United States v. Leeper

22-3110-cr United States v. Leeper United States Court of Appeals for the Second Circuit _____________________________________ August Term 2024 Argued: February 5, 2025 Decided: August 13, 2026 No. 22-3110 _____________________________________ UNITED STATES OF AMERICA, Appellee, — v. — KYLE M. LEEPER, Defendant-Appellant. * _____________________________________ Appeal from the United States District Court for the Northern District of New York No. 5:19-cr-0301, David N. Hurd, Judge _____________________________________ Before: PARKER, SULLIVAN, and BIANCO, Circuit Judges. Defendant-Appellant Kyle Leeper appeals from a judgment entered by the United States District Court for the Northern District of New York (David N. Hurd, Judge) on November 29, 2022. Leeper was convicted on his plea of guilty to one * The Clerk of Court is respectfully directed to amend the caption as set forth above. count of intentional murder while engaged in a controlled substance offense, in violation of 21 U.S.C. § 848(e)(1)(A); one count of conspiring to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 846; and one count of knowingly possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). As part of his plea agreement, Leeper reserved the right to challenge the district court’s denial of his pretrial motions, including his motions to suppress evidence seized from his vehicle and evidence obtained by taking a buccal swab of his DNA. On appeal, Leeper challenges the denial of those motions, arguing that: (1) the search warrant affidavit did not establish probable cause to search his DNA because it did not identify any viable DNA samples with which his DNA could be compared; (2) the search warrant was invalid because it was issued ex parte even though there was no reason to proceed ex parte; and (3) the officers’ decision to hold his vehicle was unreasonable under the Fourth Amendment, rendering the resulting search unreasonable as well. For the reasons set forth below, we conclude that: (1) the search warrant application established probable cause to search Leeper’s DNA; (2) Leeper was not entitled to notice and an opportunity to be heard prior to the issuance of the search warrant, and thus the warrant was properly issued ex parte; and (3) the officers’ decision to hold Leeper’s vehicle was reasonable under the Fourth Amendment. Accordingly, we AFFIRM the judgment of the district court. Judge Sullivan concurs in the judgment in a separate opinion. _____________________________________ BENJAMIN SILVERMAN, Law Offices of Benjamin Silverman, New York, New York, for Defendant-Appellant. STEVEN D. CLYMER, (Thomas R. Sutcliffe, on the brief), Assistant United States Attorneys, for John A. Sarcone III, United States Attorney for the Northern District of New York, for Appellee. 2 J OSEPH F. B IANCO , Circuit Judge: Defendant-Appellant Kyle Leeper appeals from a judgment of the United States District Court for the Northern District of New York (David N. Hurd, Judge) entered on November 29, 2022. Leeper was convicted on his plea of guilty to one count of intentional murder while engaged in a controlled substance offense, in violation of 21 U.S.C. § 848(e)(1)(A); one count of conspiring to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 846; and one count of knowingly possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). As part of his plea agreement, Leeper reserved the right to challenge the district court’s denial of his pretrial motions, including his motions to suppress evidence seized from his vehicle and evidence obtained by taking a buccal swab of his DNA. On appeal, Leeper challenges the denial of those motions, arguing that: (1) the search warrant affidavit did not establish probable cause to search his DNA because it did not identify any viable DNA samples with which his DNA could be compared; (2) the search warrant was invalid because it was issued ex parte even though there was no reason to proceed ex parte; and (3) the officers’ decision to hold his vehicle was unreasonable under the Fourth Amendment, rendering the 3 resulting search unreasonable as well. For the reasons set forth below, we conclude that: (1) the search warrant application established probable cause to search Leeper’s DNA; (2) Leeper was not entitled to notice and an opportunity to be heard prior to the issuance of the search warrant, and thus the warrant was properly issued ex parte; and (3) the officers’ decision to hold Leeper’s vehicle was reasonable under the Fourth Amendment. Accordingly, we AFFIRM the judgment of the district court. BACKGROUND 1 Leeper was engaged in buying and selling methamphetamine in Indiana, California, and New York. In early 2019, he traveled to California along with a housemate, Ramon Nieves Cotto, to purchase methamphetamine. He was contacted by a woman named Arlene Rodriguez, who offered to help him purchase drugs. Rodriguez introduced Leeper to Robert Chavez, who arranged for Leeper to buy three pounds of methamphetamine for $5,000 from his supplier. Chavez met the supplier and exchanged Leeper’s $5,000 for a backpack, which he gave to Leeper. 