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August 22, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56801-2-II
Respondent,
v.
GARY CHARLES HARTMAN, PUBLISHED OPINION
Appellant.
GLASGOW, C.J. — In 1986, MW, a 12-year-old girl, was raped and murdered in a Tacoma
park. The killer left semen on MW’s body, but his DNA did not match that of any suspects or
anyone in police databases for the next 30 years.
In 2018, police enlisted Parabon Nanolabs, a DNA technology company, to analyze the
killer’s DNA and to upload it into GEDmatch, a consumer DNA database, looking for partial
familial matches that would help identify the killer. Police did not secure a warrant to analyze the
abandoned DNA or to compare it with DNA in the GEDmatch database.
Parabon learned that several of the killer’s cousins had DNA in the GEDmatch database.
Parabon used information from the database and public records to construct family trees. Parabon
then directed police to try to obtain a DNA sample from Gary Charles Hartman. Police obtained a
discarded napkin containing Hartman’s DNA, and it matched the DNA from semen on MW’s
body. The State charged Hartman with first degree felony murder. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 56801-2-II
Before trial, Hartman moved to suppress the DNA evidence, arguing that Parabon’s
comparison of the DNA sample from the crime scene to the GEDmatch database was
unconstitutional. He also asserted that the DNA later collected from the napkin directly linking
him to the murder was inadmissible as fruit of the poisonous tree. Hartman did not argue below
that he had any privacy interest in DNA left at the crime scene, nor did he challenge the collection
and testing of DNA from the discarded napkin.
The trial court ruled that Hartman did not have standing to challenge the comparison of the
DNA from the crime scene to DNA in the GEDmatch database because he did not have a privacy
interest in his cousins’ DNA in the database. In addition, Hartman’s relatives had voluntarily
uploaded their DNA into the GEDmatch database, and the DNA that Hartman left at the crime
scene was abandoned and not private. The trial court denied the motion to suppress. After a bench
trial on stipulated facts, the trial court convicted Hartman.
Hartman appeals his conviction. He argues that analyzing the DNA sample from the crime
scene and comparing it with the GEDmatch database to look for his relatives’ DNA disturbed his
private affairs in violation of article I, section 7 of the Washington Constitution. Thus, he argues
that he had standing to challenge the DNA comparison. In oral argument, he asserted for the first
time that he has a privacy interest in the DNA from the semen abandoned at the crime scene.
We affirm. There is no privacy interest in commonly held DNA that a relative voluntarily
uploads to a public database that openly allows law enforcement access. And there is no privacy
interest in DNA that one abandons at a crime scene. Absent a privacy interest, Hartman did not
have standing to challenge the comparison of the crime scene DNA with the GEDmatch database.
But the legislature could adopt statutory restrictions and the companies that run consumer DNA
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
databases could adopt policies limiting law enforcement access to genetic information in those
databases without a warrant. Indeed, GEDmatch did just that in 2019 after the investigation at
issue in this case.
FACTS
I. BACKGROUND
A. Initial Investigation
In 1986, 12-year-old MW was playing with her sisters in a Tacoma park. MW left to get
lunch and never returned to her sisters. That night, her body was found in a wooded gulch in the
park. Someone had raped her and then killed her by slitting her throat and striking her in the head
with a blunt object that caved in her skull.
The killer left semen and hair on MW’s body. Over the next 30 years, DNA, blood type,
and hair comparisons eliminated more than 100 possible suspects. The killer’s DNA did not match
anyone in the Combined DNA Index System (CODIS), the state and national police DNA
databases.
In the mid-2010s, police began considering identifying MW’s killer through a familial
DNA analysis, which would involve looking for DNA profiles that were not exact matches but
had enough DNA in common to be a relative of the killer. CP at 240. Congress has not expressly
authorized checking for familial matches in CODIS at the national level, although a few states
allow such analyses in their state police DNA databases. Shanni Davidowitz, 23andEveryone:
Privacy Concerns with Law Enforcement’s Use of Genealogy Databases to Implicate Relatives in
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Criminal Investigations, 85 BROOK. L. REV. 185, 199 (2019).1 Currently, Washington State does
not expressly allow analysis of a suspect DNA sample to check for familial matches in the police
DNA databases. See How We Can Help You: Frequently Asked Questions on CODIS and NDIS,
FED. BUREAU INVESTIGATION, https://www.fbi.gov/how-we-can-help-you/dna-fingerprint-act-of-
2005-expungement-policy/codis-and-ndis-fact-sheet [https://perma.cc/M3XT-HW2T].
B. Parabon and GEDmatch Investigation
In 2017, police sent the DNA of MW’s killer to a genealogy consultant, Barbara Rae-
Venter. Rae-Venter uploaded the killer’s DNA profile into several nongovernment consumer DNA
databases and began trying to identify family connections that could provide leads. Police also sent
the DNA profile to a genetic genealogist at another company, Parabon, who compared the killer’s
DNA sample to the GEDmatch database. Through the consumer databases, Rae-Venter and
Parabon both identified two of the killer’s second cousins, one of whom lived in Washington.
GEDmatch’s database contained a larger pool of people than most. While some consumer
DNA databases like 23andMe and Ancestry “could only connect people through the samples in
their own respective databases, GEDmatch allowed all [direct-to-consumer testing] customers to
upload their test results regardless of the testing company and for free.” Victoria Romine, Crime,
DNA, and Family: Protecting Genetic Privacy in the World of 23andMe, 53 ARIZ. ST. L.J. 367,
372 (2021). In this way, GEDmatch “served as a gap filler, allowing people to connect with
relatives who happened to use a different testing company.” Id. And while police databases
1 See also Law Enforcement Resources: Combined DNA Index System (CODIS), FED. BUREAU INVESTIGATION (“Familial searching is not currently conducted at the national level.”), https://le.fbi.gov/science-and-lab/biometrics-and-fingerprints/codis [https://perma.cc/PG5L- KYL7].
