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State v. Sharpe
STATE OF CONNECTICUT v. MICHAEL SHARPE
(SC 20815)
Mullins, C. J., and McDonald, D’Auria, Ecker,
Alexander and Dannehy, Js.
Syllabus
Convicted of multiple counts of kidnapping in the first degree in connection
with four separate incidents that occurred in 1984, the defendant appealed to
this court. During each incident, an unknown assailant robbed and sexually
assaulted a woman in her home. The cases remained unresolved until 2020,
when law enforcement received information tending to implicate the defendant. Thereafter, the police lawfully collected the defendant’s trash from in
front of his residence, which included a belt. The police then, acting without
a search warrant, submitted the belt to the state forensic laboratory for
testing. Analysts used DNA extracted from the belt to conduct a short
tandem repeat analysis and determined that that DNA was a contributor to
an unknown DNA profile that had been generated from certain items recovered from the four crime scenes. The police then obtained a search warrant
to collect a confirmatory sample of the defendant’s DNA, which established
that the defendant was the likely source of the crime scene DNA. After the
presentation of evidence at the defendant’s trial, the court instructed the
jury on the elements of the kidnapping charges in accordance with this
court’s decision in State v. Salamon (287 Conn. 509), including the six
factors that the jury should consider in determining whether the defendant
had intended to restrain the victims beyond the degree necessary to commit
the underlying crimes. The following day, the court provided the jury with
a flowchart outlining the elements of the kidnapping charges as a visual
guide to its previous instructions, but the flowchart omitted any reference to
the Salamon factors. On appeal, the defendant claimed that the warrantless
extraction and testing of the DNA from his discarded belt constituted an
unreasonable search and seizure in violation of his rights under the fourth
amendment to the United States constitution and article first, § 7, of the
Connecticut constitution, and that the omission of the Salamon factors from
the flowchart misled the jury. Held:
The defendant could not prevail on his claim that either the warrantless
collection or the warrantless analysis of his DNA from the discarded belt
violated his rights under the fourth amendment.
The warrantless collection of the defendant’s DNA from the discarded belt
did not constitute a search under the fourth amendment because, even if
the defendant had a subjective expectation of privacy in the biological
materials that he inadvertently or involuntarily shed onto the belt, society
would not recognize that expectation as reasonable.
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State v. Sharpe
It was undisputed that the defendant lacked a reasonable expectation of
privacy in the belt itself because he had discarded it into the trash, and,
because it is well known that humans cannot completely prevent the shedding of biological materials containing DNA, it is no secret that, when an
individual discards an article of clothing or a clothing accessory, DNA may
be present on that article or accessory, and may be available for collection.
Moreover, the warrantless analysis of the DNA extracted from the defendant’s discarded belt, for identification purposes only, did not constitute a
search under the fourth amendment.
Even if this court assumed that the defendant had a subjective expectation
of privacy in the identifying characteristics encoded in his DNA, the analysis
of DNA extracted from a discarded object that is in the lawful possession
of the police, for identification purposes only, does not constitute a search for
purposes of the fourth amendment because a defendant does not maintain
an objectively reasonable expectation of privacy in the identifying characteristics encoded therein under those circumstances.
In the present case, the defendant did not claim that the state tested his
DNA for any purpose other than for identification, and the short tandem
repeat analysis employed by the state forensic laboratory was not capable
of revealing anything more than the defendant’s identity.
After considering the relevant factors set forth in State v. Geisler (222 Conn.
672) for construing the parameters of the Connecticut constitution, this
court concluded that, under the circumstances of this case, article first, § 7,
of the Connecticut constitution did not afford greater protection than the
fourth amendment and that the warrantless extraction and testing of the
defendant’s DNA from the discarded belt for identification purposes only
did not violate the defendant’s rights under the state constitution.
The trial court did not mislead the jury by providing it with a flowchart that
outlined the elements of kidnapping in the first degree but that omitted any
reference to the Salamon factors.
The defendant conceded that the trial court provided a full description of
the Salamon factors in its instructions, and it was of no consequence that the
court submitted the flowchart to the jury one day after it read its instructions.
Moreover, when the court gave the jury the flowchart, it clearly and expressly
instructed that the flowchart was to be used only as a guide to its prior
instructions and that the flowchart did not replace those prior instructions,
and, because the defendant failed to establish that the jury did not follow
the court’s instruction regarding the purpose of the flowchart, this court
presumed that the jury heeded that instruction and was not misled by the
flowchart’s omission of the Salamon factors.
(Two justices concurring in part and dissenting
in part in one opinion)
Argued January 30—officially released October 7, 2025
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State v. Sharpe
Procedural History
Substitute information charging the defendant with
eight counts of the crime of kidnapping in the first
degree, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before D’Addabbo, J.; verdict and judgment of guilty, from which
the defendant appealed to this court. Affirmed.
Hope J. Estrella, deputy assistant public defender,
for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Sharmese Hodge, state’s
attorney, and John Fahey, supervisory assistant state’s
attorney, for the appellee (state).
Abigail H. Mason and Vishal Garg filed a brief for
the Connecticut Criminal Defense Lawyers Association
as amicus curiae.
Opinion
McDONALD, J. This appeal requires us to determine,
among other things, whether the police may, without
a warrant, collect DNA found on lawfully obtained items
and analyze the DNA for identification purposes. The
defendant, Michael Sharpe, appeals from the judgment
of conviction, rendered after a jury trial, of eight counts
of kidnapping in the first degree. He claims that the
extraction and testing of his DNA from a belt the police
lawfully retrieved from his trash constituted an unreasonable search and seizure that violated his right to
privacy under the fourth amendment to the United
States constitution and article first, § 7, of the Connecticut constitution. He further claims that the trial court’s
use of a flowchart as a guide to its lengthy instructions
misled the jury because it omitted the factors this court
articulated in State v. Salamon, 287 Conn. 509, 548,
949
A.2d 1092 (2008). We disagree and affirm the trial court’s
judgment of conviction.
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State v. Sharpe
The facts presented to the jury demonstrate that, in
June, 1984, Jane Doe 11 was awakened in her Bloomfield
apartment sometime after midnight to a man sitting on
her bed. Because it was dark, Jane Doe 1 could see
only the silhouette of a person whose face was covered
with what appeared to be a stocking. The man told her
that he had a gun and was hiding from the police
because he had shot someone. He then blindfolded her
and left the room for approximately ten to fifteen
minutes. After returning, the man tied Jane Doe 1’s
hands, put a gun to her head, and sexually assaulted
her. The man told her not to leave her room for thirty
minutes or to call the police. He took a few items and
left. Jane Doe 1 called the police to report the sexual
assault. After investigating the crime scene, the police
seized a bedsheet from Jane Doe 1’s apartment and
submitted it to the Connecticut State Police Forensic
Science Laboratory (forensic science laboratory) for
testing.
Over the next two months, the police received additional reports from three women who lived in Middletown, Windsor, and Rocky Hill, respectively. Each
woman recounted a similar sequence of events: a man
had awakened her during the night, told her that he
was fleeing the police because he had shot someone
or had committed a crime, threatened her with a gun,
blindfolded her, and restrained her. The man then
searched for money or other valuable items in each
woman’s apartment sometime before or after sexually
assaulting her. The man asked two of the women
whether they had any food and appeared to help himself
to a meal in their kitchens before leaving. Because the
assaults occurred during the night, the women could
not provide identifying characteristics beyond the
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
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State v. Sharpe
man’s hair texture, the tone of his voice, and what felt
like scars on the man’s stomach and near his shoulder.
Police detectives also collected items from the women’s
apartments and delivered them to the state forensic laboratory.
The state forensic laboratory later analyzed the items
collected from each crime scene. The results revealed
the presence of semen on Jane Doe 1’s bedsheet, Jane
Doe 2’s bath towel, Jane Doe 3’s washcloth, and Jane
Doe 4’s bedsheet. The test also detected amylase, an
enzyme found in human saliva, on a mask recovered
from Jane Doe 3’s apartment. Because DNA testing was
not fully developed or widespread in 1984, the state
forensic laboratory was unable to conduct such testing
on any of the items at that time.