1 The following facts, which are undisputed, are drawn from the Memorandum-Decision and Order entered by Judge Hurd on December 22, 2021, as well as the Plea Agreement that Leeper and the government entered into on May 11, 2022. 4  Later that day, Leeper discovered that there was substantially less than three pounds of methamphetamine in the backpack. In response, Leeper took Rodriguez hostage at gunpoint and forced her to take him back to Chavez. He then abducted Chavez, and the group drove around Los Angeles trying to get more money or drugs to recoup Leeper’s loss. That night, Leeper ordered Rodriguez to drive to Walmart, where he instructed Cotto to purchase zip ties. Leeper then bound Chavez’s hands and feet with the zip ties. With a bound Chavez in tow, Leeper then directed Rodriguez to drive to a deserted area near Barstow, California, where he removed Chavez from the car, led him away, and shot him in the back eight times, killing him. Cotto and Rodriguez remained in the car. Leeper returned to the car alone, and he, Cotto, and Rodriguez drove to Cortland, New York. Over the course of the trip, Leeper and Rodriguez developed a romantic relationship, and she continued to assist him with buying and selling methamphetamine. On February 19, Leeper and Rodriguez were stopped by officers from the Cortland County New York Sheriff's Office (“CCSO”) while Leeper was driving a pickup truck. The officers detained Leeper; held the pickup truck after learning that neither Leeper nor Rodriguez possessed a valid license and that the vehicle 5 did not have a valid registration; and conducted an inventory search of the truck, where they found a firearm, ammunition, and four pounds of methamphetamine. The officers then arrested Leeper and Rodriguez. Following her arrest, Rodriguez told CCSO officers that Leeper smoked methamphetamine, that she believed he was selling methamphetamine, and that she had seen him with both a hand gun and a stun gun. In addition, Rodriguez’s attorney told CCSO officers that Rodriguez was present during Chavez’s murder and was willing to speak with the officers about it. A few weeks later, CCSO officers were contacted by a detective in California who was investigating Chavez’s homicide. On April 8, a Cortland County judge issued a warrant to search Leeper’s person for evidence of second-degree murder, including by collecting his DNA from a buccal swab. The warrant was issued based on a probable cause affidavit submitted by Sergeant Garry Williams of the CCSO. Leeper was in custody at the time. The search warrant identified various pieces of physical evidence found at the scene of the homicide, including eight .380 caliber fired cartridge casings, seven .380 caliber projectiles, and cut zip ties. In 2021, Leeper moved to suppress both the evidence found in his vehicle 6 and evidence derived from the DNA sample. Following an evidentiary hearing, the district court denied both motions. See generally United States v. Leeper, 577 F. Supp. 3d 48 (N.D.N.Y. 2021). With respect to the vehicle search, the district court found that, under the totality of the circumstances, the officers’ decision to tow Leeper’s truck was reasonable because neither passenger was licensed to drive it, the truck had no valid registration, and the truck had a severely cracked windshield, making it unfit for driving. Id. at 63–64. The district court rejected Leeper’s argument that the decision did not comport with department policy and was therefore unreasonable, noting that non-compliance with a department policy is not dispositive of the legality of a search and that “there is uncontradicted evidence that Wright complied with standard practice even if he had not strictly followed the written policy.” 2 Id. at 63. With respect to the DNA sample, the district court found that there was probable cause for the warrant to issue, given that there was substantial evidence linking Leeper to Chavez’s murder and “any number of physical instrumentalities 2 Below, Leeper also challenged his temporary detention and the decision to conduct an inventory search of his vehicle after it was taken into custody. He does not pursue these arguments on appeal. See Chevron Corp. v. Donziger, 990 F.3d 191, 203 (2d Cir. 2021) (“Arguments not raised on appeal are deemed abandoned and need not be reviewed by this Court.”). 7 explicitly tied to Chavez’s murder.” 3 Id. at 72. The district court also rejected Leeper’s procedural due process challenge to the ex parte warrant proceeding, stating that “Leeper has failed to point to any support for the notion that the federal concept of due process would also require an opportunity to be heard before a search warrant could issue to seize DNA.” Id. Accordingly, the district court denied Leeper’s suppression motion in its entirety. Ultimately, Leeper pleaded guilty to three counts: (1) intentional murder while engaged in a controlled substance offense; (2) conspiring to distribute methamphetamine; and (3) possessing a firearm knowing that he had previously been convicted of a felony. However, his plea agreement permitted him to appeal the district court’s decision to deny his suppression motion as to: “(a) whether evidence located in and seized from the pickup truck occupied by Kyle M. Leeper and Arlene N. Rodriguez on February 19, 2019, should have been suppressed under the Fourth Amendment; and (b) whether a search warrant permitting the taking of a buccal swab from Kyle M. Leeper on or about April 10, 2019, was constitutionally invalid because it was issued without a showing of probable cause and ex parte.” App’x at 221. The plea agreement provided that if Leeper prevails 3 Below, Leeper also argued that the warrant application was supported by insufficiently reliable evidence. Again, that argument is not raised on appeal. 