right to be free from ‘unreasonable searches and seizures,’ but it is silent
about how this right is to be enforced.” Davis v. United States, 564 U.S. 229,
230–31 (2011).

¶38 “The exclusionary rule, which allows suppression of evidence
obtained in violation of the Fourth Amendment, is a prudential doctrine
invoked to deter future violations.” Valenzuela, 239 Ariz. at 308–09, ¶ 31.
Exclusion is “not a personal constitutional right,” nor is it designed to
“redress the injury” occasioned by an unconstitutional search. Stone v.
Powell, 428 U.S. 465, 486 (1976). “The rule’s sole purpose . . . is to deter future
Fourth Amendment violations.” Davis, 564 U.S. at 236–37. Thus, the rule is
appropriate only when deterrence is necessary, and the “substantial social
costs” are accounted for. Id. at 237. Given the “enormous societal cost of
excluding truth,” suppression of evidence should not place the police in a
worse position than they would have been without the illegal conduct. See
Nix, 467 U.S. at 443–45; Sutton v. United States, 267 F.2d 271, 272 (4th Cir.
1959) (“It is one thing to say that officers shall gain no advantage from
violating the individual’s rights; it is quite another to declare that such a
violation shall put him beyond the law’s reach even if his guilt can be
proved by evidence that has been obtained lawfully.”).

13
 STATE v. MITCHAM
Opinion of the Court

1. The State Had Probable Cause to Arrest Mitcham Even
Without the DNA Profile Showing a Match.

¶39 Creating a DNA profile from Mitcham’s 2015 DUI blood
sample was an unauthorized search. But the superior court also suppressed
subsequent DNA collection and analysis as the fruit of the poisonous tree.
See Wong Sun v. United States, 371 U.S. 471, 484 (1963); Brown v. Illinois, 422
U.S. 590, 599–600 (1975). We reverse the suppression order because the
police had probable cause to arrest Mitcham even without the DNA match
from the 2015 blood draw.

¶40 It is unclear from the record whether Mitcham was arrested
under an arrest warrant or the police’s statutory arrest authority. See A.R.S.
§ 13-3883(A)(1). Though the superior court ordered the suppression of
“subsequent DNA swabs collected pursuant to the warrant,” there is no
such warrant in the record before us. The affidavit submitted for a search
warrant (for a search of Mitcham’s home and GPS tracking of his car) noted
the DNA profile derived from Mitcham’s 2015 DUI blood sample, but that
warrant was not the basis for collecting buccal swabs here.

¶41 In any event, A.R.S. § 13-610(K) directs that when a person
arrested for a serious offense is transferred to jail, the arresting authority
“shall secure a sufficient sample of buccal cells or other bodily substances
for deoxyribonucleic acid testing and extraction from the person for the
purpose of determining identification characteristics.” Because the
procurement of a buccal swab from Mitcham would have been required
upon his arrest for first-degree murder, the relevant question is whether the
police had probable cause to arrest Mitcham without the
improperly-obtained DNA match from the 2015 blood draw. See A.R.S.
§ 13-3883(A)(1); cf. State v. Sardo, 112 Ariz. 509, 515 (1975) (quoting United
States v. Kandlis, 432 F.2d 132, 135 (9th Cir. 1970)) (“This is a case where ‘the
arrest and search are inextricably intertwined. The officers could neither
arrest nor search without probable cause; if they had probable cause, they
could do both.’”).

¶42 “To determine whether an officer had probable cause for an
arrest,” we determine whether the “facts, viewed from the standpoint of an
objectively reasonable police officer, amount to probable cause.” District of
Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (quoting Maryland v. Pringle,
540 U.S. 366, 371 (2003)). We consider de novo the mixed question of whether
the facts presented established probable cause. State v. Buccini, 167 Ariz.
550, 555 (1991).

14
 STATE v. MITCHAM
Opinion of the Court

¶43 Without resorting to the DNA profile from Mitcham’s 2015
DUI blood sample and even without resorting to evidence developed from
the warrant-based search of Mitcham’s home and GPS tracking, the police
had probable cause for the arrest. The familial DNA result, obtained
independently, established that the unknown DNA at the crime scene
matched inmate Mark Mitcham’s first-degree relative, meaning a father,
son, or brother. At the suppression hearing, the police testified that Mark’s
father was dead, Mark’s two sons lived out of state, and Mark had two
brothers in the Phoenix area, one of whom was Ian Mitcham. The police
also noted that the addresses of Ian Mitcham and the victim were close and
that Ian Mitcham’s 2015 DUI arrest occurred in Scottsdale.