By 2003, the state forensic laboratory had begun to
conduct DNA testing. As a result of this development,
the laboratory extracted and tested DNA from the items
that investigators had collected from the women’s
apartments years earlier. After creating a DNA profile
for each sample, the laboratory uploaded the DNA profiles to the Combined DNA Index System (CODIS).2
Based on its CODIS search and subsequent analysis, the
laboratory concluded that all four of the DNA samples
likely came from the same male source.3
In 2020, a private forensic investigation company provided the cold case unit of the Office of the Chief State’s
2
CODIS is a searchable statewide index, linked to a federal index, that
‘‘contains DNA profiles from unsolved crimes and compares them to known
samples from convicted felons that are periodically added to the database.’’
State v. Rodriguez, 337 Conn. 175, 180 n.2,
252 A.3d 811 (2020).
3
Based on this information, the police obtained a John Doe arrest warrant
in 2003 in connection with the four sexual assaults that occurred in 1984.
The warrant was vacated in 2004, when the twenty year statute of limitations
for sexual assault crimes had expired. Later that year, the police obtained
another John Doe arrest warrant for kidnapping, for which there is no
statute of limitations. See General Statutes § 54-193 (a) (1) (A). The warrant
for the kidnapping charges remained in effect until 2021.
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State v. Sharpe
Attorney two ‘‘investigative leads’’ based on the DNA
profiles the state forensic laboratory had developed in
2003.4 Specifically, the company recommended that the
cold case unit obtain DNA samples from two brothers
who were identified as possible matches to the DNA
from the crime scenes. In order to obtain a DNA sample
from the first lead, the cold case unit supervisory
inspector, Michael Sheldon, instructed an investigative
team to knock on the first lead’s door and request that
he sign a fictitious petition with a sterilized pen. To
obtain the second lead’s DNA, Sheldon’s team retrieved
a cigarette that the second lead discarded while driving.
The state forensic laboratory tested the DNA it had
extracted from the pen and cigarette. Based on the
results, the laboratory eliminated the first two leads as
contributors to the DNA profiles that were generated
from the items that were found at the four crime scenes.
The company subsequently provided two additional
leads to the cold case unit, the defendant and his
brother. Sheldon’s team first obtained a DNA sample
from the defendant’s brother by having him sign a fictitious form. The state forensic laboratory’s DNA testing
eliminated him as a suspect. To obtain a DNA sample
from the defendant, Sheldon contacted the local trash
collection company that serviced the defendant’s house,
where the defendant’s daughter and son-in-law also
lived. After picking up trash from the defendant’s trash
4
The cold case unit of the Office of the Chief State’s Attorney sent the DNA
profile created in 2003 to Bode Technology, a private forensic investigative
company. Bode Technology utilized single nucleotide polymorphism (SNP)
testing to create a DNA profile, which was entered into GEDmatch, a commercial genealogical database. With the use of GEDmatch, Bode Technology
was able to create a family tree that identified the investigative leads that
it provided to the state in 2020. Prior to trial, the state and the defendant
agreed that the state would not identify Bode Technology or present witnesses from Bode Technology to testify about the forensic methods it had
used to identify the leads or the results of its findings. The defendant does
not argue that the state’s act of contracting with a third party to conduct
SNP testing violated the fourth amendment.
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State v. Sharpe
cans in front of his house, the trash company delivered
it to the police barracks. Detectives inventoried items
from the trash, including two belts, a fork, a medical
auto-injector pen, and a catheter, believing they belonged
to the defendant. The state forensic laboratory then
extracted DNA from one of the belts, conducted short
tandem repeat (STR) analysis on the DNA, and compared the genetic markers sequenced from the DNA
extracted from the belt to the genetic profiles that were
generated from the items that were retrieved from the
crime scenes.5 The state forensic laboratory determined
that the DNA extracted from the belt was included as
a contributor to one of the unknown profiles. For each
lead the police investigated, including the defendant,
they acted without a search warrant.
Based on the test results, Sheldon obtained a search
warrant and collected a confirmatory sample of the
defendant’s DNA. The state forensic laboratory compared the confirmatory DNA sample to the DNA profiles
created from the four crime scene items. It determined
that the DNA profiles that were generated from the
items collected from the Middletown, Windsor, and
Rocky Hill crime scenes were consistent with the defendant being the source of the DNA and concluded that
‘‘[t]he expected frequency of individuals who could be
the source of the DNA profile[s] from those three forensic items is less than one in seven billion in the general
A forensic science examiner testified that the state forensic laboratory
5
used combined testing kits called ‘‘Profiler Plus and COfiler’’ to analyze the
DNA extracted from the belt. She further testified that these testing kits
were capable of analyzing thirteen STR loci. After testing and sequencing
a DNA sample, analysts can determine the frequency of genetic sequences
unique to an individual. Based on the profile analysts develop, they can
compare it to different DNA samples to identify the likelihood that the DNA
profile from one DNA sample matches another DNA sample. In this case,
the state forensic laboratory compared the DNA profile from the belt to
one of the unknown DNA profiles that was generated from one of the four
crime scene items to determine that the defendant’s DNA was consistent
with being the source of the DNA from that crime scene item.
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State v. Sharpe
population.’’ For the Bloomfield DNA profile, the state
forensic laboratory could not eliminate the defendant
as a contributor and concluded that ‘‘the expected frequency of individuals who cannot be eliminated as a
contributor to the DNA profile was approximately . . .
one in 7.3 million in the general population.’’ The police
arrested the defendant that day.
The state charged the defendant with eight counts
of kidnapping in the first degree: four counts in violation
of General Statutes § 53a-92 (a) (2) (A) for ‘‘abduct[ing]
another person and . . . restrain[ing] the person
abducted with intent to . . . violate or abuse [her] sexually,’’ and four counts in violation of § 53a-92 (a) (2)
(B) for ‘‘abduct[ing] another person and . . .
restrain[ing] the person abducted with intent to . . .
accomplish or advance the commission of a felony
. . . .’’ After approximately one week of trial, the trial
court provided lengthy instructions to the jury. To aid
the jury, the court created a one page flowchart that
outlined the elements of the kidnapping charges. The
flowchart did not refer to or include the factors from
State v. Salamon, supra,287 Conn. 548, that jurors
should consider in a kidnapping case when determining
whether ‘‘the movement or confinement of the victim
is merely incidental to and necessary for another crime
. . . .’’ Id., 547. Over defense counsel’s objection, the
court provided the flowchart to the jury. The court
reasoned that the flowchart would not mislead the jury
because the Salamon factors were included in the jury
instructions, and it would inform the jury that the flowchart was not a substitute for its instructions. The jury
found the defendant guilty on all charges. The defendant
was sentenced to a total effective sentence of seventytwo years of incarceration. Additional facts and procedural history will be set forth as necessary.
On appeal, the defendant contends that the warrantless collection and analysis of DNA from his dis-
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State v. Sharpe
carded belt violated his right to privacy under the
federal and state constitutions. He also argues that the
trial court’s use of the flowchart misled the jury on
the kidnapping charges. We disagree and affirm the
judgment of conviction.
I
We first consider the defendant’s unpreserved claim
that the warrantless collection and analysis of DNA
from his discarded belt violated his fourth amendment
right to privacy.6 Two distinct issues are presented: (1)
whether the defendant had a reasonable expectation
of privacy in the biological material containing DNA
that was shed onto his discarded belt, such that the
police needed to obtain a warrant before they could
collect such material; and (2) whether the defendant
had a reasonable expectation of privacy in the identifying characteristics encoded within his DNA, such that
the police needed to obtain a warrant before the DNA
was analyzed solely for identification purposes. We
address the defendant’s federal constitutional claim
prior to his state constitutional claim because ‘‘we can
predict to a reasonable degree of certainty how the
6
The defendant concedes that he did not preserve this constitutional
claim and seeks review under State v. Golding, 213 Conn. 233, 239–40,
567
A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781,
120
A.3d 1188 (2015). The state agrees with the defendant that the first two
prongs of Golding are satisfied and that this court may proceed to the
merits of the defendant’s claim. We agree. Accordingly, we review this claim
pursuant to Golding, under which ‘‘a defendant can prevail on a claim of
constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of
error; (2) the claim is of constitutional magnitude alleging the violation of
a fundamental right; (3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Holley, 327 Conn. 576, 590 n.8,
175 A.3d 514 (2018); see State v.
Golding, supra, 239–40; see also In re
Yasiel R., supra, 781 (modifying third prong of Golding).