8 on appeal, “he will be permitted to withdraw his guilty plea without penalty.” Id. The district court ultimately sentenced Leeper to forty years in prison on both the murder charge and drug charge and ten years on the firearm charge, all to run concurrently. This appeal followed. DISCUSSION The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. C ONST . amend. IV. On appeal, Leeper asserts that the searches of both his DNA and his vehicle violated the Fourth Amendment and challenges the district court’s denial of his motions to suppress that evidence. “On an appeal challenging a district court’s ruling on a motion to suppress evidence, we review its legal conclusions de novo and its findings of fact for clear error.” United States v. Iverson, 897 F.3d 450, 459 (2d Cir. 2018). “In reviewing the denial of such a motion, we view the evidence in the light most favorable to the government.” United States v. Delva, 858 F.3d 135, 148 (2d Cir. 2017) (alteration adopted) (internal quotation marks and citation omitted). “[W]e may affirm the denial of the suppression motion on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did 9 not rely.” United States v. Estrada, 430 F.3d 606, 609–10 (2d Cir. 2005). I. DNA Search As part of their investigation, CCSO officers obtained a warrant to search Leeper’s person for evidence of second-degree murder, including by taking a buccal swab of his DNA. Leeper challenges the validity of the DNA search on two grounds. The first is substantive: Leeper argues that the warrant application failed to establish probable cause that his DNA was likely to contain evidence of a crime because it did not identify any relevant DNA samples with which Leeper’s DNA could be compared. The second is procedural: Leeper argues that he was denied procedural due process because the officers obtained a warrant to take a sample of his DNA without providing him notice or an opportunity to be heard. We address each of these issues in turn. a. Probable Cause In evaluating probable cause, a judge must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “Due to this subjective standard, a reviewing court generally accords substantial 10 deference to the finding of an issuing judicial officer that probable cause exists, limiting our inquiry to whether the officer had a substantial basis for his determination.” United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015) (internal quotation marks and citation omitted); see also Gates, 462 U.S. at 236 (“A magistrate’s determination of probable cause should be paid great deference by reviewing courts.”) (internal quotation marks and citation omitted). “Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause.” United States v. Leon, 468 U.S. 897, 914 (1984). Accordingly, the Supreme Court has “repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Gates, 462 U.S. at 236. Leeper argues that there was no probable cause to search his DNA because the officers did not establish that there were any DNA samples with which to compare his DNA. His DNA alone, he argues, is useless; unless the officers established that there were usable DNA samples collected at the scene or in other relevant locations with which Leeper’s DNA could be compared, there was no fair 11 probability that evidence of a crime would be found in his DNA on its own. 4 While the parties point us to conflicting lower court authority, 5 this 4 As a threshold matter, the government’s argument that Leeper failed to challenge the search warrant on these grounds below and therefore review in this court should be for plain error is without merit. While Leeper’s pretrial motion below made the factually inaccurate argument that “there are no evidentiary items connected to the murder that are identified,” it also argued that “flowing from that is the fact that no evidentiary items have been swabbed for DNA such that a comparison would be possible.” Gov’t App’x at 30. Accordingly, we consider whether, on de novo review, the district court erred in concluding that the search warrant for Leeper’s DNA was supported by probable cause. 