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  • Writer's picturePat Pegan

Matthew Nilo Charged in Boston: Expectation of Privacy on Discarded DNA Evidence Seized?

Updated: Jul 14, 2023

Drinking Glass

Matthew Nilo, a Manhattan corporate attorney and Boston native, has been released on $550,000 bail and must wear a GPS tracker after being charged with sexually assaulting four women 15 years ago. Nilo pleaded not guilty to multiple charges, including aggravated rape, kidnapping, assault with intent to rape, and indecent assault and battery. The allegations involve incidents from 2007 and 2008, where some victims were held at gunpoint. Boston police reopened the investigation last year and used forensic genealogy to identify Nilo using DNA from a discarded glass taken from a corporate event he attended. “FBI agents were able to obtain various utensils and drinking glasses they watched the defendant use at a corporate event. From one of the glasses, the Boston Police Crime Lab was able to obtain a male DNA profile, which is found to match the suspect profile from the three Terminal Street rapes,” Suffolk County Assistant District Attorney Lynn Feigenbaum said.

In this blog post, I will discuss whether law enforcement had a right to take the DNA from Matthew Nilo's drinking glass at the corporate event he attended, and use it to link him to the crimes.

What The Law Says

According to a 1966 US Supreme Court decision in Schmerber v. California, an order compelling someone to give a blood sample is a seizure under the 4th Amendment to the US Constitution.

In Massachusetts, there must be a hearing where the Commonwealth must show that a sample of the defendant's blood (or DNA swab from the mouth) will probably produce evidence relevant to the question of the defendant's guilt. This is in part because a person has an expectation of privacy in things that they have in their possession or, in this case, inside their body.

Discarded DNA

However, in cases involving discarded DNA or other publicly available sources of genetic material such as DNA repositories, the process is much different. In these types of cases, Massachusetts courts have ruled that law enforcement does not need permission from the court to collect evidence directly from public resources such as genealogy sites or in this case, discarded drinking glasses.

The admissibility of discarded DNA evidence in Massachusetts courts has been challenged numerous times. In a landmark 2007 case, the Massachusetts Supreme Judicial Court (SJC) found that the DNA evidence obtained from discarded items belonging to a murder suspect was admissible under the Fourth Amendment of the United States Constitution. In Commonwealth v. Jeffrey Bly, after a two-hour interview at the police station, during which he smoked cigarettes and drank from a water bottle, Bly asked for access to a telephone to speak with his mother. The detectives then escorted him to a different room within the same building. When Bly left the interview room he didn't bring the cigarette butts or water bottle with him, nor did he express any desire to retrieve them after using the telephone, even when prompted. To give Bly a chance to return or raise objections, the detectives waited for half an hour before collecting the items and his DNA which were left on them.

Bly contended that the Commonwealth's approach in acquiring his DNA sample without his consent amounted to an involuntary seizure, thereby infringing upon his rights protected by the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Massachusetts Declaration of Rights, and the search warrant stipulations outlined in G.L. c. 276, § 1. However, the judge rejected Bly's motion to exclude the evidence obtained, ruling that the cigarette butts and water bottle taken by the police were considered discarded items. The Court's decision regarding Bly's lack of expectation of privacy was driven not so much by a finding of legal abandonment, but rather by Bly's complete failure to demonstrate any expectation of privacy in the items whatsoever.

It is likely that Mr. Nilo will challenge the collection of his DNA off the drinking glasses in court. However, according to the precedent set in cases like Jeffrey Bly's, it is unlikely that he will succeed. How then, can a defense attorney attack that evidence?

Some challenges that prosecutors may face when trying to admit discarded DNA evidence in Massachusetts courts include trying to prove the chain of custody for the collected materials and providing adequate authentication for the results obtained from a forensic laboratory. In order for such evidence to be admitted, prosecutors must show that proper collection protocols were followed and documented, and that the results obtained are reliable and accurate.

Criminal defense attorneys must be aware of these challenges when preparing a defense strategy against discarded DNA evidence. It is important to understand the nuances of admissibility standards and how to best challenge such evidence when it is presented at trial. With the rise of forensic genealogy and other public databases available for investigation, this type of evidence is likely to become increasingly common in criminal cases.

If you or someone you know has been charged with a crime in Massachusetts, please fill out our contact form, call my office at (978) 744-1220, or text me at (978) 643-0552 for a free case evaluation. I will read the police report, get your side of the story, and give you my opinion as to what your best course of action is and how your case is likely to fare in court. If retained, my team will immediately go to work developing a legal strategy to aggressively defend your case. With over 30 years experience defending clients from criminal charges in Massachusetts, I am well versed in the admissibility of evidence and defending clients against that evidence.

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