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
contained only about 20 identifying markers from a person’s DNA, the analysis GEDmatch
performed was extensive. It could “reveal information about a person’s sex, physical appearance,
medical conditions, genetic history, and ancestral origin.” Id. at 379. Other consumer databases
used in this case, FamilyTree DNA and MyHeritage, worked in a similar way. Id. at 372.
GEDmatch could “consistently match relatives as distant as third cousins.” Michael I.
Selvin, A Too Permeating Police Surveillance: Consumer Genetic Genealogy and the Fourth
Amendment After Carpenter, 53 LOY. L.A. L. REV. 1015, 1020 (2020). A database like GEDmatch
needs to contain samples from approximately 2 percent of a population to provide a third-cousin
match for almost every member of the population. Teneille R. Brown, Why We Fear Genetic
Informants: Using Genetic Genealogy to Catch Serial Killers, 21 COLUM. SCI. & TECH. L. REV.
118, 137 (2019). In 2018, it was estimated that “60 percent of searches for individuals of European
descent” in a database like GEDmatch would have produced a match to a third cousin. Hillary L.
Kody, Standing to Challenge Familial Searches of Commercial DNA Databases, 61 WM. & MARY
L. REV. 287, 294 (2019).
At the time of Parabon’s analysis in 2017, GEDmatch allowed law enforcement to access
its service in some circumstances. Specifically, GEDmatch’s terms of service stated “that it
accepted ‘DNA obtained and authorized by law enforcement to either: (1) identify a perpetrator of
a violent crime against another individual; or (2) identify remains of a deceased individual.’
GEDmatch defined ‘violent crime’ as ‘homicide or sexual assault.’” Selvin, supra, at 1023
(quoting GEDMatch.Com Terms of Service and Privacy Policy, GEDMATCH (footnote omitted),
https://web.archive.org/web/20190506040926/https://www.gedmatch.com/tos.htm (version prior
to May 18, 2019 update)).
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The Parabon genealogist used information from GEDmatch and other publicly available
sources to build family trees for the two second cousins found in the database. She found additional
partial matches with two third cousins and one fourth cousin. The genealogist also relied on
“census records, vital records, extensive newspaper archive searches, public ‘people search’
databases, and public social media data” to build the family trees. Clerk’s Papers (CP) at 102. She
did not contact any of the killer’s cousins, although she did contact one of their daughters seeking
information about the cousins’ family tree. Through her research, the genealogist learned that the
family tree contained at least one instance of misattributed paternity, meaning someone’s
biological father was not who they believed their biological father to be.
Rae-Venter had a different company analyze the DNA from the crime scene, and she
learned from that analysis that the killer had alleles related to substance abuse, bipolar disorder,
and baldness. And Parabon analyzed the killer’s DNA sample to learn that the killer was roughly
9 percent Native American.
In 2018, based on her research, the Parabon genealogist suggested collecting DNA samples
from Hartman and his brother, who both lived in Tacoma in 1986. Police surveilled both brothers
to collect discarded items including used drinking straws and napkins. Hartman’s brother’s DNA
excluded the brother as a possible source, while Hartman’s DNA profile matched the DNA from
the semen found on MW’s body.
Police arrested Hartman, and they collected another sample of his DNA pursuant to a
warrant. That sample of Hartman’s DNA matched the DNA from the semen found on MW’s body
with a probability of error of 1 in 6 quadrillion. The State charged Hartman with first degree felony
murder, with the rape of MW as the underlying felony.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Later, in 2019, after backlash to a forensic genealogy investigation in Utah, GEDmatch
altered its privacy settings so that users had to opt into allowing law enforcement to access their
DNA for forensic genealogy comparisons. Selvin, supra, at 1024. One year later, “only 185,000
of GEDmatch’s 1.3 million users [had] chosen to opt-in.” Id. As of mid-2022, Washington law
enforcement had used forensic genealogy in only about two dozen cases, with the technology
“reserved for unsolved cold cases of felony crimes with a sexual motivation” that had “no active
leads and no CODIS matches.” News Release, Wash. Att’y Gen., Multiple Cold Cases Solved with
Assist from Attorney General’s DNA Forensic Genetic Genealogy Program (July 11, 2022),
https://www.atg.wa.gov/news/news-releases/multiple-cold-cases-solved-assist-attorney-general-
s-dna-forensic-genetic [https://perma.cc/SPG2-FNZ8].
II. MOTION TO SUPPRESS AND DISMISS
Before trial, Hartman moved to suppress Parabon’s analysis and DNA evidence later
collected or analyzed as a result of the Parabon analysis, including the analysis of DNA from the
napkin. He also moved to dismiss the case. Hartman concentrated on the information learned from
GEDmatch in his motion to suppress. Below, he acknowledged that he had no privacy interest in
the semen left at the crime scene, stating, “[W]e’re not arguing that [there was a privacy interest
in] anything left at the scene.” 1 Verbatim Rep. of Proc. (Feb. 15, 2022) at 8. Hartman also stated,
“I’m not arguing about the crime scene DNA search.” Id.at 30. He did not challenge the direct
analysis of the DNA from the semen left at the crime scene at all besides noting that the State could
have learned private information such as predispositions for genetic diseases from that DNA.
Instead, he emphasized that Parabon’s comparison of that DNA against the GEDmatch database
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
“revealed [his] ethnic background” and uncovered misattributed paternity within his family tree.
CP at 49.
