California Legal Brief

The Rule of People v. Konther is that a defendant has no reasonable expectation of privacy for DNA evidence abandoned at crime scenes through the commission of sexual assault, under circumstances where semen is voluntarily deposited during criminal activity and subsequently analyzed using investigative genetic genealogy.

Appeal from judgment after jury trial in Superior Court, Orange County.

Defendant Appellant was Kevin Michael Konther — the perpetrator who raped two victims in 1995 and 1998 and committed a lewd act against his girlfriend's daughter.

Plaintiff Respondent was The People — the prosecuting authority in this criminal case involving multiple sexual assault charges.

The suit sounded in criminal prosecution for sexual assault crimes. [No cross-claims applicable.]

The key substantive facts leading to the suit were: In 1995, Konther raped a 9-year-old girl (Jackie). In 1998, he raped a 21-year-old woman (Lucia). Police obtained matching DNA from both victims' sexual assault examinations. The crimes went unsolved for many years until 2018, when police used investigative genetic genealogy (IGG) to identify Konther or his identical twin brother as suspects. Police detained both brothers together and secretly recorded their conversations, during which Konther made incriminating statements about both rapes and alluded to other uncharged assaults. Police also discovered Konther had committed a lewd act against his girlfriend's daughter.

The procedural result leading to the Appeal: The trial court denied Konther's pretrial motion to suppress evidence based on the warrantless search of his DNA using IGG, ruling that Konther had no reasonable expectation of privacy in semen samples left at crime scenes during the commission of crimes.

The key question(s) on Appeal: 1. Whether the trial court erred in denying defendant's motion to suppress evidence based on warrantless DNA analysis using investigative genetic genealogy 2. Whether the trial court improperly admitted defendant's statements about committing other uncharged assaults

The Appellate Court held that police did not conduct a warrantless "search" within the meaning of the Fourth Amendment by conducting genetic testing of defendant's DNA, which he had abandoned at two crime scenes during the commission of rape. The court found that defendant had no subjective expectation of privacy in genetic information contained in semen voluntarily left at crime scenes through criminal conduct.

The case is inapplicable when DNA evidence is not voluntarily abandoned (such as DNA obtained through involuntary means), when the defendant maintains a reasonable expectation of privacy in the genetic material, or when genetic testing reveals sensitive health information beyond criminal identification purposes.

The case leaves open questions regarding genetic testing that reveals "sensitive health information" beyond criminal identification, and the scope of Fourth Amendment protection for genetic information obtained through non-abandoned sources.