¶44 Probable cause for an arrest is present when the arresting
officer knows “facts and circumstances . . . sufficient to warrant a man of
reasonable caution to believe that a felony had been committed by the
person arrested.” Sardo, 112 Ariz. at 515 (quoting State v. Edwards, 111 Ariz.
357, 360 (1974)). It “requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity,” Illinois v. Gates,
462 U.S. 213, 243, n.13 (1983), and “is not a high bar,” Kaley v. United States,
571 U.S. 320, 338 (2014).

¶45 While the evidence is no doubt weaker without the
information about the DNA match from the 2015 blood draw, the familial
match and Mitcham’s proximity to the crime scene would provide a “man
of reasonable caution” to believe that Mitcham may have committed the
murder. See Sardo, 112 Ariz. at 515. And Mitcham has never challenged the
validity of his arrest independently from his challenge to the results of the
2015 DNA profiling. In fact, at oral argument before this court, Mitcham
conceded that the police had probable cause to support his arrest even
without the DNA match evidence.

¶46 Thus, while the DNA profile from the 2015 blood sample was
impermissibly obtained, the evidence independent of that DNA profile
provided sufficient probable cause to authorize Mitcham’s arrest. And once
Mitcham was arrested for first-degree murder, the police were required to
take a buccal swab and extract a DNA profile independent of the prior
violation. See A.R.S. § 13-610(K). For these reasons, we conclude that the
superior court’s order suppressing Mitcham’s DNA profile as a fruit of the
illegal search was error.

15
 STATE v. MITCHAM
Opinion of the Court

2. The DNA Evidence Would Have Inevitably Been Obtained
from Mitcham’s Other Felony Convictions.

¶47 Another independent basis exists for reversing the court’s
suppression order. Mitcham’s DNA is already in CODIS because of his
felony convictions in 2022. Mitcham’s later convictions for unrelated crimes
provide an independent source for the State to possess Mitcham’s DNA
profile, proving that his profile would have inevitably been discovered
even had the police not created a profile in 2018. As a result, the State argues
that the inevitable discovery doctrine should apply to prevent suppression
of Mitcham’s DNA profile.

¶48 In reply, Mitcham seeks to distinguish the “independent
source” and “inevitable discovery” doctrines, claiming that failing to fully
elaborate on both arguments below results in a waiver on appeal. We
disagree. We see no value in requiring the State to develop both “closely
related” doctrines fully, see Nix, 467 U.S. at 443, especially when, as here,
the arguments amount to the same thing: Mitcham’s 2022 felony
convictions are an independent and inevitable cause of the creation of his
CODIS profile.

¶49 Mitcham also counters that he only “pled guilty as a strategic
choice” to his two felonies because of the pending murder charge against
him. He implies that his convictions for aggravated DUI and narcotics
offenses are fruits of the purported illegal search, so the court cannot
consider them in an inevitable discovery analysis.

¶50 This argument is meritless. Mitcham does not allege that his
pleas were involuntary or not supported by a factual basis, merely that it
was a “strategic choice” for him to enter those guilty pleas. In any event, a
“plea is itself a conviction and like a jury verdict is conclusive.” State v.
Linsner, 105 Ariz. 488, 491 (1970). Under the law, Mitcham is guilty of those
offenses, and the State must submit his DNA to the federal CODIS database
under A.R.S. § 13-610.

¶51 Because the police would have acquired Mitcham’s DNA
profile even without the search of the 2015 blood draw, the superior court
erred by suppressing Mitcham’s DNA profile.

CONCLUSION

¶52 We reverse the order suppressing Mitcham’s DNA profile
and remand for further proceedings consistent with this opinion.

16
 STATE v. MITCHAM
Catlett, J., Concurring

CATLETT, Judge, concurring in the judgment:

¶53 I concur in the judgment reversing the suppression order.
Unlike the majority, however, I would not reach the inevitable discovery
issue. Mitcham did not have a reasonable expectation of privacy in the non-
coding regions of DNA the State lawfully possessed in 2018. Thus, no
search and no Fourth Amendment violation occurred.

