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State v. Sharpe

D’AURIA, J., with whom ECKER, J., joins, concurring

in part and dissenting in part. I agree with part II of
the majority opinion concerning the trial court’s jury
instructions, but I disagree with part I. That part ratifies
the constitutionality of the warrantless collection, test-
ing, and storage of the DNA of the defendant, Michael
Sharpe, which he involuntarily shed onto an article of
clothing that the police then asked his trash collection
company to deliver to them as part of their criminal
investigation. At that time, the government did not have
enough evidence to arrest or prosecute him for a crime,
making him indistinguishable from anyone else living
freely in our society. I therefore dissent from the affirmance
of the defendant’s conviction.
I do not believe it is just my own idealistic reminis-
cence that there was a time, during my own lifetime,
when individuals could travel across town—or even
across this country—and it would be no one’s business,
certainly not the government’s. Another person could
describe them, or, if he knew them personally, he might
be able to identify them to a degree of certainty. See
State v. Guilbert, 306 Conn. 218, 237–39, 49 A.3d 705
(2012) (identifications are not always reliable). But,
unless they were suspected of a crime, they were free to
roam anonymously on streets and highways, and through
parks and shopping centers. See, e.g., M. McIntyre, The
Kindness of Strangers: Penniless Across America (Berk-
ley Books 1996); R. Pirsig, Zen and the Art of Motorcycle
Maintenance: An Inquiry into Values (William Morrow &
Co. 1974). The ability to remain anonymous, or, in other
words, ‘‘the right to be let alone’’; S. Warren & L. Bran-
deis, ‘‘The Right to Privacy,’’ 4 Harv. L. Rev. 193, 193 (1890);
has long been a characteristic of life in this nation—
and it is unsurprising, therefore, that it has underpinned
many of the privacy protections our law affords. See
A. Kozinski, Essay, ‘‘The Two Faces of Anonymity,’’ 43
Cap. U. L. Rev. 1, 7 (2015) (‘‘[a]nonymity has venerable
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State v. Sharpe

historical roots in political, religious, and social revo-

lutions’’).
I am well aware that, with the arrival of innumerable
technological advances that define the modern world,
there is arguably already little left of the right to be
left alone: ‘‘[A]side from the [United States National
Security Agency], there are many other eyes watching
what we do: phone companies can log whenever we
connect to cell towers and thereby keep close track of
our movements; [radio frequency identification] chips
in Fast-Trak devices can provide a map of our travels
by car; the government is amassing an ever-increasing
supply of DNA samples in the CODIS1 database, as state
and federal governments widen the scope of who is
subject to DNA typing. A company called ‘PlateNet,’
using a fleet of cars that roam the streets scanning license
plates, has created a giant police-accessible database to
store the location and movement of millions of vehicles.
Cities like London have developed ubiquitous networks
of cameras that record the public movements of thou-
sands of people every hour. Face-recognition and gait-
decoding technologies capable of recording the where-
abouts of large throngs of people are used in many
places abroad and are starting to be deployed by law
enforcement in the United States. ‘Smart meters’ installed
in millions of American homes can record and divulge
exactly which home appliances an occupant is using
based on the distinct energy consumption pattern of
each device. And, of course, companies such as Google,
Facebook and Double Click are constantly tracking our
online presence.’’ (Footnotes added.) Id., 14–15; see
also L. Donohue, ‘‘The Fourth Amendment in a Digital
World,’’ 71 N.Y.U. Ann. Surv. Am. L. 553, 554 (2017)
(‘‘[t]raits unique to a digital world are breaking down
the distinctions on which the [United States Supreme]
1
See footnote 2 of the majority opinion.
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Court has traditionally relied to protect individual

privacy’’).
In large part, this loss of privacy can be understood
as volitional. We have traded liberty and privacy for
security, walking through body scanners in places like
airports and sports arenas. We have traded privacy for
convenience, speaking to smart devices in our homes
that may surreptitiously sell every word we speak to
advertisers or that track our movements so we can
avoid traffic or keep track of the restaurants we’ve
sampled. We have traded privacy for money, permitting
credit card companies and vendors to track our finan-
cial habits in exchange for coupons and redeemable
points. Some have even traded privacy for novelty, ship-
ping their saliva to third parties to learn about their
ancestry, the likelihood of developing particular medi-
cal conditions, or even trivial matters such as whether
they are predisposed to dislike the taste of cilantro.
Many of these trades are consensual, meaning that peo-
ple may opt out. Yet, at least some of the trades neces-
sary to participate in modern society, such as cell
phones, have continued to garner privacy protections
under our law. See, e.g., Carpenter v. United States,
585 U.S. 296, 316, 138 S. Ct. 2206, 201 L. Ed. 2d 507
(2018) (declining to permit government to use cell site
location information logs to aid criminal investigations
without first obtaining search warrant to access such
records); see also S. Brown, ‘‘Unreasonable Searches:
Something of the Past,’’ 49 Nova L. Rev. 24, 24 (2025)
(‘‘One does not have to look far for the enemy that will
likely kill the [f]ourth [a]mendment. Just reach into
your pocket and pull out your cell phone, that is, if it
is not already in your hand’’).
Still, I do not believe, as the majority does, that we
have come to a point where our society does not recog-
nize (and therefore that our courts need not protect)
a reasonable privacy interest in the extraction and anal-
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State v. Sharpe

ysis of an individual’s shed DNA sample, collected by

the government as part of a criminal investigation to
identify that individual, without the need for that per-
son’s consent, a level of suspicion, or a neutral magis-
trate’s approval. This case poses in stark relief not only
the question of who decides when that expectation of
privacy has become unreasonable, but on what the court
bases that determination. Our courts are still tasked
with measuring an individual’s reasonable expectation
of privacy, the violation of which, by the government,
constitutes a search requiring a legal justification. If, as
the majority has concluded, society has already decided
that it is objectively unreasonable for the residents of
this state to maintain an expectation of privacy in the
extraction and analysis of their DNA sample, taken for
identification purposes, I (and I believe many others)
must have missed the memo.

By the majority’s reasoning, given that the govern-

ment did not have probable cause to search the defen-
dant when it scoured his garbage to collect his DNA,
it does not matter whether the government collects that
shed DNA sample from leftover food, a child’s diaper,
or a handkerchief that someone forgot at a restaurant.
It does not matter whether the government stored that
DNA sample for an indeterminate amount of time. It
does not matter that the police lacked probable cause
to arrest you for a crime. Strangely enough, in fact, in
Connecticut, if you have been arrested or have been
convicted of most crimes, including sexual assault in
the second degree or sexual assault in the third degree,
the government does not have the statutory authority
to extract, test, or store your DNA for identification
purposes. See General Statutes §§ 54-102g through 54-
102j. Yet, I find nothing in this court’s decision that
prevents or limits the government, in the name of crime
solving (euphemistically labeled as mere ‘‘identifica-
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State v. Sharpe

tion’’), from extracting and testing the DNA of individu-

als within Connecticut with impunity.
I am unpersuaded by the state’s assurances—
repeated persistently by the majority—that the specific
DNA test purchased and used by the state in this case
can reveal only the defendant’s identity. Like the fourth
amendment’s requirements and the case law applying
them, I read article first, § 7,2 of our state constitution
as permitting—indeed, requiring—me to be skeptical
of those assurances. Nor am I persuaded that the gov-
ernment’s interest in anyone’s identity for purposes of
crime solving (i.e., matching it to another DNA sample
from a crime scene) is an interest that permits the state
to skirt the constitutional warrant requirement. But
even if I were, I am still unpersuaded that individuals
have no expectation of privacy in the identifying infor-
mation gleaned from the state’s extraction and testing
of their DNA under article first, § 7, considering that
Connecticut’s legislature (our local ‘‘laboratory of democ-
racy’’) has already indicated that individuals charged
with and convicted of certain crimes have a privacy
interest in the extraction, testing, and storage of their
DNA. Further, our case law and that of federal courts
support my belief that Connecticut residents maintain
a privacy interest in the extraction and testing of their
shed DNA. Because I believe that article first, § 7, pre-
serves, and Connecticut residents therefore enjoy, a
reasonable expectation of privacy in the identifying
information gleaned from the extraction and testing of
their DNA, as well as its subsequent storage by the
state, I believe, too, that this court should hold the line
and not open the door to what I foresee as the inevitable
2
Article first, § 7, of the Connecticut constitution provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable 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.’’
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State v. Sharpe

‘‘ ‘function creep’ ’’ that the majority has green lighted

with today’s decision. T. Simoncelli & B. Steinhardt,
‘‘California’s Proposition 69: A Dangerous Precedent
for Criminal DNA Databases,’’ 34 J.L. Med. & Ethics
199, 203 (2006); see id. (‘‘databases created for one
discrete purpose, despite the initial promises of their
creators, eventually take on new functions and pur-
poses’’).
Those among us who, before today, believed that our
state constitution could not possibly permit—and that
this court would not possibly tolerate—our state gov-
ernment, without probable cause, to follow individuals,
collect DNA samples as they shed them, and create
DNA profiles that will be stored indefinitely, without
having to justify these actions by any level of suspicion
or cause, should brace themselves for disappointment.
Those who shudder at the unnerving public policy con-
sequences of the majority’s decision today would be
well advised to petition their elected leaders for protec-
tion from these invasions of privacy. They are now on
notice that this court will not afford them protection,
despite its obligation, ‘‘as ‘[s]ubtler and more far-reach-
ing means of invading privacy have become available
to the [g]overnment’—to ensure that the ‘progress of
science’ does not erode’’ constitutional privacy protec-
tions, particularly when that scientific progress inter-
sects with the necessities of everyday life, such as using
cell phones, or, as it happens, leaving DNA on your
trash. Carpenter v. United States, supra, 585 U.S. 320,
quoting Olmstead v. United States, 277 U.S. 438, 473–74,
48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dis-
senting).3 Considering that, in the law, as in life, ‘‘what’s
past is prologue,’’ I believe that, by permitting the gov-
ernment to extract and analyze any person’s shed DNA,
3
Justice Brandeis in Olmstead and Chief Justice Roberts in Carpenter
were referring to fourth amendment protections. I have no trouble making
the same observations about article first, § 7.
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at any time, without the need to provide any justifica-

tion, the majority has set the stage for further intrusions
on the privacy of Connecticut residents. The majority
is confident that it has not set this stage. One of us will
be wrong. I hope it’s me.
I respectfully dissent.
I
The following undisputed facts are relevant to my
disagreement with the majority. The record supports
the jury’s finding that, during the summer of 1984, the
defendant sexually assaulted four women on four sepa-
rate occasions after breaking into their homes. The
police collected evidence from each crime scene, which
revealed the presence of unidentifiable semen and
saliva. According to a former criminalist with the state
forensic laboratory who testified for the state in this
case, at the time of the crime, ‘‘forensic DNA as we
know it today’’ did not exist. Nearly twenty years later,
in 2003, the state forensic laboratory extracted and
tested DNA from that evidence, created DNA profiles
from it and concluded that the DNA most likely came
from a single assailant. After almost another twenty
years, in 2020, the Office of the Chief State’s Attorney
contracted with a private, third-party forensic investiga-
tion company, which provided it with two investigative
leads based on the DNA profiles established in 2003,
which were then shared with the state police. More
specifically, as the majority describes, that company
used ‘‘single nucleotide polymorphism . . . testing to
create a DNA profile, which was entered into GED-
match [by a genealogist], a commercial genealogical
database . . . [that allowed the company] to create a
family tree that identified the investigative leads that
[it had] provided to the state in 2020.’’ Footnote 4 of
the majority opinion. Because ‘‘[i]t was highly unlikely
[that the police] could have knocked on [a person’s]
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State v. Sharpe

door and asked a potential subject for his DNA,’’ the

police ‘‘devised a plan’’ to obtain DNA samples from
the two initial leads identified by the third-party com-
pany, the defendant’s half brothers, by deception or
persistent surveillance. They asked the first lead to sign
a fictitious petition with a pen. They then extracted a
DNA sample from that pen and tested it to create a
DNA profile. The police obtained the second lead’s DNA
by following him as he drove his car until they observed
him tossing a cigarette butt from the car window. They
collected the cigarette butt, extracted a DNA sample,
and tested that sample to create a second DNA profile.
Because neither leads’ DNA profile matched the DNA
profile from the 1984 crime scenes, the third-party com-
pany provided the police with two additional leads:
the defendant and his brother. The police asked the
defendant’s brother to sign a fictitious form with a pen,
from which they then extracted a DNA sample and
tested that sample to create a DNA profile. Once again,
this third lead’s shed DNA did not match the evidence
from the 1984 crime scene. Finally, the police asked a
local trash company to conduct a ‘‘trash pull,’’ resulting
in the collection of trash deposited at the curb in front
of the defendant’s house. The police then ‘‘inventor[ied]
the material that was in the garbage can’’ and extracted
DNA found on items that they believed, although they
did not have ‘‘a hundred percent certain[ty],’’ might
contain the defendant’s DNA. Those items included two
belts, a fork, an auto-inject pen for medical purposes,
and a catheter. Because ‘‘two other individuals . . .
lived in the house’’ with the defendant, the police were
not certain that the items they collected from the trash
actually belonged to him. After extracting DNA samples
from these items, the state tested those samples to
create a DNA profile for the defendant to compare with
the DNA profile from the evidence collected at the 1984
crime scenes. The record is unclear whether the other
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State v. Sharpe

items seized, including the medical equipment, belonged

to the defendant or to other individuals living in the
home. It is also unclear what happened to the DNA
samples drawn from those items. The state, using the
shed DNA collected from one of the defendant’s belts,
matched his DNA profile with the DNA profile from the
evidence collected at the 1984 crime scenes. The police
then sought and obtained a warrant to extract and test
a confirmatory sample of the defendant’s DNA, which
affirmed the previous matching result. The state then
charged the defendant with eight counts of kidnapping
in the first degree, and a jury found him guilty on each
count.
On appeal, the defendant argues that the warrantless
extraction and testing of his DNA constituted an unrea-
sonable invasion of his privacy under article first, § 7,
of the Connecticut constitution and the fourth amend-
ment to the United States constitution. Although the
majority begins and focuses its analysis on the defen-
dant’s federal claim because, in its view, ‘‘ ‘we can pre-
dict to a reasonable degree of certainty how the United
States Supreme Court would resolve the issue’ . . .
and it is more efficient to address the defendant’s claim
under the federal constitution first’’; (citation omitted)
part I of the majority opinion; I address the defendant’s
state constitutional argument first because I do not
believe that the federal law on this issue is settled. See,
e.g., State v. Kono, 324 Conn. 80, 123, 152 A.3d 1 (2016)
(this court ‘‘turn[s] first to the state constitutional claim
when the issue is unsettled under the federal constitu-
tion or, if it is settled under the federal constitution,
when the defendant is not entitled to relief thereun-
der’’). Because I conclude that the defendant is correct
that our state constitution protects him from the war-
rantless extraction and testing of his DNA from an
object lawfully collected by the police, I do not address
the federal constitutional issue, except to the extent
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State v. Sharpe