Hartman argued that analyzing the consumer databases for “the DNA he shared with his
close relatives” was a warrantless, suspicionless search by a state actor that disturbed his private
affairs in violation of the state and federal constitutions. CP at 32. Thus, he reasoned that the trial
court should suppress “all evidence obtained” because of Parabon’s analysis, including the tests
that directly matched his DNA to the killer’s, as fruit of the poisonous tree. CP at 64. With no other
evidence linking him to MW’s murder, Hartman argued that the trial court should dismiss the
charge if it suppressed the Parabon analysis and DNA evidence from the napkin.
A. Standing Arguments
Hartman asserted that he had standing to challenge the comparison of the DNA sample
from the crime scene against the consumer DNA databases because Parabon was a state actor and
the analysis revealed “medical and familial information” in which he had a reasonable expectation
of privacy. CP at 45. He also argued that, “Americans are overwhelmingly opposed to sharing their
private genetic information with law enforcement,” pointing to the large proportion of GEDmatch
users who refused to share their information with law enforcement when the site changed its policy
in 2019. CP at 50-51. He thus asserted that he had standing to challenge the analysis of the DNA
he held in common with his relatives because he “was subjected to a sweeping, warrantless search
. . . that provided an ‘intimate window’ into his familial and sexual associations.” CP at 49.
The State argued that Hartman lacked standing to challenge the investigation of the
consumer databases because Hartman’s argument was about his relatives’ genetic information, not
his own. In addition, “his relatives affirmatively volunteered” to upload their genetic information
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
to the databases, which anyone could access. CP at 119 (boldface omitted). The State explained
that by “voluntarily providing their DNA to commercial DNA databases,” Hartman’s relatives
“consented to the privacy policies as set by the companies” at the time. CP at 121. The State
pointed out that at the time of Parabon’s investigation in 2017 and 2018, GEDmatch allowed law
enforcement to use its service without restriction.
B. Trial Court Ruling
The trial court noted that the standing question was an issue of first impression, so there
was no controlling precedent to follow and no Washington statute restricted familial DNA
comparisons in databases like GEDmatch. The trial court found that police used semen found on
MW’s body to construct a male DNA profile that did not match anyone in state or national police
databases. It found that direct DNA comparisons eliminated 108 suspects before police resorted to
the familial analysis. And the trial court concluded that Hartman had no standing to challenge the
collection of DNA from the semen at the crime scene because he had abandoned that semen.
The trial court also concluded that Parabon and Rae-Venter were state actors. Thus, they
were subject “to search and seizure restrictions and the restrictions on invasion of an individual’s
justifiable, reasonable, and legitimate expectations of privacy.” CP at 251(Conclusion of Law (CL)
16). And “Hartman never supplied a DNA sample voluntarily to any source.” CP at 247 (Finding
of Fact (FF) 48).
The trial court found that Parabon compared the DNA sample to only public consumer
databases, not police DNA databases. It also found that “[n]o medical information related to
defendant Hartman was addressed in the Parabon analysis and report.” CP at 242 (FF 25). And
neither Parabon nor Rae-Venter “accessed the raw data DNA from 23andMe or Ancestry, which
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
are two databases . . . [that] have scope of use restrictions” for law enforcement. Id. (FF 26). “They
did, however, access an open public website[,] GEDmatch, which had no access restrictions at the
time of this search.” Id.
The trial court ruled that Hartman had standing to challenge state actions “following the
initiation of direct police surveillance.” CP at 247 (CL 4). But he did not have standing to challenge
the analysis of “his relative’s DNA profile, which his relatives volunteered to have analyzed and
posted on an open-source, unrestricted website.” CP at 250 (CL 13). The court concluded that
Hartman did not have “dominion or control over the item seized (his relative’s raw data DNA) nor
the public database where the DNA profiles were compared (GEDmatch).” CP at 252 (CL 18).
Hartman had no authority to exclude others from accessing his relatives’ DNA profiles on
GEDmatch. Thus, state actors did not disturb Hartman’s private affairs. And, like the DNA from
the semen abandoned at the crime scene, Hartman could not challenge the analysis of the DNA
from his discarded napkins because he had voluntarily abandoned the napkins.
The trial court concluded that Hartman failed to show that the State intruded on his private
affairs because “[a]ny individual or entity could have directly accessed this voluntarily published
and public information.” CP at 247 (CL 2). Thus, Hartman had no standing to challenge the
comparison with his relatives’ DNA profiles in the GEDmatch database. As a result, the trial court
ruled that the State “did not need a search warrant or a court order to access GEDmatch due to the
public and unrestricted availability of the GEDmatch data.” CP at 251 (CL 15).
Because Hartman lacked standing to suppress the evidence, the trial court concluded that
the DNA evidence tying him to the rape and murder of MW was admissible. The trial court denied
the motion to suppress and dismiss.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
III. TRIAL AND SENTENCING
The case proceeded to a bench trial on stipulated facts. Hartman stipulated that the DNA
collected from his used napkin matched DNA from the semen collected from MW’s body. He also
stipulated that his reference DNA sample collected pursuant to a warrant matched the semen from
the crime scene. He agreed that “the estimated probability of selecting an unrelated individual at
random from the U.S. population with a matching profile was calculated at 1 in 6.0 quadrillion.”
CP at 279.
The trial court convicted Hartman of first degree felony murder. It imposed a 320-month
sentence at the top of the standard range. Hartman appeals his conviction and the order denying
ANALYSIS
The Washington Constitution provides that “[n]o person shall be disturbed in his private
affairs . . . without authority of law.” CONST. art. I, § 7; State v. Chacon Arreola, 176 Wn.2d 284,
291, 291 P.3d 983 (2012). “It is well established that article I, section 7 is qualitatively different
from the Fourth Amendment and provides greater protections.” State v. Hinton, 179 Wn.2d 862,
868, 319 P.3d 9 (2014). Although Hartman also challenged the comparison of DNA in
GEDmatch’s database as a violation of the Fourth Amendment to the United States Constitution
below, he asserts only a violation of article I, section 7 on appeal.