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State v. Sharpe
United States Supreme Court would resolve the issue’’;
State v. Purcell, 331 Conn. 318, 334 n.11,
203 A.3d 542
(2019); and it is more efficient to address the defendant’s claim under the federal constitution first. See,
e.g., State v. Taupier, 330 Conn. 149, 166 n.14,
193 A.3d 1
(2018) (concluding that it was more efficient to address
federal claim first because review of federal precedent
would be necessary under state constitutional framework set forth in State v. Geisler, 222 Conn. 672, 684–85,
610 A.2d 1225 (1992)), cert. denied,
586 U.S. 1148,
139
S. Ct. 1188,
203 L. Ed. 2d 202 (2019). We conclude
that the collection of the defendant’s DNA from his
discarded belt, which was in the police’s lawful possession, and the subsequent analysis of that DNA solely
for identification purposes did not constitute searches
under the fourth amendment.7
We begin with the guiding legal principles applicable
to both issues. The fourth amendment to the United
States constitution 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.
A fourth amendment search occurs either when the
government ‘‘engage[s] in [a] physical intrusion of a
constitutionally protected area’’; (internal quotation
marks omitted) United States v. Jones, 565 U.S. 400,
407,
132 S. Ct. 945,
181 L. Ed. 2d 911 (2012); or ‘‘when
an expectation of privacy that society is prepared to
consider reasonable is infringed.’’ United States v.
Jacobsen, 466 U.S. 109, 113,
104 S. Ct. 1652,
80 L. Ed.
2d 85 (1984); see also, e.g., Katz v. United States,
389
U.S. 347, 361,
88 S. Ct. 507,
19 L. Ed. 2d 576 (1967)
(Harlan, J., concurring).
7
The term ‘‘collection’’ refers to the forensic process of physically retrieving samples of biological material from the item or location under investigation. ‘‘Analysis’’ refers to the subsequent forensic processes used to generate
a DNA profile from the sample collected. See generally J. Butler, Fundamentals of Forensic DNA Typing (Academic Press 2010).
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State v. Sharpe
To determine whether a defendant’s expectation of
privacy was reasonable in nontrespassory contexts, federal courts ordinarily follow the test that Justice John
Marshall Harlan articulated in his concurring opinion
in Katz v. United States, supra, 389 U.S. 361 (Harlan,
J., concurring). See, e.g., United States v. Harry, 130
F.4th 342, 347 (2d Cir. 2025). ‘‘The Katz test has both
a subjective and an objective prong: (1) whether the
[person contesting the search] manifested a subjective
expectation of privacy with respect to [the subject of
the search]; and (2) whether that expectation [is] one
that society would consider reasonable. . . . This
determination is made on a case-by-case basis. . . .
The burden of proving the existence of a reasonable
expectation of privacy rests [with] the defendant.’’
(Internal quotation marks omitted.) State v. Jacques,
332 Conn. 271, 279,
210 A.3d 533 (2019); see, e.g., California v. Ciraolo,
476 U.S. 207, 211–12,
106 S. Ct. 1809,
90 L. Ed. 2d 210 (1986).
A
Collection of the Defendant’s DNA from the
Discarded Belt
The defendant first claims that, even though the
police may have been in lawful possession of his discarded belt, he maintained a reasonable expectation of
privacy in the DNA on the belt, and the collection of
his DNA from the belt constituted a search under the
fourth amendment. The defendant argues that the first
prong of the Katz test is inapt when applied to DNA
collection under these circumstances. He contends that
the record suggests that his DNA transferred to his
belt simply because he touched it, and, because people
routinely shed material containing DNA without conscious awareness, we should not force our analysis of
the defendant’s subjective expectation regarding his
DNA into the Katz framework or conclude that he aban-
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State v. Sharpe
doned his reasonable expectation of privacy in his DNA.
See, e.g., State v. Dawson, 340 Conn. 136, 153,
263 A.3d
779 (2021) (‘‘DNA . . . can be left behind through primary transfer, secondary transfer, or aerosolization
. . . [and] ‘touch’ transfer occurs, for example, when
you directly touch or pick up an object’’). The state
argues that, once the defendant had disposed of his
belt, with his DNA on it, and had left it on the curb, he
abandoned any expectation of privacy in the belt and
the DNA on it. Therefore, the subsequent warrantless
collection of that DNA, the state argues, did not violate
the defendant’s fourth amendment rights. We conclude
that the collection of the defendant’s DNA from his discarded belt, separate and apart from the analysis of his
DNA, did not constitute a fourth amendment search.
We begin with the legal principles that are relevant
to this issue. ‘‘The [f]ourth [a]mendment proscribes all
unreasonable searches and seizures, and it is a cardinal
principle that searches conducted outside the judicial
process, without prior approval by [a] judge or magistrate, are per se unreasonable under the [f]ourth [a]mendment—subject only to a few specifically established
and [well delineated] exceptions.’’ (Internal quotation
marks omitted.) Mincey v. Arizona, 437 U.S. 385, 390,
98 S. Ct. 2408,
57 L. Ed. 2d 290 (1978). Relevant to the
present case, the proper inquiry is whether, pursuant
to the Katz framework, ‘‘the person claiming the protection of the [f]ourth [a]mendment has a legitimate expectation of privacy in the invaded place.’’ (Internal
quotation marks omitted.) State v. Mooney, 218 Conn.
85, 107,
588 A.2d 145, cert. denied,
502 U.S. 919,
112 S.
Ct. 330,
116 L. Ed. 2d 270 (1991). This point is critical
to our analysis because the defendant raises two separate and distinct arguments on appeal, which are that
he maintained a reasonable expectation of privacy in
(1) his DNA, as a physical substance, on his discarded
belt, such that a warrant was required to collect the
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State v. Sharpe
DNA, and (2) the information encoded within the physical DNA that was collected. We analyze each issue
separately because, even if the defendant had relinquished a reasonable expectation of privacy in the physical collection of his DNA, as we conclude, that does not
necessarily mean that he had relinquished a reasonable
expectation of privacy with respect to all the information encoded therein.
In the present case, it is undisputed that the defendant
did not have a reasonable expectation of privacy in his
belt because he had discarded it in the trash. See, e.g.,
California v. Greenwood, 486 U.S. 35, 40–42,
108 S. Ct.
1625,
100 L. Ed. 2d 30 (1988) (concluding that individual
did not have objectively reasonable expectation of privacy in trash placed on curb). Once the defendant relinquished a reasonable expectation of privacy in the belt,
and it came into the lawful possession of the police,
however, it was swabbed to collect DNA. The threshold
question, therefore, is whether the collection of the
defendant’s DNA from the discarded belt, which was
in the lawful possession of the police, constituted a
fourth amendment search. We utilize the Katz framework to answer this question.
Under Katz, we must first determine whether the
defendant had a subjective expectation of privacy in
the DNA on the discarded belt and whether that is an
expectation society would recognize as reasonable. See,
e.g., State v. Jacques, supra,332 Conn. 279. Even if we
assume that the defendant had a subjective expectation
of privacy in the material he involuntarily or inadvertently shed onto the belt, we conclude that society
would not recognize such an expectation as reasonable.
See, e.g., State v. DeFusco, 224 Conn. 627, 633 n.9,
620
A.2d 746 (1993) (determination of ‘‘whether the defendant possessed a subjective expectation of privacy . . .
[was] unnecessary to the resolution of [the] case in
light of [this court’s] conclusion that the defendant ha[d]
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State v. Sharpe
not satisfied the second part of the Katz test’’). First,
the object that is being swabbed is the discarded belt,
in which the defendant has no expectation of privacy.