I.

¶54 The majority correctly explains the background in Mario W. v.
Kaipio, 230 Ariz. 122 (2012), and Maryland v. King, 569 U.S. 435 (2013). Mario
W. held that extracting and profiling a juvenile’s DNA for pre-trial
processing involved two distinct searches—one upon extraction, one upon
profiling. 230 Ariz. at 126—27 ¶ 18. The court then analyzed whether the
two searches were reasonable in the absence of a warrant. The court
concluded the first search—extracting a juvenile’s DNA—was reasonable
even without a warrant. Id. at 128 ¶ 25. The court concluded the second
search—obtaining the DNA profile from the sample—was unreasonable
when a juvenile has not absconded. Id. at 129 ¶ 32.

¶55 The State argues King renders Mario W. “untenable.” The
majority is correct that, although King overrules a portion of Mario W.’s
reasonableness analysis, it does not overrule Mario W.’s holding that
profiling a juvenile’s DNA under the statute at issue was a search separate
and apart from DNA extraction. Maj. Op. ¶ 22.

¶56 Yet the majority’s subsequent analysis and application of
Mario W. is perplexing. The majority concludes that Mario W. “did not hold
that DNA analysis always requires a warrant” and similarly rejects that
“analyzing genetic material and generating a DNA profile ‘constitutes a
search and seizure’ and always requires a warrant.” Maj. Op. ¶¶ 23, 24.
Both that conclusion and rejection are sound. But the majority fails to
explain the import of those observations. Does DNA analysis always
constitute a search? Or does DNA analysis only sometimes constitute a
search? If DNA analysis is only sometimes a search, when is it a search and
when is it not? Why was the DNA analysis here a search? The majority
does not clarify.

¶57 The majority, for example, acknowledges a split among state
courts regarding whether a search occurs when the government creates a
DNA profile using lawfully possessed blood. See Maj. Op. ¶ 22 n.3. The

17
 STATE v. MITCHAM
Catlett, J., Concurring

majority then appears to take sides with those courts requiring a warrant or
a warrant exception (thereby extending Mario W. to criminal
investigations). See Maj. Op. ¶¶ 29-36. The majority analyzes the
reasonableness of the police conduct at issue here (which would be
unnecessary unless a search occurred), and then concludes that profiling
Mitcham’s DNA was unreasonable because the State exceeded the scope of
Mitcham’s consent. But, in so doing, the majority largely skips the crucial
question in this case: whether the State conducted a new search in 2018.

¶58 The majority also extends statements in Mario W. too far in
favor of the State, arguably creating a new warrant exception in the process.
The majority says Mario W. held that a warrant is not required to create a
DNA profile if there is probable cause or reasonable suspicion to believe an
individual committed another crime. See Maj. Op. ¶ 23. The heading of
that section of the majority opinion says, “Under Mario W., the Creation of
a DNA Profile from State-Held Evidence Is a Search, but It Does Not Require
a Warrant If There Is Probable Cause or Reasonable Suspicion.” Maj. Op. p.7
(emphasis added). To be sure, Mario W. says that its analysis might differ
with probable cause or reasonable suspicion. 230 Ariz. at 129 ¶ 31; see infra
¶ 83 (using probable cause as one factor in the search analysis). But Mario
W. did not create a new probable cause or reasonable suspicion exception
to the warrant requirement for DNA profiles. Such an exception could
diminish—if not swallow—the warrant requirement. It is also inconsistent
with the majority’s later conclusion that a Fourth Amendment violation
occurred here (the majority says there was probable cause that Mitcham
committed another crime (murder)).

¶59 There is a more direct route to resolving the constitutional
issue—the route both parties urge us to take. Whether the State violated
the Fourth Amendment turns, not on reasonableness or the existence of a
new warrant exception, but on whether the State conducted a new search
in 2018. Taking that route requires answering only two questions. Does
Mario W.’s holding that the creation of a juvenile’s DNA profile is a search
unto itself govern every time the government creates a DNA profile? If not,
did Mitcham have a reasonable expectation of privacy in 2018 in the non-
coding regions of DNA he provided in 2015?

II.