that an examination of federal law is appropriate when

considering the defendant’s state constitutional claim.
II
At the outset, I note my disagreement with the majori-
ty’s framing of the legal issue before us. Although the
majority at first properly recites the fundamental
inquiry before the court—whether the defendant’s sub-
jective expectation of privacy in the DNA4 that ‘‘he
involuntarily or inadvertently shed onto the belt’’; part
I A of the majority opinion; is one that society would
deem reasonable—that marks the end of my agreement
with the majority’s framing of the issue in this case.
I believe that the majority has blurred several legal
questions and key factual determinations, permitting it
to avoid altogether actually addressing what I see as
the fundamental inquiry in this case. First, the majority
obscures what, precisely, society would recognize as
reasonable regarding the collection and analysis of the
defendant’s shed DNA. Next, premised on the first
point, the majority conflates the defendant’s abandon-
ment of his belt with his abandonment of his DNA.
Further, it erroneously equates the state’s interest in
identifying the defendant with its interest in investigat-
ing the defendant. Finally, it inaccurately portrays what
the test kit used in this case could reveal.
A
The majority breezes past any proper analysis of what
society would deem reasonable, asserting with mis-
placed confidence that, ‘‘[a]s 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 . . . .’’ Part I
4
I infer the defendant’s subjective expectation of privacy in his DNA
based on the lack of any indication otherwise and the prosecutor’s acknowl-
edgment during the defendant’s trial that ‘‘[i]t was highly unlikely we could
have knocked on his door and asked a potential suspect for his DNA.’’
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A of the majority opinion. At the same time, the majority

hedges, noting that the cases it relies on for this conclu-
sion do not consider whether ‘‘an individual may main-
tain a reasonable expectation of privacy in all of the
other genetic information [aside from identifying infor-
mation] encoded [in DNA]’’; footnote 8 of the majority
opinion; and therefore, it is possible that the defendant
in this case holds some reasonable expectation of pri-
vacy in the rest of his shed DNA—just not the parts
that benefit the state in this case. There are at least
two problems with this analysis.
To start, the majority contends that it is commonly
accepted that the police may scour the garbage of any-
one—and therefore everyone—to extract and analyze
DNA from items people have touched based on the fact
that television often depicts the police using DNA in
criminal investigations, i.e., ‘‘ ‘the CSI effect’ . . . .’’
(Footnote omitted.) L. Matejik, ‘‘DNA Sampling: Privacy
and Police Investigation in a Suspect Society,’’ 61 Ark.
L. Rev. 53, 80 (2008). The ‘‘courts and scholars’’ the
majority cites in support of this claim warrants exami-
nation, namely, one law review article and two out-of-
state cases that do not support the assertion at all. See
part I A of the majority opinion. Citing no sources to
support a conclusion that constitutes the majority’s
foundational premise in the present case—that there is
no reasonable expectation of privacy in shed DNA—
the law review article declares that ‘‘[s]ociety knows
about DNA and its capabilities through television and
other media. Furthermore, the use of DNA analysis is
one click away on the Internet. People can perform DNA
tests from their homes, and third parties can obtain the
DNA of other individuals without restraint.’’ L. Matejik,
supra, 78; Law review articles that go the other way are
plentiful, however, concluding that there is a reasonable
expectation of privacy in an individual’s shed DNA. See,
e.g., E. Joh, Essay, ‘‘Reclaiming ‘Abandoned’ DNA: The
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State v. Sharpe

Fourth Amendment and Genetic Privacy,’’ 100 Nw. U.

L. Rev. 857, 883–84 (2006); T. Maclin, ‘‘Government
Analysis of Shed DNA Is a Search Under the Fourth
Amendment,’’ 48 Tex. Tech L. Rev. 287, 312 (2015);
D. Gusella, Note, ‘‘No Cilia Left Behind: Analyzing the
Privacy Rights in Routinely Shed DNA Found at Crime
Scenes,’’ 54 B.C. L. Rev. 789, 815–16 (2013); P. Paciocco,
Note, ‘‘Abandoning Abandoned DNA: Reconsidering
How the Fourth Amendment Abandonment Doctrine Is
Applied to DNA Samples,’’ 51 Crim. L. Bull. 1386, 1420
(2015); M. Silvestri, Comment, ‘‘Naturally Shed DNA:
The Fourth Amendment Implications in the Trail of
Intimate Information We All Cannot Help but Leave
Behind,’’ 41 U. Balt. L. Rev. 165, 189 (2011).
One of the two cases the majority cites, Raynor v.
State, 440 Md. 71, 99 A.3d 753 (2014), cert. denied, 574
U.S. 1192, 135 S. Ct. 1509, 191 L. Ed. 2d 433 (2015),
refers to the Matejik article, and only that article, for
its ‘‘suggest[ion] that society is generally aware of the
nature of DNA evidence’’; id., 94 n.12; but the case
actually assumes that the defendant in that case did
have an objectively reasonable expectation of privacy
in his genetic material ‘‘because, unlike fingerprints,
blood, or saliva, society is generally unaware that indi-
viduals shed uncontrollably genetic material whenever
they venture into public.’’ Id., 94. This case should not
count as support for the majority. The only other case
that the majority relies on to support its assertion that
there is no reasonable expectation of privacy in shed
DNA, People v. Gallego, 190 Cal. App. 4th 388, 117 Cal.
Rptr. 3d 907 (2010), review denied, California Supreme
Court, Docket No. S189452 (March 16, 2011), contains
absolutely no analysis of whether the public has any
reasonable expectation of privacy in DNA generally
because that case is based on abandonment. As I discuss
in part II of this opinion, an abandonment analysis poses
a very different obstacle for courts determined to
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inform the public that they have no expectation of pri-

vacy in their genetic material once it is shed or excreted.
In fairness, measuring what ‘‘society’’ actually recog-
nizes as reasonable is a thorny task. Judges are apt to
confuse their own expectations of privacy with those
of the hypothetical reasonable person to which the
Katz5 test refers. See United States v. Jones, 565 U.S.
400, 427, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Alito, J.,
concurring in the judgment). Further, the hypothetical
reasonable person referenced in Katz is constantly
changing, in no small part because of changing technol-
ogy. Dramatic technological change may lead to periods
in which popular expectations are in flux and may ulti-
mately produce significant changes in popular attitudes.
See, e.g., California v. Ciraolo, 476 U.S. 207, 214, 106 S.
Ct. 1809, 90 L. Ed. 2d 210 (1986) (there is no reasonable
expectation of privacy in items in one’s backyard that
may be surveilled aerially because such surveillance
involves ‘‘simple visual observations from a public
place’’). Courts and legislatures may further create a
feedback loop, ‘‘condition[ing] the populace into expecting
less privacy.’’ D. Solove, ‘‘Fourth Amendment Pragma-
tism,’’ 51 B.C. L. Rev. 1511, 1523–24 (2010); id. (‘‘[I]t
is very difficult to measure society’s expectations of
privacy accurately. . . . [E]xpectations of privacy
depend in part on the law, so judicial decisions about
reasonable expectations of privacy would have a boot-
strapping effect. If the [United States] Supreme Court
said there was or was not a reasonable expectation of
privacy in something, then that pronouncement would
affect people’s future expectations.’’). Still, this court
can do better than relying on a single law review article
that, itself, relies on no other source to back up its
conclusion other than what the author assumes people
have learned from television shows. With those few
unsupported sentences in tow, the majority holds that
5
Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
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State v. Sharpe

it is now the law that the people of Connecticut hold no

reasonable expectation of privacy in their shed DNA.6
Given the factually laden challenge of assessing soci-
etally reasonable expectations of privacy, the sources
that courts look to when addressing this question vary
greatly. But there are some common themes. Regarding
whether an arrestee maintains a reasonable expectation
of privacy in the extraction and analysis of his DNA,
the United States Supreme Court has looked in large
part to statutes. See, e.g., Maryland v. King, 569 U.S.
435, 443, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013) (consider-
ing challenge to taking of DNA sample under Maryland
law). More generally, courts may assess the nature of
the invasion, the custodial status of the person claiming
the privacy violation, and the person undertaking the
invasion. See 79 C.J.S. 38–40, Searches and Seizures
§ 22 (2006). Indeed, in part III A of this opinion, I detail
our state statutes governing the DNA extraction and
analysis of those arrested for and convicted of certain
crimes, illustrating that the statutory framework and
the legislative history behind it demonstrates that the
public does, in fact, hold a reasonable expectation of
privacy in the extraction and analysis of its shed DNA.
I further consider the defendant’s custodial status in
part III C of this opinion.
6
Given the sweep of the result to which the majority’s conclusion leads,
it should not be too much to demand that the majority explain exactly
what the public has learned from television shows like CSI: Crime Scene
Investigation, if that is the basis for the majority’s conclusion that society
accepts that there is no reasonable expectation of privacy in the DNA of a
person whom the government does not have probable cause to search or
seize. See part I of the majority opinion. Even if I were to accept that the
public is generally aware that the fictional police use fictional DNA when
solving fictional crimes, is that the same as the public being generally aware
that people’s DNA sheds constantly, and that DNA can be lifted from objects
found in people’s garbage, including articles of clothing? Is the public gener-
ally aware that DNA can survive after being in the garbage for long periods
of time? Is the public ‘‘generally aware’’ that the police, in real life, not
fictional television programs, are extracting DNA from garbage to solve
crimes?
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The other problem I see with the majority’s conclu-

sion that the defendant’s expectation of privacy is
unreasonable—the foundational premise of its opin-
ion—is that it is difficult to parse precisely what it finds
to be reasonable and what it finds to be unreasonable.
Although, in a footnote, the majority concedes that ‘‘an
individual may maintain a reasonable expectation of
privacy in all of the other genetic information [aside
from identifying information] encoded [in DNA]’’; foot-
note 8 of the majority opinion; the majority does not
actually state that the defendant in this case does main-
tain that expectation of privacy. Is the majority saying
that society does, or does not, expect that an individual
whom the government does not have probable cause
to search or seize holds a reasonable privacy interest in
his or her shed DNA? In other words, does the defendant
have a reasonable expectation of privacy in his shed
DNA to begin with? Or is the majority saying that society
understands that DNA—to the extent it reveals identi-
fying information—does not constitute a reasonable
privacy interest? These alternative conclusions—that
the defendant lacks a privacy interest in his shed DNA
to the degree that it reveals identifying information and
that he lacks a privacy interest in his shed DNA at all—
portend future issues, at least one of which is as much
a present as it is a future problem: how the defendant’s
privacy interest, or lack thereof, comports with the
abandonment theory on which much of the remainder
of the majority’s decision is predicated (although it tries
hard not to say so explicitly).
B
Although you would hardly know it from the majori-
ty’s choice of parlance, the majority critically relies on
the concept of abandonment and cases that expressly
rely on that concept7 to justify its conclusion that the
7
See United States v. Hicks, Docket No. 2:18-cr-20406-JTF-7, 2020 WL
7311607, *2 (W.D. Tenn. December 11, 2020); United States v. Scott, Docket
No. 10-00027-01-CR-W-ODS, 2011 WL 5387601, *6 (W.D. Mo. October 3, 2011);
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State v. Sharpe

defendant did not have a reasonable expectation of

privacy in the extraction and analysis of his DNA
because, in the majority’s words, the defendant ‘‘dis-
carded’’ his belt containing his DNA. Part I A of the
majority opinion. Fitting DNA into the doctrine of aban-
donment requires ‘‘evidence demonstrating that the
defendant affirmatively intended to relinquish his
expectation of privacy [in his DNA].’’ State v. Jacques,
332 Conn. 271, 284, 210 A.3d 533 (2019). The majority’s
improper treatment of the defendant’s ‘‘abandonment’’
of his DNA as the same as (or following from) the
abandonment of his belt is consistent with its failure to
clearly articulate what society would deem a reasonable
privacy interest in, if anything at all, the defendant’s
shed DNA.
The majority’s premise that the defendant has aban-
doned (or discarded) any interest in the extraction and
testing of his DNA is reminiscent of the government’s
argument regarding cell site location information, which
the United States Supreme Court rejected in Carpenter
v. United States, supra, 585 U.S. 309–10. In that case, the
court held that the defendant maintained a reasonable
expectation of privacy in his cell site location records
and rejected the government’s argument that he did
not have a reasonable expectation of privacy in that
information because he had revealed it to a third party
by contracting with his wireless carriers. Id., 315–16.
In rejecting the government’s argument, the court
remarked that neither rationale underlying the third-
party doctrine—that the defendant had ‘‘ ‘voluntarily
conveyed [the information] to anyone who wanted to
look’ ’’ and had engaged in ‘‘voluntary exposure’’—applied
State v. Burns, 988 N.W.2d 352, 361–62 (Iowa), cert. denied, U.S. ,
144 S. Ct. 288, 217 L. Ed. 2d 132 (2023); State v. Westrom, 6 N.W.3d 145,
153–54 (Minn.), cert. denied, U.S. , 145 S. Ct. 418, 220 L. Ed. 2d 172
(2024); McCurley v. State, 653 S.W.3d 477, 490–91 (Tex. App. 2022, pet.
ref’d); State v. Vannieuwenhoven, 412 Wis. 2d 33, 53–54, 8 N.W.3d 63 (App.),
review denied, 15 N.W.3d 27 (Wis. 2024).
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to cell site location information, given that ‘‘[c]ell phone

location information is not truly ‘shared’ as one nor-
mally understands the term. . . . [C]ell phones and the
services they provide are ‘such a pervasive and insistent
part of daily life’ that carrying one is indispensable to
participation in modern society. . . . [A] cell phone
logs a cell-site record by dint of its operation, without
any affirmative act on the part of the user beyond pow-
ering up.’’ (Citation omitted.) Id., 314–15. Further, the
court noted that ‘‘the rule [it] adopts ‘must take account
of more sophisticated systems that are already in use
or in development.’ ’’ Id., 313; see also Kyllo v. United
States, 533 U.S. 27, 30, 40, 121 S. Ct. 2038, 150 L. Ed.
2d 94 (2001) (government’s use of thermal imaging
device on public street to detect heat within private
home constitutes search under fourth amendment).
Crucially, the reason why the present case is reminis-
cent of Carpenter is because the rationales that inform
the abandonment doctrine are the same as those that
inform the third-party doctrine discussed in Carpenter.
See S. Chan, Note, ‘‘Ending Arbitrary Invasions by
Shielding ‘Abandoned’ Password Protected Phones,’’ 76
Fla. L. Rev. 825, 856 (2024) (‘‘The third-party and aban-
donment doctrines have similar legal justifications:
both involve a defendant willingly giving up a reason-
able expectation of privacy in their property. The only
difference is that the third-party doctrine involves expo-
sure to an outside party, while the abandonment doc-
trine involves exposure to the general public.’’); cf.
California v. Greenwood, 486 U.S. 35, 41, 108 S. Ct. 1625,
100 L. Ed. 2d 30 (1988) (‘‘the police cannot reasonably be
expected to avert their eyes from evidence of criminal
activity that could have been observed by any member
of the public’’) (emphasis added)); Katz v. United
States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967) (‘‘[w]hat a person knowingly exposes to the
public, even in his own home or office, is not a subject of
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State v. Sharpe

[f]ourth [a]mendment protection’’ (emphasis added)).