Second, although we agree with the defendant that people can do very little—if anything at all—to completely
prevent certain materials that contain DNA from shedding; see, e.g., State v. Dawson, supra, 340 Conn. 153
(‘‘DNA . . . can be left behind through primary transfer, secondary transfer, or aerosolization . . . [and]
‘touch’ transfer occurs, for example, when you directly
touch or pick up an object’’); it is equally true that this
fact is commonly known amongst the public. As some
courts and scholars have recognized, society is generally aware that people shed biological materials that
the police may later use for the purpose of identifying
a suspect, whether fingerprints or other materials that
contain DNA. See, e.g., People v. Gallego, 190 Cal. App.
4th 388, 396–97,
117 Cal. Rptr. 3d 907 (2010), review
denied, California Supreme Court, Docket No. S189452
(March 16, 2011); Raynor v. State, 440 Md. 71, 94 n.12,
99 A.3d 753 (2014), cert. denied,
574 U.S. 1192,
135 S.
Ct. 1509,
191 L. Ed. 2d 433 (2015); L. Matejik, ‘‘DNA
Sampling: Privacy and Police Investigation in a Suspect
Society,’’ 61 Ark. L. Rev. 53, 78 (2008).
It is no secret, therefore, that, when an individual
discards a clothing accessory, DNA may be on that
accessory and be available for collection. Indeed, many
courts have concluded that, once an individual discards
an item, he or she no longer maintains a reasonable
expectation of privacy in the item or the DNA available
for collection from that item.8 See, e.g., United States
8
We recognize that some of these cases suggest that, once an individual
no longer maintains a reasonable expectation of privacy in the discarded
item, that person no longer has a reasonable expectation of privacy in his
or her DNA and all of the information encoded therein. These cases, however,
did not consider whether, aside from identifying characteristics encoded in
DNA, an individual may maintain a reasonable expectation of privacy in all
of the other genetic information encoded therein. Cf. State v. Carbo, 6
N.W.3d 114, 131 (Minn. 2024) (Procaccini, J., concurring) (explaining that
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State v. Sharpe
v. Hicks, Docket No. 2:18-cr-20406-JTF-7, 2020 WL
7311607, *2 (W.D. Tenn. December 11, 2020) (concluding that defendant ‘‘surrendered any expectation of privacy he had in the DNA profile that could be extracted’’
from cigarette butt he had discarded); United States
v. Scott, Docket No. 10-00027-01-CR-W-ODS, 2011 WL
5387601, *6 (W.D. Mo. October 3, 2011) (explaining that
DNA obtained from defendant’s cup should not be suppressed because analysis of abandoned property is not
fourth amendment search); State v. Burns, 988 N.W.2d
352, 361–64 (Iowa) (explaining that, when defendant
had left straw at restaurant, he no longer had reasonable
expectation of privacy in straw or DNA on straw), cert.
denied, U.S. , 144 S. Ct. 288,
217 L. Ed. 2d 132
(2023); McCurley v. State, 653 S.W.3d 477, 490–91 (Tex.
App. 2022, pet. ref’d) (concluding that defendant had
abandoned his trash, so he had no standing to contest
subsequent analysis of DNA found therein); State v.
Vannieuwenhoven, 412 Wis. 2d 33, 54, 8 N.W.3d 63
(App.) (concluding that defendant did not have reasonable expectation of privacy in DNA profile after voluntarily giving envelope and its contents, including saliva,
to law enforcement), review denied, 15 N.W.3d 27 (Wis.
2024); see also, e.g., Raynor v. State, supra, 440 Md.
74, 81–82 (explaining that defense counsel had conceded that warrantless swabbing of involuntarily shed
biological material was lawful); State v. Westrom, 6
N.W.3d 145, 153–54 (Minn.) (operating on assumption,
although not explicitly, that collection of biological
material from discarded napkin was lawful), cert.
denied, U.S. , 145 S. Ct. 418,
220 L. Ed. 2d 172
(2024).
individual’s abandonment of physical evidence does not necessarily mean
that that individual abandoned expectation of privacy in deeply sensitive
and personal information found in that physical evidence). For this reason,
we rely on these cases only to the extent that they support the proposition
that law enforcement can lawfully collect biological material from discarded
items without a warrant. Our conclusion is not inconsistent with these cases
but, rather, is simply narrower.
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Accordingly, we conclude that the collection of DNA
from the defendant’s discarded belt was not a search
under the fourth amendment.9
B
Analysis of the Lawfully Collected DNA
The defendant alternatively claims that, even if the
police lawfully collected his DNA from the belt, the
subsequent warrantless analysis of his DNA, even if
solely for identification purposes, constituted a search
under the fourth amendment. We disagree. For the reasons that follow, we conclude that, when the police
analyze a person’s DNA that was collected from a discarded item that is in the lawful possession of the police,
that person does not have a reasonable expectation of
privacy in the identifying information encoded in his
or her DNA. Because the police in the present case
analyzed the defendant’s DNA only for identification
purposes and used technology that was capable of testing only for that purpose, such analysis did not constitute a search under the fourth amendment.
We utilize the Katz framework to determine whether
the analysis of the defendant’s DNA only for identification purposes constituted a search. As we previously
explained in this opinion, under the Katz framework,
we must ask ‘‘whether the [person contesting the search]
manifested a subjective expectation of privacy with
respect to [the subject of the search]’’ and ‘‘whether
that expectation [is] one that society would consider
9
If an individual had a reasonable expectation of privacy in the biological
materials involuntarily or inadvertently shed on items discarded, then the
police would need to obtain a warrant before they could lift or collect such
materials at a crime scene, or at a public location, to comply with the fourth
amendment. The United States Supreme Court has never indicated that such
practice is required by the United States constitution. See, e.g., Raynor v.
State, supra, 440 Md. 85, 87 (testing of fingerprints left unknowingly on
surfaces in public places does not implicate protections of fourth
amendment).
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reasonable.’’ (Internal quotation marks omitted.) State
v. Jacques, supra,332 Conn. 279; see, e.g., California
v. Ciraolo, supra, 476 U.S. 211–12. Even if we assume
that the defendant had a subjective expectation of privacy in the identifying characteristics encoded in his
DNA; see, e.g., State v. DeFusco, supra,224 Conn. 633
n.9; we can predict with a reasonable degree of certainty
that the United States Supreme Court would conclude
that the testing of the defendant’s DNA, collected from
a discarded item in the police’s lawful possession, for
identification purposes only, did not constitute a fourth
amendment search because the defendant did not maintain an objectively reasonable expectation of privacy
in his identifying characteristics encoded therein.
The United States Supreme Court’s reasoning in
Maryland v. King, 569 U.S. 435,
133 S. Ct. 1958,
186 L.
Ed. 2d 1 (2013), gives us ‘‘a reasonable degree of certainty how [it] would resolve the issue . . . .’’ State v.
Purcell, supra,331 Conn. 334 n.11. In King, the court
considered whether taking a buccal swab from the
defendant and testing his DNA, without a warrant, as
part of routine police booking procedures pursuant to
the Maryland DNA Collection Act, violated the fourth
amendment.10 See Maryland v. King, supra, 440–41.
Although the court determined that swabbing the interior of the defendant’s cheek to collect DNA was a
search, it also concluded that the search was reasonable
under the fourth amendment. See id., 446, 465–66. The
court separately noted that the STR analysis used to test
the defendant’s DNA ‘‘did not amount to a significant
invasion of privacy that would render the DNA identification impermissible under the [f]ourth [a]mendment.’’
10
The United States Supreme Court explained that this ‘‘[a]ct authorizes
Maryland law enforcement authorities to collect DNA samples from ‘an
individual who is charged with . . . a crime of violence or an attempt to
commit a crime of violence; or . . . burglary or an attempt to commit
burglary.’ ’’ Maryland v. King, supra,569 U.S. 443.
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Id., 465. This conclusion, and other aspects of the
court’s analysis revealing its attitude toward STR testing, allows us to predict that it would conclude that
STR testing of an individual’s DNA that was collected
from a discarded item in the police’s lawful possession,
for identification purposes only, does not constitute a
fourth amendment search.
