*1 993A.2d 626 Kеlroy WILLIAMSON Maryland. STATE of Sept.Term, No. 61 2009. Appeals Maryland.
Court of April *3 (Nancy S. Asst. Public Defender Peabody, Bradford C. MD), Defender, Baltimore, Appel- brief for Forster, on Public lant. Gansler, Jawor, Atty. (Douglas Atty. F. Gen.
Daniel J. Asst. MD), Baltimore, on for Appellee. brief Maryland, Gen. HARRELL, BELL, C.J., BEFORE ARGUED GREENE, MURPHY, BATTAGLIA, ADKINS and BARBERA, JJ.
BATTAGLIA, Judge. Law & NBC television series Order
The writers for
pressed
hard
to author
Unit would be
Special Victims
found in this
involving
than
episode full of more issues
County police,
Anne Arundel
in which the
case
Williamson, retrieved
Kelroy
Appellant,
DNA of the
matched
found in two
cup to
from his discarded McDonald’s
in 1994
medical examinations
rape victims’ forensic
separate
by a
the Circuit
jury
was convicted
and 2002. Williamson
charges
rape
in 2007
County
Anne Arundel
on
Court for
crime,
appealed
for the 2002
and he
*4
and related offenses1
that his arrest warrant
Special Appeals, arguing
the
Court
probable
on a statement of
cause
rape
for
based
the 2002
from the
of the DNA
illegal testing
the
predicated upon
examination, as
well
and the 1994 forensic
discarded
rape
the first and second
Kelroy
was convicted of
Williamson
degrees,
and
first and second
unnatural
degrees, sex offense in the
degrees, and
perverted
the first
second
practice, assault in
and
sexual
endangerment.
two consecutive life
He was sentenced to
reckless
first-degree
rape
first-degree
sexual offense.
and
sentences
the
of his DNA
uploading
profile into a local database and
profile
search
that database for a
match. His challenges
premised
Maryland
are
the
DNA Collection Act2 and the
Constitution,3
Fourth Amendment to the United States
and he
seeks review of the trial
judge’s denial of his motion to
obtaining
suppress
testing
of the 2006 DNA
and his statement to police
poisonous
illegal
as the
fruits of an
State,
certiorari,
arrеst.
granted
We
Williamson
409 Md.
(2009),
We hold it was not error to deny suppress motion to DNA evidence obtained in 2006 or the Appellant’s statement to police, and we affirm the Circuit Court judge’s dismissal of the motion to suppress. AND
FACTS PROCEDURAL HISTORY facts, In setting forth the we adopt a timeline suggested by brief, State its although we provided have our own recitation of events: case,
In an unrelated an acquaintance of Williamson told the police that Williamson had raped her. She underwent a examination, forensic medical and vaginal swabs were collect- ed but not tested for presence of the assailant’s deoxyribo- Maryland 2. The DNA Collection Act is found in Sections 2-501 to 2-512 Article, Safety (2003). Maryland of the Public Chapter Code 337 of the Maryland Laws of 2008 revised January Act, the Act and took effect on 2009. All citations herein refer to the 2003 version of the during period was in effect alleges in which Williamson that the State violated the Act. 3. The Fourth provides: Amendment to the United States Constitution right houses, people persons, to be papers, secure in their effects, seizures, against unreasonable searches and shall not be
violated, issue, cause, upon probable and no Warrants shall but affirmation, supported by Oath or particularly describing searched, place persons to be things and the to be seized. *5 526 offense, (DNA). for the arrested was
nucleic acid Williamson was consensual. sexual intercourse but he claimed battery. plea4 entered an ultimately He Alford 21, September 2002 that she later, complainant alleged a different years Eight contain- Vаginal swabs unknown assailant. by was an raped her forensic during were recovered sample5 a DNA ing the Anne examination, by as tested sample, and the medical Lab, profile a DNA yielded County Police Crime Arundel to the statewide uploaded profile The DNA the assailant. a DNA record.7 thereby creating system,6 DNA database Federal Bureau to the uploaded was then DNA record or “CODIS.”8 System” Index “Combined DNA Investigation’s Supreme Court case plea, derived from the 4. We have defined Alford 160, 25, 27 162 Alford, 91 S.Ct. L.Ed.2d 400 U.S. North Carolina v. of (1970), See containing protestation of innocence.” guilty plea "a as 184, (1997), State, 185 n. 2 n. 695 A.2d 346 Md. Marshall v. State, 521 A.2d citing Pennington 308 Md. n. 4-242(c) (court guilty (1987); may accept plea even see also Rule n. guilt). though does not admit defendant (2003) Article, Maryland Safety Code 2-501(g) of the Public 5. Section provides: Sample” and defines "DNA (1) body Sample” fluid or tissue means a "DNA felony a violation of a or by who is convicted provided an individual degree] or burglary the fourth [misdemeanor 6-205 [Section] entering breaking a motor vehi- [Section] [misdemeanor 6-206 Article; (2) to the statewide Law submitted the Criminal cle] of investigation. analysis part system of a criminal DNA data base Article, (2003) 2-501(h) Maryland Safety Code of the Public 6. Section system” provides: data base defines "Statewide system system” the DNA record base means DNA data “Statewide Maryland Police] for identi- Department State [of administered purposes. fication Article, (2003) 2—501(f) Maryland Safety Code of the Public 7. Section provides: "DNA record” defines (1) CODIS or the stored in DNA information "DNA record” means (2) system. record” includes "DNA DNA database statewide profile. commonly to as a DNA referred information Article, Maryland Code 2—501(b)(1) Safety Public 8. Section provides: "CODIS” and defines match, After a search of complainant’s CODIS revealed no *6 assailant remained unknown.
May 18, 2004 Cоunty After Anne Arundel Police funding obtained through private grant cases, a in conduct DNA tests cold they vaginal submitted the 1994 collected during swab forensic medical examination for with testing, along more than 50 samples from other “cold cases.”
September 9, 2005 later, year One and four months testing of the 1994 vaginal yielded swab profile a DNA of that assailant.
Unknown Date The Anne County Arundel Police uploaded the DNA profile CODIS, of the 1994 assailant into thereby creating DNA record.
December The Anne County Arundel Police Crime Lab compared the DNA record of the 1994 against assailant in records and CODIS determined that the 1994 DNA record matched the DNA record of the rape victim’s assailant in 2002. Detec- Tracy tive Morgan, an in investigator the Anne Arundel County Division, Sex Offense Williamson, was informed that who pleaded guilty incident, battery may the 1994 have been involved both the 1994 and 2002 incidents.