Further, abandoning an object, or set of objects—such
as garbage, or, as it happens, a belt—hardly means that
you abandon everything within those objects, just as
powering on a cell phone hardly means you invite third
parties to surveil your cell site location records. Our
own case law expressly recognizes as much. See State
v. DeFusco, 224 Conn. 627, 639 n.19, 620 A.2d 746 (1993)
(‘‘[w]e are sensitive to the reality that, in our complex
society, some Connecticut residents may legally gener-
ate garbage that reveals highly personal information,’’
including medical information). We further noted in
DeFusco that a defendant might demonstrate that he
did not abandon a privacy interest in an item within
his garbage by ‘‘eradicating any identifying items in the
garbage that would be necessary to link the garbage to
him.’’ Id.
Simply put, DNA does not fit into the doctrine of
abandonment.8 See P. Paciocco, supra, 51 Crim. L. Bull.
1391 (‘‘[P]eople cannot realistically avoid discarding
their DNA samples. . . . [Unlike] normal trash dis-
posal, DNA ‘abandonment’ is not a conscious and voli-
tional activity.’’). Indeed, the majority acknowledges
that the abandonment framework is difficult to pair
with the realities of DNA, noting that ‘‘people can do
very little—if anything at all—to completely prevent
[their] DNA from shedding . . . .’’ (Citation omitted.)
Part I A of the majority opinion. Just as was true with
the cell site location records in Carpenter, there was
nothing ‘‘voluntary’’ in the present case about the defen-
dant’s DNA remaining on his belt. Just as the ‘‘affirma-
tive act on the part of the user’’ in Carpenter was limited
8
In the rare instance in which defendant does abandon his DNA, he makes
some type of affirmative statement or action, such as, ‘‘ ‘here’s your DNA’
. . . .’’ United States v. Hicks, Docket No. 2:18-cr-20406-JTF-7, 2020 WL
7311607, *2 (W.D. Tenn. December 11, 2020); see id. (defendant stated to
police, ‘‘ ‘here’s your DNA,’ ’’ evincing intent to abandon privacy interest
in DNA).
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to that user’s ‘‘powering up’’ his phone; Carpenter v.

United States, supra, 585 U.S. 315; the affirmative act
on the part of the defendant in this case, leaving trace
DNA in his garbage, was limited to his existing in the
world, shedding DNA as we all do constantly, without
choice in the matter. Indeed, there is even less that
the defendant in this case could do to ‘‘[eradicate] any
identifying [information]’’; State v. DeFusco, supra, 224
Conn. 639 n.19; from his garbage, short of never leaving
his home or, as the state suggested at oral argument
before this court, routinely bleaching his garbage to
avoid abandoning his DNA. The defendant in Carpenter
could simply live life without using a cell phone, leaving
it at home or turning it off, although the United States
Supreme Court determined that such actions were
unnecessary to garner fourth amendment protection.
The defendant in this case has no such options.
Although the majority assiduously avoids saying it is
doing so, it has in fact necessarily placed the defen-
dant’s shed DNA within the abandonment doctrine. The
majority routinely substitutes the word ‘‘discarded’’
when it means, in fact, ‘‘abandoned,’’ even when dis-
cussing the defendant’s belt, which no one disputes he
abandoned by taking the volitional step of putting his
garbage to the curb. Thus, the majority leaves implicit
its necessary conclusion that the defendant had aban-
doned his privacy interest in his shed DNA, all while
referencing cases that exclusively operate within the
abandonment doctrine. See footnote 8 of the majority
opinion and accompanying text. Much as the majority
avoids analyzing whether it is reasonable for society to
expect privacy in its shed DNA, it avoids tackling how
the defendant’s DNA fits into its abandonment analysis.
In doing so, the majority invites inherently flawed logic.
C
But the majority does not stop there, holding that
‘‘the collection of DNA from the defendant’s discarded
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State v. Sharpe

belt was not a search under the fourth amendment’’

when that collection was solely used for identification
purposes because, in the majority’s view, society recog-
nizes that the police may use shedded biological materi-
als to aid crime investigations, and, therefore, it is
possible to abandon one’s shed DNA. Part I A of the
majority opinion. Although I disagree, even in isolation,
that there is no reasonable expectation of privacy in
the identifying characteristics gleaned from one’s DNA,
the majority improperly conflates the police function
that it purports to support—identification—and the
police function that it, in fact, supports—investigation.
‘‘If identifying someone means finding out what unsolved
crimes he has committed, then identification is indistin-
guishable from the ordinary [law enforcement] aims
that have never been thought to justify a suspicionless
search.’’ Maryland v. King, supra, 569 U.S. 470 (Scalia,
J., dissenting). Indeed, our own case law has discussed
that it matters for what purpose the government con-
ducts a search, making the majority’s determination
that identification and investigation are one and the
same particularly troubling. See, e.g., State v. Jackson,
304 Conn. 383, 403, 40 A.3d 290 (2012) (defendant’s
belongings were lawfully seized by New York City
police pursuant to community caretaking function, but
transfer of items to New Haven police without search
warrant did not violate defendant’s fourth amendment
rights because ‘‘the transfer involved no additional
intrusion into the defendant’s privacy’’). But cf. State
v. Joyce, 229 Conn. 10, 14, 23–24, 639 A.2d 1007 (1994)
(forensic testing of defendant’s clothes for investigative
purpose without search warrant, after police had seized
clothes pursuant to community caretaking function,
violated article first, § 7, of state constitution because
testing was ‘‘capable of determining a multitude of pri-
vate facts about an individual’’ not detectable from
clothing itself).
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D
Finally, the majority accepts as a factual matter,
incorrectly, in my view, the state’s party line that ‘‘the
DNA testing kit that the state forensic laboratory used
[was not] capable of revealing more than the defen-
dant’s identity . . . .’’ Part I B of the majority opinion.
But I have not seen a trial court finding to this effect
and with good reason. The record reflects that the state
used a DNA test capable of analyzing thirteen single
tandem repeat (STR) loci, which are unique genomic
markers. See footnote 5 of the majority opinion. How-
ever, the majority neglects to mention that the thirteen
STR loci that were tested can, in fact, reveal more than
just identity, meaning that, even if the defendant’s DNA
sample contained only these thirteen loci, it could
reveal more than his identity.9 Indeed, Michael Bourke,
a DNA analyst with the state forensic laboratory, testi-
9
See M. Ryan, ‘‘The Privacy, Probability, and Political Pitfalls of Universal
DNA Collection,’’ 20 SMU Sci. & Tech. L. Rev. 3, 12–14 (2017) (‘‘Whether
collected DNA can reveal more information than just individuals’ identities
is actually more nuanced. The universal collection of DNA could indeed give
the government unprecedented access to our personal, private information.
DNA contains vast amounts of information about one’s identity—one’s his-
tory, diseases, family, etc. The extent to which the government actually has
access to this private information, though, depends on what exactly the
government stores. If the government stores the DNA sample, then the
sample can be tested for various private information so long as enough of
a [noncontaminated] and [nondeteriorated] DNA sample continues to exist.
If the examiner develops a DNA profile using just the thirteen loci that are
typically examined when attempting to establish identity and then destroys
the original sample, then only information about the alleles at those loci
will be available. Some commentators argue that the DNA involved in this
identification is ‘junk DNA,’ which does not provide any such information—
it is in fact just otherwise useless DNA that has been conveniently repurposed
for the use of identification. But to say that so-called ‘junk DNA’ provides
only identifying information is incomplete and misleading. The frequently
employed ‘junk DNA’ label for these regions of DNA is a misnomer. So-
called ‘junk DNA’ also provides significant private information. This portion
of DNA contains information related to the likelihood of an individual devel-
oping Crohn’s disease, multiple sclerosis, diabetes, lupus, celiac disease,
and heart conditions.’’ (Footnotes omitted.)).
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State v. Sharpe

fied that ‘‘you can do some kind of ancestry’’ with the

test used to analyze the defendant’s DNA sample, mean-
ing that the state acknowledged that the test used could
ascertain more than just the defendant’s identity. There-
fore, the majority’s insistence that the test that the state
used was capable of revealing only the defendant’s iden-
tity, based on my review of the record, is simply inac-
curate.
Moreover, the majority’s hyperfocus on which test
on the market was used, or what that test might reveal,
obscures whether its inquiry turns on how much per-
sonal information the state may glean from the defen-
dant’s DNA sample, as opposed to which test it happened
to use to analyze that sample. To this day, the state is
presumably storing that DNA sample, originating from
the defendant’s belt, as well as the defendant’s DNA
profile and the profiles of the three other individuals
(members of the defendant’s family) whom the police
targeted and whose DNA they collected at the behest
of the third-party forensic investigation company.10 The
majority ignores this complication, therefore linking the
defendant’s expectation of privacy in his DNA sample
to his expectation of privacy in the information that
the state could glean from the test that the state chose
to use. I do not accept that whether our state’s residents
enjoy a reasonable expectation of privacy in the extrac-
tion and testing of their shed DNA—and therefore
whether the police must seek a warrant from a court—
depends on what sort of test the state decides to order
and use, which could be contingent on vagaries such
as budget, available technology, or the demands of the
current law enforcement administration. See State v.
10
The record does not affirmatively reflect whether the state continues
to house the defendant’s DNA sample extracted from his belt. However,
regarding forensic evidence more generally, Bourke testified that ‘‘[w]e save
samples from all the cases we have, and we always have saved them and
we continue to save them.’’
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Burns, 988 N.W.2d 352, 384–85 (Iowa) (Oxley, J., dis-

senting) (‘‘If we were assessing only whether police
conduct was reasonable here, it is certainly important
that officers only requested a report on whether [the
defendant’s] DNA matched the blood sample from the
crime scene—they did not request, or even receive,
anything else. But in assessing whether individuals have
a reasonable expectation that their DNA will remain
private and not be tested without their consent or with-
out a warrant, we should not blind ourselves to the vast
scope of information police can gain access to when
they ‘peek behind the curtain’ of DNA. Allowing [police]
conduct to limit the scope of the allegedly protected
privacy interest turns the [f]ourth [a]mendment analysis
on its head.’’ (Emphasis in original; footnote omitted.)),
cert. denied, U.S. , 144 S. Ct. 288, 217 L. Ed. 2d
132 (2023).
E
By inaccurately portraying what the testing kit at
issue in this case reveals, conflating the defendant’s
privacy interest in his belt and in his shed DNA, failing
to recognize that the state’s interest in identification is,
in fact, a mask that covers an invasive and warrantless
investigation, and inadequately reckoning with what
society would deem reasonable, the majority’s holding
opens the door to the dystopian public policy conse-
quences that accompany the all too familiar function
creep. In the context of DNA testing for identification
purposes, familial DNA match searching—the very pro-
cedure that the private third-party forensic investigation
company used in this case to provide the state with
leads based on the 2003 DNA profiles—is ‘‘[o]ne current
example of ‘function creep’ . . . where perpetrators
are found due to their relatedness to the source DNA.
Through partial DNA matches, officials can link the
arrestee’s family members to unrelated, unsolved offenses.
Hypothetically, an innocent individual could be arrested
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State v. Sharpe

for a crime that he did not commit and accordingly

released, but nonetheless his DNA could remain in the
database in order to explore the culpability of the arrest-
ee’s family members. Consequently, not only are the pri-
vacy rights of the arrestee infringed, but so are the
rights of his entire bloodline.’’ (Footnotes omitted.) K.
Ferrell, Comment, ‘‘Twenty-First Century Surveillance:
DNA ‘Data-Mining’ and the Erosion of the Fourth
Amendment,’’ 51 Hous. L. Rev. 229, 251 (2013).
These invasions are not hypothetical for three of the
defendant’s family members, who the police surveilled
or tricked so that a DNA sample could be obtained, tested
and stored, even though they were ultimately ruled out
as perpetrators. In short, I am concerned in this case
about the inevitability of the majority’s holding being
extended in other ways, as has happened so often in
this country. See T. Simoncelli & B. Steinhardt, supra,
34 J.L. Med. & Ethics 203 (‘‘[i]n a more sinister episode
in our nation’s history, census records created for gen-
eral statistical purposes were used during World War
II to round up innocent Japanese Americans and to place
them in internment camps’’).
Familial data searching raises additional privacy
issues related to the right of anonymity:11 ‘‘DNA analysis
11
A plethora of secondary sources discusses the relationship between an
individual’s privacy interest in his identity and in his anonymity. See, e.g.,
J. Skopek, ‘‘Reasonable Expectations of Anonymity,’’ 101 Va. L. Rev. 691,
727–28 (2015) (‘‘While the [United States Supreme] Court has not explicitly
characterized this interest in being ‘left alone in public’ as an interest in
‘anonymity,’ a review of the [f]ourth [a]mendment case law post-Katz reveals
that many cases that have been nominally about reasonable expectations
of privacy have actually been about reasonable expectations of anonymity.
The [c]ourt’s recognition that the [f]ourth [a]mendment protects against
intrusions into one’s anonymity can be seen most clearly in Hiibel v. [Sixth
Judicial District Court, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292
(2004), in which] the Supreme Court addressed a [f]ourth [a]mendment
challenge to a state statute that allowed the police to arrest a suspect who
refused to identify himself in the course of an investigatory stop. The [c]ourt
held that the statute did not violate the [f]ourth [a]mendment, but did impli-
cate it. Specifically, the [c]ourt held that compelled identification was only
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State v. Sharpe