We begin with the court’s discussion in King on the
limited nature of STR testing. The court explained that
STRs are the ‘‘repeated DNA sequences scattered
throughout the human genome . . . .’’ (Internal quotation marks omitted.) Id., 443. ‘‘The alternative possibilities for the size and frequency of these STRs at any
given point along a strand of DNA are known as ‘alleles’
. . . and multiple alleles are analyzed in order to ensure
that a DNA profile matches only one individual.’’ (Citation omitted.) Id. This method of testing, the court
noted, has become nationally standardized though the
creation of the CODIS database. See id., 444–45. The
profiles in this database are ‘‘based on [thirteen] loci
at which the STR alleles are noted and compared.’’
Id., 445. These loci come from the nonprotein coding
regions of DNA that do ‘‘not show more far-reaching
and complex characteristics like genetic traits’’ and that
are useful only for identification purposes. Id., 442–43.
After providing this general background on STR testing, the court in King turned to the central issue in that
case: whether the use of a warrantless buccal swab to
take a DNA sample pursuant to the Maryland DNA
Collection Act was impermissible under the fourth amendment. See id., 446. Although the buccal swab collection
constituted a search; id.; the court did not apply the
Katz reasonable expectation of privacy framework.
Instead, it analyzed the constitutionality of the search
by balancing the individual’s privacy interests against
the legitimate interests of law enforcement. See id., 448.
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Throughout its analysis, the court compared DNA
identification to fingerprinting and photographic identification. See id., 451–52, 456–61. It observed that ‘‘the
only difference between DNA analysis and the accepted
use of fingerprint databases is the unparalleled accuracy DNA provides.’’ Id., 451. It further explained that,
‘‘[l]ike a fingerprint, the [thirteen] CODIS loci are not
themselves evidence of any particular crime . . . . A
DNA 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 [from] matching an
arrestee’s face to a wanted poster of a previously
unidentified suspect . . . or matching the arrestee’s
fingerprints to those recovered from a crime scene.’’
Id. With respect to STR testing and privacy interests,
the court emphasized that ‘‘[t]he additional intrusion
[on an] arrestee’s privacy beyond that associated with
fingerprinting is not significant’’; (emphasis added) id.,
459; and observed that the use of STR testing ‘‘is no
more than an extension of methods of identification
long used in dealing with persons under arrest.’’ (Internal quotation marks omitted.) Id., 461. The court ultimately concluded that the use of a buccal swab was
not an unreasonable search. See id., 461–64.
After reaching this conclusion, the court separately
addressed whether ‘‘the processing of [the defendant’s]
DNA sample’s [thirteen] CODIS loci’’ intruded on his
‘‘privacy in a way that would make his DNA identification unconstitutional.’’ Id., 464. The court acknowledged that the inquiry may change as science progresses
but observed that the ‘‘alleles at the CODIS loci are not
at present revealing information beyond identification.’’
(Internal quotation marks omitted.) Id. It further
observed that, even if those alleles could reveal more
information, it is notable that ‘‘they are not in fact tested
for that end.’’ Id. Importantly, the court noted that, ‘‘[i]f
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State v. Sharpe
in the future [the] police analyze samples to determine,
for instance, an arrestee’s predisposition for a particular
disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here.’’ Id., 464–65. The court then
considered certain aspects of the Maryland DNA Collection Act that further limited any privacy concerns,
namely, that no testing purpose other than identification was permissible under the act. See id., 465. It concluded that, ‘‘[i]n light of the scientific and statutory
safeguards, once [the defendant’s] DNA was lawfully
collected the STR analysis of [the defendant’s] DNA
pursuant to CODIS procedures did not amount to a
significant invasion of privacy that would render the
DNA identification impermissible under the [f]ourth
[a]mendment.’’11 Id.
Taken together, we glean that STR analysis of DNA
that has been collected from a discarded item in the
police’s lawful possession, for identification purposes
only, does not constitute a fourth amendment search.
See, e.g., Raynor v. State, supra, 440 Md. 81–82, 96
(concluding that, when DNA sample is in police’s lawful
possession, testing of thirteen identifying loci is not
search for fourth amendment purposes); State v. Wes-
11
Although we interpret this statement to support the conclusion that
STR testing of DNA for identification purposes only does not constitute a
search under the fourth amendment, we recognize that there is an alternative
interpretation of this statement. Compare State v. Westrom, supra, 6 N.W.3d
153–55 (concluding that analysis of DNA is not search), with People v.
Moreaux, 76 Misc. 3d 976, 993,
174 N.Y.S.3d 237 (2022) (concluding that
analysis of DNA is not unreasonable search). The court in King could have
meant that STR analysis of an arrestee’s DNA does constitute a fourth
amendment search, albeit a reasonable one. We decline to adopt the latter
interpretation. We think that the fourth amendment reasonableness test
employed in King likely applies only in the custodial context and to the
question of whether the bodily intrusion (the swabbing) to collect the DNA
was reasonable, not to whether STR testing is a search under the fourth
amendment. See United States v. Hasbajrami, Docket No. 1:11-cr-623
(LDH), 2025 WL 447498, *6 (E.D.N.Y. February 10, 2025), appeal filed (2d
Cir. March 10, 2025) (No. 25-542).
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trom, supra, 6 N.W.3d 153–55 (concluding that STR
test of DNA sample in lawful possession of police, for
identification purposes only, was not search); see also,
e.g., Commonwealth v. Arzola, 470 Mass. 809, 820,
26
N.E.3d 185 (2015) (explaining that, when lawfully
obtained DNA sample is analyzed for identification purposes only, that analysis is not search in constitutional
sense), cert. denied, 577 U.S. 1061,
136 S. Ct. 792,
193
L. Ed. 2d 709 (2016). Although we acknowledge that
certain aspects of the King analysis are specific to the
custodial status of the defendant in that case, the United
States Supreme Court’s discussion of STR testing and
its limited nature, as well as the minimal privacy interest
in the information encoded within the thirteen CODIS
loci, was not unique to that context. Our conclusion is
also consistent with Supreme Court jurisprudence that
has held that individuals do not have an objectively
reasonable expectation of privacy in certain identifying
characteristics. See, e.g., United States v. Dionisio, 410
U.S. 1, 14–15,
93 S. Ct. 764,
35 L. Ed. 2d 67 (1973)
(concluding that directive to provide voice exemplar
was not search and recognizing that individuals do not
maintain reasonable expectation of privacy in certain
physical characteristics associated with identity, including
facial features and fingerprints, due to constant exposure to public); see also, e.g., Maryland v. King, supra,569 U.S. 477 (Scalia, J., dissenting) (suggesting that
individuals do not have reasonable expectation of privacy in facial or other bodily features captured in photograph).12
12
For this reason, we are not persuaded by the defendant’s argument
regarding United States v. Davis, 690 F.3d 226 (4th Cir. 2012), cert. denied,
571 U.S. 829,
134 S. Ct. 52,
187 L. Ed. 2d 47 (2013), in which the court held
that police testing of a reported crime victim’s DNA collected from lawfully
seized clothing violates that victim’s reasonable expectation of privacy in
his or her DNA. See id., 246. The defendant’s argument in the present
case rests on the assumption that ‘‘ ‘free person[s]’ ’’ have a reasonable
expectation of privacy in the identifying characteristics that are encoded
in their DNA. Id., 244–45. But we conclude that that assumption is incorrect
with regard to DNA testing for identification purposes.
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Here, the defendant does not claim that the state
tested his DNA for any purpose other than for identification. He argues, instead, that the state could have
learned more than his identity, including ‘‘the most personal and intricate details of [his] existence.’’ See, e.g.,
United States v. Amerson, 483 F.3d 73, 85 (2d Cir.)