December After Morgan Detective learned that Williamson had an open arrest warrant on charges, unrelated she contacted the Investigation’s "CODIS” means the Federal Bureau of "Combined System” storage exchange DNA Index that allows the and of DNA federal, state, by records submitted and local forensic DNA laborato- ries. Maryland’s system Section 2-502 mandates that DNA database be
compatible with CODIS. him and Unit to arrest County Police Criminal Anne Arundel Police Pasadena. District Station him to the Eastern bring arrested, were being arrangements was While Williamson awaiting him he was meal for while made to secure a being A precinct. the Pasadena followed booking, procedure the East- brought was secured from McDonald’s meal held, while Police Station where Williamson District ern meal, and after accepted awaiting booking. Williamson cup on the wrappers eating, finished discarded having cell, left the Detective of the cell. When Williamson floor took it the McDonald’s and retrieved Morgan entered crime lab for DNA. The to have it tested to the crime lab a DNA yielded cup, DNA on the Williamson’s tested the 2002 assailant. the DNA record of matching record *7 December for an arrest application Morgan submitted Detective predicated probable which she rape, upon for the 2002 warrant (1) match between the DNA following: the the upon cause examinations, forensic medical 1994 and 2002 records from the (2) records from the the DNA and the match between cup.9 the McDonald’s Wil- examination and forensic medical rape the 2002 in connection with liamson was arrested Police Station at which at the Eastern District interviewed at a in 2000 and 2001 his home address time he confirmed scene. rape not far from the location in the charges rape on jury A indicted Williamson grand in the first and second sexual offense degrees, and second first in practice, sexual assault perverted unnatural and degrees, for endangerment, and reckless degrees, and second the first incident. the 2002 motions, a Motion to filed its State pretrial
As one of Arundel for Anne and the Circuit Court Samples, Give Saliva Article, Maryland Safety Code 2-510 of the Public 9. Section that, sample and a an evidence provides obtained between "[a] match probable and is not entry may only be as cause used data base testing.” by confirmed additional at trial unless admissible on sample a saliva County provide ordered Williamson Emergency filed an Motion February 2007. Williamson Relief, rescind arguing that the Court should Appropriate order, and would challenging because he was or recall its testing previously acquired of his challenge continue to of his DNA on alleged illegal of DNA and seizure samples The denied motion. December 2006. Court Williamson’s again A was collected from Williamson rape that of the 2002 assail- yielded matching a DNA record ant. hearing and suppression Paul A. Hackner held a
Judge taken from suppress denied motion to the DNA Williamson’s 1994, 2006, his Judge him in and 2007. Hackner based decision, conclusions part, following findings on the DNA from the swab: regarding vaginal the 1994 finds I don’t proffers—and The Court as follows: why factual And that’s any dispute. think there’s real any no—there’s no need for evidence on probably there’s But facts I are point. undisputed this believe are genetic by that the defendant’s 1994 material was collected from the victim of the assault that occurred in It was not obtained from the defendant. And that’s huge, important distinction between that and all of the having issues to do with the DNA Collection Act. deposited body
The material that was on the body of the victim the 1994 case was retained *8 ultimately police department processed, manipulat- was ed, will, compared if to other and what have you samples you.
In or suppress order for the Court to either that result it, from I to conclude that anything that flows would have violation, there a Fourth Amendment which therefore I have to find that was seized from property means would from result of the defendant or obtained the defendant as a an unlawful search or seizure. imagine
And I cannot under what circumstances when, to that possible Court could come conclusion all in logic, genetic deposited material that was the 1994 And at that there was clearly point, victim was abandoned. any expectation privacy, no of reasonable or unrea- longer matter, certainly society for that not one that sonable would honor. there in being expectation privacy
And so without material, long ago any right that the defendant lost was done to it. So to the extent that complain about what implicates standing challenge sample that his the 1994 it, that I any subsequent activity was involved with find standing. he has no he I might standing,
And to the extent that have find that Therefore, expectation privacy. there is no reasonable there is no violation of the Fourth Amendment. And I have told, my not been and I don’t find in own readings material, any statutory is suppression there appropriate. therefore, if I
So even were to assume for the sake of argument that there was some violation of the DNA Collec- Act, I suppress tion don’t find that that’s a basis to the 1994 subsequent sample and the match of that 1994 any other known information that the had. suppress In the motion to the DNA retrieved addressing from the in cup Judge McDonald’s Hackner stated: Constitution, Amendment, the Fourth particularly protects against unreasonable searches and seizures. Peri- protects. od. The end. That’s what it And order to your right have a claim that Fourth Amendment has been violated, you expectation have to have a reasonable privacy. case,
And this the Court finds that the defendant did expectation have reasonable either the genetic cup or the saliva or material that he left on the drinking as a result of the soda whatever it was that was it. *9 from the as a factual matter Court finds
[T]he the Court way is no reasonable evidence before me there whatsoev- any that this defendant had intentions to conclude to hold on to that trash or take cup er to hold on to that to some sort anything preserve it him or to do with interest it. property privacy is that he had neither a
The fact of the matter materials, or what paper bag, сup, interest place in the property nor he have a interest you, have did seized, lockup is the temporary were they form which cell that he was in. clearly an area where he doesn’t we have here is
What object begin with and any expectation have he done with it. clearly he left behind because was quite for them to point And don’t think that it’s unlawful this ultimately the cell and collect the trash and then to search it. analyze collection, if 11, 2006 I don’t find that the December
So will, of his DNA from the McDonald’s was unlawful you deny And I will subject suppression. and is not it. suppress motion to the location respect regarding to Williamson’s statement
With 2001, Judge home in 2000 and Hackner denied its his suppression opined:
I that occurred on or about December find that arrest premised upon adequate probable and reasonable therefore, that, cause. And means that the statement there no lawfully acquired, given that is Miranda violation. statement, the respect suppress
So with to the motion to motion is denied.
STANDARD OF REVIEW a trial or denial of a grant
When we review
court’s
suppress
alleged
motion to
evidence
have been seized
Amendment,
contravention of the Fourth
we view the evidence
suppression hearing,
fairly
adduced at the
and the inferences
*10
therefrom,
light
in the
most
to the party
deducible
favorable
State,
349,
that
on the motion.
v.
412 Md.
prevailed
Bailey
362,
72,
(2010),
State,
490, 504,
987 A.2d
80
v.
Crosby
408 Md.
894,
(2009);
State,
486,
970 A.2d
902
Md.
Longshore v.
399
1129,
(2007);
Nieves,
573,
498, 924 A.2d
1135
State v.
383 Md.
State,
522, 533,
(2004);
Laney
861 A.2d
67
379 Md.
(2004).
the
fact-
842 A.2d
779
We defer to
trial court’s
finding
suppression hearing,
at the
unless the trial court’s
erroneous.
findings
clearly
Bailey,
were
Md.
80;
504-05,
A.2d at
408 Md. at
A.2d at 902.
Crosby,
Nevertheless,
question
we review the ultimate
of constitution-
ality
independent
de novo and must “make our own
constitu-
appraisal by reviewing
applying
tional
the law and
it to the
Bailey,
facts of the case.”