5 Compare, e.g., United States v. Marshall, No. 11-CR-00381, 2012 WL 2994020, at *3 (W.D.N.Y. July 20, 2012) (“Without evidence that the DNA samples recovered from the firearms are of a sufficient quality to be used for comparison purposes with the DNA the government seeks to obtain from the defendants, there is nothing to suggest that compelling defendants’ DNA will lead to probative evidence in this case.”); United States v. Pakala, 329 F. Supp. 2d 178, 181 (D. Mass. 2004) (holding, on a motion for an order to compel, that individuals should not “be subject to even the minimal intrusion of a swab DNA test unless it is first determined that any substance found on the firearm(s) has yielded a sufficient DNA profile for comparison”); United States v. Robinson, No. 11-CR- 0325, 2011 WL 7563020, at *3 (D. Minn. Dec. 2, 2011) (finding no probable cause for taking a DNA sample where “the Government has provided no evidence that it has as yet even tested the firearm at issue in this case to see whether there is any retrievable DNA evidence to which any comparison of the DNA sample seized from Defendant can be made,” because “the Fourth Amendment forbids intrusions on the mere chance that desired evidence might be obtained”) (internal quotation marks and citation omitted); United States v. Jennings, No. 21-cr-60193, 2021 WL 5235292, at *8 (S.D. Fla. Nov. 10, 2021) (“[B]ecause the DNA sample from the firearm had not yet been analyzed, there was no probable cause to believe that the DNA from Defendant would yield relevant evidence.”); with, e.g., United States v. Harrison, 683 F. Supp. 3d 184, 205 (N.D.N.Y. 2023) (Hurd, J.) (“The fact that other magistrates in other judicial districts might have wanted to see a bit more from the search warrant affiant before signing off on a warrant does not vitiate the probable cause determination made in this case.”); United States v. Sedillo, 297 F. Supp. 3d 1155, 1181 (D.N.M. 2017) (“[T]he Fourth Amendment does not require the United States to confirm that evidence collected—in this case, the clothing—will yield a viable DNA sample before swabbing the arrestees for DNA,” because “[p]robable cause is not a 12 question—whether a search warrant application can establish probable cause without identifying usable DNA samples taken from physical evidence linked to the alleged crime—is one of first impression for federal appellate courts. Leeper asks us to resolve it conclusively by adopting a bright line rule that “[a]bsent any comparison DNA, there is no way to establish probable cause that a suspect’s DNA will be evidence of anything.” Appellant’s Br. at 23. But “[p]robable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts, and as such is not readily, or even usefully, reduced to a neat set of legal rules.” Raymonda, 780 F.3d at 113 (internal quotation marks and citations omitted). We conclude that demonstrating probable cause to obtain a DNA sample will not always require the government to identify specific DNA samples for comparison. Nor will it never require such identification. The probable cause determination in these cases depends on any number of factors, including whether there is physical evidence that could link a particular suspect to a crime, how much granular inquiry.”); United States v. Burkhalter, No. 4:18-CR-00036-1, 2023 WL 2653388, at *5 (W.D. Miss. Mar. 27, 2023) (noting that “courts appear to be split on the issue” and finding “the reasoning set forth in United States v. Sedillo . . . persuasive”); In re Search Warrant, No. 24-MJ-02376, 2024 WL 1174726, at *7 (S.D. Fla. Mar. 18, 2024) (finding it sufficient that there was “probable cause to believe that [the defendant] possessed (and then tossed) the firearm, and that he may have deposited usable DNA on the firearm, ammunition, and holster”) (emphasis added). 13 physical evidence there is, the type of physical evidence, and the like. Here, there was probable cause to search Leeper’s DNA. The search warrant application identified eight shell casings, seven projectiles, and multiple cut zip ties recovered at the scene of Chavez’s homicide, as well as the rental car and Chavez’s body itself, any or all of which could have contained usable DNA samples against which to test Leeper’s DNA. Indeed, Leeper acknowledges that the government’s contention that “Leeper would have had ‘ample opportunity to deposit touch DNA’ . . . is true.” Appellant’s Reply Br. at 18. The supporting affidavit does not establish with certainty that there would be a sample against which to compare Leeper’s DNA, but that is not what the Fourth Amendment requires. “While probable cause requires more than a ‘mere suspicion,’ of wrongdoing, its focus is on ‘probabilities,’ not ‘hard certainties.’” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (internal citations omitted). Probable cause “requires only such facts as make wrongdoing or discovery of evidence thereof probable.” Id. at 157. The issuing court had a substantial basis for its determination that the plethora of physical evidence recovered from the scene made it probable that obtaining a DNA sample from Leeper would lead to the discovery of evidence of a crime. Accordingly, we conclude that the district court properly denied 14 Leeper’s motion to suppress on this basis. b. Procedural Due Process Leeper also challenges the warrant on a procedural ground: that he was denied procedural due process because the officers obtained an ex parte warrant to take a sample of his DNA, using a buccal swab, without providing him advance notice or an opportunity to be heard. “With respect to a claimed due process violation, we review the district court’s factual determinations for clear error, while the constitutional significance of those findings, including the ultimate determination of whether due process has been violated, is reviewed de novo.” United States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016) (alteration adopted) (internal quotation marks and citation omitted). Leeper broadly argues that the uniquely revealing nature of DNA implicates core privacy interests, necessitating a pre-deprivation hearing. Moreover, Leeper asserts that, “had [he] been afforded notice and a chance to be heard, it is unlikely that the judge would have issued the search warrant for his DNA because it would have realized, through an adversarial proceeding, that Sergeant Williams’ supporting affidavit failed to state probable cause that the DNA would yield evidence of a crime.” Appellant’s Br. at 28–29. 15  In advancing this argument, Leeper principally relies on Mathews v. Eldridge, 424 U.S. 319 (1976), which directs courts, in determining whether procedural requirements related to the deprivation of property or liberty interests are constitutionally sufficient, to apply a three-part balancing test that weighs the following factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335. As an initial matter, the government argues that Mathews has no application to Fourth Amendment challenges. Leeper counters that the Mathews “test is applied to myriad cases that require balancing public and private interests in determining whether sufficient process was granted.” Appellant’s Reply Br. at 3. To be sure, in the criminal context, we have applied the Mathews test in determining that a defendant found guilty after trial could not be detained pending appeal based on an ex parte showing by the government. See United States v. Abuhamra, 389 F.3d 309, 318, 332 (2d Cir. 2004). Furthermore, we have applied the Mathews test in addressing the process that was required before a prosecutor 16 could retain a vehicle as potential evidence pending a criminal proceeding. See Krimstock v. Kelly, 464 F.3d 246, 253–55 (2d Cir. 2006) (applying Mathews and concluding that “no full-dress adversarial hearing is required to review a prosecutor’s unilateral determination that a vehicle is needed as potential evidence” and “district attorneys must be permitted to seek retention orders ex parte so that defendants cannot use the hearings for discovery or to restrict the prosecution’s theories at trial”). Notwithstanding the application of Mathews to examine certain detention and seizure issues in criminal proceedings, search warrants are different, from both a historical and practical standpoint, and the government correctly notes that “no federal appellate court has held that judicial review of search warrant applications must comport with the Mathews procedural due process framework or otherwise has suggested that Mathews plays a role in this context.” Appellee’s Br. at 52. Indeed, without any reference to Mathews, the Supreme Court unequivocally held over five decades ago that, when a law enforcement officer applies for a search warrant, the proceeding “is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he 17 destroy or remove evidence.” 6 Franks v. Delaware, 438 U.S. 154, 169 (1978); United States v. U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297, 321 (1972) (“[A] warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge.”); see also Times Mirror Co. v. United States, 873 F.2d 1210, 1213–14 (9th Cir. 1989) (“[O]ur review of the history of the warrant process in this country indicates that the issuance of search warrants has traditionally been carried out in secret. Normally a search warrant is issued after an ex parte application by the government and an in camera consideration by a judge or magistrate.”). Thus, we have serious doubts as to whether the Mathews test should be applied at all to potentially impose additional procedural rules beyond what is required under the Fourth Amendment. See Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975) (“The Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the ‘process that is due’ for seizures of person or property in criminal cases, including the detention of suspects pending trial.”); see also 6 In Winston v. Lee, 470 U.S. 753 (1985), the Supreme Court left open the question of whether “special procedural protections” are warranted under the Fourth Amendment when the search involves “[a] compelled surgical intrusion into an individual’s body for evidence,” such as an order for a suspect to undergo surgery to remove a bullet lodged in his body. Id. at 759, 763 n. 6. No such surgical intrusion is at issue in this case, which involves only the use of a buccal swab. 18 Abuhamra, 389 F.3d at 328 (rejecting the “view that ex parte submissions at bail hearings are analogous to ex parte submissions in support of arrest and search warrants, or wire-tap authorizations” and noting that “[t]he competing interests at stake in connection with the issuance of warrant and wire-tap authorizations confer no pre-issuance right to an adversarial hearing on any person”). However, we need not resolve that issue here because we hold that, even assuming arguendo that Mathews applies to ex parte warrants for DNA collection with a buccal swab, the three-part test does not require the government to give notice and an opportunity to be heard because the government’s compelling law enforcement interests in being able to obtain ex parte warrants for DNA collection outweigh an individual’s private interests and the risk of erroneous deprivation in the absence of that procedure. 