(acknowledging ‘‘the vast amount of sensitive information that can be mined from a person’s DNA’’), cert.
denied, 552 U.S. 1042,
128 S. Ct. 646,
169 L. Ed. 2d 515
(2007). He contends that the distinction between what
the police test for and what they could potentially discover is ‘‘constitutional[ly] significan[t]’’ and compels
the conclusion that a constitutionally infirm search
occurred here. To support this proposition, the defendant primarily cites to cases involving police searches
of cell phones. See, e.g., Carpenter v. United States,
585 U.S. 296, 302, 311,
138 S. Ct. 2206,
201 L. Ed. 2d
507 (2018) (holding that government’s acquisition of
127 days of cell site location information without warrant was search that violated fourth amendment
because it might reveal ‘‘familial, political, professional,
religious, and sexual associations’’ (internal quotation
marks omitted)); Riley v. California, 573 U.S. 373, 379,
396–97, 401, 134 S. Ct. 2473,
189 L. Ed. 2d 430 (2014)
(holding that warrantless searches of cell phone that
was seized incident to lawful arrest violated fourth
amendment in part because cell phones contain ‘‘a
broad array of [potentially discoverable] private information’’); see also, e.g., Birchfield v. North Dakota, 579
U.S. 438, 463–64,
136 S. Ct. 2160,
195 L. Ed. 2d 560
(2016) (noting that blood alcohol tests implicate privacy
concerns in part because police could store blood samples and extract information beyond blood alcohol concentration).
We are not persuaded that a warrantless search of a
cell phone provides an appropriate analogy to DNA
testing of a sample collected from a discarded item. It
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is true that DNA samples, like cell phones, contain
private information. But the analogy ends there. A warrantless search of a cell phone differs in material respects
from the warrantless STR analysis of the defendant’s
DNA in this case. If the police search a defendant’s cell
phone without a warrant, nothing limits the police from
obtaining ‘‘a broad array of private information,’’ apart
from self-imposed constraints. Riley v. California, supra,
573 U.S. 397. That is, in the absence of a warrant, there
is no reliable safeguard precluding the police from
searching through an individual’s private information.
In contrast, when the state forensic laboratory tested
the defendant’s DNA in this case, the same concern of
learning private information was not present—the STR
analysis was not capable of revealing more than the
defendant’s identity. See, e.g., Maryland v. King, supra,569 U.S. 465 (describing STR analysis as ‘‘[a] scientific
. . . safeguard’’); see also, e.g., State v. Westrom, supra,
6 N.W.3d 153–55 (holding that defendant had no reasonable expectation of privacy when state conducted STR
DNA analysis capable only of revealing identity). The
laboratory used a specific DNA testing kit that allowed
state forensic analysts to ‘‘know in advance’’ what type
of information would be revealed. Kyllo v. United
States, 533 U.S. 27, 39,
121 S. Ct. 2038,
150 L. Ed. 2d 94
(2001). The privacy concern raised in Carpenter and Riley
about the police potentially discovering more information than they seek is therefore not present under the
facts of this case.
Accordingly, in the present case, we conclude that
the testing of the defendant’s DNA, which had been
collected from a discarded belt in the police’s lawful
possession, for identification purposes only, did not
constitute a search under the fourth amendment. Had
the DNA testing kit that the state forensic laboratory
used been capable of revealing more than the defendant’s identity—or had the test in fact revealed more
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State v. Sharpe
information—we would be confronted with additional
privacy concerns not implicated here. See Maryland v.
King, supra, 569 U.S. 464–65. As a result, we need not
decide whether a DNA testing kit that tests for information beyond identity would be constitutionally infirm
under the fourth amendment.13
We are also not persuaded by the defendant’s remaining
arguments that raise concerns about the state’s use of
technology and the privacy implications that future technological development may pose. Even if we assume
that the DNA testing kits the state forensic laboratory
used were not widely available to the public, as the
defendant contends, that would matter only for fourth
amendment purposes if the technology was capable
of revealing information in which an individual has a
reasonable expectation of privacy. See, e.g., Kyllo v.
United States, supra, 533 U.S. 34–40. Furthermore, even
if future technological advances in DNA testing allow
the police to gather information beyond identity from
the thirteen DNA loci that have historically been tested
as part of an STR analysis, those advances are not
implicated in this case. See, e.g., Maryland v. King,
supra,569 U.S. 464 (recognizing that technological ‘‘progressions may have [f]ourth [a]mendment consequences’’). In this case, we decide only whether the
defendant has a reasonable expectation of privacy in the
identifying characteristics in his DNA that was collected
from his discarded belt, which the police had lawfully
obtained. We conclude that he does not. Accordingly,
the warrantless STR analysis of the defendant’s DNA
for identification purposes only did not violate the
fourth amendment.
II
We next consider the defendant’s claim that the warrantless testing of his DNA, which was collected from
13
During oral argument, however, the prosecutor conceded that DNA
testing capable of revealing more than identifying characteristics would
require a warrant.
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his discarded belt while it was in the police’s lawful
possession, for identification purposes only, violated
his right to privacy under article first, § 7, of the Connecticut constitution. The defendant argues that the
factors set forth in State v. Geisler, supra, 222 Conn.
684–85, establish that article first, § 7, affords greater
protection under these circumstances than the fourth
amendment. We disagree.
To ‘‘determin[e] the contours of the protections provided by our state constitution, we employ a multifactor
approach that we first adopted in [Geisler].’’ (Internal
quotation marks omitted.) State v. Bemer, 339 Conn.
528, 555–56,
262 A.3d 1 (2021). The ‘‘six factors are (1)
persuasive relevant federal precedents, (2) the text of
the operative constitutional provisions, (3) historical
insights into the intent of our constitutional forebears,
(4) related Connecticut precedents, (5) persuasive precedents of other state courts, and (6) . . . relevant public policies.’’ State v. Patel, 342 Conn. 445, 466,
270 A.3d
627, cert. denied, U.S. ,
143 S. Ct. 216,
214 L.
Ed. 2d 86 (2022).
As our discussion in part I of this opinion demonstrates, the relevant federal precedents support the
state’s position. The defendant argues that the second
factor—the constitutional text—supports his position.
He correctly points out that this court in State v. Bemer,
supra, 339 Conn. 528, has concluded that, as a general
matter, ‘‘article first, § 7, is more protective of the privacy rights of our citizenry than the fourth amendment.’’
Id., 557; see, e.g., State v. Geisler, supra,222 Conn. 690
(in contrast to fourth amendment exclusionary rule,
‘‘article first, § 7 requires that evidence derived from
an unlawful warrantless entry into [a] home be excluded
unless the taint of the illegal entry is attenuated by the
passage of time or intervening circumstances’’); State
v. Marsala, 216 Conn. 150, 171,
579 A.2d 58 (1990)
(unlike fourth amendment exclusionary rule, ‘‘a good
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State v. Sharpe
faith exception . . . does not exist under [article first,
§ 7, of the state constitution]’’). But the analysis in
Bemer pertained to the fourth Geisler factor—relevant
Connecticut precedent—rather than the second factor.
Regarding the constitutional text itself, we have concluded that, because ‘‘article first, § 7 [of the state constitution] . . . is similar to the text of the fourth
amendment [to the federal constitution], that consideration alone provides no reason to depart from the interpretation of the federal constitution by the United States
Supreme Court.’’ State v. Bemer, supra, 556. Compare
U.S. Const., amend. IV (‘‘[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, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized’’), with Conn. Const., art. I,
§ 7 (‘‘[t]he people shall be secure in their persons, houses,
papers and possessions from unreasonable searches or
seizures; and no warrant to search any place, or to seize
any person or things, shall issue without describing
them as nearly as may be, nor without probable cause
supported by oath or affirmation’’). Despite the slight
linguistic differences between the two constitutional
provisions, we continue to agree with our prior case
law that the text of article first, § 7, of the Connecticut
constitution does not provide a basis to conclude that
that provision affords greater protection than the fourth
amendment to the federal constitution under these circumstances.
As to the third factor, the defendant argues that a
general concern for the ‘‘security of our body and limbs’’
expressed by Connecticut’s founding members indicates that they would not have tolerated warrantless
testing of DNA for identification purposes. 1 Z. Swift,
A System of the Laws of the State of Connecticut (1795)
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State v. Sharpe
p. 179; see also id., p. 177 (arguing that Connecticut
law recognizes ‘‘right of personal security,’’ which ‘‘consists in a man’s having the peaceable enjoyment of life,
limbs, body, health, and reputation’’). We are not persuaded that testing DNA that was collected from a discarded item implicates the right to the ‘‘security of our
body and limbs . . . .’’ Id., p. 179. Even if we assume
that it does, we do not think that ‘‘the historical circumstances surrounding the adoption of article first, § 7,’’
of the Connecticut constitution are particularly helpful
here because ‘‘the reasonable expectation of privacy
analysis is peculiarly focused on current conditions and
requires a factual inquiry into all the relevant circumstances of the search.’’ State v. DeFusco, supra,224
Conn. 635.