Md. at
DISCUSSION argues judge deny- that Cirсuit Court erred in
Williamson ing suppress his motion to the DNA evidence in 2006 obtained police. and his statement to contends that at least Williamson statutory four acts violated his and constitutional rights, ultimately led to the “cold hit” match that him in implicated First, the 2002 he to that the rape. appears argue “police- created abandonment” of the McDonald’s in 2006 led to its Second, illegal testing. and warrantless DNA he asserts that though may lawfully, even the 1994 DNA have been obtained unlawfully uploaded it was to a database violation of the Third, Maryland DNA Collection Act. he contends that search of the database to find a match for the 1994 subsequent DNA a warrant and sample required was conducted viola- tion of the DNA Collection Act Maryland Fourth Finally, argues previous Amendment. Williamson events, three which he contends violated the Fourth Amend- arrest, ment and led to his unlawful tainted his statement police, despite having given rights. been his Miranda
The under the Fourth that the State contends Amendment correctly suppress Circuit Court denied motion to police, DNA evidence and the statement because the evi- a result of a dence was obtained as lawful arrest willful police abandonment of his DNA. State asserts that the cup, McDonald’s discarded Williamson’s lawfully acquired cup “without the DNA on the them to test which allowed then The State the Fourth Amendment.” running afoul of and the sample 1994 DNA testing of the alleges that lawful, the DNA because DNA record was uploading a crime scene and the collected from legitimately was exclusion- neither includes an Act Maryland Collection lawfully acquired prohibits querying rule nor ary argues the State William- Finally, in CODIS. records his statement was lawful such that son’s arrest admissible. Cup
A. McDonald’s *11 Cup
1. Abandonment of about whether Williamson There is some confusion on cup of the McDonald’s the issue of abandonment pursuing brief, no abandon argues in he there was because his appeal, that “its removal from that cup, of the but later states ment lawful”; at oral contradiction was exacerbated cell was this about whether counsel was asked argument when Williamson’s claim and counsel pursuing was an abandonment appellant the to vacillate: appeared the use of the DNA from the certainly challenging
areWe of the taking cup, It was not the of the the seizure cup.... removed legal, obviously a cell has to have trash cup was act of relin- implies from Abandonment a volitional it.... Attorney The General refers to abandonment quishment. in sense and that was the traditional property law States, 347, 88 to Katz v. United U.S. approach prior [389 ]____ (1967) 507, justified expecta- 576 A S.Ct. 19 L.Ed.2d exist as to items which have been privacy may tion of property abandoned sense. the abandonment issue is
Although it is unclear whether us, valor,10 we part discretion is the better and will before 5, King Henry Shakespeare, the Fourth act 10. William The First Part of discretion; (Falstaff: part of valour is in the which sc. 4. "The better life.”). part my I have saved better 534
address whether of the McDonald’s discarding Williamson’s constituted an from cup abandonment which DNA taken, appreciably would affect our Fourth Amend- analysis. ment Fourth Amendment to the United States Con
stitution, applicable made to the States through adoption Amendment, provides of the Fourteenth that right “[t]he houses, to be people persons, papers, secure their effects, seizures, against unreasonable searches shall not Ohio, See v. Mapp 643, 655, be violated....” 367 U.S. 81 1684, 1691, 1081, v. (1961); 6 Paulino S.Ct. L.Ed.2d 1090 State, (2007). 341, 349, 308, 399 Md. 924 A.2d 313 The person invoking Fourth Amendment protections bears the burden of or dеmonstrating legitimate expectation his her Maryland, searched or items seized. Smith v. the place 442 735, 740, 2580, (1979). 2577, 220, U.S. 99 S.Ct. 61 L.Ed.2d 226 State, In Laney v. 522, 545, 379 Md. 842 A.2d 786-87 (2004), explained we this burden consists of two inquiries, “(1) subjective whether individual has a expectation searched, his or her property possessions will not be expectation whether is objectively reasonable under Carter, circumstances.” Accord Minnesota v. 83, 88, 525 U.S. 469, 472, (1998); S.Ct. L.Ed.2d California Greenwood, 35, 39, 1625, 1628, 486 U.S. 108 S.Ct. 100 L.Ed.2d Illinois, Rakas v. (1988); 439 U.S. 143-44 n. *12 421, 12, 387, (1978); S.Ct. 430-31 n. 58 L.Ed.2d 12 401-02 n. States, Katz v. United 347, 361, 507, 516, 389 U.S. 88 S.Ct. 19 576, (1967) (Harlan, J., concurring); Wallace L.Ed.2d 587-88 State, (2003). v. 69, 81, 883, 373 Md. 816 A.2d 890 States,
In Katz v. United Harlan, Justice John M. in a concurring test, opinion, expressed two-prong which we have State, v. 47, Venner adopted, 51-52, 949, 279 Md. 367 A.2d 952 (1977), that the requiring person claiming protection under the Fourth Amendment demonstrate an actual (subjective) expec searched, tation of privacy in the item or as place well as prove expectation society that is one that is prepared to Katz, 361, recognize as reasonable. 389 at U.S. 88 S.Ct. at
535
subjec
A
demonstrates
person
516,
L.Ed.2d at 587-88.
19
sought
that he or she
by showing
of
expectation
privacy
tive
State, 409
v.
McFarlin
something
private.”
as
preserve
“to
State,
(2009),
v.
862,
citing Whiting
391, 404,
869
975 A.2d
Md.
Smith,
(2005),
785,
334, 349,
quoting
A.2d
793-94
885
389 Md.
226-27.
In
2580,
at
740,
at
61 L.Ed.2d
442
at
99 S.Ct.
U.S.
privacy,
of
legitimate expectation
of a
discussing
scope
reasonable
objectively
opined
has
Court
Supreme
Fourth
outside of the
has “a source
privacy
of
expectation
person
real or
Amendment,
concepts
of
either
reference
recognized
are
understandings that
law or to
property
al
subjective
“more than a
and constitutes
by society,”
permitted
Rakas,
at 143-
439 U.S.
discovered.”
being
of not
expectation
12, 433,
at 401-
58 L.Ed.2d
12, 148,
at 430-31 n.
44 n.
99 S.Ct.
404,
McFarlin,
A.2d at
404;
Fourth Amendment
discarded,
voluntarily
that is abandoned
property
extend
in the item
privacy
searched
any expectation
because
State,
343 Md.
Stanberry
upon
discarded
abandonment.
(1996),
720, 731,
citing Abel v. United
684 A.2d
828-29
683, 698,
States,
217, 241,
4 L.Ed.2d
687
362 U.S.
80 S.Ct.
State,
526, 531,
(1960);
Md.
397 A.2d
see also Morton v.
State,
459, 483,
Md.
(1979); Everhart v.
(1975).
determining
for
whether
A.2d
test
Fourth Amendment
purposes
property is abandoned
law
of abandonment
property
concept
from the
differs
instead,
re
property
on
the owner
focuses
whether
al
the article
expectation
a reasonable
tained
732, 684 A.2d
Stanberry, 343 Md. at
leged to be abandoned.
Venner,
53,
In
finding
warrantless search of the defendant’s stools
Cox,
constitutional,
we relied on United States v.
Here, Williamson unequivocally abandoned the McDonald’s
cup
meal,
it,
after he had been offered a
accepted
and then
threw the debris from the meal on the
He certainly
floor.
did
not retain
as his own and clearly, while in the
premises
prison,
could
reasonably expect
that the
*14
collect,
trash
investigate,
the
potentially
would not
police
State, Md.App.
Brashear v.
90
See
cell.
in his
he discarded
129,
901, 907,
Lexis
*19-20
723,
Md.App.
1992
709,
A.2d
603
prisoner
a
(1992)
be “ludicrous” for
that
it would
(holding
paper
interroga-
of
left
an
piece
that a crumbled
presume
examination),
disposed
police
be
of without
tion room would
Palmer,
3194,
517, 525-26, 104 S.Ct.
citing Hudson v.
468 U.S.
(1984)
393,
a
3200,
(holding
prisoner
that
82
402-03
L.Ed.2d
cell).
jail
in his
privacy
of
expectation
no
had
reasonable
none,
that
cases, and
cites
have
no
Williamson
We
found
cup,
did
abandon the
the
that
not
support
notion
Williamson
drank,
the floor of the
he discarded it on
from which he
when
Rather,
is true.
In similar
quite
opposite
the
holding cell.11
that
circumstances,
jurisdictions
have ordained
courts
other
State,
Piro
146
had occurred. See
v.
Idaho
abandonment
(holding
suspect
that a
did
(Ct.App.2008)
(2007)
there was no
in
(holding
constitutional violation or
fringement
rights
when
lawfully
used a
obtained
from
profile
investigate
one case to
charge
case);
the DNA donor in subsequent
Common
a
and different
Perkins,
wealth v.
(2008)
450 Mass.
N.E.2d
(holding that a
did
a
defendant
not have
reasonable expecta
tion of privacy in his abandoned cigarette butts or soda can
that he left in
interrogation
were
room and
subsequently
Cabral,
DNA);
Commonwealth
tested for his
Mass.App.