7 We address each of the Mathews factors below. 7 We note that New York state courts have recognized a due process right to notice and an opportunity to be heard when law enforcement seeks a search warrant for an uncharged suspect’s DNA in non-exigent circumstances. See, e.g., People v. Fomby, 103 A.D.3d 28, 29–30 (N.Y. App. Div. 2012) (citing Matter of Abe A., 437 N.E.2d 265 (N.Y. 1982), which concerned a search warrant for an uncharged suspect’s blood sample). However, the New York Court of Appeals has clarified that the suspect’s right to be heard is limited to “the nature of the bodily intrusion to be authorized by, and the evidence to be collected under, the warrant,” and he is not entitled to challenge the probable cause showing in the warrant application, which is what Leeper seeks here. People v. Goldman, 159 N.E.3d 772, 781 (N.Y. 2020); id. (“The constitutional role of the neutral magistrate to determine whether the warrant application set forth probable cause of defendant’s commission of the crime and the factual basis for the DNA comparative evidence set forth in the warrant 19  i. The Government’s Interest As our holding rests on the conclusion that the government has overriding interests in being able to conduct ex parte warrant proceedings for DNA collection in the context of an ongoing criminal investigation, we begin with this step of the Mathews test. It is beyond dispute that the collection and analysis of DNA are critical tools used by the government to accurately identify individuals responsible for criminal conduct, and the government has a “compelling interest in finding, convicting, and punishing those who violate the law.” Moran v. Burbine, 475 U.S. 412, 426 (1986); see also Schall v. Martin, 467 U.S. 253, 264 (1984) (“The legitimate and compelling state interest in protecting the community from crime cannot be application required no supplemental adversarial process. Thus, the method and procedures employed in taking the saliva undoubtedly respected relevant Fourth Amendment standards of reasonableness, and defendant’s claim that the failure to provide him discovery of the extant probable cause and an adversarial hearing nonetheless warrants the invocation of the exclusionary rule is without constitutional basis.”). The court also concluded, because the procedure was constitutionally sufficient, it was “not necessary to address the People’s arguments that Abe A.’s notice procedure preceding the issuance of a search warrant is no longer required for the minimal intrusion occasioned by a buccal swab or that the notice procedure does not apply to a suspect who is in custody.” Id. In any event, federal law, not state law, applies to this federal criminal prosecution. See United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir. 1987) (“[W]e are persuaded that federal law should apply to this federal criminal prosecution, even though the underlying investigation leading to prosecution was conducted solely by state officials.”). 20 doubted.”) (internal quotation marks and citation omitted); Nicholas v. Goord, 430 F.3d 652, 669 (2d Cir. 2005) (“There can be little doubt that New York has a strong government interest in obtaining identifying information from convicted offenders [through DNA collection] and keeping a record of such information [in a DNA database].”). That compelling interest in accurate investigations and prosecutions obviously includes using DNA analysis to exonerate the innocent. See, e.g., United States v. Sczubelek, 402 F.3d 175, 185 (3d Cir. 2005) (emphasizing that “DNA samples will help to exculpate individuals who are serving sentences of imprisonment for crimes they did not commit and will help to eliminate individuals from suspect lists when crimes occur”); see also Kaemmerling v. Lappin, 553 F.3d 669, 680 (D.C. Cir. 2008) (recognizing, in the context of a challenge to the collection and retention of DNA in a database, that there is a “compelling governmental interest in accurately and expeditiously solving past and future crimes in order to protect the public and ensure conviction of the guilty and exoneration of the innocent”). Often the government cannot advance these compelling interests without obtaining a search warrant to collect the DNA sample that is necessary for comparison purposes. 