¶60 Mario W. did not establish a universal rule that creating a
DNA profile is always a search separate from DNA extraction. Mario W.
did not analyze expectations of privacy in DNA in all circumstances—an
impossible task. Rather, Mario W. involved a unique situation—a statute

18
 STATE v. MITCHAM
Catlett, J., Concurring

requiring juveniles merely charged with certain offenses to undergo DNA
profiling. See 230 Ariz. at 123 ¶ 1. The statute mandated DNA profiling
when there was not even reasonable suspicion “that a juvenile committed
another offense for which the DNA profile might provide investigative
assistance.” Id. at 125 ¶ 9.

¶61 Determining the reasonable expectations of juveniles in the
non-investigative circumstances in Mario W. is a far cry from what we
analyze here—the privacy expectations of an adult who was convicted of
the crime for which he provided blood when the police later, with probable
cause and for investigational purposes, create a DNA profile from that
sample. Mario W. does not attempt to answer, let alone dictate the answer
to, that Fourth Amendment dilemma—either for or against Mitcham. We
should read general language in judicial opinions “as referring in context
to circumstances similar to the circumstances then before the Court and not
referring to quite different circumstances that the Court was not then
considering.” Illinois v. Lidster, 540 U.S. 419, 424 (2004). Mario W.’s two-
search holding stems from the unique circumstances in which it was created
and not the dissimilar circumstances we face.

¶62 I am not alone in concluding Mario W. is inapplicable here.
One of Mitcham’s amici refers to Mario W. as conducting a “troublesome
‘two-tiered’ analysis” and asks us to apply a “holistic approach” instead.
Similarly, Mitcham repeatedly argues that Mario W. does not apply. For
example, he asserts “Mario W. is largely inapplicable because it did not
address . . . warrantless DNA searches for criminal investigation purposes.”
Mitcham also argues that “[t]his case does not involve a challenge” like that
in Mario W., and therefore “this Court need not address whether Mario W.
must be overruled.” I agree with Mitcham on both points.

III.

¶63 If Mario W. does not resolve the Fourth Amendment question,
where does that leave us? Here is where: in 2018, Mitcham did not have a
reasonable expectation of privacy in the non-coding regions of DNA he
provided in 2015, and the State therefore did not conduct a new search
when it created a DNA profile. With no search, there was no Fourth
Amendment violation.

A.

¶64 The Fourth Amendment, binding on the State through the
Fourteenth Amendment, provides “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches

19
 STATE v. MITCHAM
Catlett, J., Concurring

and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause.” U.S. Const. amend. IV. As the text says, the right protects
against “unreasonable searches and seizures.” U.S. Const. amend. IV. If
neither a search nor a seizure occurs, the Amendment has no role. This is a
search case; Mitcham does not frame this as a seizure case.

¶65 There are two approaches to determining whether a “search”
occurs—the property approach and the privacy approach. See Soldal v. Cook
County, 506 U.S. 56, 64 (1992) (“[P]roperty rights are not the sole measure of
Fourth Amendment violations.”). Mitcham relies only on the privacy
approach.

B.

¶66 The privacy approach—Justice Harlan’s creation in a
concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,
J., concurring)—asks whether “an individual ‘seeks to preserve something
as private’ and that expectation is ‘one that society is prepared to recognize
as reasonable.’” State v. Mixton, 250 Ariz. 282, 286 ¶ 13. “[O]fficial intrusion
into that private sphere generally qualifies as a search and requires a
warrant supported by probable cause.” Carpenter v. United States, 138 S. Ct.
2206, 2213 (2018).

¶67 The “reasonable expectation of privacy” test can be difficult
to apply in practice. One Fourth Amendment scholar has observed that
“[t]reatises and casebooks struggle to explain the test,” with “some
suggest[ing] that the only way to identify when an expectation of privacy
is reasonable is when five Justices say so.” Orin S. Kerr, Four Models of
Fourth Amendment Protection, 60 Stan. L. Rev. 503, 505 (2007). To avoid
letting the test lead us into judicial policymaking, we should treat it as
posing a descriptive question: whether society recognized the proffered
expectation of privacy at the time of the alleged search. See Carpenter, 138
S. Ct. at 2245 (Thomas, J., dissenting) (“As written, the Katz test turns on
society’s actual, current views about the reasonableness of various
expectations of privacy.”). And we should answer the “reasonable
expectation” question by looking to pre-existing law—statutes, regulations,
and prior Fourth Amendment and common law precedent. See Baude &
Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev.
1821, 1852 (2016) (“[T]he positive law model calls for the bread and butter
of the legal profession—doctrinal analysis. It is a task that is both more
appropriate to judges’ roles and more suited to their capabilities.”).