Hartman argues that he had “a personal privacy interest” in the DNA he had in common
with his family members and the information gleaned from the analysis of the consumer databases,
rendering the analysis unconstitutional under article I, section 7. Br. of Appellant at 31. As a result,
he asserts that he has standing to challenge Parabon’s investigation involving the consumer DNA
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
databases because his private affairs were disturbed. Thus, he contends that the trial court abused
its discretion by ruling that the DNA evidence secured as fruit of that investigation was admissible.
Hartman also asserted in oral argument that before he was identified as MW’s killer, he had a
privacy interest protecting against analysis of the DNA that he abandoned at the crime scene
because that analysis revealed information about the then-unidentified killer’s race, a likelihood
that the killer was bald, and a likelihood that he suffered from bipolar or substance abuse disorder.
We disagree.
I. SCOPE OF ISSUES ON APPEAL
The issues before us are limited in scope. First, Hartman does not challenge any of the trial
court’s findings of fact, so they are verities on appeal, as are the stipulated facts from the bench
trial. State v. Bliss, 153 Wn. App. 197, 203, 222 P.3d 107 (2009). Second, it is undisputed that
Parabon and Rae-Venter were state actors and that there was no warrant for the analysis of the
DNA found at the crime scene or its comparison with profiles in GEDmatch’s database. Third,
Hartman does not claim a privacy interest in any of the public records that Parabon used to build
his family tree after identifying his cousins. Instead, he claims to have a reasonable expectation of
privacy in the segments of his DNA that he had in common with relatives that those relatives
voluntarily uploaded to GEDmatch.
Further, the State asserts that Hartman did not challenge the later warrant for a reference
DNA sample that linked him to MW’s murder, and that his challenge to the investigation that
yielded the reference DNA is therefore waived. But without the GEDmatch analysis, there would
not have been a later warrant for Hartman’s DNA—just as there was not for the preceding three
decades. It is undisputed that Hartman “never supplied a DNA sample voluntarily to any source.”
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
CP at 247 (FF 48). Thus, if the trial court had concluded that the GEDmatch investigation was
unconstitutional, it would have inevitably suppressed the other DNA evidence as the fruit of the
poisonous tree. State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990) (holding that a court
must suppress evidence obtained from a warrant if the warrant was based on illegally obtained
information and the supporting affidavit does not contain “otherwise sufficient facts to establish
probable cause independent of the illegally obtained information”). In sum, if Hartman is
successful in his challenge to the GEDmatch comparison, the later DNA comparisons of
Hartman’s DNA to the crime scene DNA would also be excluded because they would not have
occurred absent the alleged article I, section 7 violation. Id.
Finally, at oral argument, Harman focused on issues not raised below, not addressed in his
opening brief to this court, and developed for the first time at oral argument. Hartman asserted for
the first time that he has a privacy interest in the DNA from the semen abandoned at the crime
scene. Specifically, Hartman now argues that the DNA extracted from semen abandoned at the
crime scene is information that Hartman retained a privacy interest in, even though he abandoned
the semen by leaving it on his victim. The State responded at oral argument that this court should
decline to address this issue because it was not raised below, nor was it discussed in any detail in
Hartman’s briefing to this court. The State also fully responded to the merits of this new contention
in oral argument. Thus, in the interest of preserving resources, we exercise our discretion under
RAP 2.5(a) to resolve these contentions, as well as the arguments presented in Hartman’s brief.
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
II. STANDING FOR HARTMAN’S ARTICLE I, SECTION 7 CHALLENGE
The central question raised in Hartman’s brief—whether Hartman had a privacy interest in
the segments of his DNA that he has in common with his relatives, giving him standing to
challenge the analysis of the GEDmatch database—is an issue of first impression in Washington.
To raise an article I, section 7 challenge, a defendant must have standing. Proving standing to
challenge a search or seizure requires a defendant to show that a private affair is implicated under
article I, section 7, meaning that they “possess a legitimate expectation of privacy in the place
searched or the thing seized.” State v. Carter, 127 Wn.2d 836, 841, 904 P.2d 290 (1995). Standing
is a two-part inquiry into whether “the claimant manifest[ed] a subjective expectation of privacy
in the object of the challenged search” and whether “society recognize[s] the expectation as
reasonable.” State v. Link, 136 Wn. App. 685, 692, 150 P.3d 610 (2007). In particular, a defendant
has to show that the challenged action violated the defendant’s own rights, rather than the rights
of a third party. Id.; Hinton, 179 Wn.2d at 869 n.2 (“Generally, article I, section 7 rights may be
enforced by exclusion of evidence only at the instance of one whose own privacy rights were
infringed by government action.”).
“A claimant who has a legitimate expectation of privacy in the invaded place has standing
to claim a privacy violation.” Link, 136 Wn. App. at 692. Thus, if the analysis of the GEDmatch
database disturbed Hartman’s privacy interest in the segments of his DNA that his relatives had in
common with him, then Hartman had standing to challenge this aspect of the investigation because
he had a subjective expectation of privacy that society recognizes as reasonable.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
A. Whether Common DNA Between Relatives That Has Been Posted on the Internet is a Private Affair
To have standing to challenge the analysis of the GEDmatch database, Hartman must show
that the genetic material he had in common with his relatives that they posted on the database was
a private affair under article I, section 7. Carter, 127 Wn.2d at 841. Courts consider several factors
when determining whether something is a private affair. We consider both “the nature and extent
of the information that may be obtained as a result” of a governmental investigation and “what
kind of protection has been historically afforded to the interest asserted.” State v. Reeder, 184
Wn.2d 805, 814, 365 P.3d 1243 (2015).