Regarding the fourth factor, the defendant contends
that our decision in State v. Joyce, 229 Conn. 10,
639
A.2d 1007 (1994), weighs in favor of his position that
article first, § 7, provides greater protection than its
federal counterpart in this context. We disagree. In
Joyce, an emergency medical technician had cut off the
defendant’s clothing and transported him to the hospital
so that he could be treated for severe burns. Id., 12–13.
The police lawfully retrieved the defendant’s discarded
clothing from the scene pursuant to their community
caretaking function. Id., 14. Once the defendant became
a suspect for arson, his discarded clothing was delivered to the state forensic laboratory for chemical testing. See id. Acting without a warrant, a forensic analyst
conducted a gas chromatography analysis, which detected
the presence of gasoline. See id., 14–15. But the analyst
also testified that the gas chromatography analysis used
was capable of revealing—and did reveal—the presence
of other ‘‘organic material in the defendant’s underwear
that was not an accelerant.’’ Id., 24 n.16. Because the
testing method indiscriminately detected this ‘‘organic
material’’ and, in doing so, ‘‘expos[ed] rather private
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State v. Sharpe
facts’’; id.; this court concluded that the warrantless
search violated article first, § 7, of the Connecticut constitution. See id., 24, 27.
In the present case, unlike in Joyce, the defendant
does not contest that the police lawfully obtained his
belt and concedes that he had no reasonable expectation of privacy in it. In addition, the state forensic laboratory used an STR DNA test, which—unlike the gas
chromatography analysis in Joyce—was capable of
revealing only the defendant’s identity. Accordingly, our
holding in Joyce does not support the conclusion that
article first, § 7, affords greater protection than the
fourth amendment under these circumstances.
The defendant also argues that, regardless of our
holding in Joyce, this court has expressed ‘‘a strong
policy in favor of warrants . . . .’’ (Internal quotation
marks omitted.) State v. Kono, 324 Conn. 80, 113,
152
A.3d 1 (2016). In Joyce, we concluded that, ‘‘[u]nder
the state constitution, all warrantless searches, [regardless of whether] the police have probable cause to believe
that a crime was committed, are per se unreasonable,
unless they fall within one of a few specifically established and well delineated exceptions to the warrant
requirement.’’ State v. Joyce, supra, 229 Conn. 24–25.
We continue to agree with the principles articulated in
Joyce and reiterate this state’s strong policy in favor of
a search warrant in situations in which the defendant
has a reasonable expectation of privacy in the subject
of a search, or in what the police could discover through
indiscriminate testing methods. But ‘‘[a] search . . .
occurs [only] when a reasonable expectation of privacy
is infringed.’’ (Internal quotation marks omitted.) Bozrah v. Chmurynski, 303 Conn. 676, 684,
36 A.3d 210
(2012); see also, e.g., State v. Houghtaling, 326 Conn.
330, 341,
163 A.3d 563 (2017), cert. denied,
584 U.S. 949,
138 S. Ct. 1593,
200 L. Ed. 2d 776 (2018). Accordingly,
the collection of the defendant’s DNA from his dis-
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carded belt, which was within the police’s lawful possession, and the subsequent testing of the DNA for
identification purposes only did not trigger our policy
preference for a warrant.
As to the fifth factor, state courts that have considered the question before us have uniformly concluded
that, under the fourth amendment, individuals have no
reasonable expectation of privacy in DNA that has been
collected from a discarded item in the police’s lawful
possession, so long as it is tested solely for identification
purposes. See, e.g., People v. Gallego, supra,190 Cal.
App. 4th 397 (testing of DNA collected from discarded
cigarette); State v. Burns, supra, 988 N.W.2d 364–65
(testing of DNA collected from discarded straw); Raynor
v. State, supra, 440 Md. 82, 85 (testing of DNA collected
from chair); State v. Westrom, supra, 6 N.W.3d 153–55
(testing of DNA collected from discarded napkin); State
v. Athan, 160 Wn. 2d 354, 373–74, 387,
158 P.3d 27 (2007)
(testing of DNA extracted from discarded saliva).14
Accordingly, we conclude that this factor militates in
the state’s favor.
Finally, with respect to Geisler’s sixth factor, the
defendant and the amicus, the Connecticut Criminal
Defense Lawyers Association, argue that public policy
supports affording greater protection under article first,
§ 7, of the Connecticut constitution. They claim that, if
this court concludes that Connecticut residents have
no right to privacy in their DNA, the police will have
unregulated discretion to test and store DNA for any
purpose. The defendant lists a parade of horrible outcomes that could occur, including the possibility that
the police would create a ‘‘racial genetic map’’ to ‘‘identify race-based genetic variation among sex offenders or
14
State courts that have considered whether individuals have a reasonable
expectation of privacy under their respective state constitutions have concluded that they do not. See, e.g., State v. Burns, supra, 988 N.W.2d 365;
State v. Athan, supra, 160 Wn. 2d 366–67, 372, 387.
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violent felons.’’ E. Joh, Essay, ‘‘Reclaiming ‘Abandoned’
DNA: The Fourth Amendment and Genetic Privacy,’’
100 Nw. U. L. Rev. 857, 878 (2006). The amicus also
contends that, if we do not recognize a right to privacy in
one’s DNA, ‘‘law enforcement can hold onto an isolated
DNA sample for as long as it deems necessary,’’ and
the indefinite retention of someone’s DNA profile would
violate the fourth amendment.
We agree with the state that the policy arguments of
the defendant and the amicus concern issues that are
not present in this case. We reiterate that the defendant
has not claimed that the STR analysis revealed anything
more than his identity, or that it was capable of doing
so. Nor did the defendant assert that the state’s storage
of his DNA violated the fourth amendment. The defendant also did not contend that the earlier, single nucleotide polymorphism (SNP) profile developed by Bode
Technology, which formed the basis of the state’s
investigative leads, violated the fourth amendment. See
footnote 4 of this opinion. Nonetheless, we acknowledge the arguments of the defendant and the amicus
that DNA testing could implicate significant privacy
concerns in other circumstances. Like the United States
Court of Appeals for the Second Circuit, ‘‘[w]e are mindful of the vast amount of sensitive information that can
be mined from a person’s DNA and the very strong
privacy interests that all individuals have in this information.’’ United States v. Amerson, supra,483 F.3d 85.
Nevertheless, because the DNA testing in this case did
not implicate those interests, we cannot conclude that
the defendant’s speculative policy concerns should
inform our analysis of whether he had a reasonable
expectation of privacy under the facts of this case.
Because the weight of the Geisler factors does not
compel this court to conclude that the state constitution
affords greater protection than the federal constitution
under these circumstances, we conclude that a search
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did not occur under article first, § 7, of the Connecticut
constitution. See, e.g., Maryland v. King, supra,569
U.S. 452 (reasoning that identifying characteristics in
DNA ‘‘function . . . the same’’ as ‘‘a name or fingerprint,’’ in which people have no reasonable expectation
of privacy).
We conclude that article first, § 7, of the Connecticut
constitution does not afford greater protection than the
fourth amendment to the United States constitution
under these circumstances. Accordingly, the testing of
the defendant’s DNA from the discarded belt for identification purposes did not violate his state constitutional
right because the state used an STR test capable of
revealing only his identity.
III
We next consider the defendant’s claim that the trial
court misled the jury by providing a flowchart as a
guide to its jury instructions because the chart omitted
the factors from State v. Salamon, supra,287 Conn.
