Matthew Nilo Fights 2023 FBI DNA Seizure in 17-Year-Old Boston Rape Case

Q: Is leaving a glass at a restaurant enough to abandon your DNA privacy rights forever?

Usually yes for that item, but not “forever” in any broad sense. Under Fourth Amendment law, courts often treat a glass, fork, napkin or cigarette left behind in a public place as abandoned property. If a person leaves a restaurant table and staff would ordinarily clear the items away, prosecutors typically argue the person no longer has a reasonable expectation of privacy in the object or the DNA on it. That is why police have often been allowed to collect discarded DNA without a warrant. But the rule is not absolute. The legal question is objective abandonment: did the person, by words or conduct, give up control of the item? Location matters a great deal. Courts are more likely to find abandonment in a public restaurant than in a home, hotel room, or protected area such as a home’s curtilage. Recent case law also shows that temporary entrustment to another person is not always abandonment. That is the fight in Matthew Nilo’s case. His lawyers say he did not voluntarily abandon the restaurant items and kept a privacy interest in them. Prosecutors say he left them for staff to clear, so any privacy interest ended there. The judge’s ruling will turn on those facts and existing abandonment doctrine. Even when DNA is lawfully collected, that does not settle guilt. DNA can strongly identify a source, but it does not by itself prove when it was deposited, how it got there, or what happened during the alleged crime.

3 articles · Updated · Fox News · Jun 23

Suffolk Superior Court heard Matthew Nilo’s bid to suppress DNA evidence that prosecutors say ties the 38-year-old to multiple Boston and Charlestown assaults from 2007 and 2008.
FBI agents collected glasses, a fork and a napkin after trailing Nilo to a Manhattan restaurant in 2023, and his lawyers argued the warrantless seizure was unlawful because he had no real chance to reclaim the items.
Prosecutors argued Nilo gave up any expectation of privacy once restaurant staff cleared the table in the normal course of business, making the DNA collection admissible.
The case grew out of investigative genetic genealogy: prosecutors said DNA from three rape victims matched a relative in a public database before being linked to Nilo through a drinking-glass sample.
Nilo has remained free on bail since his May 2023 arrest and now faces multiple rape, kidnapping and assault counts after a July 2023 grand jury added seven charges.