1. Nature of information sought and voluntary exposure
Hartman argues that the nature of the information Parabon learned from GEDmatch “was
intensely private.” Br. of Appellant at 35. He compares DNA to motel registries and cell site
location information that police cannot access without a warrant, even though that information is
shared with certain third parties. We disagree.
a. Cases addressing the nature of the information and voluntary exposure
When considering the nature of the information sought, we determine whether the
information “reveals intimate or discrete details of a person’s life.” State v. Jorden, 160 Wn.2d
121, 126, 156 P.3d 893 (2007). Courts have considered “the purpose for which the information
sought is kept, and by whom it is kept.” Id. at 127; see Reeder, 184 Wn.2d at 815 (privacy interest
in banking records); In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 338-39, 945 P.2d 196
(1997) (privacy interest in electricity consumption records kept by a municipal corporation); State
v. Hathaway, 161 Wn. App. 634, 643, 251 P.3d 253 (2011) (no privacy interest in Department of
Licensing records kept to aid law enforcement).
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
“Voluntary exposure to the public is relevant to our inquiry and can negate an asserted
privacy interest.” State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007); see Carpenter v. United
States ___ U.S. ___, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507 (2018). But some information
voluntarily revealed to certain other people or entities is still protected under article I, section 7
and the Fourth Amendment.
For example, in Jorden, police conducted a random, suspicionless check of a guest registry
at a motel and learned that Jorden had an outstanding felony warrant after running the resulting
list of names through a police computer. 160 Wn.2d at 124. The Washington Supreme Court
concluded that the suspicionless check violated article I, section 7 even though guests voluntarily
revealed their identities to hotel staff. The Supreme Court emphasized that “an individual’s very
presence in a motel or hotel may in itself be a sensitive piece of information” subject to protection
from warrantless searches. Id. at 129. The list of law-abiding people who “may not wish to reveal
[their] presence at a motel” included “business people engaged in confidential negotiations,”
domestic violence victims hiding from their abusers, and closeted same-sex couples or “couples
engaging in extramarital affairs.” Id. Further, the registry information “may also reveal co-guests
in the room, divulging yet another person’s personal or business associates.” Id. Because of the
depth of information provided, the Supreme Court held that searches of a guest registry revealed
“‘intimate details about a person’s activities and associations’” constituting a private affair. Id.
(quoting State v. McKinney, 148 Wn.2d 20, 30 n.2, 60 P.3d 46 (2002)). Government trespass on
that information was therefore a search that required a warrant. Id. at 130.
Similarly, in Carpenter, the United States Supreme Court held that the Fourth Amendment
required police to secure a warrant to access the location information automatically generated by
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
cell phones even though location information is exposed to a cell subscriber’s wireless carrier. 138
S. Ct. at 2221. The Carpenter court held that cell phone location records have a “unique nature”
because cell phones are a ubiquitous feature of modern life that constantly report their location and
tend to be within a few feet of their owners at all times. Id. at 2217. Carpenter had a “reasonable
expectation of privacy in the whole of his physical movements” which his phone logged “without
any affirmative act on the part of the user beyond powering up.” Id. at 2219-20. “Apart from
disconnecting the phone from the network, there is no way to avoid leaving behind a trail of
location data,” so Carpenter had not voluntarily assumed the risk “of turning over a comprehensive
dossier of his physical movements.” Id. at 2220.
In short, even though Carpenter voluntarily exposed his location information to his wireless
carrier, the extent and intimate nature of that information meant that he maintained a reasonable
expectation of privacy in the information under the Fourth Amendment. Thus, police had to secure
a warrant to access the cell site location information. Id. at 2221; see also State v. Phillip, 9 Wn.
App. 2d 464, 479, 452 P.3d 553 (2019) (holding that there is a reasonable expectation of privacy
in cell site location information under article I, section 7).
Washington courts have also recognized the private nature of other information available
to certain third parties, such as text messages that are available to both the person receiving the
message and the cell carrier. Hinton, 179 Wn.2d at 871. In Hinton, police arrested a man and seized
his phone, then used the phone to set up a drug deal with Hinton by text. Id. at 865-66. “Despite
the fact that a cell phone is carried on a person in public, text messages often contain sensitive
personal information about an individual’s associations, activities, and movements.” Id. at 871.
And “individuals closely associate with and identify themselves by their cell phone numbers,” to
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the point where users expect only a specific individual to possess a given phone. Id. Thus, sending
a text message does not “extinguish a sender’s privacy interest in its contents” even though the
messages “remain susceptible to exposure because of a cell phone’s mobility.” Id. at 873. The
Washington Supreme Court concluded that “incidental exposure of private information in the
course of everyday life is distinct from other kinds of voluntary disclosure that extinguish privacy
interests under article I, section 7.” Id. at 875. “Forcing citizens to assume the risk that the
government will confiscate and browse their associates’ cell phones tips the balance too far in
favor of law enforcement at the expense of the right to privacy.” Id. at 877. As a result, the State
disturbed Hinton’s privacy interest when it searched the other person’s cell phone. Id.
In contrast, the Washington Supreme Court has thus far declined to shield identifying
information in discarded DNA. In Athan, detectives who suspected Athan of murder posed as a
fictitious law firm inviting Athan to join a fictional class action lawsuit. 160 Wn.2d at 363. When
Athan filled out and mailed back the class action authorization form, police obtained his DNA
from saliva Athan used to seal the mailing envelope. Id. They then obtained a DNA profile that
could be compared with DNA collected at a crime scene. Id.