Ct.
N.E.2d
(holding
defendant did not
maintain an
expectation
privacy in
he
spit
expectorated on
sidewalk,
public
saliva;
DNA retrieved from his
objec
*15
tively, society
not recognize
expectation
would
his
in
privacy
of
reasonable);
v. Ewing,
his spittle as
Commonwealth
67 Mass.
(2006)
App.Ct.
(holding
Williamson lawful, cup of DNA on the testing cup was seizure search, con and that it unreasonable to separate was was a seized lawfully had merely the test because duct DNA, being he something with because was Williamson’s expectation he had reasonable detained because testing in his DNA. Williamson contends Act, DNA Collection Maryland the DNA violated Article. Safety 2-504 of the Public specifically, Section never argues, conversely, cup that a “search” State occurred, not enti property because the abandoned Mary neither protection, tled to Fourth Amendment DNA Act nor the Fourth Amendment prohibit land Collection analyzing lawfully acquired sample. ed the State from Article, Safety 2-504 of the Public limits Section individuals, from samples collection of certain convicted provides part: relevant
(a) In general.—(1) regulations In accordance with *16 subtitle, adequate and if for the adopted under this funds of are State samples appropriated collection DNA a budget, felony who convicted of or a individual of 6-205 in the burglary [misdemeanor violation [Section] degree] breaking [Section] [misdemeanor fourth or 6-206 Article entеring vehicle] and a motor Criminal Law shall:
(i) have a on intake a correc- sample DNA collected if facility, tional the individual is sentenced to a term or imprisonment;
(ii) provide a DNA as a condition sentence if the individual is not sentenced to a term probation, imprisonment.
Had the police compelled give Williamson to a DNA sample as detainee, a pretrial argument Williamson’s may have had some Williamson, weight. however, was not compelled to give his DNA, which, 2-505(a) according to Section of the Public Article, Safety could be collected and tested for a number of reasons:
(a) In general.—To the extent fiscal available, resources are DNA samples shall be collected and tested:
(1) to analyze type and the genetic markers contained in or derived from the DNA samples; part of an official investigation crime; into a (3) to help identify remains; human (4) to help identify individuals; missing (5) for research and administrative purposes, including:
(i) development of a population data base after person- al identifying removed; information is (ii) support of identification research and protocol de- velopment of forensic analysis methods; (iii) quality control.
Williamson, nevertheless, Mitchell, cites United States v. 2009 U.S. Dist. (W.D.Pa.2009), Lexis 103575 and United States Amerson, (2d Cir.2007), F.3d 73 for the proposition that the collection of DNA from a pretrial detainee and proba- a tioner, respectively, pursuant law, to federal Analy- sis Backlog Elimination § Act of 14135a, U.S.C. All Justice for Act of which expanded law, the 2000 respectively, violate the Amendment, Fourth under totality of the circumstances and special Mitchell, needs In tests. Government requested that pretrial detainee, a Ruben Mitch- ell, who had been arrested on а drug charge and was then before a magistrate judge for his initial appearance, provide DNA sample pursuant act, to the federal to which Mitchell objected. The federal district judge held that the Government could not forcibly collect DNA sample from a pretrial detainee, even though the federal act provided, so because of *17 warrant, the absence of a in violation of the Fourth Amend- were sentenced Amerson, felons who two convicted In ment. crimes, the constitu- challenged non-violent for probation Act, all felons to requires for All of the Justice tionality The Second storage. testing and a DNA submit purpose primary held that the Appeals Court of Circuit identity of an offender’s record “to obtain reliable Act was crimes,” and because help used to solve that can then be gov- important fulfilled storage samples of DNA testing and interests, of of the convict- privacy and the invasion ernmental constitutional, small, the Act was relatively ed felons was search or seizure not constitute an unreasonable it did because Amerson, 483 F.3d at Fourth Amendment. in violation of the Amerson, however, of the and analysis Mitchell pretrial requiring the federal statutes constitutionality of DNA is sample, felon to submit a or a convicted detainee we deter- at bar which to the case completely inapplicable of DNA. and lawful collection mine abandonment pro- Amendment the Fourth argues also Williamson lawfully acquired required a warrant to test scribes that interest in privacy a heightened and that he had samples of information of the amount avoiding testing, because revealed, information identity rather than that could be that, samples “DNA case. He claims gleaned present in- information inherently private comprehensive, can reveal 4,000 types to over family lineage, predisposition cluding diseases, markers for traits genetic and and genetic conditions addiction, orientation, substance like sexual aggression, the State’s use argues criminal tendencies.” He information DNA and “reveal to test Williamson’s technology search, which violated his eye” naked was a not visible to the privacy. expectation reasonable concerns are genetic privacy that while The State counters debate, is no constitu- there worthy public important ac- testing lawfully legislative prohibition against tional The State contends purposes. quired DNA for identification expec- a reasonable developed never that because Williamson from the disposable paper products in the tation of violate, meal, could not have did not McDonald’s *18 542
violated, his Fourth Amendment rights, because no unlawful search or place. seizure took important
It is from the outset to emphasize that Maryland DNA Collection Act limits the of depth DNA testing and the storage of the results to that data that is directly related to the identification of an individual. Specifically, 2-505(b) Section of the Safety Public Article provides: (1) Only DNA records directly that relate to the identifica- tion of individuals shall be collected and stored.
(2) may DNA records not be any used for purposes other specified than those in this subtitle.
At no point does Williamson ever allege that the State misused his DNA for purposes other than identification in contraven- Act, tion of the Maryland DNA Collection but relies on allegations of a “parade of horribles.” Raines,
In State v.
1, 25,
(2004),
383 Md.
857 A.2d
we
already recognized
only
information collected from
tеsting and storage of DNA profiles
identity
is the
of the
person
being
whose DNA is
tested under the Maryland DNA
Act,
Collection
and the purpose
uploading
of
profiles
DNA
CODIS is “akin to that of a fingerprint.”12 Our sister courts
Raines,
recognized,
also have
as we did
that DNA testing
and storage is limited to
purposes,
identification
such
inas
fingerprinting
challenged
12. We note that
infancy
was
in its
because it
alleged
humiliating process,
was
to be a
but the Second Circuit Court of
(2d
Appeals
Cir.1932),
Kelly,
in United States v.
Williamson’s
loci used for
“junk”
the 13
not relate to
in his DNA do
*19
DNA, which is
identification,
misuse of
potential
on the
but
case,
DNA
whereby Williamson’s
present
in
in the
issue
be debate
may
there
only.
identification
While
tested for
per-
advances
technological
should
concerns
regarding privacy
acquired
information from
glean
more
testing
mit
of DNA
identification,
does not have
that debate
mere
DNA than
Joh, Reclaiming
Elizabeth E.
in
case. See
present
“feet”
Amendment and Genetic
DNA: The Fourth
“Abandoned”
Cole,
(2006);
A.
857,
Simon
U.L.Rev.
870-71
Privacy, 100 Nw.
Bunk?, 102 Nw. U.L.Rev.
Designation
Is the “Junk”
Please,
(2007);
Bury the Junk:
Kaye,
Let’s
54
D.H.
Colloquy
Information,
Revelation
Private
Loci and the
The CODIS
(2007).
Colloquy
U.L.Rev.
Nw.
assertion,
then cites to Walter
Williamson
In a creative
2395,
649,
Walter is distinguishable, because the DNA col- in present lected case is more akin fingerprints, to that of Raines, as we noted 383 Md. 18 n. 857 A.2d 29 n. Raker, Judge Court, Irma S. then an active member of this Raines, concurring opinion her aptly noted that although the analogy fingerprints may employed, be a DNA profile really numbers, resembles a series of such as a social security number: type need be no more informative than an ordinary
fingerprint....
