United States v. Thomas

• Decision Date: 22 November 2013
• Docket Number: No. 12–2438.,12–2438.
• Citation: 736 F.3d 54
• Parties: UNITED STATES of America, Appellee, v. Michael R. THOMAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

736 F.3d 54

UNITED STATES of America, Appellee,

v.Michael R. THOMAS, Defendant, Appellant.

No. 12–2438.

United States Court of Appeals,First Circuit.

Nov. 22, 2013.

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.

Before LYNCH, Chief Judge, THOMPSON and KAYATTA, Circuit Judges.

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 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, ––– U.S. ––––, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), violated the Fourth Amendment, we affirm, under Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (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 Thomas ¹ 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 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 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 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 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 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.

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, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 35 L.Ed.2d 99 (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...