The Golden State Killer and Privacy in the Age of DNA

In a plot line suitable for “Criminal Minds”, California authorities have used DNA to catch a murderer and rapist who, by all known accounts, has been dormant for over thirty years. Joseph James DeAngelo has been ID’d as the perpetrator known as “the Golden State Killer”, the “East Area Rapist”, and the “Original Nightstalker”, or “EARONS”.

This case is well known to those who lived in the area during the events, and to those with an interest in true crime. The crimes began with a spree of rapes in the late 1970s, which progressed into murder. There were dozens of victims, 12 of whom were murdered. His MO of silently entering his victims’ homes and waking them suddenly and violently, his bizarre behavior during the commission of his crimes (he was known to sit in the corner and cry, or speak to himself as though talking to a third person) and his penchant for terrorizing his surviving victims with phone calls for years after made him a terrifying bogeyman in the annals of serial murder.

He murdered his last known victim in 1986, though his last reported phone call to a living victim was in the early 2000s. Nevertheless, as time passed, it seemed likely that this case would remain unsolved, like Jack the Ripper or the Zodiac. But EARONS left plenty of himself at the scenes of his crimes, including ejaculate. The prescient collection and preservation of this evidence at a time predating the prominence of DNA testing is remarkably fortunate. When the technology developed, law enforcement knew they possessed the killer’s genetic identity, and they waited. Perhaps it could be matched if the killer was ever arrested for something.

In the meantime, companies like 23AndMe became popular. They provided people the ability to submit their saliva samples and find out their ancestral origins, and millions of amateur genealogists availed themselves of the opportunity. This included relatives of the Golden State Killer.

Law enforcement realized they also had an opportunity here. They submitted EARONS’ DNA profile to GEDmatch to see if perhaps his identity was in his database. It was not — but his relative’s was. Their inquiry hit on a profile that showed a familial relationship to the killer. From there, detectives began investigating the family members until they found someone who seemed to fit what they knew about their suspect.

They looked for a man who lived in the Sacramento area in the relevant time frame. They surmised that he would now be approximately in his early seventies, and much of the detail of his crimes hinted at military or law enforcement experience. 72 year old DeAngelo matched right down the line. He was both a veteran of the Navy and a former police officer (his law enforcement career ended when he was arrested for shoplifting a hammer and dog repellent, items which hold sinister significance to his crimes). He lived — and, at the time of his arrest, still lived — in the right area, and would have been in his early thirties at the time of the rapes and murders. Detectives began to surveil the aged Mr. DeAngelo, and, like a scene from Law and Order, retrieved a discarded item he had used in order to collect his DNA. This DNA sample was compared to the sample from the crime scene, and, the authorities say, they had their man.

The accuracy of the DNA evidence will no doubt be hashed out in the court room, but the public at large is already batting around the method by which it was obtained. Was this search legal? Was this a violation of privacy? Will a judge throw this case out because of the way in which authorities found the suspect? It is worth examining a few legal principles to get some idea of where this might go.

Were privacy rights violated? And if so, whose?

Some critics immediately expressed misgivings over law enforcement having obtained the suspect’s DNA from a genealogy website. In the current climate of concern over the sharing of our personal information by companies who have seemingly innocuously infiltrated our lives (looking at you, Facebook), the millions who have sent their spit samples off for a DNA profile suddenly worried that their information was not confidential.  While it serves as a good reminder to read the fine print in user agreements and be protective of one’s data, in this case, one need not have worried. All of the major players in the commercial DNA analysis business affirmed that none of them had been working with law enforcement. They did not help catch GSK, and they did not disclose any of his family’s DNA profiles to law enforcement.

GEDmatch acknowledged that law enforcement used their site. But in that case, it worked exactly as designed. The very reason users upload their DNA is so that it can be shared with other people. And if that was not understood, GEDmatch makes this very clear in their user agreements. Law enforcement used the service as it was intended, except to find someone else’s family rather than their own.

Even if the above were not true, and there was a privacy argument to be made over law enforcement’s use of GEDmatch, the argument would not belong to DeAngelo, but to his relative whose uploaded DNA information was accessed and compared. And even if the relative had a legitimate privacy complaint, it would not help DeAngelo in court. In order to challenge the legality of a piece of evidence, one must have “standing” to do so. A criminal defendant may not rely on the breach of someone else’s privacy, or, more pointedly, the violation of someone else’s fourth amendment rights.

If you are visiting a friend, and the police barge into your friend’s home without a warrant, find a bunch of drugs in the home and decide to arrest you, you have no right to challenge the warrantless entry. Your friend does, as it is their house, but the evidence will not be thrown out in your case on these grounds. (This is a fairly simplified example, and it depends upon the length of your visit and other factors, but illustrates the general rule.) Likewise, even if DeAngelo’s relative has a genuine cause of action against GEDmatch, it is meaningless to DeAngelo.

Under the same facts as above, if your friend had given the police consent to search their home, you, as a brief visitor, would likewise have had no right to object and no standing to challenge the evidence seized.

The shared space of DNA

There is one caveat to this analysis, though, in its application to the DNA aspect of the GSK case, and that is the rule applicable to the search of a shared home.

Until the last 12 years or so, only one person living in a home needed to consent in order for the police to search it. Georgia v. Randolph, a 2006 U.S. Supreme Court case, changed that. The Randolph case held that where one person living in the home consents to a search, but another who also lives there objects, the search is impermissible.

Extrapolate this analysis to DNA. Consider the DNA profile “the house”. Family members share this DNA, at least in part. Has law enforcement improperly assumed consent when only one person laying claim to the DNA has consented to its search?

A novel argument, but DeAngelo’s lawyers would face an uphill battle if they attempt it. For one, remember that no consent is required to search something that is in “plain view”, or where there is no expectation of privacy. GEDmatch is a public space; it is like to keeping the curtains off the windows and the front door wide open, or setting your property out on your porch.

The second problem with this argument relates to a case from 2014 in which the Supreme Court further clarified Randolph. In Fernandez v. California, the defendant who objected to the use by prosecutors of evidence found in a search of his home was not present at the time the police arrived, and his roommate gave consent. The defendant argued that the search violated Randolph.  The Court disagreed, holding that the defendant must be present at the scene and voicing objection. Otherwise, the consent of the other occupant is sufficient. However, the Court further clarified that the absent occupant’s private, unshared quarters, i.e., bedroom, could not be searched. Extending this analysis to the DNA profile, DeAngelo was not present and could not object. Furthermore, the DNA profile of the family member contained no information that was exclusive to DeAngelo, no private quarter. Under this Fernandez analysis, DeAngelo is unlikely to prevail in this argument.

The end of 40+ years of terror?

As it stands, it certainly seems as though after more than 40 years of imposing terror, the Golden State Killer has been caught. Questions abound: Will he confess? Will he plead guilty or demand a trial? Will the DNA evidence hold up? Will his victims, 40 years later, remember the details sufficiently to withstand testimony? Time will bring the answers. Justice demands them.