20
 STATE v. MITCHAM
Catlett, J., Concurring

C.

¶68 There are four factors that, when existing together7, dictate
that Mitcham did not have a reasonable expectation of privacy in 2018 in
the non-coding regions of DNA in the 2015 blood sample.

1.

¶69 The State used only the non-coding regions of Mitcham’s
DNA to determine whether it matched non-coding regions in DNA found
at the murder scene. The non-coding regions of DNA, also known as “junk
DNA,” “while useful and even dispositive for purposes like identity, does
not show more far-reaching and complex characteristics like genetic traits.”
King, 569 U.S. at 443. Forensic analysis of the non-coding region focuses on
“short tandem repeats” (“STRs”) scattered throughout the genetic code. Id.
The size and frequency of STRs “along a strand of DNA” are known as
alleles. Id. Forensic DNA analysis uses multiple alleles “to ensure that a
DNA profile matches only one individual.” Id. Using STRs to analyze
alleles in non-coding regions, “makes it possible to determine whether a
biological tissue matches a suspect with near certainty.” Id.

¶70 The State’s comparison between an STR-generated DNA
profile and a fingerprint is apt. Like a fingerprint, the information provided
in an STR-generated DNA profile tells you nothing about an individual, let
alone anything private. Instead, the sequence of numbers produced is so
unique that it can be used to connect two genetic samples, thereby
confirming identification. Cf. United State v. Mitchell, 652 F.3d 387, 412 (3d
Cir. 2011) (“[B]ecause DNA profiles developed pursuant to the DNA Act
function as ‘genetic fingerprints’ used only for identification purposes,
arrestees and pretrial detainees have reduced privacy interests in the
information derived from a DNA sample.”). This Court previously
compared DNA testing and fingerprints in rejecting a Fourth Amendment
challenge: “[DNA] tests are akin to taking fingerprints of suspects, which
may be used to identify perpetrators of past and future crimes or to
exonerate innocent persons.” In re Leopoldo L., 209 Ariz. 249, 254 (App. 2004)
(Timmer, J.). As King explains, “[t]he additional intrusion upon the
arrestee’s privacy beyond that associated with fingerprinting is not
significant[.]” 569 U.S. at 459.

7 If any of the four factors were to change or become
inapplicable, the conclusion would likely change.

21
 STATE v. MITCHAM
Catlett, J., Concurring

¶71 Where a DNA sample differs from a fingerprint is that a DNA
sample could be used to discover far more personal information about an
individual. I sympathize with amici’s concern that DNA could be used (or
abused) to discover a great amount of personal information. As amici puts
it, “[a]s technology and research continue to advance, DNA analysis will
allow ever-greater incursions into our privacy.” Amici also contends that
DNA technology has advanced such that “STR profiles today yield
information far beyond identity,” and I have no reason to doubt that
statement. If the State had used the 2015 blood sample to obtain health,
medical, or other genetic information, the privacy analysis would be much
different. If the State begins using DNA in an intrusive manner in future
cases, the analysis must be adjusted to account for the greater privacy
interests thereby implicated.

¶72 But the misuse of DNA is not at issue. Mitcham does not
suggest the State used the 2015 DNA sample for anything other than a
limited STR analysis. When that analysis occurred, the State already knew
the DNA being analyzed belonged to Mitcham. There is no indication the
State did anything other than use STRs to discover the unique pattern of
alleles associated with Mitcham’s DNA—that is not private information.
The State then compared that unique pattern with the unique pattern in
DNA found at the crime scene. That comparison showed a match, but it
again revealed nothing private about Mitcham. The limited nature of the
DNA profile created cuts significantly against any expectation of privacy.

2.