Athan and amicus argued that Athan had a privacy interest in his DNA because “DNA has
the potential to reveal a vast amount of personal information, including medical conditions and
familial relations.” Id. at 367-68. The Supreme Court disagreed because “the State’s use of Athan’s
DNA here was narrowly limited to identification purposes.” Id. at 368. “What was done with the
letter, including DNA testing for the limited purpose of identification, was not within the sender’s
control.” Id. Thus, by voluntarily licking the envelope and placing it in the mail, Athan lost “any
privacy interest” in his saliva or the DNA it contained. Id. at 367.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
b. The nature of the information in this case
DNA inherently contains intimate and discrete details of a person’s life, including
information related to intimate family connections and the likelihood of experiencing medical
conditions. See id. at 367-68. Because GEDmatch analyzes many more alleles than government
databases, its database can be used to identify relationships between third cousins—people whose
last common ancestors were their great-great grandparents. Selvin, supra, at 1020. Some legal
commentators assert that people should have a reasonable expectation of privacy in their own DNA
in consumer databases, based on the scope of health information contained therein and the fact that
we constantly leave behind DNA everywhere we go. Kody, supra, at 306-11; Natalie Ram, Genetic
Privacy After Carpenter, 105 Va. L. Rev. 1357, 1387-91 (2019).
Here, Parabon and Rae-Venter uncovered intimate personal information about Hartman
and his family during their analyses of the GEDmatch database. These facts included his racial
background and ancestry information that revealed a misattributed paternity. Hartman seems to
argue that this information makes DNA analogous to cell site location information, even though
the GEDmatch database is made up of DNA profiles that contributors have voluntarily shared with
the public by uploading it onto an Internet site that is publicly available. Hartman asserts that a
warrant is required to analyze those public profiles by comparing them with DNA left behind by
an unidentified killer. But consumers frequently upload their DNA to consumer databases like
GEDmatch for the very purpose of learning and sharing with strangers the exact private
information—details about their ancestry and familial relations—at issue here.
Cell site location information is distinguishable from DNA. Both are deeply revealing and
can be used to determine whether a person was at a particular crime scene. But identifying whether
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the DNA sample from this crime scene had DNA in common with the genetic profiles Hartman’s
relatives loaded onto GEDmatch was a limited inquiry targeted only at identifying MW’s killer.
And although examination of the GEDmatch profiles revealed family information regarding a
misattributed paternity, those family members voluntarily uploaded their DNA profiles and the
comparison occurred at times when GEDmatch allowed sharing of information with law
enforcement. Selvin, supra, at 1023. What was done with the relatives’ DNA profiles—limited
DNA comparison for the purposes of identification—was beyond the relatives’ control once they
uploaded the information to the public database under GEDmatch’s policy at the time. See Athan,
160 Wn.2d at 368. And no relative of Hartman has challenged the analysis of their DNA.
Hartman claims a privacy interest in the segments of his DNA that his relatives had in
common with him. But all that police learned from the GEDmatch analysis was the killer’s familial
relations, which brought them closer to learning the killer’s identity. See id. And identifying
unknown family members is the exact reason that users of consumer databases, like Hartman’s
relatives, post their genetic material on those databases.
The limited nature of the identification information learned from the GEDmatch analysis
does not support concluding that Hartman had a privacy interest in the genetic information his
relatives had in common with him. We next turn to the historical treatment of this information.
Reeder, 184 Wn.2d at 814.
2. Historical treatment
Hartman asserts that Washington courts “have historically held DNA profile information
safe from suspicionless government trespass.” Br. of Appellant at 34. He argues that comparing
the DNA from the crime scene to the consumer databases “opened every citizen, [including] those
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
who have submitted DNA to find family members and those who wish to remain unknown,” to an
unwarranted search. Br. of Appellant at 35. He contends that “even when information is held by a
third party, law enforcement must have credible information providing them with individualized
suspicion of a specific and previously identified defendant” to investigate a public database
without a warrant. Br. of Appellant at 35. We disagree.
When assessing the historical treatment of the interest being asserted, we look to analogous
case law, statutes, “and laws supporting the interest asserted.” Athan, 160 Wn.2d at 366.
a. Cases and statutes regulating police Internet investigations and DNA
To begin, the Washington Supreme Court “has consistently expressed displeasure with
random and suspicionless searches, reasoning that they amount to nothing more than an
impermissible fishing expedition.” Jorden, 160 Wn.2d at 127. For example, random urinalysis
screens of probationers are permissible to monitor compliance with probation conditions, but
cannot be used as “‘a fishing expedition to discover evidence of other crimes, past or present.’”
State v. Olsen, 189 Wn.2d 118, 134, 399 P.3d 1141 (2017) (quoting State v. Combs, 102 Wn. App.
949, 953, 10 P.3d 1101 (2000) (reaching the same conclusion about polygraph tests)); see also
State v. Cornwell, 190 Wn.2d 296, 307, 412 P.3d 1265 (2018) (holding that a community custody
officer’s open-ended search of a defendant’s vehicle was an impermissible fishing expedition).
However, “particularized and individualized suspicion about the suspect that preceded” the
intrusion can support a government trespass. Jorden, 160 Wn.2d at 127-28 (listing cases holding
that police review of guest registries to confirm prior individualized suspicions is permissible).
Washington limits DNA collection for people not yet convicted of a crime. Police must
have probable cause and a warrant to demand a DNA sample from a suspect. State v. Garcia-
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010). However, a person who voluntarily “licks an
envelope and places it in the mail” does not retain any privacy interest in the DNA contained in
the “voluntarily discarded saliva.” Athan, 160 Wn.2d at 367, 387.
