Arizona’s First Successful Use of Forensic Familial DNA

By Clare Remy. 

A Brutal, Unsolved Murder 

In February 2015, Allison Feldman was found murdered in her Scottsdale home. Despite evidence of the perpetrator’s DNA at the scene, the case remained unsolved until April 2018, when police finally announced that they had arrested Ian Mitcham. 

In a press conference, Scottsdale Police Assistant Chief Scott Popp revealed that Mitcham was identified through a familial DNA test—the first of its kind to be successful in Arizona. The police had already conducted several DNA tests with voluntary contributions from Feldman’s neighbors, but to no avail. They eventually turned to familial DNA testing—a technique only used in twelve other states and explicitly prohibited in the federal DNA database.

The search revealed that the DNA left at the Feldman scene came from a close male relative of a convicted offender, Mark Mitcham, who was in prison for an unrelated offense. Mark had two male relatives in Phoenix, including Ian Mitcham, who lived nearby at the time and had been arrested for a DUI in January 2015, only a few miles from Feldman’s home.

During his arrest for the 2015 DUI, Mitcham had consented to blood testing and gave two vials of his blood to the Scottsdale police. Despite a Destruction Notice that stated the blood would be destroyed after ninety days, the department held onto the vials containing Mitcham’s blood.

After getting the results of the familial DNA test, Scottsdale Police Lieutenant Lockerby, without a warrant, used the 2015 blood sample to generate Mitcham’s DUI profile and compare it to the DNA recovered from the Feldman crime scene. When this comparison resulted in a match, Mitcham was arrested. Upon his arrest, police took a subsequent DNA sample.

An Unconstitutional “Search”?

During pretrial evidentiary hearings in the Maricopa County Superior Court, Lt. Lockerby testified that he did not believe he needed a warrant to test Mitcham’s DNA. In December 2022, Judge Whitehead of the Superior Court ordered the suppression of the DNA evidence from the 2015 sample and from the 2018 arrest (which was collected because of the match found using the 2015 sample). The Superior Court believed that the DNA testing violated Mitcham’s Fourth Amendment rights, which are meant to protect us from unlawful searches and seizures.

Mitcham had only consented to blood testing for drugs and alcohol in 2015—not to a DNA search. Therefore, the judge decided that the subsequent testing of Mitcham’s DNA required a warrant, meaning that the use of the 2015 sample was improper. The State argued that this did not matter. In some cases, evidence produced through police misconduct can be admitted if the police relied on precedent and acted reasonably, with good faith. In this case, however, the trial court refused to apply this exception, finding that Lockerby’s “action could fairly be characterized as deliberate, but . . . was at least a reckless violation of [Mitcham’s] constitutional rights.” Because of the nature of Lockerby’s action and the lack of a warrant, the judge excluded the DNA evidence from the 2015 and 2018 samples. The State immediately filed an appeal.

The Arizona Court of Appeals ultimately decided to allow the DNA evidence after oral arguments. Building on state precedent, the Court determined that the State’s creation of a DNA profile from legally held evidence was a search, but that such a search does not require a warrant if there is individual suspicion. The Court also found that a search beyond the scope of authorization (by statute or consent) was unreasonable, and therefore unconstitutional under the Fourth Amendment. Despite these findings, the court decided that Mitcham’s constitutional rights were not violated.

The Court gave two reasons for this conclusion. First, the police would have had probable cause (even without the 2015 blood sample) to arrest Mitcham because of the familial DNA match and his geographic proximity to the Feldman murder in 2015. This allowed the police to conduct a DNA search without a warrant. Second, the police would have inevitably legally obtained Mitcham’s DNA because, by 2022, he pled guilty to two other felony charges, which required him to submit to DNA testing. This inevitable discovery excused the unlawful retention of Mitcham’s 2015 blood samples. As a probable cause search of evidence lawfully in the possession of the state, the testing was admissible.

What Now?

Mitcham’s case has been sent back to the Superior Court for trial but may still face a potential subsequent appeal to the Arizona Supreme Court. This case, however, leaves several unanswered questions and serves as an example of the confusion across the nation when it comes to DNA testing.

Under existing Fourth Amendment doctrine, police forces have substantial leeway to collect and test DNA evidence. As Judge Catlett of the Arizona Court of Appeals pointed out in his concurrence, the majority asserts that there was a search in this case but fails to state when the creation of a DNA profile counts as a search, or, if it is a search, when a warrant is required. Further, the majority does not analyze Mitcham’s expectations of privacy for his DNA, nor the potential privacy concerns implicated by the original familial DNA test that put Mitcham on the police’s radar.

The familial DNA testing in this case was performed through a local database, not subject to the same federal regulations and limitations as the national database. It is statutorily authorized in Arizona but is not widely accepted throughout the United States because it raises questions about privacy and ethics. As DNA technology continues to improve, these privacy and ethics questions will become even more important for individual and familial testing—as smaller and smaller samples of biological material reveal more and more about their source. With little regulation from the judiciary or legislature, local law enforcement agencies in Arizona and beyond are likely to aggressively collect DNA to bolster their databases, with little regard for the privacy of citizens.