companies . . . marketing services to law enforce-

ment that would allow them to use DNA to predict the
specific ancestry of an offender or infer the offender’s
eye color.’’ R. Cox, Note, ‘‘Unethical Intrusion: The Dis-
proportionate Impact of Law Enforcement DNA Sam-
pling on Minority Populations,’’ 52 Am. Crim. L. Rev.
155, 170 (2015). Outside the DNA context, examples of
the danger of function creep abound. See P. Grimm et
al., ‘‘Artificial Intelligence As Evidence,’’ 19 Nw. J.
Tech. & Intell. Prop. 9, 51–52 (2021) (Risk assessment
software originally designed to assess ‘‘treatment needs
of offenders . . . [was] morphed from that to [pretrial]
release and bail decisions, and from there to sentencing,
despite lack of validation for the additional purposes.
. . . [In another example] the [United States] Transpor-
tation Security Administration . . . claims that its
equipment is configured so that images cannot be
recorded, it nonetheless requires that all airport body
constitutional in ‘the course of a valid [stop pursuant to Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)],’ and further, that ‘an officer
may not arrest a suspect for failure to identify himself if the request for
identification is not reasonably related to the circumstances justifying the
stop.’ Thus, the [c]ourt recognized that the [f]ourth [a]mendment protects
a suspect’s interest in remaining anonymous. The fact that this interest in
anonymity can be outweighed by competing government interests—in this
case, the same interests that allowed the police to temporarily seize the
suspect for the Terry stop—does not diminish but rather reinforces the fact
that it is an interest protected by the [f]ourth [a]mendment. The same lesson
can be found in a set of Supreme Court and circuit court cases addressing
[f]ourth [a]mendment challenges to the mandatory DNA testing of arrestees,
convicts, and parolees. The courts have uniformly rejected these challenges,
holding that the practice does not violate a reasonable expectation of privacy.
In reaching this conclusion, all of the courts have reasoned that this type
of testing reveals nothing more than these persons’ identities, and that
given their status in the criminal justice system, they have no reasonable
expectation of privacy in their identities. . . . While this logic has been
widely criticized on substantive grounds, what is relevant . . . is one of its
formal features. Because ‘privacy of identity’ is the same as ‘anonymity,’
these cases actually hold that there is no [f]ourth [a]mendment violation
because people whose identities are already known to the criminal justice
system have no reasonable expectations of anonymity.’’ (Emphasis in origi-
nal; footnotes omitted.)).
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State v. Sharpe

scanners that it purchases have a hard drive and

Internet connectivity so that they are able to store and
transmit images for the purposes of ‘testing, training,
and evaluation.’ In 2010, the [United States] Marshals
Service acknowledged that it surreptitiously recorded
tens of thousands of images at a single Florida check-
point and that the machine it used could even be oper-
ated remotely. The purposes for which [these] data
[were] collected remains unclear.’’ (Footnotes omit-
ted.)); S. Schropp, ‘‘Biometric Data Collection and RFID
Tracking in Schools: A Reasoned Approach to Reason-
able Expectations of Privacy,’’ 94 N.C. L. Rev. 1068, 1090
(2016) (biometric data collection for minor students
‘‘designed for safety and attendance’’ may be used for
‘‘crime solving’’ considering that ‘‘school administrators
extol the ability to determine who was present during
a fight’’). I do not doubt the sincerity with which both
the state represents, and the majority fully accepts,
that the warrantless collection, testing, and unchecked
storage of a target person’s DNA sample is for identifica-
tion purposes only, albeit within the scope of a police
investigation (i.e., ruling him in or out as a suspect).
But it is not the first time that a court has made such
a promise, as Justice Scalia pointed out in his dissent
in Maryland v. King, supra, 569 U.S. 435: ‘‘The [c]ourt
disguises the vast (and scary) scope of its holding by
promising a limitation it cannot deliver. The [c]ourt
repeatedly says that DNA testing, and entry into a
national DNA registry, will not befall thee and me, dear
reader . . . .’’ Id., 481 (Scalia, J., dissenting). Justice
Scalia’s warning is manifest in the present case. It is
not difficult to further predict that, perhaps in the not
too distant future, those who take over the reins of
government, or other actors such as hackers or foreign
entities, might use that same information for other
goals, whether noble or nefarious. See Olmstead v.
United States, supra, 277 U.S. 479 (Brandeis, J., dis-
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State v. Sharpe

senting) (‘‘Experience should teach us to be most on

our guard to protect liberty when the [g]overnment’s
purposes are beneficent. Men born to freedom are natu-
rally alert to repel invasion of their liberty by evil-
minded rulers. The greatest dangers to liberty lurk in
insidious encroachment by men of zeal, well-meaning
but without understanding.’’); see also State v. Burns,
supra, 988 N.W.2d 397 (McDermott, J., dissenting) (‘‘Jus-
tice [Brandeis’] warning about state action is well
heeded here . . . . The potential power to assemble a
DNA database of all Americans using ‘abandoned’ DNA
(in which the majority says you have no rights) to
‘improve both the criminal justice system and police
investigative practices’ should bring a shudder to the
reader.’’ (Citation omitted.)).

In any case, no amount of emphasizing the particulars

of the test that was used, or what that particular test
might reveal, persuades me that, based on acts passed
by the legislature and cases decided by this court, Con-
necticut residents do not maintain a reasonable expec-
tation of privacy in the identifying information gleaned
from the government’s extraction and testing of shed
DNA. We, as a society, may have, in other contexts,
yielded to the relentless forces of technology that have
invaded what would otherwise be private and suc-
cumbed to the voracious appetite of government for
more and more information about Connecticut resi-
dents. But that fact, informed by demands for greater
security and safety in the modern age, does not change
my conclusion that the state’s warrantless harvesting
of the shed DNA of its residents in this case is improper.
Having explained my disagreements with the premises
of the majority’s analysis, I turn to the question of
whether the defendant’s interest in the extraction and
analysis of his shed DNA, collected by the government
for what the majority refers to as identification pur-
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State v. Sharpe

poses, is indeed reasonable under our state consti-

tution.
III
I begin my state constitutional analysis with the ele-
mentary observation that a privacy interest is protected
from unreasonable searches and seizures under article
first, § 7, of the Connecticut constitution if that interest
is both subjectively and objectively reasonable, mirror-
ing the standard for privacy protections under the
fourth amendment to the United States constitution.
See, e.g., State v. DeFusco, supra, 224 Conn. 633; see
also Smith v. Maryland, 442 U.S. 735, 739–40, 99 S. Ct.
2577, 61 L. Ed. 2d 220 (1979). Of course, the fact that
our inquiry under the Connecticut constitution is the
same as that of its federal counterpart does not mean
that our conclusion must be the same. The results of
this inquiry are ultimately based on Connecticut’s own
‘‘laboratory of democracy.’’ This inquiry requires this
court to consider, subjectively, whether a defendant
‘‘demonstrate[s] an intent ‘to preserve [something] as
private,’ and free from knowing exposure to the view
of others’’; State v. Houghtaling, 326 Conn. 330, 348,
163 A.3d 563 (2017), cert. denied, 584 U.S. 949, 138 S.
Ct. 1593, 200 L. Ed. 2d 776 (2018); as well as, objectively,
whether ‘‘Connecticut citizens would recognize [the
issue on appeal] as [a] reasonable [invasion of pri-
vacy].’’12 State v. DeFusco, supra, 633. The operative
12
The law of our state has routinely referred to ‘‘Connecticut citizens’’
when determining privacy protections under article first, § 7, of the Connecti-
cut constitution. See, e.g., State v. Williams, 311 Conn. 626, 644, 88 A.3d
534 (2014); State v. Jenkins, 298 Conn. 209, 260, 3 A.3d 806 (2010). In the
interest of clarity, we note that ‘‘Connecticut citizens’’ refers to residency, not
citizenship status, in accordance with long-standing United States Supreme
Court precedent holding that noncitizens are protected by the fourth amend-
ment. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 771, 70 S. Ct. 936, 94
L. Ed. 1255 (1950) (‘‘[A]t least since 1886, we have extended to the person
and property of resident aliens important constitutional [guarantees]—such
as the due process of law of the [f]ourteenth [a]mendment. . . . [I]n
extending constitutional protections beyond the citizenry, the [c]ourt has
been at pains to point out that it was the alien’s presence within its territorial
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question in this case, as the majority has framed it, is

whether society would recognize an objectively reason-
able privacy interest in the extraction and testing of an
individual’s DNA, or, in other words, a right to anonym-
ity—a right to be left alone. Unlike the majority, I do
not partition my analysis of the defendant’s privacy
interests into discrete sections regarding the collection
of his DNA and the analysis of that DNA. I do not
believe that such separation is necessary, or helpful, in
addressing the question before the court.
As I detailed in part II of this opinion, in my view,
the majority skips over whether society would expect
a person who the police do not have probable cause to
search or seize to have a reasonable expectation of privacy
in the extraction and analysis of his DNA. Instead, it
sanctions what I believe is an incorrect understanding
of federal law and a reductive assessment of the familiar
considerations articulated in State v. Geisler, 222 Conn.
672, 685, 610 A.2d 1225 (1992), in concluding that society
would not expect a person to have a reasonable expec-
tation of privacy in the extraction and analysis of one’s
DNA.13 As this court has done many times when measur-
ing reasonable expectations of privacy of the public, I
look to the Geisler considerations to address whether
Katz’ ‘‘reasonable person’’ would find, in Connecticut,
a privacy violation to be reasonable. See, e.g., State v.
Kono, supra, 324 Conn. 89, 92 (applying Geisler consid-
jurisdiction that gave the [j]udiciary power to act.’’ (Citation omitted.)); see
also Wong Wing v. United States, 163 U.S. 228, 238, 16 S. Ct. 977, 41 L. Ed.
140 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S. Ct. 1064, 30 L. Ed.
220 (1886).
13
See State v. Skok, 318 Conn. 699, 708, 122 A.3d 608 (2015) (Geisler
considerations include ‘‘(1) the text of the relevant constitutional provisions;
(2) related Connecticut precedents; (3) persuasive federal precedents; (4)
persuasive precedents of other state courts; (5) historical insights into the
intent of [the] constitutional [framers]; and (6) contemporary understandings
of applicable economic and sociological norms [otherwise described as
public policies]’’ (internal quotation marks omitted)).
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State v. Sharpe

erations to determine if defendant had reasonable

expectation of privacy under article first, § 7, of state
constitution in common area of condominium develop-
ment or in contraband found inside his condominium
as result of warrantless canine sniff for investigatory
purpose); see also, e.g., State v. Skok, 318 Conn. 699,
701, 708, 122 A.3d 608 (2015). We have expressly recog-
nized that ‘‘not every Geisler factor is relevant in all
cases,’’ however, and that we should assess particular
Geisler considerations only ‘‘to the extent [that they are]
applicable . . . .’’ (Internal quotation marks omitted.)
Kerrigan v. Commissioner of Public Health, 289 Conn.
135, 157, 957 A.2d 407 (2008). I agree with the majority
that the text of article first, § 7, as well as the intent of
the state constitution’s framers, sheds little light on
the question before this court, considering that ‘‘[t]he
language of article first § 7, which was based upon the
fourth amendment, was adopted with little debate.’’
(Internal quotation marks omitted.) State v. Skok, supra,
709. Moreover, we have recognized particularly that the
text of article first, § 7, as well as the intent of the
constitutional framers, is not relevant to modern day
expectations of privacy. See, e.g., State v. DeFusco,
supra, 224 Conn. 635 (‘‘[a]lthough we have, on occasion,
employed a historical analysis of state constitutional
provisions to aid in our determination of their content
. . . the reasonable expectation of privacy analysis is
peculiarly focused on current conditions and requires
a factual inquiry into all the relevant circumstances’’
(citations omitted)).
Therefore, I begin with what I believe should be the
most relevant considerations when resolving whether
the extraction and testing of DNA for identification
purposes unreasonably invades Connecticut residents’
privacy: articulations of Connecticut public policy and
related Connecticut precedents. I then turn to persua-
sive federal precedents and debunk what I consider
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the majority’s mistaken interpretation of United States

Supreme Court and other federal jurisprudence. Finally,
I proceed to assess the impact of other state courts’
precedents.
A
In view of its natural relationship to societal expecta-
tions of privacy, which is, first and foremost, what we
must determine under the Katz test, a consideration of
this state’s public policy is paramount when determin-
ing whether society is prepared to recognize a privacy
interest in DNA as reasonable. This court has recognized
that, because ‘‘[l]egislative enactments are expressions
of this state’s public policy’’; State v. Miller, 227 Conn.
363, 375, 630 A.2d 1315 (1993); ‘‘they may be relevant
to the resolution of whether the defendant’s expectation
of privacy is one that Connecticut citizens would recog-
nize as reasonable.’’ State v. Bernier, 246 Conn. 63,
73, 717 A.2d 652 (1998). Therefore, a review of the
comprehensive statutory scheme governing the DNA
sampling of individuals for identification purposes is
appropriate. On its face, the fact that the legislature
has constructed a framework detailing if, when, and
how DNA samples may be collected, tested, and stored
with respect to particular classes of arrested and con-
victed individuals for identification purposes supports
a conclusion that Connecticut residents enjoy a reason-
able expectation of privacy in their DNA samples, even
when those DNA samples are presently tested solely
for identification purposes. See General Statutes §§ 54-
102g through 54-102m.
The first part of this statutory scheme, § 54-102g,
details specific classes of convicted and arrested offenders
who must submit to DNA extraction. The only class of
arrested, rather than convicted, offenders required to
submit to DNA extraction are those arrested for the
commission of a ‘‘serious felony,’’ who previously have
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State v. Sharpe

been convicted of a felony but did not submit to DNA

extraction at that time. General Statutes § 54-102g (a).
Notably, however, the ‘‘serious felon[ies]’’ listed in sub-
section (a) of § 54-102g do not include a number of
violent felonies. For example, individuals arrested for
the following crimes need not submit to DNA extraction
and testing: sexual assault in the second degree; General
Statutes § 53a-71; assault of a Department of Correction
employee in the first degree; General Statutes § 53a-
59b; assault of a pregnant woman resulting in the termi-
nation of pregnancy; General Statutes § 53a-59c; and
arson in the third degree. General Statutes § 53a-113.
The remainder of § 54-102g limits the individuals who
must comply with DNA extraction and testing to those
who have been convicted, or found not guilty by reason
of mental disease or defect, of a criminal offense against
a minor victim. See General Statutes § 54-102g (b)
through (f). Based on the plain language of § 54-102g,
therefore, an individual convicted of sexual assault in
the second degree, when the victim was an adult, could
appropriately reject the government’s attempt to extract
and test his DNA. This suggests that the legislature did
not consider the state’s interest in public safety to be
significant enough to require warrantless, involuntary
extraction and testing of such an individual’s DNA because
that sampling would unreasonably invade his privacy.
The remainder of this statutory scheme further sup-
ports the conclusion that it is the public policy of Con-
necticut that its residents maintain a reasonable
expectation of privacy in the extraction of their DNA
samples and the identifying information gleaned from
that extraction. Specifically, §§ 54-102h, 54-102i and 54-
102j detail procedures that state officers must abide by
when extracting biological samples for a DNA analysis,
conducting that DNA analysis, and storing the results
of that DNA analysis for those offenders—and only
those offenders—listed in § 54-102g. Section 54-102k
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provides in relevant part that any individual who, with-

