Keith Amato 1 v. Dist. Attorney For the Cape

• Decision Date: 25 August 2011
• Docket Number: No. 10–P–354.,10–P–354.
• Citation: 80 Mass.App.Ct. 230,952 N.E.2d 400
• Court: Appeals Court of Massachusetts
• Parties: Keith AMATO 1v.DISTRICT ATTORNEY FOR the CAPE AND ISLANDS DISTRICT & others.2

80 Mass.App.Ct. 230

952 N.E.2d 400

Keith AMATO 1

v.DISTRICT ATTORNEY FOR the CAPE AND ISLANDS DISTRICT & others.2

No. 10–P–354.

Appeals Court of Massachusetts, Suffolk.

Argued March 16, 2011.Decided Aug. 25, 2011.

Mark W. Batten (John Reinstein with him), Boston, for the plaintiff.Jessica V. Barnett, Assistant Attorney General, for the defendants.Present: MILLS, BROWN, & WOLOHOJIAN, JJ.MILLS, J.

This matter arises out of the investigation of the January, 2002, murder of Christa Worthington. The plaintiff, Keith Amato, is a private citizen who (like many others) voluntarily provided a deoxyribonucleic acid (DNA) sample at the request of investigators. Amato did so based on promises that the sample and its related data would not be retained or used if his DNA did not match the biological evidence from the crime scene. Claiming that the defendants have not stood by those promises, Amato filed a class action complaint alleging violation of the Fair Information Practices Act (FIPA), invasion of privacy, and breach of contract. On motion of the defendants, a judge dismissed the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). We conclude that Amato's allegations that the defendants continue to hold records related to his DNA sample without his consent, and in breach of promises of limited use and retention, state a claim for equitable relief ³ under all three causes of action. Accordingly, we reverse the dismissal of Amato's claims against the District Attorney for the Cape and Islands district (district attorney) and the Forensic and Technology Center of the Commonwealth of Massachusetts, Department of State Police (crime lab), and we remand for further proceedings.⁴

1. Background. We accept as true, as we must, all facts alleged in the complaint, drawing all reasonable inferences in favor of Amato. In addition, we take judicial notice of certain facts appearing in Commonwealth v. McCowen, 458 Mass. 461, 939 N.E.2d 735 (2010).⁵ On January 6, 2002, Christa Worthington was found dead in her Truro home. Pursuant to G.L. c. 38, § 3(1) and (17), and G.L. c. 38, § 4, second par., the district attorney directed and controlled the subsequent investigation. During the investigation, State police detectives, acting on the district attorney's behalf, solicited voluntary DNA samples from numerous male residents of Cape Cod for purposes of comparison with the biological evidence from the crime scene.

A State police detective approached Amato requesting such a sample in January or February of 2002. The detective assured Amato that if his DNA sample did not match the crime scene evidence, his sample and related records would be destroyed and would not become part of any State or Federal database. Relying on this promise, Amato consented to provide a voluntary saliva swab for DNA analysis. Between 150 and 200 other men, relying on similar promises, consented to provide voluntary DNA samples.

The State police sent these samples to the crime lab. The crime lab analyzed these samples, producing DNA profiles. The crime lab compared those DNA profiles to the profiles that resulted from its analysis of the biological evidence recovered from the crime scene. Amato's DNA profile did not match.

The DNA profile of Christopher McCowen, another man who consented to provide a voluntary DNA sample, matched the crime scene DNA profile. He was arrested on April 14, 2005. In November, 2006, during McCowen's subsequent trial, Amato contacted the district attorney to inquire about the status of the sample he had provided more than four years earlier. The district attorney instructed Amato to inquire again after the completion of McCowen's trial.

After a Superior Court jury convicted McCowen in November, 2006, Amato again contacted the district attorney, who orally represented to Amato that his DNA sample had been destroyed. The district attorney declined to provide written details of the handling of the sample. Amato wrote to the district attorney requesting some written record of the treatment of his DNA sample. There was no reply.

On November 21, 2006, the district attorney issued a press release announcing the option for men who had consented to provide voluntary DNA samples between January, 2005, and March, 2005, to retrieve them. The press release announced that samples not retrieved by a certain date would be destroyed. A Cape Cod Times newspaper article reporting on the press release quoted the district attorney as saying, “I said a long time ago that I would do this [return the voluntarily provided DNA samples].” Neither the press release nor the district attorney mentioned DNA samples, like Amato's, voluntarily provided between January, 2002, and January, 2005, or after March, 2005.