21  The rationale for the longstanding rule that the government should be able to submit search warrant applications ex parte is also quite obvious: if notice and an opportunity to be heard were required prior to a search warrant being issued, the criminal investigation could be compromised in numerous ways including, inter alia, by the destruction of evidence or other efforts to obstruct justice, as well as by one or more targets of the investigation fleeing from potential prosecution. See Franks, 438 U.S. at 169 (“The pre-search proceeding is necessarily ex parte, since the subject of the search warrant cannot be tipped off to the application for a warrant lest he destroy or remove evidence.”); United States v. Ulbricht, 858 F.3d 71, 107 (2d Cir. 2017) (affirming denial of a request to unseal a document regarding a grand jury proceeding because “potential co-conspirators might have learned of the investigation and attempted to intimidate witnesses or destroy evidence”), overruled on other grounds by Carpenter v. United States, 585 U.S. 296 (2018). Leeper, although recognizing that “the government has a strong interest in obtaining DNA evidence,” argues that these compelling reasons for an ex parte warrant do not apply to the collection of DNA from a suspect because (1) “the DNA [sought] from the suspect’s body cannot be spoliated, not even if the suspect dies,” and (2) “the suspect must be informed before the sample is taken from their body, 22 so the warrant cannot be executed while maintaining a confidential investigation.” Appellant’s Br. at 28. These arguments miss the mark. Although the suspect’s DNA cannot be spoliated and the existence of the criminal investigation is necessarily exposed to the suspect by the collection of the DNA, there remains a host of means for the suspect, as well as any co-conspirators, to impede the investigation. In particular, Leeper overlooks the critical fact that his proposed right to notice and an opportunity to be heard before the issuance of the warrant would include providing a copy of the warrant application to the suspect while the investigation is still pending, or even at its infancy. That application, which must contain information sufficient to establish probable cause to authorize the DNA collection, could provide the suspect (and anyone else to whom that suspect shares that information) with confidential details about the witnesses and evidence gathered so far in the investigation, including grand jury material, as well as potentially shed light on law enforcement’s theory of the case and knowledge of the role of any co-conspirators. Armed with this roadmap of the scope and status of the government’s investigation, the suspect (even if in custody), as well as any co- conspirators in the criminal activity (whether known or unknown to law 23 enforcement), could engage in all types of obstruction of that investigation, including destroying other non-DNA evidence not yet obtained by law enforcement and intimidating or tampering with potential witnesses. Moreover, the suspect (if he is not already in custody) could flee the jurisdiction once he is given notice of the search warrant application, thereby thwarting the collection of the DNA from him or any future criminal prosecution. Even if the suspect is in custody, any non-incarcerated co-conspirators would have their own opportunity to flee, especially if the warrant application were made known to them and revealed that the investigation was well-developed and additional arrests were imminent. See Application of Dow Jones & Co., Inc., 842 F.2d 603, 611 (2d Cir. 1988) (“[T]argets learning of their possible indictment might flee or tamper with . . . witnesses.”). Indeed, these compelling law enforcement interests in protecting the confidential details of an ongoing criminal investigation are precisely why government applications for search warrants typically remain sealed until after the target is arrested. Other courts have similarly recognized the compelling government interests in maintaining the confidentiality of search warrant applications while an investigation is pending. For example, in Matter of EyeCare Physicians of America, 24 100 F.3d 514 (7th Cir. 1996), companies whose premises were searched pursuant to warrants filed a motion to have the search warrant applications and affidavits unsealed to allow them to assess whether to challenge the government’s search. Id. at 515. In affirming the denial of the motion, the Seventh Circuit noted that disclosure of the affidavits would breach the secrecy of the grand jury investigation and outlined other potential adverse ramifications from such a disclosure: Additional consequences in disclosing the sealed affidavits include: the identity of unnamed subjects not yet charged would be revealed; there may be mistaken notions concerning who might and might not be cooperating with the government or who may be subjects; there may be misunderstandings about the parameters of the government’s investigation; the privacy of the innocent and the implicated would be threatened; and the cooperation of present and potential witnesses could be compromised or influenced. . . . We agree with the magistrate judge and the district court th