[constituting
numbers
the DNA pro-
have no meaning except
representation
file]
as a
of molecu-
lar
sequences
DNA loci that are not indicative of an
*20
individual’s personal
propensities.
traits or
Raines,
(Raker, J.,
Williamson that even if he abandoned cup, McDonald’s he did not abandon his privacy interest material, genetic his and the of testing the DNA found on the McDonald’s cup constituted a warrantless search implicating Davis, the Fourth Amendment. He cites United States v. 657 (D.Md.2009), F.Supp.2d 630 for the proposition that the ex- traction and testing subject his DNA were searches Fourth Amendment scrutiny, Railway as well as Skinner v. Ass’n, Labor Executives’ 489 U.S. 109 S.Ct. State, L.Ed.2d 639 Md.App. Blasi (2006), A.2d 1152 suggestion testing for the of DNA is tests, respectively, sobriety and field analysis to urine akin Fourth under the to constitute searches have been held which inapplicable that Davis is The State counters Amendment. Amendment relies case, query the Fourth instant because behind, left rather in the item privacy expectation on it, and because contained "within genetic than the information cup, he also abandoned abandoned the McDonald’s Williamson privacy. any expectation victim, Davis, gunshot-wound
In a F.Supp.2d Davis, lawfully seized and taken had his clothes Whittley Earl later, after Davis became a Years by police. into evidence case, retrieved murder an unrelated suspect clothes, clothes, from the extracted the blood bloody Davis’ DNA, in a murder exculpated Davis and tested the then profile Davis’ DNA investigation. Id. at 634-35. in the local DNA database. placed later, DNA of an unknown assail- sample months a
Several scene, tested, at a murder was retrieved from evidence ant resulted a “hit” uploading to CODIS. The uploaded crime and the DNA the DNA found at the scene between and a second A warrant was executed of Davis. search profile compared from to the was taken Davis analyst A DNA recovered at the crime scene. evidence that, degree certainty, to a reasonable of scientific concluded DNA located on evidence recov- Davis was the source of the Davis moved to from the crime scene. Id. at 635. ered of his arguing evidence that the seizure suppress the DNA and the clothing, extraction of DNA from his clothing, the Fourth Amend- of his DNA to CODIS violated his uploading Id. at 636. rights. ment Davis, who had his district court held that
The federal crime, had a seized when he was a victim of lawfully clothes who in his DNA than someone greater expectation convicted, arrested, compelled give had been otherwise noted, however, judge The district court sample of his DNA. *21 have such as and “NCIS” “should that television series “CSI” tested.” someday that his DNA could be put Davis on notice Id. at 651-52 in (emphasis original). The stated that in Court a situation where a victim suspect, becomes a the best practice for the would be to seek a performing warrant before DNA search on a but sample, totality held under the circumstances, testing the extraction and of Davis’ DNA profile comparison to the crime scene sample from the reasonable, murder was government’s because the compelling interest in in identifying perpetrator an ongoing homicide investigation outweighed Davis’ diminished interests in his DNA. Id. 653-54. however,
The district court judge, specifically distinguished his suggestion that a warrant was from preferred, those facts implicated one, in present cases such as the in which “covert involuntary sampling” DNA has been upheld under an aban- 649, donment analysis. Greenwood, Id. at citing California 35, 39-40, 1625, 1628, 30, 486 U.S. 108 S.Ct. 100 L.Ed.2d (1988); Bly, Commonwealth v. 448 Mass. 862 N.E.2d (2007) 356-57 (suspect connected to analysis murder of abandoned water bottle cigarette butts left in an Wickline, interview with police); State v. 232 Neb. (1989) (DNA N.W.2d 252-53 testing of ciga- abandoned rettes left at police station did not violate Fourth Amend- ment); Athan, 27, 31, State v. 160 Wash.2d 158 P.3d 33- of DNA (comparison analysis of DNA obtained without compulsion forcible and DNA left at a crime scene constitutional). The district court judge noted that situations involving involuntary “covert sampling,” such as when a person spits gum tissue, out or throws away used “the actively individual has demonstrated an intent to abandon item, and, necessarily, any may DNA that be contained Davis, thereon.” F.Supp.2d at 649. analysis Davis is of our supportive holding case,
present because the voluntary abandonment of the Mc- Donald’s did not implicate an unconstitutional seizure under the Similarly, Fourth Amendment. although Skinner test, Blasi held that a urine test and field sobriety respectively, constituted searches meaning within the Amendment, Fourth the Supreme Court and Court of Special *22 respec- in their held that these warrantless searches Appeals therefore, cases, and, constitution- not unreasonable tive were ally permissible. of blood or testing found no case that limits the
We have
in the fashion that Wil-
fingerprint
impressions by computer
containing the
necessary
liamson
with his saliva
suggests
case,
certainly
in
no case
has
present
It
DNA.
would be
testing
lawfully acquired
limited the
indeed,
anomalous,
to hold that a warrant would be
for us
lawfully acquired
the contents of
aban-
necessary
analyze
to
did not
previous
which the
owner
property—property
doned
the result-
expectation
privacy,
a reasonable
because
retain
while
inculpatory
identity,
of Williamson’s
ing information
exculpato-
without a warrant to determine
encouraging testing
362 Md.
765 A.2d
ry
Sampson,
information. See State v.
(2001)
that the
search and seizure of
(holding
warrantless
of the home did
garbage
curtilage
left for collection within the
Fourth Amendment because the owner did not
not violate the
trash),
in the
expectation
maintain a reasonable
Greenwood,
486 U.S.
108 S.Ct.
citing California
that the warrantless search
(holding
Query of the Database argues next that his DNA could not be
Williamson database, it not “forensic un uploaded to a because was known” from a crime scene. also asserts sample Williamson persons sample that he was not the class of whose could be lawfully uploaded pursuant Maryland to the database to the argues provision DNA Collection Act. The State that no the DNA records that Maryland DNA Collection Act limits be to CODIS to records of convicted felons or may uploaded unknowns,” further, “forensic that the statute does rule. The also contends that the exclusionary have an State lawful, uploading DNA record to CODIS was Williamson’s from sources implies because the statute that DNA records CODIS, uploaded other than convicted offenders will be such as the situation where DNA records are used to existing suspects. exonerate question any statutory remains whether there are
constitutional restrictions the test results of uploading It lawfully say obtained DNA. would be counterintuitive to upload lawfully could not obtained DNA assailant, sample identify upload but could a DNA people may to exclude a defendant from a class of who *23 Raines, have committed a crime. As we remarked in 383 Md. 43, 857 A.2d at there is a “legitimate governmental crimes, identifying persons interest in including involved with If vindicating falsely knowing identity those convicted.” the of the individual from the taken sample whom DNA makes it unlawful to then upload, any what is the future of to attempt falsely vindicate a convicted individual or to exclude Davis, people suspected of crimes? See United States v. (D.Md.2009) (the F.Supp.2d 634-35 of a lawful- uploading obtained DNA the ly sample excluded defendant as a murder suspect).13 uploading same result must abide the sample cup. DNA from the McDonald’s though Even the Defendant the separates up- warrantless of a DNA to a from loading sample database the warrantless actions, of the database as distinct searching illegal two we address them and hold that it together illogical would be to allow the a DNA police upload sample but not allow search of the database for a match. Davis, (D.Md.2009), F.Supp.2d In United States v. the federal district court found that the warrantless maintenance of the database, profile DNA the DNA excluded victim’s local after he was case, as the assailant in the initial murder violated Fourth Amend- his rights privacy. ment Nevertheless, as an unreasonable violation of his Id. at 665-66. judge exclusionaty the district held that the rule was not appropriate, police upload profile because the did not the DNA flagrant disregard rights or deliberate of Davis’ that would have war- event, any suppression. assuming ranted In the Davis rationale with regard uploading regarded compelling, uploading were in the profile present case of the is sustainable based on the dissimilar present circumstances in case.