out authority, ‘‘obtains or attempts to obtain any [DNA]
sample submitted . . . for analysis shall be guilty of
a class D felony.’’ Section 54-102l provides that state
officials ‘‘shall’’ expunge the DNA profile, as well as
‘‘all records and identifiable information in the [DNA]
data bank’’ for those individuals whose criminal convic-
tions were reversed, and their cases dismissed, after
having had their DNA information extracted pursuant
to § 54-102g. Finally, § 54-102m mandates that ‘‘a DNA
Data Bank Oversight Panel composed of the Chief
State’s Attorney, the Attorney General, the Commis-
sioner of Emergency Services and Public Protection,
the Commissioner of Correction, the executive director
of the Court Support Services Division of the Judicial
Department and the Chief Public Defender . . . shall
take such action as necessary to assure the integrity of
the data bank including the destruction of inappropri-
ately obtained samples and the purging of all records
and identifiable information pertaining to the persons
from whom such inappropriately obtained samples
were collected.’’
In my view, the majority’s assertion that Connecticut
residents enjoy no reasonable expectation of privacy
in the identifying information taken from their shed
DNA cannot be squared with this statutory scheme. The
majority’s retort that, ‘‘[i]f an individual had a reason-
able expectation of privacy in the collection of biologi-
cal 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,’’ is unpersuasive. Footnote 9 of the
majority opinion. Our state’s public policy, articulated
through our statutes, acknowledges the obvious differ-
ence between the actions of law enforcement in collect-
ing evidence at a crime scene and the actions of law
enforcement in trying to match a perpetrator to that
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State v. Sharpe

crime scene. For example, General Statutes § 29-7b (c)

provides in relevant part that the government may
‘‘investigate any physical evidence or evidentiary mate-
rial related to a crime upon the request of any federal,
state or local agency’’ and ‘‘may conduct or assist in
the scientific field investigation at the scene of a crime
. . . .’’ Further, the majority’s concern about the gov-
ernment’s ability to sweep a crime scene for evidence
goes to a fundamental misunderstanding about our dis-
agreement—the issue is not that the police collected
shed DNA. It is that the police collected the defendant’s
shed DNA, because they believed it was the defendant’s
DNA, for an investigative purpose, without a warrant.
See J. Skopek, ‘‘Reasonable Expectations of Anonym-
ity,’’ 101 Va. L. Rev. 691, 762 (2015) (‘‘[W]hen we engage
in [activities like dialing phone numbers and making
online purchases], we do not always expect that the
information contained in our phone logs, purchases,
blood, and tissue will remain unknown. Rather, what
we often expect to remain unknown is the fact that
this information is information about us. (Emphasis
in original.)).
If the majority is correct that there is no reasonable
expectation of privacy in one’s ‘‘discarded’’ (the majori-
ty’s euphemism for ‘‘abandoned’’) DNA, why would the
legislature explicitly require the deletion of the DNA
records, including both the samples and profiles, of
those individuals whose convictions were reversed and
cases dismissed? Why would the legislature limit the
types of offenders who must submit to DNA sampling
and testing in the first place? Perhaps most troubling,
why would the privacy rights of incarcerated individu-
als, which are qualified by their custodial status; see,
e.g., Maryland v. King, supra, 569 U.S. 462 (privacy
expectations of those taken into police custody ‘‘ ‘nec-
essarily [are] of a diminished scope’ ’’); have greater
protection than individuals living their lives in the com-
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munity who have neither been arrested nor convicted

of any crime, at any time, much less the crimes enumer-
ated in § 54-102g?
The legislative history underlying this statutory
scheme answers these questions, confirming that the
legislature has debated and concluded that the state’s
residents have an expectation of privacy in the govern-
ment’s extraction of their DNA samples and the identi-
fying information gleaned from those samples, and that
expectation is reasonable. One supporter of this legisla-
tion; see Public Acts 1994, No. 94-246, §§ 1 through 6;
explicitly reasoned that the statutes authorizing DNA
extraction were ‘‘not a significant invasion of privacy
since [they] only [include] convicted offenders,’’ as opposed
to most arrestees or civilians. Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 5, 1994 Sess., p. 1574,
testimony of Gail Burns-Smith, executive director of
Connecticut Sexual Assault Crisis Services, Inc.; see
also Bell v. Wolfish, 441 U.S. 520, 557, 99 S. Ct. 1861,
60 L. Ed. 2d 447 (1979) (privacy interests of those in
custody may be tempered to achieve ‘‘appropriate secu-
rity measure[s]’’); State v. Bemer, 339 Conn. 528, 574,
262 A.3d 1 (2021) (invasion of defendant’s privacy inter-
est requires ‘‘ ‘nexus between the law’s intrusion on
. . . the diminished privacy interest . . . and the infor-
mation obtained from that intrusion’ ’’).
In 2003, the legislature amended the previously dis-
cussed statutory scheme by creating the oversight com-
mittee and addressing privacy concerns implicated by
DNA testing. See Public Acts 2003, No. 03-242. Fears
of function creep were already present, with one com-
mentator expressly stating that, ‘‘[i]n the [1930s], prom-
ises were made that the Social Security numbers would
only be used as an aid for the new retirement program,
but over the past [sixty] years they have gradually
become the universal identifier that their creators
claimed they would not be. . . . In less than a decade,
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State v. Sharpe

we have gone from collecting DNA from convicted sex

offenders . . . to data banks of all violent offenders.’’
Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 10, 2003 Sess., p. 3429, testimony of Teresa Younger,
executive director of the Connecticut Civil Liberties
Union. The 2003 amendments, first introduced by the
legislature’s Committee on Public Safety, received sig-
nificant criticism for being ‘‘overly broad,’’ considering
‘‘that [they] extended to any crime as defined in our
General Statutes, which could be misdemeanors as mild
as trespass . . . [that were] an unnecessary intrusion
into privacy . . . .’’ 46 H.R. Proc., Pt. 20, 2003 Sess., p.
6655, remarks of Representative James F. Spallone. One
representative commented further on the proposed leg-
islation’s overly broad nature, considering that it might
extend, over time, to require DNA testing for even non-
criminal activity and asking, ‘‘[h]ow much information
can we collect to give Big Brother?’’ Id., p. 6665, remarks
of Representative Kosta M. Diamantis. Representative
Diamantis further commented that ‘‘[t]his is not a bill,
the way it’s written now, to . . . protect the general
public from someone who is a pedophile, someone who
is a rapist, someone who is a murderer, someone who
may be an arsonist, someone who may be a burglar, a
robber. . . . There’s still plenty of time left to make
an appropriate revision to this bill so it does exactly
. . . what it should be doing and taking those DNA
samples in those serious cases to prevent the murder-
ers, the rapists, the arsonists. But, my God, these other
statutes that we’ve listed here I don’t think are the ones
that we wish to acquire DNA samples from. At least I
hope not.’’ Id., pp. 6668–69. Another legislator, criticiz-
ing the overbroad strictures of the proposed legislation
as encroaching on privacy rights, asked, ‘‘[t]here will
be no way that police departments would be riding
around in their patrol cars with DNA sample tests. Is
that correct?’’ Id., p. 6689, remarks of Representative
Reginald G. Beamon.
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State v. Sharpe

Given Representative Beamon’s more than twenty

year old commentary and the government’s targeting
of three of the defendant’s family members for the
extraction and testing of samples of their DNA, the
majority’s criticism of the defendant’s policy concerns
as hyperbolic rings hollow. In fact, Representative Dia-
mantis’ comment about ‘‘Big Brother’’ sums up the issue
in this case: whether the government may extract and
test DNA from objects lawfully taken from a public
street and then store that DNA sample indefinitely.
In light of these concerns, before passage of the pre-
viously discussed legislation, lawmakers trimmed the
overbroad nature of the statutory scheme to ‘‘hone in
on those crimes that really lead to serious physical and
personal injury’’ and to protect against an ‘‘invasion of
rights of privacy of others.’’ 46 H.R. Proc., supra, p.
6674, remarks of Representative Christopher R. Stone.
The legislative history of these statutes, therefore,
affirms that our state’s most public facing branch of
government has considered, and addressed, the ques-
tion that this court treats as novel—whether there is a
reasonable privacy interest in identifying information
gleaned from DNA—and has affirmatively stated that
there is such an interest for many arrested and con-
victed individuals, notwithstanding the government’s
interest in public safety.
The majority opts not to consider our statutes when
analyzing whether the defendant holds an objectively
reasonable expectation of privacy in the identifying
information gleaned from his shed DNA, despite our
Geisler jurisprudence, which has consistently looked
to our state’s statutes to assist this court in defining a
right to privacy that society would recognize as reason-
able, just as courts have done historically. See part II
C of this opinion. Instead, the majority contends that
identifying information from shed DNA is no different
from identifying information from fingerprints, and,
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State v. Sharpe

therefore, the defendant abandoned any expectation of

privacy in his DNA sample by disposing of his belt and
never held an expectation of privacy in the identifying
information gleaned from analyzing that DNA. I dis-
agree. The analogy that the majority draws between DNA
and fingerprints falls apart upon examination. Although
I maintain that the DNA test used by the police in this
case can reveal more than just identity—indeed, Bourke
admitted as much in his testimony before the jury—
the extraction of the defendant’s DNA creates a sample
that, because it is stored indefinitely, can be tested in
myriad ways for myriad purposes. A fingerprint itself
is analogous to the DNA ‘‘sample’’ in this case, and,
unlike DNA, it can genuinely reveal only identity. See
State v. Burns, supra, 988 N.W.2d 396 (McDermott, J.,
dissenting) (‘‘A fingerprint reveals—with existing tech-
nology, at least—only identity, and reveals that only by
comparing one fingerprint against a known sample. A
fingerprint itself stores no private information. . . .
DNA, on the other hand, arms those with the ability to
analyze it with a vast trove of private details about a
person. The informational superabundance of DNA and
its ever-expanding uses have sparked a scientific revolu-
tion. No less than a dozen Nobel Prizes have been
awarded for research involving DNA. . . . DNA has not
received these accolades because of its mere capacity
to verify identity against an exemplar. . . . People do
not forfeit to the government a reasonable expectation
of privacy in the contents of their entire genetic code—
and all that it reveals about them—merely by leaving
a drinking straw at a restaurant. DNA is that much
richer, that much more laden with information, by
orders of magnitude, than fingerprints. And DNA is that
much more sensitive to privacy concerns than finger-
print impressions left on a surface. Like fingerprints,
the analogy exists on the surface only. The comparison
between fingerprints and DNA denotes . . . rational-
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State v. Sharpe

ization rather than reasoning.’’ (Citations omitted;

emphasis in original.)).
Further, DNA evidence and fingerprints are used for
fundamentally different purposes, and those purposes
illuminate why DNA entails additional privacy con-
cerns: ‘‘Fingerprints of arrestees are taken primarily to
identify them (though that process sometimes solves
crimes); the DNA of arrestees is taken to solve crimes
(and nothing else).’’ Maryland v. King, supra, 569 U.S.
478 (Scalia, J., dissenting). These sorts of false analogies
are not new when it comes to applying the fourth
amendment to developing technologies. See M. McAllis-
ter, ‘‘The Fourth Amendment and New Technologies:
The Misapplication of Analogical Reasoning,’’ 36 S. Ill.
U. L.J. 475, 477 (2012) (often ‘‘these supposed analogies
are so far removed from the new forms of surveillance
that analogies to them only confuse, rather than clarify,
the actual analysis required by Katz’’).
Third, it is not a foregone conclusion, as the majority
suggests, that the United States Supreme Court would
hold that there is no reasonable expectation of privacy
in the identifying information from the fingerprints of
a person who the government lacks probable cause to
search or seize. Although the court has noted, in dictum,
that ‘‘[f]ingerprinting involves none of the probing into
an individual’s private life and thoughts that marks an
interrogation or search’’; Davis v. Mississippi, 394 U.S.
721, 727, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); it
did so only in the context of routine police booking
procedures. Indeed, Justice Scalia noted in his dissent
in King that ‘‘[t]he [c]ourt does not actually say whether
it believes that taking a person’s fingerprints is a [f]ourth
[a]mendment search, and our cases provide no ready
answer to that question.’’ Maryland v. King, supra,
569 U.S. 477 (Scalia, J., dissenting). The case that the
majority refers to cryptically for the more general prop-
osition that ‘‘individuals do not have an objectively rea-
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State v. Sharpe

sonable expectation of privacy in certain identifying

characteristics’’; part I B of the majority opinion; did
not involve a challenge to the use of fingerprints but,
instead, involved a defendant’s claimed expectation of
privacy in a voice recording that a grand jury had sub-
poenaed from him when considering whether to indict
him. See United States v. Dionisio, 410 U.S. 1, 13–14,
93 S. Ct. 764, 35 L. Ed. 2d 67 (1973). The grand jury’s
subpoena in Dionisio, notably, underwent judicial scru-
tiny before the defendant was compelled to comply,
unlike the state’s warrantless extraction and testing of
the defendant’s DNA sample in the present case. See
id. To support its fingerprint analogy, the majority also
refers to Justice Scalia’s dissent in King, notwithstand-
ing that his dissent concludes, expressly, that finger-
printing is not analogous to DNA, making its inclusion
in the majority’s reasoning odd. See Maryland v. King,
supra, 478 (Scalia, J., dissenting) (‘‘[f]ingerprints of arrest-
ees are taken primarily to identify them (though that
process sometimes solves crimes); the DNA of arrestees
is taken to solve crimes (and nothing else)’’). Also,
even if there is no expectation of privacy in identifying
information gleaned from fingerprints in some circum-
stances, that does not mean that the public at large has
no expectation of privacy in that information.
In fact, the legislature has already determined that
identifying information from the fingerprints of individ-
uals who have not been arrested for a crime should be
protected from compulsory takings. Only those ‘‘per-
sons arrested for crime’’ must ‘‘submit to the taking of
their fingerprints . . . .’’ General Statutes § 29-12 (a).
Further, ‘‘whenever any person, having no record of
prior criminal conviction, whose fingerprints . . . are
filed . . . in accordance with section 29-12 has been
found not guilty of the offense charged, or has had such
charge dismissed or nolled, such person’s fingerprints
. . . and other identification data, and all copies and
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State v. Sharpe