Washington also imposes certain limits on DNA analysis. Police cannot use the
information in the state police DNA database for any “purpose that is not related to a criminal
investigation, to the identification of human remains or missing persons, or to improving the
operation of the system.” RCW 43.43.759. Washington has not addressed whether police can use
the state CODIS database to look for familial matches in criminal investigations, and there is no
evidence in the record that police databases are being used for familial comparisons in
Washington.2
Next, information on the Internet is highly susceptible to police investigation. The
Washington Supreme Court generally disfavors police review of information compilations, such
as motel guest registries, when “there was no particularized and individualized suspicion of [the
defendant] preceding review” of the compilation. Jorden, 160 Wn.2d at 128. But in State v. Peppin,
Division Three held that a detective’s scan of a “peer to peer network” to find child pornography
files was not an intrusion into the defendant’s private affairs because he “voluntarily offered” the
files for “public access” by posting them on the network. 186 Wn. App. 901, 910-11, 347 P.3d 906
(2015). “[S]haring is inherent in these programs and a user must change the default setting if they
desire not to share files.” Id. at 906. Division Three held that Peppin had no privacy interest in the
2 The legislature recently considered but failed to adopt a law that required either consent or “valid legal process” before law enforcement could access genetic information held in a consumer genetic database “without a consumer’s express consent.” H.B. 2485 § 2(1)(c), 66th Leg., Reg. Sess. (Wash. 2020).
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
files because his “use of peer to peer file sharing voluntarily opened this information to the public
for anyone to access, including law enforcement.” Id. at 910.
Hartman points to recent laws in other jurisdictions that restrict police investigations of
consumer DNA databases. Few states have addressed familial DNA analyses, but the ones that
have are divided about whether law enforcement may conduct warrantless familial comparisons
in consumer DNA databases to identify criminal suspects. In particular, by statute, Maryland and
Montana require a warrant to analyze consumer databases for individuals related to a DNA sample.
MD. CODE ANN., CRIM. PROC. § 17-102(a)(1); MONT. CODE ANN. § 44-6-104(2). Both statutes
went into effect in 2021. And in 2022, California began requiring consumer genetic testing
companies to obtain a consumer’s “separate and express consent” for, among other things, “[e]ach
use of genetic data . . . beyond the primary purpose of the genetic testing or service” and “[e]ach
transfer or disclosure of the consumer’s genetic data . . . to a third party.” CAL. CIV. CODE §
56.181(a)(2)(C)-(D). But ten states, including California, allow familial comparisons in their
police DNA databases to identify suspects. See How We Can Help You: Frequently Asked
Questions on CODIS and NDIS, supra.
In contrast, the State highlights a New York trial court’s conclusion that a defendant lacked
standing to challenge a familial DNA comparison. Police did a familial DNA analysis in the state
CODIS database to solve a decades-old murder, learning that the killer’s brother and nephew were
in the database. People v. Williams, 77 Misc. 3d 782, 784, 178 N.Y.S.3d 420 (Sup. Ct. 2022). At
that time, New York allowed familial DNA comparisons in CODIS. Id. at 783. But before
Williams’s trial, an appellate court overturned the regulation that allowed those analyses. Id. at
874; Stevens v. N.Y. State Div. of Crim. Just. Servs., 206 A.D.3d 88, 107, 169 N.Y.S.3d 1 (N.Y.
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
2022). The trial court denied Williams’s motion to suppress the evidence obtained through the
familial comparison in the police database under the Fourth Amendment and New York
Constitution because Williams did not “establish that he was the victim of an unlawful search.”
Williams, 77 Misc. at 785. The relevant provision of the New York Constitution is identical to the
Fourth Amendment. N.Y. CONST. art. I, § 12.
b. Historical protection for genetic information in public consumer databases
Overall, there is no direct historical protection against the type of investigation conducted
in this case. Generally, law enforcement can access information that is publicly available or
voluntarily shared. Athan, 160 Wn.2d at 367; Peppin, 186 Wn. App. at 910. While it is undisputed
that Hartman did not participate in uploading his relatives’ DNA to the databases, his relatives
nevertheless made the information available to the public on the Internet. They did so at a time
that GEDmatch’s terms of service expressly stated that it would let law enforcement use its service
to identify perpetrators. Although Washington cases express a distaste for fishing expeditions, the
DNA profiles uploaded into GEDmatch were expressly available for the public to analyze, unlike
the motel registry list in Jorden, cell site location information in Carpenter, and the text messages
in Hinton, all of which were revealed to specific businesses or individuals but were not posted on
the Internet or made broadly available for public access. The historical treatment of information
posted on the Internet does not support concluding that Hartman had a privacy interest in the
genetic information his relatives had in common with him that those relatives posted online. And
although other states have restricted familial genetic database analyses by statute, these are
legislative, not constitutional, protections and they are not yet widespread, nor has a similar
protection been adopted in Washington.
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
3. Whether family members like Hartman have a privacy interest in DNA on GEDmatch and similar websites
Users of consumer DNA databases share their genetic material with those companies
mostly for the purpose of finding relatives—the exact thing that happened in this case. We decline
to conclude that there is a privacy interest in common DNA that a relative has voluntarily uploaded
to a public database.
First, the nature of the information—identifying genetic material held in common between
relatives—does not favor finding a privacy interest when the genetic material was posted on a
public Internet site that openly cooperated with law enforcement. Unlike staying at a motel or
using a cell phone, the sole purpose of using a genealogy database is to let others search for and
share intensely private information about the user’s personal and family history. In light of the fact
that customers share private information with genealogy companies with the express purpose of
having the company and others consensually mine that data in order to develop familial
connections, there can be no privacy interest in that shared information.