C. to Police Statement argues
Williamson
to police
his statement
re
garding the location of his home in
suppressed,
2002 should be
his
upon
because
arrest was based
illegally obtained
profile match—a result of the alleged
testing
violation of
DNA from the
cup, uploading
McDonald’s
the 1994 DNA
database,
searching
database to find a
Illinois,
contends that Brown v.
match. He
422 U.S.
(1975),
S.Ct.
The arrest warrant and statement of charges against were “upon Williamson based appli facts contained cation of Morgan,” which probable [Detective] rooted cause upon the match of the DNA retrieved from the crime scenes in 1994 and upon the match of Williamson’s DNA on the McDonald’s cup to the 2002 DNA. Because we have held *24 the DNA samples leading to matches of Williamson’s DNA lawfully tested, were obtained and Williamson’s arrest warrant was founded upon probable cause. A statement police pursuant to a lawful any arrest and free of Fifth violations, State, Amendment аdmissible. See Prioleau v. 629, 638-39, (2009). Md. Thus, A.2d the motion suppress Williamson’s statement to police prop was erly denied.
JUDGMENT THE OF CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. IN COSTS THIS AND COURT IN THE COURT OF SPECIAL APPEALS BE PAID BY TO APPELLANT.
BELL, C.J., GREENE, dissents and files in opinion which J., joins. BELL, Judge, Chief by
Dissenting Opinion GREENE, J., joins.
I. a Williamson, charged rape with was petitioner, the Kelroy the charge the was The basis for that occurred Acid Deoxyribonucleic petitioner’s the match between during swab (“DNA”) by vaginal acquired and DNA profile DNA case. The the 2002 of the victim the examination developed was profile DNA was the petitioner’s from which a ruse. County police by the Anne Arundel obtained in the as a suspect rape a petitioner on the as Having focused with of DNA1 associated testing post-disposition result of the accused of case, although the petitioner, in which an earlier obtained battery,2 police the plea rape, entered Alford petitioner’s to the DNA, profile leading the from which cup they a developed, was from and eventual conviction charge drunk the had petitioner him and from which given had failure to cell for contents, holding detained a being while charge. petitioner After drug to answer appear leaving holding booking, cell for removed from the would, the rim of swabbed behind, knew he they as and, as DNA, then tested which was cup, obtaining acquisi- The indicated, profile. with the 2002 DNA matched DNA, with testing comparison its and its tion of the all DNA database were Maryland in the statewide profiles pres- case question this without a warrant. accomplished any during at time required a warrant was ents is whether testing uploading William- and the decide whether the 1. We need not ("DNA”) case was valid Deoxyribonucleic from this earlier Acid son's see, Amendment, that, disposi- as we shall is not under the Fourth Whether, indeed, probable cause for there would have been tive. no search petitioner’s is irrelevant since there was search of the been profile in this case had sought the DNA issue until after developed. *25 ” " " protestation ‘guilty plea containing a plea’ ais 2. An ‘Alford” State, A.2d Md. 189 n. innocence.’ Marshall (1997). 185 n. 2 DNA, petitioner’s effort to obtain the in at issue this case, DNA, acquiring when the when testing it when and/or conducting comparison of it with the State database.3 Although acquiring separate analysis DNA is and distinct from its and testing, they critically inextricably acquisition are related. The of DNA form, analyzing virtually meaningless. pure without it is In its without development profile, comparison impossible. Ralph of a is The late Brave, Fellow, a science writer and former Society Center for Genetics article, in his So Profiling Much the Evidence: DNA Could Revolu- for It, Maryland—If City Law in Paper WeLet tionize (August Baltimore Enforcement 7, 2002), Discussing makes this clear. how the Bode Technolo- lab, gy Group Maryland located in analysis the one that did the case, analysis, explained: this conducted DNA Brave “Blood or semen cells are they’ve extracted from whatever material chemically open become attached to and broken so that their DNA can be collected. DNA, making enough “After sure that there is a test is run to confirm by identifying it is sequence human a DNA that has been by years conserved for only by evolution millions of and is carried higher primates. humans and put "The DNA is then into a thermocycler. machine called a After two and a adjustments half hours and temperature, several thermocycler DNA in the chemically copied will have itself millions of times. "Small placed tubes of the genetic DNA are then in a analyzer.... repeats The number of at each of the 13 sites is measured and the computer, results fed into a produces series of colored indicating wave bands repeated the number of patterns. person’s This profile, is that only person’s (or twin). his or her identical system storing profiles "The these has three levels. Local law- agencies charged enforcement are processing with the evidence and obtaining profile. profiles the DNA uploaded These incorpo- are (the rated into state databases of vary convicted criminals states as to inclusion) what crimes Maryland warrant by and it is maintained Finally, operates State Police. the FBI the Combines DNA Index (CODIS), System through compare which states profile can a DNA gathered from a crime scene to systems. all those in other states' particular CODIS, profile "Even if a system doesn’t match one in designed periodically is profile against rerun any and all new additions.” Fingerprinting quite fingerprint is different. A impression "left depositing upon of oil contact between a surface and the friction ridges fingers.” Mitchell, (3d United States v. 365 F.3d Cir.2004). When the “latent”—which is derived “from the Latin lateo, [word] 'to lie [and hidden’ eye,” is] often not visible to the naked lifted, id.—print is immediately comparison there ready specimen. is a explains,
As Mitchell may there be different may levels of detail that be *26 required, petitioner was the moved Believing that warrant The trial court denied profile. the use his DNA suppress to of solely on Focusing, the suppress. apparently, to the motion DNA, that he the bever- the it ruled abandoned of acquisition and, thus, of expectation not have reasonable cup did age explained: It privacy. clearly is area where [Williamson] we have here
“What privacy begin to with an any expectation doesn’t have he left he was done object quite clearly that behind because point I that it’s at this for it. And don’t think unlawful with the trash and then to search the cell collect police] [the ultimately it. analyze to collection, if you I find that the December
“So don’t unlawful will, cup the McDonald’s of his from I the motion deny And to subject suppression. is not will it. suppress
^ ^ taking of the DNA on “The Court finds that the 11, 2006, unlawful. was not December court The motions reasoned: Amendment, pro- Constitution, the particularly
“The Fourth searches and seizures. Period. against unreasonable tects it And in order to have a protects. The end. That’s what violated, right Amendment has been your claim that Fourth expectation privacy. have have to a reasonable you case, Court finds that the defendant did “And this in either the expectation privacy have a reasonable cup material he left on the genetic the saliva or that cup or or whatever it was that was drinking a result of the soda was, know, this tantamount you say you I think it. know, a little You is bit dramatic. getting to them his swab don’t run it on the inside of lips, you it with you your touch - you like for a swab. your gums do made, comparison they employed, to how the means but relate analysis print employed, rather itself. than a further Court as a factual matter evi- “[T]he finds that from the way before dence me there is no reasonable Court any conclude that this defendant had intentions whatsoever on to on to hold to hold to that trash or it to take with him or to do anything preserve some sort of interest in it. property
“The fact of the matter is that he had neither a materials, cup, interest paper bag, or what *27 have nor he you, property place did have a interest in the seized, from which they were which is the temporary lockup cell that he was in.”