548. The defendant contends that, as a result of the
omission, ‘‘the jurors could have found that the defendant [had] confined the [women], without ascertaining
if he [had] intended to restrain them in excess of what
was necessary to commit the other crimes: sexual
assault, burglary, and robbery.’’ The defendant further
contends that the state cannot show that the flowchart’s
omission was harmless beyond a reasonable doubt. The
state argues that the flowchart did not mislead the jury
because the trial court included the Salamon factors in
its instructions and informed the jury that the flowchart
was not a substitute for the instructions. The state further claims that, even if the flowchart itself was misleading, it was harmless beyond a reasonable doubt.
We agree with the state that the flowchart did not mislead the jury.
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The following additional facts and procedural history
are relevant to our analysis. Prior to closing arguments,
the trial court discussed the proposed jury instructions
with the parties. The court informed the parties that
the discussion of the Salamon factors began on page
58 of the proposed jury instructions. Defense counsel
did not object to that instruction. After giving the parties
one day to review the proposed instructions, the court
asked whether the parties ‘‘wish[ed] to bring [anything]
to the court’s attention.’’ Defense counsel replied ‘‘[n]o,
Your Honor.’’ After closing arguments, the court announced
that it planned to provide a flowchart to the jury to
outline the elements of the kidnapping charges. Defense
counsel objected, arguing that, although nothing in the
flowchart was inaccurate, it did not include the Salamon factors. The court offered to put them in, but
the prosecutor objected on the ground that the jury
instructions already included the Salamon factors.
After considering the parties’ arguments, the court
decided not to include the Salamon factors in the flowchart. The court reasoned that it would convolute the
flowchart, and it planned to inform the jury that it was
simply a ‘‘visual’’ guide and not a substitute for the
court’s instructions.
The trial court proceeded to read the 143 pages of
instructions to the jury. The court provided a full
description of the Salamon factors in its instruction on
the first count.15 The court incorporated its Salamon
15
The trial court provided the following instructions to the jury: ‘‘To
establish the defendant’s intent to prevent the liberation of [the complainant],
independent from the intent to violate or abuse her sexually, the state must
prove that the defendant intended to prevent the complainant’s liberation
for a longer time or to a greater degree than that which would be necessary
to sexually abuse her. In this regard, the defendant’s intent to prevent the
complainant’s liberation may be manifested by confinement or movement
that is more than merely incidental to the other intended acts. In other
words, if the confinement or movement is so much a part of the other
conduct that it could not be accomplished without such restraint, then
the requisite intent to prevent the complainant’s liberation has not been
established. There is, however, no minimal period of confinement or degree
of movement necessary to establish kidnapping.
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instruction by reference for each of the remaining
counts. The court later dismissed the jury for the evening. The court realized, however, that it ‘‘forgot’’ to provide the flowchart to the jury. When the jurors returned
the next day, the court distributed the flowchart to
them. The court informed them that the flowchart was
only an ‘‘aid’’ and that it ‘‘in no way replaces the instructions.’’ The court concluded its formal instructions by
informing the jurors that they ‘‘are to look to the instructions of law that [the court] give[s] [them] in order to
make [their] decision.’’
We begin with the standard of review and guiding
legal principles. In reviewing claims of instructional
error, it is well established that ‘‘we examine the [trial]
court’s entire charge to determine whether it is reasonably possible that the jury could have been misled
. . . . [I]ndividual jury instructions should not be
judged in artificial isolation, but must be viewed in the
context of the overall charge. . . . The pertinent test
is whether the charge, read in its entirety, fairly presents
the case to the jury in such a way that injustice is not
done to either party under the established rules of law.
. . . Thus, [t]he whole charge must be considered from
the standpoint of its effect on the [jurors] in guiding
them to the proper verdict . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. Ward, 306
Conn. 718, 747,
51 A.3d 970 (2012). We presume that
a jury follows the trial court’s instructions unless a
‘‘Whether the movement or confinement of the complainant is merely
incidental to other conduct is a question of fact for you to determine. In
determining this, you may consider all the relevant facts and circumstances
of the case, including, but not limited to, the following factors: the nature and
duration of the complainant’s movement or confinement by the defendant,
whether that movement or confinement occurred during the commission
of other conduct, whether the restraint was inherent in the nature of the other
conduct, whether the restraint prevented the complainant from summoning
assistance, whether the restraint reduced the defendant’s risk of detection,
and whether the restraint created a significant danger or increased the
complainant’s risk of harm independent of that posed by the other conduct.’’
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challenging party can show ‘‘that the jury failed or
declined’’ to do so. State v. Reynolds, 264 Conn. 1, 131,
836 A.2d 224 (2003), cert. denied,
541 U.S. 908,
124 S.
Ct. 1614,
158 L. Ed. 2d 254 (2004); see also, e.g., Hickey
v. Commissioner of Correction, 329 Conn. 605, 622–23,
188 A.3d 715 (2018).
In Salamon, we overruled our long-standing interpretation of this state’s kidnapping statutes, ‘‘under which
a person who restrains another person with the intent
to prevent that person’s liberation may be convicted of
kidnapping even though the restraint involved in the
kidnapping is merely incidental to the commission of
another offense perpetrated against the victim by the
accused.’’ State v. Salamon, supra,287 Conn. 513. We
did so to ensure that our case law reflected the legislative intent to replace the older, ‘‘broadly worded kidnapping provision with a gradated scheme that distinguishes
kidnappings from unlawful restraints by the presence
of an intent to prevent a victim’s liberation, intended
to exclude from the scope of the more serious crime
of kidnapping and its accompanying severe penalties
those confinements or movements of a victim that are
merely incidental to and necessary for the commission
of another crime against that victim. Stated otherwise,
to commit a kidnapping in conjunction with another
crime, a defendant must intend to prevent the victim’s
liberation for a longer period of time or to a greater
degree than that which is necessary to commit the other
crime.’’ Id., 542. Consistent with this understanding of
the statutory scheme, we identified six factors for juries
to consider: ‘‘the nature and duration of the victim’s
movement or confinement by the defendant, whether
that movement or confinement occurred during the
commission of the separate offense, whether the restraint
was inherent in the nature of the separate offense,
whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the
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defendant’s risk of detection and whether the restraint
created a significant danger or increased the victim’s
risk of harm independent of that posed by the separate
offense.’’ Id., 548.
The defendant concedes that the trial court included
the Salamon factors in its instructions to the jury but
argues that the jury was nonetheless misled because it
very likely relied on the one page flowchart, rather than
the instructions, in reaching its verdict. The defendant
contends that, because the trial court forgot to provide
the flowchart prior to reading the instructions, the flowchart no longer served its purpose when provided alongside the written instructions.
In support of this claim, the defendant cites State v.
Breton, 235 Conn. 206,
663 A.2d 1026 (1995). In Breton,
this court concluded that the trial court’s ambiguous
special verdict form and instructions to the jury on how
to complete the form were clearly flawed because they
allowed the court to impose the death penalty on the
defendant in accordance with the jury’s verdict of guilty
of capital felony, even if the jury did not unanimously
find that ‘‘the defendant failed to prove the existence
of each and every mitigating factor by a preponderance
of the evidence.’’ Id., 236–38; see also
id., 215. The defendant argues that the trial court here similarly created
an ambiguity for the jurors about whether they needed
to consult the Salamon factors at all because the flowchart was not provided to them to consult while the
court read the instructions. We are not persuaded. After
providing the jurors with the flowchart, the trial court
clearly and expressly instructed them that it was an
‘‘aid,’’ that it did not replace the instructions, and that
they should ‘‘look to the instructions of law that [the
court gave them] in order to make [their] decision.’’
The defendant’s argument that the flowchart was
ambiguous assumes that the jury did not heed the
court’s instructions regarding the Salamon factors or
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the instructions regarding the purpose of the flowchart.
Because the defendant has not proffered evidence demonstrating that the jury had failed to follow the trial
court’s instructions regarding the Salamon factors and
the flowchart, we presume that the jury heeded those
instructions. See, e.g., State v. Reynolds, supra,264
Conn. 131; see also, e.g., Hickey v. Commissioner of
Correction, supra, 329 Conn. 622–23. Accordingly, we
conclude that there is no reasonable possibility that the
jury was misled by the omission of the Salamon factors
from the flowchart.
The judgment is affirmed.
In this opinion MULLINS, C. J., and ALEXANDER
and DANNEHY, Js., concurred.