Over the next ten months, Amato wrote once to the Attorney General and, through counsel, twice to the acting director of the crime lab. In all three letters, Amato sought confirmation that the crime lab had destroyed his DNA sample and any accompanying records. In November, 2007, the acting director of the crime lab finally replied. She represented that (1) the crime lab had custody of the sample and associated records; (2) the crime lab had not and would not enter Amato's DNA profile into the State convicted offender database ⁶ or the combined DNA index system (CODIS) maintained by the Federal Bureau of Investigation (FBI); and (3) the crime lab could not release or destroy the DNA sample or the associated records without the district attorney's authorization.

Amato, through counsel, wrote to the district attorney requesting that he authorize the crime lab to destroy the DNA sample and associated records of Amato and others who consented to provide DNA samples in similar circumstances. Amato also wrote to the Undersecretary of Forensic Sciences (undersecretary) of the Executive Office of Public Safety and Security (EOPSS) requesting promulgation of regulations regarding treatment and eventual destruction of voluntarily provided DNA samples. Both letters went without reply.

Amato filed this action in June, 2008, against the district attorney, the crime lab, EOPSS, and the undersecretary. His amended complaint asserted three claims: (1) a FIPA violation, G.L. c. 66A; (2) invasion of statutory privacy rights, G.L. c. 214, § 1B; and (3) breach of contract. After the filing, the district attorney returned Amato's DNA sample sometime in October, 2008. The district attorney has not returned other voluntarily provided DNA samples, and the crime lab continues to hold the DNA profiles and other records of the samples given by Amato and the other men.

Upon the defendants' rule 12(b)(6) motion, the judge, in a thoughtful, comprehensive memorandum of decision, dismissed all three claims against all the defendants. This appeal followed.⁷

2. Standard of review. We review the decision to dismiss Amato's complaint de novo,⁸ accepting as true all allegations in the complaint and drawing any reasonable inferences in the plaintiff's favor. Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011). “[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Ibid.

3. Discussion. The district attorney, confronting a challenging investigation, asked over 100 men to provide DNA samples voluntarily. Amato and the others had a reasonable expectation of privacy in the bodily fluids they contributed and, accordingly, a constitutional right to be free from such a search absent a warrant issued upon a showing of probable cause. See Jansen, petitioner, 444 Mass. 112, 120–121, 826 N.E.2d 186 (2005); Commonwealth v. Cabral, 69 Mass.App.Ct. 68, 72, 866 N.E.2d 429 (2007). See also Horsemen's Benevolent & Protective Assn. v. State Racing Commn., 403 Mass. 692, 700, 532 N.E.2d 644 (1989) (“an individual has reasonable expectations of privacy regarding the information which can be extracted from a urine specimen”); Guiney v. Police Commr. of Boston, 411 Mass. 328, 332, 582 N.E.2d 523 (1991) (“This court has never approved the nonconsensual taking of blood or urine of a person in the absence of a demonstrated, particularized basis for doing so”). Amato has pleaded, and we take as true, that he and the other men consented to such a search based on promises, made by the district attorney through the State police detectives acting on his behalf, of limited use and retention of the samples provided and the resulting records.

Clearly, the district attorney's innovative approach worked. The perpetrator, McCowen, voluntarily provided biological evidence that matched that from the crime scene. He has been successfully prosecuted, and the conviction has withstood appellate scrutiny. But now that the difficult investigation has concluded, Amato has pleaded, and we take as true, that the defendants have broken their limited use and retention pledges to him and the others.

In response, the defendants assert a variety of arguments that, if accepted, would make the breaking of their pledges to Amato and the others per se reasonable and immune from judicial consideration. Given the circumstances under which the defendants induced Amato and the others to allow access to this intensely private information, including the promises of limited use and retention and the concomitantly restricted scope of consent granted, we are not convinced that the defendants have acted reasonably as matter of law.

Accordingly, we conclude that Amato may pursue his claims for equitable relief. We discuss each individual claim in turn.

a. Fair Information Practices Act. General Laws c. 66A, § 2( l ), inserted by St.1977, c. 691, § 12, provides, in relevant part, that government agencies shall “not collect or maintain more personal data than are reasonably necessary for the performance of [their] statutory functions.” Any agency “which violates ... any of the provisions of [...