II. majority that holds “it was error to deny [William- motion to suppress son’s] the DNA evidence obtained in 2006 or police, [Williamson’s] statement the affirming] [thus] Circuit Court judge’s dismissal of the motion to suppress.” State, 521, v. 626, Williamson 413 Md. 993 A.2d 629 (2010). The majority’s holding, like the ruling, trial court’s is largely predicated on abandonment:
“Although it is unclear whether the abandonment is issue us, valor, before discretion is part the better of will we address whether Williamson’s discarding of the McDonald’s cup constituted an abandonment of cup the from which taken, DNA was appreciably would affect our Fourth analysis.” Amendment 533-34, (footnote
Id. at 993 at A.2d 633-34 omitted)(emphasis added).
Abandonment, issue, is not before this Court. Wil- fact, disagree. liamson does not In he concedes that seizure and even the swabbing of the was not By unlawful. abandonment, however, on focusing the majority the confuses privacy interest which Williamson asserts. Rather than the the cup seizure of and the swabbing concomitant of cup, he maintains that is it the chemical analysis as a swabbing, retrieved result with com- coupled parison of the of the analysis profiles result with in the stored
554 that, database, It this invasion that is issue.4
State recognized that some by be shown State unless it can protection. Fourth Amendment exception applies, warrants evidence, to suppress a denial of motion reviewing When hearing suppression looks the record this Court n drawsits using conclusion the de novo standard: legal suppress of motion to reviewing disposition
“When
been seized
alleged
[and/or searched]
to have
evidence
Amendment to the
Consti-
the Fourth
U.S.
contravention of
tution,
at the suppression
the evidence adduced
we view
therefrom,
deductible
fairly
and the inferences
hearing,
on the
prevailed
to the
light
party
most favorable
Williams,
676, 678,
A.2d
401 Md.
934
v.
motion. State
349, 358,
State,
A.2d
(2007);
398 Md.
920
Lewis v.
(2007).
deference to
doing,
great
In so
extend
‘[w]e
court and
the facts
finding
suppression
accept
the fact
Nаthan v.
clearly erroneous.’
as found
the court unless
State,
648, 659,
(quoting
Md.
805 A.2d
(2001)).
State,
554, 569, 774 A.2d
364 Md.
Wilkes
Nevertheless,
whether
the ultimate
resolving
question
violates
person
property
an individual’s
the ... search of
*28
Amendment,
our
independent
we ‘make
own
the Fourth
it
the law and
by reviewing
applying
appraisal
constitutional
Williams,
678,
401
at
934 A.2d
of
case.’
Md.
to the facts
the
Nathan,
40;
659,
at 1093
555 Lewis, 358, suppression hearing. 398 at A.2d Md. 920 1085; State, 272, 282, 519, Cartnail v. 359 Md. 753 A.2d (2000).” 524 State, 490, 504-05, (2009). 894, v. Md.
Crosby 970 A.2d 902 The Fourth to the Amendment United States Constitution provides right people to be secure in their “[t]he houses, effects, persons, papers, and against unreasonable Const, seizures, searches and shall not be violated.”5 U.S. A amend. IV. “when expectation priva “search” occurs an of cy society is to prepared infring consider reasonable is Jacobsen, 109, 113, ed.” United States 466 U.S. 104 S.Ct. (1984) (footnote 1652, 1656, 85, omitted). 80 L.Ed.2d Generally, “only a sеarch warrant is after issued a neutral and detached magistrate[6] probable determines that cause exists ‘therefor from facts or presented circumstances to him affirmation,’ under oath or justify to of order invasion State, 223, privacy.” 214, 886, Winters v. 301 Md. 482 A.2d States, (quoting Nathanson v. United 290 U.S. (1933)). S.Ct. 78 L.Ed. “Probable cause” is: conception
“[A] nontechnical of a of ground reasonable a guilt. belief of finding probable A requires cause less conviction, evidence than necessary to sustain a but more merely evidence than would suspicion. arouse Our determi- nation whether probable requires cause exists a nontech- nical, common totality sense evaluation of the circum- in given stances light situation in of the facts found be Therefore, credible the trial judge.... justify warrantless the police [or search] arrest must point specific which, together articulable facts taken with Amendment, Through Due Process Clause the Fourteenth *29 Ohio, applicable Mapp Fourth Amendment is states. v. 367 U.S. 643, 655, 1684, 1691, 1081, (1961). 81 S.Ct. 6 L.Ed.2d 1090 magistrate 6. A disengagement neutral and has detached “severance 345, Tampa, from activities of law enforcement.” Shadwick v. 407 U.S. 350, 2119, 2123, 783, (1972). 92 S.Ct. 32 L.Ed.2d 789 556 facts, warranted reasonably from those
rational inferences the intrusion.” 291, Wallace, 137, 148, 372 Md. 812 A.2d 297-98 v.
State omitted) State, 675, 680, (citations v. 322 Md. Collins (quoting Gates, 213, (1991)); U.S. 479, Illinois v. 462 A.2d 481 see 589 (1983). 2317, 527 To determine whether 76 L.Ed.2d 103 S.Ct. privacy, courts expectation a a reasonable person has a test: two-prong employ emerged rule that has from understanding
“[The] requirement, is a first is that there twofold decisions prior (subjective) expecta- exhibited an actual person that a have second, and, one that expectation be privacy tion of Thus a recognize ‘reasonable.’ society prepared is, a he place expects for most where purposes, man’s home activities, or that he ex- objects, statements but privacy, ‘protected’ are ‘plain to the view5 of outsiders poses them has been keep intention to to himself because no hand, in the open other conversations exhibited. On the overheard, for the being protected against not be would be under the circumstances would expectation unreasonable.” (1977). State, 47, 51-52, 949, 279 367 A.2d 952 v. Md.
Venner searches se unreasonable. per warrantless are Generally, (1992); State, 272, 281, Md. A.2d 434 McMillian v. (1991). State, 183, 188, As v. 322 Md. A.2d Ricks Court: Supreme the United States explained by Amendment, often is not of the Fourth point “The officers, it law enforce- is not that denies grasped by zealous which reasonable the usual inferences support ment the in requir- protection from Its consists men draw evidence. a and de- drawn neutral ing that those inferences be officer being judged by instead of magistrate tached ferreting out competitive enterprise in the often engaged crime.” States, 10, 13-14, 68 S.Ct. 333 U.S.
Johnson United (1948) (footnote omitted). Thus, in a 92 L.Ed. search, is unreasonable such search case of warrantless
557
Amendment,
under the Fourth
absent some recognized excep-
Charleston,
Ferguson
City
v.
67,
tion:
121
532 U.S.
S.Ct.