Although we disfavor fishing expeditions, there is no historical protection for voluntarily
shared genetic material or for information posted on websites intended for public access. Further,
although the technology of forensic genealogy is advancing quickly, this was not a “random and
suspicionless” fishing expedition in the sense that the investigation lacked a specific target. Jorden,
160 Wn.2d at 127. Direct DNA comparisons eliminated more than 100 possible suspects in MW’s
murder, and there were no matches in the state or national police DNA databases before Parabon’s
analysis. Parabon’s investigation sought to identify people who were related to the specific suspect
who left DNA behind in a 30-year-old murder case that had repeatedly run out of leads. The
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
information gleaned from the public database (that several people bore certain degrees of familial
relation to a suspect DNA profile) then allowed law enforcement to narrow the field of suspects.
We hold that Hartman did not have a valid privacy interest in the segments of his DNA
that he had in common with his cousins when his cousins voluntarily posted the genetic
information on a public website. Thus, Parabon’s investigation of GEDmatch’s database did not
violate article I, section 7 because it did not disturb Hartman’s private affairs. Because there was
no intrusion on Hartman’s private affairs, he had no standing to challenge the DNA comparison
of DNA collected at the crime scene with the GEDmatch database.3 Link, 136 Wn. App. at 692.
B. Abandonment of DNA in the Course of a Crime
At oral argument, Hartman argued that the DNA extracted from semen he left behind on
his victim is information that Hartman retained a privacy interest in. He reasons that, although it
was permissible for police to look for a direct match to the DNA profile in the police DNA
database, any additional analysis, including the discovery that the killer had alleles for baldness
and certain mental health disorders, required a warrant. In short, Hartman asks us to abandon the
well-established rule that analysis of evidence left behind at a crime scene does not require a
3 This does not mean that law enforcement will necessarily have unfettered access to commercial DNA databases. The companies running consumer databases have begun restricting police access to users’ genetic information without the users’ consent or a warrant. See Selvin, supra, at 1023- 24 (GEDmatch users must now opt in before law enforcement may access their genetic material). As discussed above, legislation has emerged in some states, and legal commentators have encouraged state legislatures and Congress to “properly balance state and private interests and delineate acceptable parameters for this method of criminal investigation.” Id. at 1061-62. See also Romine, supra, at 394-96 (arguing that state legislatures should create a privacy right in genetic information); Davidowitz, supra, at 212-14 (arguing that Congress should regulate when police can conduct forensic genealogy analyses).
26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
warrant where the abandoned evidence contains DNA, even though DNA contains a wealth of
personal information. We decline to do so.
Abandonment is an exception to the warrant requirement. State v. Garner, ___ Wn. App.
2d ___, 529 P.3d 1053, 1058 (2023). The doctrine provides that “law enforcement officers may
retrieve and search voluntarily abandoned property without implicating an individual’s rights
under the Fourth Amendment or under article I, section 7.” State v. Reynolds, 144 Wn.2d 282, 287,
27 P.3d 200 (2001).
In general, police may not obtain urine or saliva samples directly from a person through
“invasive or involuntary procedure[s]” without the person’s consent, except for in certain
circumstances authorized by statute. Athan, 160 Wn.2d at 367; see Olsen, 189 Wn.2d at 124
(“[T]he nonconsensual removal of bodily fluids implicates privacy interests.”); Robinson v. City
of Seattle, 102 Wn. App. 795, 812-13, 10 P.3d 452 (2000) (city’s mandatory pre-employment
urinalysis testing constituted a search that implicated article I, section 7). But a person who licks
an envelope and mails it, “spit[s] on the sidewalk[,] or leav[es] a cigarette butt in an ashtray” loses
“any privacy interest” in the bodily fluid left behind. Athan, 160 Wn.2d at 367; see also State v.
Bass, 18 Wn. App. 2d 760, 780 n.5, 491 P.3d 988 (2021) (defendant had no privacy interest in the
saliva he left on a discarded cup and soda can), review denied, 198 Wn.2d 1034, 501 P.3d 148
(2022).
Hartman argues that DNA contains so much private information, that abandoning DNA
does not waive an individual’s privacy interest in the DNA for any analysis besides looking for a
direct match in police DNA databases. He relies on Athan’s acknowledgement that “DNA has the
potential to reveal a vast amount of personal information, including medical conditions and
27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
familial relations.” 160 Wn.2d at 367-68. But Athan expressly dismissed the assertion that there is
an automatic privacy interest in DNA that persists after abandonment of a bodily fluid, when the
government’s use of the abandoned DNA is “narrowly limited to identification purposes.” Id. at
368.
Here also, the purpose of the entire investigation was to determine the killer’s identity and
nothing more. To the extent that Hartman argues Athan and other cases limit law enforcement to
analyzing abandoned DNA for only identification purposes, all of the steps that police took in this
case were for the purposes of identifying MW’s killer, including narrowing the suspect pool by
learning the killer’s identifying characteristics. We thus reject this novel argument as contrary to
the controlling caselaw on abandonment of bodily fluids. Id. at 367-68. By ejaculating on MW’s
body, Hartman lost “any privacy interest” in the semen he left behind or the DNA it contained. Id.
at 367. Hartman’s attempt to challenge any DNA analysis of the semen he left behind on MW’s
body fails.
28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
CONCLUSION
We affirm. Hartman did not have a privacy interest in the DNA that his relatives had in
common with him and voluntarily posted in a public database, so he did not have standing to
challenge the investigation of that database. And there is no privacy interest in DNA that one
abandons at a crime scene.
Glasgow, C.J. We concur:
Maxa, J.
Cruser, A.C.J.