duplicates thereof, shall be returned to such person

. . . .’’ General Statutes § 29-15 (a) (1). That same stat-
ute requires that any fingerprints or other identifying
information in digital form shall be ‘‘permanently
deleted’’ and, in physical form, ‘‘destroyed . . . .’’ Gen-
eral Statutes § 29-15 (a) (2). This provision also applies
retroactively, encompassing those individuals who have
been found not guilty or have had the charges against
them dismissed prior to 1974. General Statutes § 29-15
(b).14 That the legislature has taken concrete steps to
protect the identifying information from fingerprints,
as well as DNA, fundamentally undercuts the majority’s
assertion that there is no expectation of privacy in that
identifying information in the first place.
The majority also downplays other public policy con-
cerns that abound in this context regarding future impli-
cations for the privacy of our state’s residents. The
majority accurately sums up these concerns by refer-
encing the amicus’ warning that, ‘‘without a right to
privacy in one’s DNA, ‘law enforcement can hold onto
an isolated DNA sample for as long as it deems neces-
sary’ . . . .’’ Part II of the majority opinion. But the
majority simply shrugs off these concerns, characteriz-
ing them as merely part of a fictional ‘‘parade of horrible
outcomes . . . concern[ing] issues that are not present
in this case.’’ (Citation omitted; internal quotation
marks omitted.) Id. The majority should not be so cava-
lier when the record in this very case—not a hypotheti-
14
Of course, some professions require fingerprinting. But someone con-
senting to sharing his personal information via fingerprints is hardly the
same as someone, who does not consent, having no reasonable expectation
of privacy in that information. See Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (‘‘one of the specifically established
exceptions to the requirements of both a warrant and probable cause is a
search that is conducted pursuant to consent’’). In fact, schools that require
employees to undergo fingerprinting are statutorily mandated to destroy
‘‘such fingerprints and positive identifying information’’ after four years.
General Statutes § 10-221d (c).
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State v. Sharpe

cal future case—recounts governmental action against

three individuals selected by a third-party forensic
investigation company with which the state had con-
tracted.15 At the behest of this third party, and without
having to justify or even scrutinize the familial DNA
searching methods that it used, the police followed
these individuals and surreptitiously collected items
they had touched so that their DNA could be tested.
There is no reason to believe that the DNA samples
from these individuals will not be maintained in a state
database for the foreseeable future,16 just as individuals
whose DNA, extracted and tested lawfully pursuant
to §§ 54-102h and 54-102j, is stored indefinitely. See
General Statutes § 54-102i (‘‘[t]he remainder of a sample
submitted for analysis and inclusion in the data bank
pursuant to section 54-102g may be divided, labeled as
provided for the original sample, and securely stored’’).
In short, I am concerned that the majority’s failure
to address meaningfully the privacy implications inher-
ent in the government’s ability to extract, test, and indef-
initely store any individual’s DNA paves the way for the
government to further encroach on the privacy rights
of Connecticut residents. I am not convinced that the
majority is right that its holding is as limited as it asserts,
and I am troubled by what I see as the foreseeable
likelihood that it is wrong. For these reasons, I believe
that public policy supports recognizing the defendant’s
privacy right in the extraction and analysis of his DNA
15
The defendant expressly argues in his brief that ‘‘[a]nother consideration
is the privacy considerations of others whose DNA the police take without
a warrant or probable cause who are never charged with a crime. Here,
there were three other people (that we know of) whose DNA was taken
without their consent who have never been charged with a crime. . . . The
costs and risks of the police having unfettered and unregulated access to
anybody’s DNA outweigh any benefit in allowing this unregulated practice.
The police conduct is a threat to the personal privacy of every citizen
of Connecticut.’’
16
See footnote 10 of this opinion.
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sample under article first, § 7, of the Connecticut consti-

tution.
B
It is particularly notable that the majority omits any
discussion of our state statutes given the frequency
with which our case law has looked to them when
determining societally reasonable expectations of pri-
vacy. For example, in State v. DeFusco, supra, 224 Conn.
639, this court was persuaded that Connecticut resi-
dents have no reasonable expectation of privacy in their
garbage, given that General Statutes § 22a-220c (a) and
(b) mandate that garbage collectors ‘‘assist municipal
authorities in identifying recycling violators . . . [and]
in assessing recycling compliance.’’ (Citation omitted;
footnotes omitted.) Id., 636. In State v. Bernier, supra,
246 Conn. 63, we held that article first, § 7, did not
prevent the police from performing gas chromatogra-
phy analysis on charred wood floor samples lawfully
seized from a defendant’s home pursuant to General
Statutes §§ 29-302, 29-310 and 29-311 because, ‘‘once the
evidence was lawfully seized pursuant to the statutorily
mandated cause and origin investigation of the fire
scene, the defendant’s expectation of privacy in the
samples was not reasonable.’’ Id., 71.
We have not only looked to the General Statutes as
evidence of intrusions on privacy that society is pre-
pared to accept as reasonable, however. We also have
considered the purpose behind a governmental intru-
sion. As discussed in part II of this opinion, the majori-
ty’s adoption of the state’s characterization of its one
and only interest in ‘‘identifying’’ the defendant is a
thinly veiled distraction from the state’s true interest—
investigation. In State v. Jackson, supra, 304 Conn. 383,
this court held that the police had properly seized the
defendant’s clothing for investigatory purposes, but
only because they initially seized the clothing when
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State v. Sharpe

performing their community caretaking function and

that the subsequent investigation ‘‘involved no addi-
tional intrusion into the defendant’s privacy.’’ Id., 403.
But cf. State v. Joyce, supra, 229 Conn. 14, 23–24 (there
was unreasonable invasion of privacy when police, after
lawfully seizing defendant’s clothing pursuant to com-
munity caretaking function, transferred clothing for
forensic testing and gained additional information that
was not apparent from initial lawful seizure). In the
present case, to investigate a crime, the state extracted
the defendant’s DNA, which it could not detect based
solely on its custody of his belt and despite lacking
probable cause to breach any of his reasonable privacy
expectations. That extraction involved an ‘‘additional
intrusion into the defendant’s privacy’’; State v. Jackson,
supra, 403; considering that the extracted DNA sample
was capable of revealing a myriad of private information
through the use of advanced technology not in general
use by the public at large. See Kyllo v. United States,
supra, 533 U.S. 30, 40 (thermal imaging device, which
was not in general use by public, that federal agents
used without warrant on public street to detect heat
inside private home). Indeed, in Jackson, this court
noted that the subsequent forensic testing of the defen-
dant’s clothing (coincidentally, also a belt) ‘‘did not
violate the fourth amendment because the testing was
performed pursuant to a search warrant.’’ State v. Jack-
son, supra, 403.
We have also considered, in conjunction with statutes
and the purpose behind the invasion, the degree of
information that the state can or has gleaned from a
particular invasion. In Joyce, for example, this court
held that testing fire damaged clothing at the state foren-
sic laboratory—after the police had seized that clothing
in their community caretaking capacity— was an unrea-
sonable search because the test was ‘‘capable of
determining a multitude of private facts about an indi-
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State v. Sharpe

vidual . . . .’’ (Footnote omitted.) State v. Joyce, supra,

229 Conn. 24. Because the state’s testing revealed more
information than did its previous permissible seizure
of the clothing, and because no particular statute per-
mitted the state to test the fire damaged clothing and
to obtain those ‘‘private facts’’; id.; we held that the
testing of the clothing was an unreasonable search
under article first, § 7. See id. In fact, this court later
distinguished Joyce for exactly this reason, noting in
State v. Bernier, supra, 246 Conn. 63, that the charred
flooring that had been admitted into evidence in Bernier
‘‘was seized as evidence pursuant to an investigation’’
authorized by §§ 29-302, 29-310 and 29-311, and testing
it was therefore permissible, unlike the testing in Joyce.
Id., 76.
The majority contends that Joyce is not relevant to the
present case because 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’ ’’; part II of the
majority opinion; and, therefore, fell within the category
of ‘‘highly personal information’’ that this court refer-
enced in State v. DeFusco, supra, 224 Conn. 639 n.19.
I disagree that this fact distinguishes Joyce. Indeed, the
‘‘rather private facts’’ revealed by the analysis under-
taken in Joyce—‘‘the presence of an organic material in
the defendant’s underwear that was not an accelerant’’;
State v. Joyce, supra, 229 Conn. 24 n.16—do not differ
significantly from the identifying information that can
be gleaned in the present case from the state’s war-
rantless extraction and testing of the DNA samples from
the defendant and three other individuals, which the
state maintains in storage to this day. I am therefore
not persuaded by the majority’s attempt to distinguish
Joyce based on either the amount of information
gleaned from testing or the personal nature of what
was revealed.
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State v. Sharpe

Moreover, Joyce illustrates how the majority con-

flates the defendant’s privacy interest in his belt with
that of his DNA sample extracted from that belt. Joyce
was concerned with the lawful taking of burnt clothing,
and the unlawful search of that clothing—key to our
holding in that case was that the amount of information
gleaned from taking the clothing, versus testing the
clothing, was different in scope. The intrusion in the
present case goes even further: the proper taking of the
defendant’s belt differs from the improper extraction,
or taking, of a sample of his shed DNA and differs even
more from the improper testing, or search, of his shed
DNA. No ‘‘extraction’’ occurred in Joyce because the
testing was performed on the burnt clothing itself; that
is to say, there was no sample taken of the ‘‘organic
material in the defendant’s underwear . . . .’’ Id.
Rather, in Joyce, it was the state’s testing of the defen-
dant’s clothing that resulted in the detection of a known
pattern for gasoline on the clothing. Id., 14–15. This
distinction is relevant for the same reason that the dis-
tinction between fingerprints and DNA is relevant: the
level of information that could be gleaned from the
clothing in Joyce was finite, just as it is for fingerprints.
The amount of information that can be gleaned from
the defendant’s DNA sample, however, is hardly finite,
particularly given the present and future advances in
modern science. Therefore, Joyce is relevant to
addressing whether the testing of the defendant’s DNA
violated what Connecticut residents would consider a
reasonable expectation of privacy, and it supports the
defendant’s position because the ‘‘organic material[s]’’
discovered in Joyce; id., 15; are at least similar to, if not
less revealing than, the identifying information gleaned
from DNA. But there’s more. The majority does not
fully come to grips with the defendant’s argument that
the extraction of a sample of his DNA from his belt to
create a DNA profile further encroached on his privacy
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rights, despite the sample’s capacity to reveal substan-

tially more than any test the state happened to choose
during its investigation of the defendant.
C
Rather than look to Connecticut’s own statutes and
case law, which, in my view, support the conclusion
that an individual in the defendant’s position has a rea-
sonable expectation of privacy in the extraction and
testing of his shed DNA for identification purposes
under article first, § 7, the majority relies on its analysis
of Maryland v. King, supra, 569 U.S. 435, to conclude
that federal precedent gives us ‘‘a reasonable degree of
certainty how the United States Supreme Court would
resolve the issue’’ under the fourth amendment, namely,
that the defendant has no expectation of privacy in the
extraction and testing of his DNA. (Internal quotation
marks omitted.) Part I of the majority opinion. The
majority relies on its analysis of King not only to reject
the defendant’s fourth amendment claim, but also as
part of its consideration of his state constitutional claim
under Geisler, which, in turn, it also rejects.
Unlike the majority, I believe that federal law is too
unsettled to conclude with a reasonable degree of cer-
tainty how the United States Supreme Court would
resolve the issue under federal law. I read the holding
of King as being confined to the ‘‘collection and analysis
of a DNA sample from persons arrested, but not yet
convicted, on felony charges,’’ under the purview of
the Maryland DNA Collection Act.17 Maryland v. King,
supra, 569 U.S. 442; see Md. Pub. Safety Code Ann., § 2-
501 et seq. (LexisNexis 2022 & Supp. 2024). In my view,
the holdings of at least three United States Supreme
Court cases decided after King, and another case
decided a little more than one year before King, cast
significant doubt on the majority’s assumption that the
17
See footnote 10 of the majority opinion.
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State v. Sharpe

highest court of our nation would reject as unreason-

able a defendant’s expectation of privacy in the identi-
fying information from his DNA rather than recognize
that expectation as reasonable, given both the custodial
status of the defendant (and his three other family mem-
bers) at the time of the extraction of the DNA samples
and the amount of information that can be gleaned from
those samples. See Carpenter v. United States, supra,
585 U.S. 303–305 (cell site location data); Birchfield v.
North Dakota, 579 U.S. 438, 463–64, 136 S. Ct. 2160, 195
L. Ed. 2d 560 (2016) (blood testing upon arrest for
driving while impaired); Riley v. California, 573 U.S.
373, 403, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014) (search
of cell phone contents); United States v. Jones, supra,
565 U.S. 403 (installation of tracking device on vehicle).
I am more persuaded by 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), which addressed the
very issue before this court and came to a conclusion
contrary to that of the majority in the present case.
I begin with my analysis of King, which I believe the
majority misunderstands and misapplies in asserting
that federal law supports its conclusion. In King, the
defendant was arrested and, ‘‘[a]s part of a routine book-
ing procedure for serious offenses, his DNA sample was
taken’’ from a buccal swab to the inside of his cheeks.
Maryland v. King, supra, 569 U.S. 440. Maryland author-
ities then matched the defendant’s DNA sample with
that of the perpetrator in an unsolved sexual assault
case, which had been obtained from the victim in that
case. Id. The defendant in King was then prosecuted
for and convicted of sexual assault. Id. The Court of
Appeals of Maryland set aside his conviction, holding
that the seizure of his DNA by the police pursuant to
the booking procedure was unlawful under the fourth
amendment. See id., 441. The United States Supreme
Court reversed, beginning its analysis with a discussion
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State v. Sharpe

of the Maryland DNA Collection Act, which had allowed

the police to extract and test the defendant’s DNA, and
noting the procedural safeguards in place under that
law. See id., 443. Specifically, the high court observed
that the Maryland DNA Collection Act authorized the
police to collect DNA only from those ‘‘charged with
. . . a crime of violence or an attempt to commit a
crime of violence’’ but that any sample must be ‘‘imme-
diately destroyed’’ if a court determines that there is no
probable cause to detain the individual on a ‘‘qualifying
serious offense,’’ or if the offense does not result in a
conviction or if that conviction is vacated. (Internal
quotation marks omitted.) Id., 443–44. After determin-
ing that ‘‘the [f]ourth [a]mendment applie[d]’’ to the
DNA extraction and testing at issue, the court deter-
mined whether the extraction and testing of the defen-
dant’s DNA was reasonable under the circumstances
presented, given that, although ‘‘ ‘some quantum of indi-
vidualized suspicion . . . [is often] a prerequisite to a
constitutional search or seizure’ . . . some circum-
stances . . . diminish the need for a warrant . . .
because . . . some reasonable police intrusion on [an
individual’s] privacy is to be expected.’’ (Citations omit-
ted.) Id., 446–47. Because the defendant in King was
an arrestee, the court noted that the appeal ‘‘[could] be
addressed with this background.’’ Id., 447. The court
expounded on ‘‘the permissible limits of such intrusions
[that] are defined narrowly and specifically in the regu-
lations that authorize them’’ for ‘‘this class of arrestees,’’
rather than for the public at large. (Internal quotation
marks omitted.) Id., 448.
Accordingly, the court in King weighed the govern-
mental interests served by the Maryland DNA Collection
Act and the privacy interests of the defendant to assess
whether the extraction and testing of his DNA pursuant
to that law was permissible. The court summarized the
governmental interests as (1) ‘‘[i]n every criminal case,
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State v. Sharpe

