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John Doe DNA Warrants and the Statute of Limitations

Last month, the California Supreme Court reached a decision in People v. Robinson, a case which presented three issues involving DNA and criminal procedure:

(1)  Does an unknown suspect’s DNA profile satisfy the “particularity” requirement for an arrest warrant? (Yes.)
(2)  Does the issuance of a “John Doe” complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (Yes.)
(3)  What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Pen. Code, section 295 et seq.)? (If, as in this case, the collection violates the statute but not the state or federal constitution, then the evidence will not be excluded.)

I do not have the space here to discuss the entire opinion, so this post will focus on the second issue – how John Doe DNA warrants affect the statute of limitations.  A John Doe DNA warrant is an arrest warrant that is issued for a suspect identified only by genetic information.  These warrants have been used when DNA is found at a crime scene and police have little to no other description of the offender.  Issuing a warrant for someone’s arrest typically begins the prosecution for that crime, and the prosecution of a crime must begin before the statute of limitations has expired.

Supporters of John Doe DNA warrants argue they are useful tools in solving crimes, and the genetic profile is particular enough to begin a criminal prosecution. Critics, however, point out that these warrants will “circumvent the statute of limitations in any criminal prosecution in California in which biological evidence is left at the crime scene from which DNA can be extracted” (Justice Moreno’s dissent in People v. Robinson).  Not every DNA sample will be a sufficient basis for probable cause to obtain an arrest warrant.  For example, DNA in semen found at a rape scene is more inculpating than a hair found at the scene of a burglary.  But if a warrant is obtained, the statute of limitations will be satisfied.  And a person could be prosecuted for the crime, regardless of how much time has passed, which may make preparing a defense more difficult.

In this case, police had only a very vague physical description of a rapist from his victim.  She identified her attacker as a man who was probably African-American, but may have been Hispanic.  The rape occurred in 1994, and at the time, the statute of limitations for rape was six years.  On August 21, 2000, four days before the statute of limitations for the crime would have expired, the Sacramento police created a DNA profile from the semen found on the victim, and charged a John Doe with that DNA profile for rape and four related sexual offenses and obtained an arrest warrant for that John Doe.

The complaint and the declaration in support of the arrest warrant read, “John Doe unknown male with Short Tandem Repeat (STR) Deoxyribonucleic Acid (DNA) Profile at the following Genetic Locations, using the Cofiler and Profiler Plus Polymerase Chain Reaction (PCR) amplification kits: D3S1358 (15,15), D16S539 (9,10), THO1 (7,7), TPOX(6,9), CSF1PO (10,11), D7S820 (8,11), vWa (18,19), FGA (22,24), D8S1179 (12,15), D21S11 (28,28), D18S5a (20,20), D5S818 (8,13), D13S317 (10,11), with said Genetic Profile being unique, occurring in approximately 1 in 21 sextillion of the Caucasian population, 1 in 650 quadrillion of the African American population, 1 in 420 sextillion of the Hispanic population.”

Three weeks later, on September 15, police were notified that the DNA profile in their warrant matched an existing DNA profile in the California Department of Justice Convicted Offender DNA Database for Paul Eugene Robinson. The warrant was amended to include Robinson’s name, and he was arrested and subsequently convicted.

The California Supreme Court affirmed his conviction and the Court of Appeal’s finding that a John Doe warrant with a DNA profile is sufficient to satisfy the statute of limitations.  The court reasoned that based on the plain language of the California Penal Code a prosecution commences when an arrest warrant is issued with the same degree of particularity required for a complaint or indictment, which is satisfied by the DNA profile.

Robinson, however, argued that the legislative intent of the penal code was to exclude John Doe warrants from satisfying the statute of limitations because they do not reasonably inform a person that he is being prosecuted.  If a person does not know his DNA profile, then a warrant to arrest a John Doe with his profile does not notify a person that he is wanted.  The majority disposed of this argument by distinguishing John Doe warrants from John Doe DNA warrants.  Although the California Law Revision Commission commented that a Doe warrant does not satisfy the statute of limitations, they did not address the precise issue of a Doe warrant coupled with the defendant’s DNA profile. Furthermore, the majority explained the constitutional right to notice is “not dependent on the subjective capacity of defendant to understand it. Just as defendant is not required to be literate for a written indictment to be valid, he is not required to be a geneticist to be subject to indictment by DNA profile” (Robinson majority opinion, citing New York v. Martinez, 855 N.Y.S.2d 522).

In dissent, Justice Carlos Moreno argues that the statute of limitations is not satisfied by a John Doe arrest warrant containing only a DNA profile because these warrants cannot actually be used to arrest anyone.  Referring to the importance the majority places on particularity, “the flaw here is not that the warrant authorized the arrest of too many people, but that it authorized the arrest of no one at all.”  The DNA profile alone was too little information, and the police could not follow standard procedure of executing a warrant by entering the warrant in a state or nationwide wanted persons system and assigning the warrant to a police officer.  Justice Moreno concluded that no criminal prosecution could begin based on this warrant; instead, the John Doe DNA warrant is a “shell, a clever artifice designed to satisfy the statute of limitations so the criminal investigation could continue indefinitely until the perpetrator was identified.”

Justice Moreno also points out that California law now brings cases like Robinson’s within the statutory time limit for prosecution, without relying on John Doe DNA warrants. California Penal Code Section 803 (g) (1) gives police one year from the date a DNA match is made to charge a person for certain sexual offenses, regardless of how long ago the crime was committed. Section 803 (g) (1) – enacted too late to affect the Robinson case – is specific to particular sex crimes and still enforces some time limit on prosecution, while the majority’s rule in Robinson broadly affects the statute of limitations for any type of crime.

In this case, without the John Doe DNA warrant, the statute of limitations on the 1994 rape would have expired three weeks before police identified Robinson. Satisfying the statute of limitations with a John Doe DNA warrant gave the state the opportunity to try Robinson for the rape. The California Supreme Court affirmed that this practice comports with California statutory law and due process.  It will be interesting to see whether Justice Moreno’s concerns about these warrants will be realized.  Will they negate the statute of limitations in all cases when DNA has been found, pushing the boundaries of probable cause that the DNA was left by the perpetrator?  Or will they be used only in cases where the DNA is overwhelming proof of guilt in a heinous crime, as in Robinson’s case?

- Kelly Lowenberg

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