¶73 A search occurs when police draw blood. The U.S. Supreme
Court has “long recognized that a compelled intrusion into the body for
blood to be analyzed for alcohol content must be deemed a Fourth
Amendment search.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616
(1989) (cleaned up); see also Birchfield v. North Dakota, 579 U.S. 438, 463 (2016)
(explaining that although a breath test does not implicate significant
privacy concerns, “[b]lood tests are a different matter”). Thus, unless an
exception applies, like exigent circumstances (see Schmerber v. California, 384
U.S. 757 (1966)) or consent (see State v. Valenzuela, 239 Ariz. 299, 302 ¶ 11
(2016)), police must obtain a warrant to draw blood.

¶74 Mitcham does not challenge the legality of the 2015 blood
draw—Mitcham expressly consented to that draw. See A.R.S. § 28-1321(A)
(implied consent law); Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1 (2010). In his
briefing, Mitcham refers to the 2015 blood draw as “a lawfully obtained

22
 STATE v. MITCHAM
Catlett, J., Concurring

blood vial.” In 2015, the State legally came into possession of the blood
sample later used again in 2018.

3.

¶75 Mitcham also could not have reasonably expected that the
State was required to destroy his blood sample. In its suppression ruling,
the superior court observed that Mitcham signed a notice stating that the
blood he provided “would be destroyed after 90 days if a request for testing
was not made,” but Mitcham’s blood “was never destroyed.” The notice,
however, only gave Mitcham the opportunity to have an independent
laboratory test a “sample” of blood. The notice indicated that the “sample”
would be destroyed if a request for testing was not received within 90 days.

¶76 The notice did not create a reasonable expectation in
destruction of all of Mitcham’s blood. The text of the notice did not indicate
that all blood drawn would be destroyed after 90 days; it indicated only
that one of the samples would go. Moreover, it would not have been
reasonable for Mitcham to otherwise believe that the State would discard
evidence of a potential crime (DUI) within 90 days, particularly when
Mitcham’s prosecution remained pending well after 90 days.

¶77 The 2015 analysis of the blood reflected that Mitcham had a
blood-alcohol level of .242. Once that result returned in May 2015, the
lawfully obtained blood became evidence of a crime, and the State was
entitled to maintain possession. Mitcham concedes “that blood evidence
seized during a DUI, whether consensual or through a warrant, need not
be returned, as it may be used as evidence in the DUI offense.” Mitcham
correctly cites A.R.S. § 13-3920(B)(2) for that concession. That statutory
provision provides that law enforcement must return seized items within
ten days unless the item “is sought to be used for evidence.” A.R.S. § 13-
3920(B)(2). When the item is criminal evidence, the statute contains no
requirement or deadline for returning the item. Mitcham is deemed to
know the law, and the law allowed the State to keep possession of the 2015
blood samples during pendency of the DUI prosecution.

¶78 Once Mitcham pled guilty to the DUI charges in February
2016, the State could lawfully keep the 2015 blood samples, and any
limitation on use based solely on the scope of prior consent dissipated.
Mitcham provides no support—and I have not independently located
any—for the proposition that a criminal defendant is entitled to demand
return or destruction of blood representing the primary evidence in a
convicted crime. The prime evidence supporting Mitcham’s 2016 DUI

23
 STATE v. MITCHAM
Catlett, J., Concurring

conviction was the 2015 blood sample. Even if Mitcham had a right to
demand destruction, or limit the use, of the blood prior to conviction or
upon acquittal, any such right was lost once he pled guilty. Cf. People v.
King, 232 A.D.2d 111, 118 (N.Y. App. Div. 1997) (rejecting an argument that
a blood sample could not be used to investigate a second crime because “a
defendant does not have a right to the automatic return of property seized
in any criminal case absent a proper demand or some legal action”). Thus,
the State maintained lawful possession of Mitcham’s blood sample at the
time it created the 2018 DNA profile.