it is known and must be known who has been arrested

and who is being tried’’; (emphasis added; internal
quotation marks omitted) id., 450; (2) ‘‘law enforcement
officers bear a responsibility for ensuring that the cus-
tody of an arrestee does not create inordinate ‘risks
[to] facility staff, for the existing detainee population,
and for a new detainee’ [and] . . . officers must know
the type of person whom they are detaining, and DNA
allows them to make critical choices about how to
proceed’’; id., 452; (3) ‘‘the [g]overnment has a substan-
tial interest in ensuring that persons accused of crimes
are available for trials’’; (internal quotation marks omit-
ted) id.; (4) ‘‘an arrestee’s past conduct is essential to
an assessment of the danger he poses to the public,
and this will inform a court’s determination whether
the individual should be released on bail’’; id., 453; and
(5) ‘‘in the interests of justice, the identification of an
arrestee as the perpetrator of some heinous crime may
have the salutary effect of freeing a person wrongfully
imprisoned for the same offense.’’ Id., 455. The court
then characterized the defendant’s privacy interest as
‘‘a minimal one’’; id., 461; considering an arrestee’s
‘‘diminished expectations of privacy’’ and the ‘‘minimal
[intrusion]’’ of the buccal swab within the context of
the ‘‘approved standard procedures [previously]
detailed . . . .’’ (Internal quotation marks omitted.) Id.,
463. The court also observed that the tested DNA at
issue did not reveal the genetic traits of the arrestee,
although ‘‘progressions [in science] may have [f]ourth
[a]mendment consequences . . . .’’ Id., 464. Finally, it
repeated that ‘‘the [Maryland DNA Collection] Act pro-
vides statutory protections that guard against further
invasion of privacy.’’ Id., 465. The court concluded that,
‘‘[i]n light of the context of a valid arrest supported
by probable cause [the defendant’s] expectations of
privacy were not offended . . . . [In] that same con-
text . . . taking and analyzing a cheek swab . . . is,
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State v. Sharpe

like fingerprinting and photographing, a legitimate

police booking procedure that is reasonable under the
[f]ourth [a]mendment.’’ Id., 465–66.
The court in King therefore held that, upon arrest,
the defendant did not have a reasonable expectation
of privacy in the identifying information obtained as a
result of the physical intrusion of the buccal swab, from
which the state extracted and tested his DNA, after
balancing the state’s interests and his privacy interests
in light of his status as an arrestee whom the police
had probable cause to take into custody. None of the
state’s interests in King applies in the present case
because each interest requires, at a minimum, that prob-
able cause exist for an arrest. It is important at that
point for the government to be able to identify that
individual, to confirm that the arrest was lawful or to
dispel suspicion that the arrestee was indeed the perpe-
trator, and that the government is able to determine, if
shown through the DNA testing, ‘‘the type of person
whom [it is] detaining’’; id., 452; so as to protect other
individuals in custody and the staff in that facility from
the dangers that a particular inmate might pose. Cross-
referencing the testing of the DNA sample that a defen-
dant is required to submit with samples collected from
individuals pursuant to Maryland’s DNA Collection Act
after prior convictions or arrests, or with other informa-
tion, allows the state to determine how best to safeguard
the premises. But that danger does not exist in this case.
The majority suggests that there is no difference
between the privacy interests of arrestees and individu-
als who have not been arrested.18 But King’s rationale
18
The majority states: ‘‘Although we acknowledge that certain aspects of
the King analysis were 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.’’
Part I B of the majority opinion.
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State v. Sharpe

explicitly states that there is such a difference, and that

difference is why at least the extraction in that case
was permissible: ‘‘In this critical respect, the search
. . . at issue differs from the sort of programmatic
searches of either the public at large or a particular
class of regulated but otherwise law-abiding citizens
that the [c]ourt has previously labeled as special needs
searches. . . . Once an individual has been arrested
on probable cause for a dangerous offense that may
require detention before trial . . . his or her expecta-
tions of privacy and freedom from police scrutiny are
reduced. DNA identification like that at issue . . . thus
does not require consideration of any unique needs
that would be required to justify searching the average
citizen.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Id., 462–63. The majority
works around this express language, however, asserting
that the extraction of the sample of the defendant’s
DNA in the present case, despite failing to align with
the balancing considerations stated in King, is constitu-
tional because it did not involve a bodily invasion similar
to a buccal swab, and that the testing of the defen-
dant’s shed DNA is constitutional because, according
to the majority, it reveals only his identity. See part II
of the majority opinion. The majority further states that,
‘‘[a]lthough the buccal swab collection constituted a
search . . . the court did not apply the Katz reason-
able expectation of privacy framework. Instead, it ana-
lyzed the constitutionality of the search by balancing
the individual’s privacy interests against the legitimate
interests of law enforcement.’’ (Citation omitted.) Part
I B of the majority opinion. But the very point of the
application of a balancing test in King was to determine
objectively what society would accept as reasonable,
given the defendant’s position in that case as an
arrestee. See Maryland v. King, supra, 569 U.S. 447
(‘‘the ultimate measure of the constitutionality of a gov-
ernmental search is ‘reasonableness’ ’’).
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In my view, the majority’s piecemeal reading of King

is not persuasive, particularly because it omits any dis-
cussion of King’s analysis of whether the collection—
or, in other words, extraction—of the sample of the
defendant’s DNA, was reasonable. By the majority’s
interpretation of King, the defendant’s custodial status
in that case was instrumental to the court’s holding that
it was reasonable for the state, under the Maryland
DNA Collection Act, to extract his DNA by using a
buccal swab. It should follow, then, that the majority
would consider that the government did not have proba-
ble cause to search or seize the defendant in this case
when his DNA was extracted from his garbage. But, in
any case, given that our inquiry into an individual’s
expectation of privacy is necessarily fact dependent,
and therefore must consider, at least, the particular
circumstances of the privacy intrusion at stake, I find
splitting the defendant’s reasons, given his circum-
stances, for expecting a certain level of privacy in his
DNA—his custodial status and the physicality of the
intrusion—unfitting. See 79 C.J.S., supra, pp. 38–40 (fac-
tors for determining reasonable expectation of privacy
are fact-specific but often involve (1) nature of invasion,
(2) custodial status of person claiming privacy violation
and (3) person conducting invasion). Further, the fact
that the physical intrusion in this case was minimal
compared to that of a buccal swab is hardly dispositive.
Multiple United States Supreme Court cases have held
that the fourth amendment’s protection extends to cir-
cumstances that include no bodily intrusion whatso-
ever. See, e.g., Carpenter v. United States, supra, 585
U.S. 303–305 (cell site location data); Riley v. Califor-
nia, supra, 573 U.S. 393 (search of cell phone contents);
United States v. Jones, supra, 565 U.S. 403 (installation
of tracking device on vehicle). Further, as previously
discussed, it is arguable whether the test the state used
in the present case could reveal only the defendant’s
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State v. Sharpe

identity, given that it revealed the presence of thirteen

STR loci, which, at a minimum, can currently reveal an
individual’s genealogical history.
In short, all that King has in common with the present
case is that both concern a defendant’s DNA. King
supports the notion that, like fingerprinting, in some
circumstances, but not all circumstances, there is no
reasonable expectation of privacy in the identifying
information gleaned from the extraction and testing of
DNA samples. King not only involved arrestees but
was premised on Maryland’s DNA Collection Act, which
manifests its own unique legislative indications of what
expectations of privacy might be considered reasonable
under Maryland law, making that case fundamentally
distinguishable from the unfettered ability of the state
in the present case to gather shed DNA from the public
at large. Connecticut’s legislature and courts can, and
should, play a key role in voicing when it is considered
reasonable for Connecticut residents to expect that a
court will have to authorize the testing and storage of
DNA surreptitiously collected. I therefore find it con-
founding that the majority is silent on this important
issue, avoiding any discussion of the relevant Connecti-
cut statutes, which, as previously detailed, largely paral-
lel the Maryland DNA Collection Act, differing only in
that Connecticut law offers privacy protections to a
broader class of arrestees and requires a DNA sample
only from those arrested for the commission of a ‘‘seri-
ous felony’’ who have previously been convicted of a
felony but had not submitted to DNA extraction at that
time. General Statutes § 54-102g (a); see also part II A
of this opinion. With this context, I would not, as the
majority does, so quickly presume that King provides
this court with a reasonable degree of certainty as to
how the United States Supreme Court would resolve
whether the defendant in the present case had an objec-
tively reasonable expectation of privacy in the extrac-
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tion and testing of his DNA under the fourth

amendment. Instead, I believe the more reasonable
reading of King supports, even if it does not endorse
with certainty, a conclusion that the defendant in the
present case maintains a reasonable expectation of pri-
vacy in the extraction and testing of his shed DNA,
given his custodial status (or lack thereof), when the
extraction and testing were performed.
I find more instructive recent United States Supreme
Court cases that involve the privacy interests of those
who have not been arrested, which the majority side-
steps. See, e.g., Carpenter v. United States, supra, 585
U.S. 296; United States v. Jones, supra, 565 U.S. 400.
In my view, these cases provide a clearer picture as to
whether the high court would recognize an expectation
of privacy in the extraction, testing, and storage of an
individual’s DNA when he has not been arrested. The
majority presumes that, because the state in this case
used the DNA sample only to detect thirteen loci that
can, among other things, reveal identity, the defendant
maintained no reasonable expectation of privacy in that
information (even though the state presumably contin-
ues to store it). But, to the contrary, the United States
Supreme Court has held on multiple occasions that
individuals like the defendant have a reasonable expec-
tation of privacy in very similar information precisely
because of what else that information might reveal,
particularly when that information is gleaned using
sophisticated technology not in common use. See Kyllo
v. United States, supra, 533 U.S. 34 (homeowner had
reasonable expectation of privacy in sensitive informa-
tion federal agents gleaned using thermal imaging
device on outside of home to detect indoor activity
because device was not in general public use). For
example, in Carpenter, the high court held that it was
the more than four months of cell site location data
that the government had obtained that violated the
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State v. Sharpe

defendant’s right to privacy rather than the narrower

data set that the government used at trial to place the
defendant’s phone near the locations of some of the
charged crimes. United States v. Carpenter, supra, 302–
303. The government did not pry into the ‘‘ ‘privacies
of life’ ’’ that existed within those more than four
months of data; id., 311; much like the government in
the present case represents that it has not pried into
the full scope of information that can be gleaned from
the sample of the defendant’s DNA. But the fact that
the government in Carpenter had access to that informa-
tion—just as the government in this case has access to
the stored samples of DNA from the defendant and
his three family members—informed the defendant’s
privacy rights in Carpenter, particularly considering the
seismic shift in technology at issue in that case. Id.,
313. Similarly, in Birchfield, the high court held that
the information gleaned from a blood sample violated
the defendant’s right to privacy because the sample
‘‘can be preserved and . . . it is possible to extract
information [from it] beyond’’ the government’s initial
stated purposes. Birchfield v. North Dakota, supra, 579
U.S. 464. Although the compelled blood tests in Birch-
field were a significant ‘‘ ‘physical intrusion,’ ’’ that was
only one aspect of what the court considered in
determining whether a reasonable expectation of pri-
vacy existed in that case. Id., 463; see also State v.
Burns, supra, 988 N.W.2d 384 (Oxley, J., dissenting)
(‘‘we are determining whether the officers’ actions—
processing the DNA to collect unique identification
information to use in a criminal investigation—violated
an expectation of privacy society is prepared to recog-
nize as reasonable’’ (emphasis in original)).
Indeed, in Carpenter, there was no physical intrusion
whatsoever. And, in Jones, as mentioned, the physical
intrusion was minimal and did not involve the defen-
dant’s body, but instead was limited to a tracking device
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that the police had placed on the defendant’s car. See

United States v. Jones, supra, 565 U.S. 404. In fact,
the United States Supreme Court has held that police
conduct in moving stereo equipment mere inches to
determine, by referencing its serial number, whether
the item was stolen constituted an unlawful search. See
Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94
L. Ed. 2d 347 (1987). Therefore, the majority’s assertion
that the lack of bodily physical intrusion of the defen-
dant’s person when extracting and testing his shed DNA
means that his privacy interest in that extraction and
analysis was negligible is contradicted by several recent
United States Supreme Court precedents.
The majority also underplays the significance of Riley
v. California, supra, 573 U.S. 403, which stands for the
proposition that the state may not search the contents
of a cell phone without a warrant, even if it has lawfully
seized the cell phone. The majority claims that circum-
stance differs entirely from the circumstances in the
present case because, in Riley, unlike the DNA collec-
tion, testing, and storage that occurred in this case,
‘‘nothing limits the police from obtaining ‘a broad array
of private information’ apart from self-imposed con-
straints.’’ Part I B of the majority opinion. Therefore, the
majority continues, the privacy implications inherent
in Riley ‘‘about the police potentially discovering more
information than they seek [are] . . . not present
under the facts of this case.’’ Id. But nowhere does the
majority offer any assurance that, once the state has
collected and stored the DNA, the state or anyone else,
such as hackers or individual governmental actors, will
be prevented from obtaining other information from
the samples of the DNA from the defendant or his three
family members. And, of course, neither the majority
nor the state can credibly offer that assurance.
In contrast, for individuals covered by the statutory
scheme I have previously detailed; see General Statutes
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§ 54-102g; the legislature has laid out whose DNA may

be extracted, tested, and stored for identification pur-
poses, and the privacy protections afforded to those
individuals. But, for persons like the defendant, or the
other three people whose DNA the state extracted,
tested, and is presumably storing to this day, I see no
protections in place, despite the asserted assumption
by the state at oral argument that the government would
handle the defendant’s DNA under the purview of § 54-
102g, even though the defendant did not consent to his
DNA being sampled and did not otherwise fall under
the strictures of that statutory scheme when his DNA
was extracted and tested.19 The majority’s contention
that the DNA testing kit that was used revealed only
the defendant’s identity is hardly a protection, given that
the government will presumably retain the defendant’s
sample for an indeterminate period of time and that
those thirteen loci that the test revealed can disclose
more than just identity. See part II of this opinion.
The majority’s assessment of why Riley is distinguish-
able from the present case begins and ends with its
unsupported conclusion that there are limitations in
place when it comes to what the government may learn
from the DNA of a person whom the government lacks
probable cause to search or seize and that was extracted
from a lawfully seized object. Because this analysis is
dubious, it is worth pausing to understand why the
analogy between DNA and cell phones is significant and
the majority’s analysis of Riley is dubious, particularly
given my previous discussion about the false analogy
between DNA and fingerprints. See part III A of this
opinion. ‘‘The term ‘cell phone’ is itself misleading short-
19
During oral argument, the state asserted that ‘‘the state lab, they have
strict rules about . . . whose DNA gets kept, whose DNA can be put into
[the Combined DNA Index System (CODIS), a searchable statewide DNA
database containing the DNA profiles of convicted felons].’’ See footnote 2
of the majority opinion.
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hand; many of these devices are in fact minicomputers

that also happen to have the capacity to be used as
telephones. They could just as easily be called cameras,
video players, rolodexes, calendars, tape recorders, librar-
ies, diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of mod-
ern cell phones is their immense storage capacity.
Before cell phones, a search of a person was limited
by physical realities and tended as a general matter to
constitute only a narrow intrusion on privacy. . . .
Most people cannot lug around every piece of mail they
have received for the past several months, every picture
they have taken, or every book or article they have
read—nor would they have any reason to attempt to
do so. . . . But the possible intrusion on privacy is not
physically limited in the same way when it comes to
cell phones. The current top-selling smart phone has a
standard capacity of 16 gigabytes (and is available with
up to 64 gigabytes). Sixteen gigabytes translates to mil-
lions of pages of text, thousands of pictures, or hun-
dreds of videos.’’ (Citation omitted.) Riley v. California,
supra, 573 U.S. 393–94. In short, the government in Riley
could not search the contents of cell phones, even after
a legal seizure, because the advanced technology of the
modern age makes such an intrusion unreasonable. In
the same way, the government in the present case
should not be able to extract the DNA of a person whom
the government lacked probable cause to search or
seize simply because that person abandoned an object
that had his DNA on it. And, given that the government
stores the DNA sample that it extracts, there is, in my
view, very much a concern about the government—as
the majority assures us it will not—‘‘potentially dis-
covering more information than [it] seek[s]’’; part I B
of the majority opinion; particularly given Riley’s
emphasis on what might be gleaned from a cell phone
in the future: ‘‘We expect that the gulf between physical
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State v. Sharpe

practicability and digital capacity will only continue to

widen in the future.’’ Riley v. California, supra, 394.
Further, the question must, ultimately, be whether
the defendant has a reasonable expectation of privacy
in the extraction of a sample of his shed DNA and
the testing of that sample for identification purposes.
Because our case law and the public policy considera-
tions that our statutes articulate support the defendant’s
state constitutional claim, the fact that federal case law
supports protection beyond that identifying information
merely supplements the persuasiveness of the defen-
dant’s arguments. Therefore, I am simply not persuaded
that the majority affords proper weight to these United
States Supreme Court decisions, particularly in con-
junction with the case law and public policy of our state.
Instead, with Carpenter, Birchfield, Jones and Riley
in mind, I find persuasive other federal precedent sug-
gesting that the defendant enjoys a reasonable expecta-
tion of privacy in his DNA, principally United States
v. Davis, supra, 690 F.3d 246–47. Unlike King, which
concerned only DNA extracted from arrestees, United
States v. Davis, supra, 226, considered the question
before this court today and determined that the defen-
dant in that case did, in fact, have a reasonable expecta-
tion of privacy in the extraction of a sample of his shed
DNA from his clothing, which had been lawfully seized,
even though the government lacked probable cause to
search or seize him, and in the subsequent testing of
that DNA. Id., 248–49. Four years before the murder
with which the defendant had been charged, the police,
while acting in a community caretaking function; see
State v. Jackson, supra, 304 Conn. 404; took clothing
the defendant had worn from the hospital room in which
he was lying, without his permission or a warrant, after
he had been wounded in a shooting incident. United
States v. Davis, supra, 230. Four years later, the police
in another county investigating a different crime learned
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about the existence of the clothes, requested and

obtained them without a warrant, extracted his DNA
from them and retained his DNA profile in a DNA data-
base. Id., 231. The United States Court of Appeals for
the Fourth Circuit held that the extraction and testing
of the defendant’s DNA sample from the database cor-
responding to the four year old incident constituted an
unreasonable search, largely because of the defendant’s
status as an individual whom the government lacked
probable cause to search or seize at the time of the
extraction. See id., 246.
The majority contends that United States v. Davis,
supra, 690 F.3d 226, does not apply because it was
decided ten months prior to King. As I have explained,
I find Davis distinguishable from King on its facts, and
so the timing of it does not, in my view, call into question
its validity. Indeed, post-King, the Fourth Circuit has
referred to Davis several times, suggesting that the
court considers it good law. See, e.g., United States v.
Stephens, 764 F.3d 327, 336 (4th Cir. 2014) (‘‘[W]e held
that the exclusionary rule did not apply where officers
engaged in an unconstitutional search by extracting
and testing the defendant’s DNA sample during a mur-
der investigation without a warrant. We explained that
the [United States] Supreme Court’s recent decisions
applying the exception have broadened its application,
and lead us to conclude that the [f]ourth [a]mendment
violations here should not result in application of the
exclusionary rule.’’ (Emphasis added; internal quotation
marks omitted.)), cert. denied, 577 U.S. 817, 136 S. Ct.
43, 193 L. Ed. 2d 27 (2015). Therefore, based on the
language of King itself, the other jurisprudence of the
United States Supreme Court, and the Fourth Circuit’s
decision in Davis, I am not persuaded that this court
can predict with ‘‘a reasonable degree of certainty,’’ as
the majority claims, how the United States Supreme
Court would resolve the issue under federal law.
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State v. Sharpe

As the majority notes, several scattered federal dis-

trict court decisions align with its conclusion. But those
decisions rely on the factually laden doctrine of aban-
donment in holding that any privacy interest a defen-
dant has in his DNA is overcome by his lack of a privacy
interest in the abandoned object. See, e.g., United States
v. Green, Docket No. 12-CR-83S, 2016 WL 3610331,
*9–10 (W.D.N.Y. July 6, 2016) (there was no reasonable
expectation of privacy in DNA taken from disposed,
bloodstained tissue); Parisi v. Artus, Docket No. 08-CV-
1785 (ENV), 2010 WL 4961746, *6 (E.D.N.Y. December
1, 2010) (‘‘a suspect arrested upon probable cause does
not have a reasonable expectation of privacy in items
discarded while in police custody, even if his DNA is
later collected from them’’). While citing case law that
supports its conclusion but relies on the abandonment
doctrine, the majority tries hard to avoid demonstrating
that the defendant abandoned any privacy interest in
his DNA or the state’s extraction, testing and storage
of his DNA, by assiduously avoiding use of the word
‘‘abandon.’’ See part II of this opinion. For the same
reason that the majority eschews express reliance on
the doctrine, I do not consider these federal cases that
rely on abandonment of an interest in DNA in their
analyses to have persuasive value for the question
before this court, given that, as I have discussed, shed
DNA does not comport with the doctrine of aban-
donment.
Taken together, therefore, in my view, federal prece-
dent supports, rather than detracts from, the defen-
dant’s objectively reasonable privacy interest in the
extraction of the sample of his DNA and the testing of
that sample to reveal his identifying information. King
supports the defendant’s position because its analysis
relies on the custodial status of the defendant in that
case and the legislative articulations of his reasonable
expectation of privacy based on that status. Carpenter,
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Birchfield and Riley support the defendant’s position

because each case demonstrates that the proper inquiry
as to whether an individual has a reasonable expecta-
tion of privacy, at least when it comes to complex tech-
nology used by the government, includes the full scope
of the information the government has access to deci-
phering, not the information that it actually used. Car-
penter, Riley and Jones further support the defendant’s
position because they clarify that the state need not
physically infringe on a person’s body to deprive him
of his privacy rights, giving meaning to Katz’ famous
admonition that ‘‘the [f]ourth [a]mendment protects
people, not places.’’ Katz v. United States, supra, 389
U.S. 351. Finally, Davis supports the defendant’s posi-
tion—and is contrary to the majority’s resolution of
the present case—because it squarely addresses the
extraction and testing issues that this court faces in the
present case regarding the DNA samples of those whom
the government lacks probable cause to search or seize
and is therefore distinguishable from King.
D
Finally, this court often looks to the precedent of
other state courts to assess whether a defendant has a
reasonable expectation of privacy in the extraction of
a sample of his DNA and the identifying information
gleaned from testing that sample. The majority is cor-
rect that the precedent of other state courts, much of
which relies on an interpretation of federal jurispru-
dence or the doctrine of abandonment, does not clearly
support the defendant’s position. Regardless, when it
comes to affording the residents of this state greater
constitutional rights than does the federal constitution,
including greater privacy rights, this court has not con-
cerned itself with counting noses. See, e.g., Kerrigan
v. Commissioner of Public Health, supra, 289 Conn.
246 (‘‘[a]lthough the decision of the California Supreme
Court [in In re Marriage Cases, 43 Cal. 4th 757, 183
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State v. Sharpe

P.3d 384, 76 Cal. Rptr. 3d 683 (2008)] and the dissenting

opinion of Chief Judge [Judith S.] Kaye [in Hernandez
v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1, 821 N.Y.S.2d 770
(2006)] reflect the minority position [regarding granting
suspect status or quasi-suspect to gay persons], we
believe that they nevertheless represent the most per-
suasive sister state precedent’’). In fact, this would not
be the first time that we have held that article first, § 7,
of our state constitution affords greater protection than
does the fourth amendment to the United States consti-
tution, landing us among a minority of state courts. See,
e.g., State v. Miller, supra, 227 Conn. 386–87 and n.19
(warrantless search of impounded automobile violates
article first, § 7, of Connecticut constitution, notwith-
standing ‘‘that most states facing this issue have
adopted the [rule set forth in Chambers v. Maroney,
399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970)] as
a matter of state constitutional law’’); State v. Marsala,
216 Conn. 150, 171 n.14, 579 A.2d 58 (1990) (although
good faith exception to exclusionary rule established
in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82
L. Ed. 2d 677 (1984), does not exist under Connecticut
constitution, it ‘‘has received mixed reviews in other
state courts that have considered its application’’).
In any case, in my view, it is incorrect to say that
the precedent of other state courts uniformly rejects
the defendant’s position. The Supreme Court of Arizona
has, in the last year, held that the police violated the
fourth amendment when they created a DNA profile of
the defendant after he consented to a blood draw that
was for the purpose of determining his blood alcohol
content, because ‘‘[a] typical reasonable person . . .
would not have understood that consenting to the blood
draw for the limited purpose of determining alcohol
concentration or drug content also included consenting
to the creation of a DNA profile, especially years later.’’
State v. Mitcham, 258 Ariz. 432, 440, 559 P.3d 1099
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(2024), cert. denied, U.S. , 145 S. Ct. 1965, 221

L. Ed. 2d 741 (2025). Moreover, state courts have not
been unanimous on the question in this case, or related
issues involving DNA identification of those individuals
whom the government does not have probable cause
to search or seize. In Iowa, for example, the majority
opinion in Burns, which is consistent with the majority
opinion in the present case, was accompanied by three
separate opinions. See State v. Burns, supra, 988 N.W.2d
368; see also id., 372 (McDonald, J., concurring); id.,
382 (Oxley, J., dissenting); id., 388 (McDermott, J., dis-
senting). In Maryland, the majority in Raynor v. State,
supra, 440 Md. 71, which is also consistent with the
majority’s result in the present case; see id., 75; was a
close 4-3 decision with a spirited dissent. See id., 97
(Adkins, J., dissenting). In short, I am not the only
one shouting about what the majority describes as the
‘‘parade’’ of horrible outcomes. The mere fact that the
precedents of other state courts do not uniformly sup-
port the defendant’s position—or the state’s position,
for that matter—does not change that the law of our
state does support the defendant’s position.
Further, in my view, much of the precedent of other
state courts that does not support the defendant’s posi-
tion does not apply to the present case, either because
it relies on an abandonment framework to arrive at its
conclusion, which, as I have detailed, cannot logically
be extended to shed DNA, or because it relies on ques-
tionable scientific conclusions. The majority in the pres-
ent case treads cautiously around its abandonment
analysis, acknowledging that ‘‘people can do very lit-
tle—if anything at all—to completely prevent certain
materials that contain DNA from shedding’’; part I A of
the majority opinion; which also contain ‘‘ ‘vast amount[s]
of sensitive information’ ’’; part I B of the majority opin-
ion; all while premising its conclusion on the defen-
dant’s abandonment of his privacy interest in his DNA
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State v. Sharpe

by virtue of having taken out his trash, even as the

majority takes great pains to avoid the word ‘‘abandon.’’
At least one other court would say that a defendant has
no reasonable privacy interest in his DNA under the
federal constitution because of the limited information
that can be harvested from trace DNA, which, as I noted
in part II of this opinion, is not necessarily accurate.
See Raynor v. State, supra, 440 Md. 82, 85 (there was
no reasonable expectation of privacy in DNA left on
chair during police interview because such DNA could
not reveal ‘‘intimate genetic information’’). The majori-
ty’s inconsistency lines up with the precedent of other
state courts that the majority relies on for support; see,
e.g., State v. Burns, supra, 988 N.W.2d 365; but the
majority ignores countervailing views and undertakes
no cogent analysis of how, precisely, shed DNA can fit
within the doctrine of abandonment. See, e.g., Mary-
land v. King, supra, 569 U.S. 470 (Scalia, J., dissenting);
United States v. Davis, supra, 690 F.3d 246–47; State
v. Burns, supra, 384–85 (Oxley, J., dissenting).
IV
My review of the Geisler considerations leads me
to conclude that the defendant in this case—like all
Connecticut residents whom the state does not have
probable cause to arrest—maintained a reasonable
expectation of privacy in the extraction of a sample of
his DNA and the testing of that sample for identification
purposes under article first, § 7, of the Connecticut con-
stitution. Both the case law of this state and the public
policy underlying that case law support my conclusion,
given that ‘‘ ‘[l]egislative enactments are’ . . . relevant
to the resolution of whether the defendant’s expectation
of privacy is one that Connecticut citizens would recog-
nize as reasonable’’; (citation omitted) State v. Bernier,
supra, 246 Conn. 73; and the legislature’s indication
that some arrested and convicted persons maintain a
reasonable expectation of privacy in the identifying
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information gleaned from their DNA. See General Stat-

utes § 54-102g. Federal precedent also supports my con-
clusion, and I do not consider the precedent of other
state courts on this issue to hold much persuasive value
because, first, it is mixed, both in its conclusions and
its approach to abandonment, and, second, much of
that precedent makes the same cardinal mistake that
the majority makes in this case: addressing the question
presented based on mistaken and dated scientific con-
clusions. Further, even putting aside the science, I am
confident that this state’s law and policy support the
defendant’s position and that those considerations are
most important to addressing the issue before the court.
For these reasons, I would reverse the defendant’s con-
viction and remand the case for a new trial in which
the government is tasked with retrying the defendant
without evidence that infringes on his privacy rights
under article first, § 7, of the Connecticut constitution.
I respectfully dissent in part.