¶79 Several courts have held that when the government has
lawful possession of a blood sample stemming from one crime, the
government can use the sample to investigate another crime. See, e.g., State
v. Emerson, 981 N.E.2d 787, 792-93 ¶ 24 (Ohio 2012) (citing cases from eight
other courts to support the holding that “a person has no reasonable
expectation of privacy in his or her DNA profile extracted from a lawfully
obtained DNA sample”); Washington v. State, 653 So.2d 362, 364 (Fla.1994),
(“[O]nce [blood] samples were validly obtained, albeit in an unrelated case,
the police were not restrained from using the samples as evidence in the
murder case.”); State v. Benefield, 103 A.3d 990, 100 (Conn. App. Ct. 2014)
(“[T]here is no constitutional violation of a defendant’s reasonable
expectation of privacy in bodily fluids that are legally obtained in one
criminal investigation and subsequently used in an unrelated criminal
investigation.”); State v. Hauge, 79 P.3d 131, 145 (Haw. 2003) (“[T]he number
of investigations in connection with which the [police] tested [defendant’s]
blood, once the blood is lawfully obtained, is irrelevant to the question
whether the [police] violated some reasonable expectation of privacy.”).

¶80 The foregoing decisions are undoubtedly correct when the
second use of the blood sample occurs after conviction for the first crime.
Here, the State did not use the 2015 blood sample until 2018, two years after
Mitcham pled guilty to DUI.

4.

¶81 There is a fourth factor present—even before the DNA profile,
the State had probable cause to arrest Mitcham for a serious felony offense
and reasonable cause to believe the DNA sample would help confirm (or
exclude) Mitcham as the source of DNA at the crime scene. Returning to
the fingerprint analogy, the U.S. Supreme Court has explained that an
individual can be detained for fingerprinting “if there is reasonable
suspicion that the suspect has committed a criminal act, [and] if there is a
reasonable basis for believing that fingerprinting will establish or negate

24
 STATE v. MITCHAM
Catlett, J., Concurring

the suspect’s connection with that crime.” Hayes v. Florida, 470 U.S. 811, 817
(1985); cf. A.R.S. § 13-3905 (allowing courts, on less than probable cause, to
authorize police to detain an individual to obtain biological samples for
identification purposes).

¶82 In Mario W., the court, citing Hayes, thought it relevant that
the State wanted to analyze DNA without “even reasonably suspect[ing]
that a juvenile committed another offense for which the DNA profile might
provide investigative assistance.” 230 Ariz. at 125 ¶ 9. And the court
suggested its analysis would be different if there was probable cause or
reasonable suspicion to believe an individual committed an uncharged
offense. Id. at 129 ¶ 31.

¶83 Here, there was probable cause that Mitcham committed
murder. As the majority explains, “the evidence independent of that DNA
profile provided sufficient probable cause to authorize Mitcham’s arrest.”
Maj. Op. ¶ 46. At oral argument, Mitcham conceded that, based on a
familial DNA analysis and the location of their residences, the State had
probable cause to arrest both Mitcham and his brother. Id. ¶ 45. It is clear,
therefore, that the State could arrest Mitcham first based on his prior arrest
record and the location of his home. Cf. Maryland v. Pringle, 540 U.S. 366,
372—73 (2003) (officer performing traffic stop had probable cause to arrest
all three occupants of vehicle after cocaine was found in backseat of car
behind armrest).

¶84 There was also reasonable cause to believe a DNA profile
would provide investigative assistance by supporting or negating
Mitcham’s presence at the murder scene. Upon Mitcham’s arrest, Arizona
law permitted the State to perform a buccal swab and analyze the resulting
DNA. See A.R.S. § 13-610(K). No one in Mitcham’s position would think
the State, upon obtaining probable cause to arrest for a serious felony
offense, could not first analyze blood it already lawfully possessed to confirm
or negate a connection to the murder scene. Though we now know the
results of the DNA analysis in this case, and thus have the benefit of
hindsight, there can be little doubt that Mitcham would have preferred the
DNA analysis to being arrested if the analysis would have negated his
presence at the murder scene. Thus, unlike in Mario W., obtaining a DNA
profile had an investigative (and potentially exonerating) purpose.

5.

¶85 In sum, Mitcham did not have a reasonable expectation of
privacy in 2018 in (1) the non-coding regions of DNA contained (2) in a

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 STATE v. MITCHAM
Catlett, J., Concurring

blood sample lawfully obtained in 2015 and (3) then lawfully kept
following his 2016 conviction for DUI when (4) the State had probable cause
to believe he committed murder and reasonable cause to believe the sample
would help confirm or negate his presence at the crime scene.
Consequently, creating a DNA profile in 2018 was not a “search” requiring
a warrant.

IV.

¶86 I respectfully concur in the judgment.

AMY M. WOOD • Clerk of the Court
),/(' PJL

26