1281,
(2001)
searches);
III. view, In my Williamson possessed a reasonable expectation DNA, in his triggered Fourth Amendment protection, and the State failed to establish that any recog- Accord- requirement applied. the warrant exception
nized are per searches se ingly, non-excepted because warrantless unreasonable, the here was unconstitutional. search cup,
I
dispute
majority’s
conclusion
do
Williamson, were obtained
by
the other items used
along with
collecting
trash for
during
ordinary
course
*31
But,
earlier indicat-
disposal, and neither does Williamson.
ed,
in
what is at issue
this case. The issue
simply
that
is not
warrant,
search,
a
requiring
is
a
occurs
separate
whether
here,
when,
property,
from abandoned
a McDonald’s
of
some other
lawfully
possession
police,
property,
in the
the
case,
and
sample,
analysis,
a
extracted for
this
DNA
is
that
a
analysis,
after
the
of
DNA
analyzed,
result
a
investigative purposes,
uploaded
ie.
profile, is used for
it
with
other DNA
stores.
comparison
profiles
database for
the
furthermore,
and,
I
it
that
the search is
believe that
does
protection.
entitled to Fourth Amendment
and, thus, its
is
majority’s analysis
holding
Critical to the
(2003) § § 2—
Maryland
the
this case of
Code
applicability to
Article,
Safety
Maryland
2-505 of
Public
the
DNA
and
the
Raines,
19,
1, 25,
Act
383 Md.
857 A.2d
Collection
and State
(2004).
it
It
of
аuthorities that
states:
is on the basis
these
only
the
information collected
already recognized that
“[W]e
identity
profiles
from
and
of DNA
is the
of
testing
storage
Maryland
under
DNA
being
whose
tested
person
DNA
Act,
purpose
uploading
profiles
of
Collection
and
”
at
‘akin
that of
413 Md.
fingerprint,’
CODIS is
testing
storage
“DNA
and
is limited to
A.2d at
that
Neither the matter, or, to the defendant to the DNA collection for ty Indeed, statute covers in this case. there is no Moreover, the actions presented in this case. situation in the fall found Act. Williamson any provision do not under § a a violation either 6- felony had not been convicted of or of 6-206, § degree, or burglary misdemeanor the fourth vehicle, motor under breaking entering and a misdemeanor course, And, the Act. of circumstances enumerated In defendant was observed. “protections” none of a "Burglary degree fourth (a) dwelling.—A may Prohibited—Breaking entering person and not dwelling and of another. break enter the (b) person may Same—Breaking entering and not storehouse.—A the storehouse of another. break enter storehouse, "(c) dwelling, Same—Being or on or environs.—A theft, may person, be in or on: with the intent commit not another; "(1) dwelling of or or storehouse "(2) belonging dwelling yard, garden, a or other area storehouse of another. "(d) burglar’s person may possess tool.—A not Same—Possession burglar’s burglar’s or allow the use with the intent to use tool in the of a violation of this subtitle. tool commission "(e) guilty Penalty.—A person who this section is violates burglary degree and in the fourth on conviction misdemeanor of exceeding years. subject imprisonment not "(f) person violating § 7- who is convicted Conviction of theft.—A may violating 104 of this article not also be convicted of subsection (c) § establishing 7- of this on the the violation of section based act of this article.” provides: Section 6-206 of the Criminal Law Article “Breaking vehicle—Rogue vagabond entering motor "(a) burglar’s person may tool.—A Prohibited—Possession possess burglar’s with to use or the use of the tool the intent allow *33 breaking burglar’s involving commission of a crime the tool in the entering a motor vehicle. and of "(b) person may be in vehicle.—A not Same—Presence another’s intent theft of or on the vehicle of another with thе to commit motor property that is in the motor vehicle. the motor vehicle or "(c) Penalty.—A person guilty section is of a misde- who violates this meanor, rogue vagabond, convic- and and on shall be considered years.” subject imprisonment exceeding 3 tion is not to to the reiterate, pursuant not, I collected short, DNA was the Act, in Raines. upheld as pursuant done analysis, whether agree
I
do not
other
to some
pursuant
Act or
DNA Collection
Maryland
is an
fingerprint
A
analysis.
fingerprint
akin to
authority is
between
oil
contact
upon
of
by
depositing
“left
impression
v.
States
of
United
ridges
fingers.”
friction
and the
a surface
Mitchell,
221;
No.
Mitchell,
States
at
see United
365 F.3d
(W.D.Pa. Nov.
*29
2:09cr105,
Dist. Lexis
2009 U.S.
“[fingerprints,
2009)
observing
after
(making
point,
them,”
typing
while
who left
identify
person
...
only
twins, that “[t]he
not,
Monozygotic
the case
positing
may
progression
mere
much more than a
DNA ...
is
extraction of
quan
represents
and
it
photographs,
taking fingerprints
pur
for identification
entirely unnecessary
tum
that is
leap
it is
investigative,
reasonable use DNA
only
The
poses.
science.”).
it is an information
an identification science
221-22,
Mitchell,
of how the
365 F.3d at
description
The
is instructive:
fingerprinting analysis
its
FBI conducts
as
method known
FBI
... uses an identification
“The
evaluation,
ACEV,
acronym
‘analysis, comparison,
an examiner
steps
by
The basic
taken
and verification.’
of candidate
first to winnow the field
protocol
under this
are
detail[10]
classify
using Level
matching prints by
Next,
the latent
analyze
the examiner will
print.
latent
detail[11](i.e.,
points
Galton
identify
Level
print
another),
any
with
along
to one
spatial relationship
their
detail[12]
print.
gleaned
that can be
from
Level 3
and Level
compares
them
this to the Level
examiner
(sometimes
from
full-rolled
taken
print
detail of a candidate
pattern
eye; it is the familiar
is visible with the naked
"Level 1 detail
10.
Mitchell,
arches,
221.
loops,
whorls.”
365 F.3d at
patterns
'ridge
of is-
involves
characteristics’—the
11. "Level 2 detail
land, dots,
ridges
they begin
end and
formed
and forks
Mitchell,
That is not the case when a DNA DNA, step: There is an additional with the cells found on the “chemically first must be broken so that [Williamson’s Then, technology, sophisti- be collected.” more could] in fingerprint analysis, analyze cated than is used to the DNA record, of, for, capable order to create a DNA a and profile, comparison profiles. fingerprinting, with other With the lift- ing required comparison is all that is for of the latent finger- print to those a database. sure, for comparison purposes
To be feature of identifi- Nevertheless, cation and fingerprints is similar DNA. are, DNA records at some merely point, capable because and for the being uploaded compared purpose of identification and its use can limited to that purpose, be does not mean for the required analysis. warrant is not initial It is what is prior analysis, done to the creation of the DNA profile, invasion, which is the for without this invasion there would be invasion, no as there would be no for the profile other compare profiles. its database fact, analysis analysis, and DNA are not akin Fingerprint analysis just to each other. DNA involves more than collec- DNA, testing sample tion of collected is a significant Martin, invasion, search, State v. it has held. been 184 Vt. (2008) (“The 955 A.2d initial taking of the DNA swab, or samplе, by either blood drawn buccal and the subsequent analysis, storage, searching pro- of the DNA independent upon personal security file are intrusions 11.”)13 added). scrutiny (emphasis merit under Article provides: people 11 of the Vermont Article Constitution "that themselves, houses, right papers, possessions, have a to hold their seizure; warrants, free or and therefore oath or from search without made, them, affording affirmation first sufficient foundation for whereby by any messenger may required officer or be commanded or his, suspected places, any person persons, search or to seize her or Maryland is so. recognizes that this Act also Collection 2-504(d) Safety the Public (2003, Section Supp.2009) Code currently Article, provides: Act DNA Collection with crime charged “(d) from individual Testing (a)(3).— under subsection *35 charged
“(1)
from an individual
collected
sample
A DNA
(a)(3)
may
section
of this
under subsection
with a crime
described,
right,
contrary to that
property,
particularly
are
not
their
granted.”
Ch. I. Art. 11. Vermont's
ought
Vt. Const.
and
not to be
"
I,
purpose and effect' to the Fourth
Chapter
is
'similar in
Article 11
Martin,
v.
184 Vt.
States Constitution.” State
Amendment to the United
23,
1144,
(2008).
A.2d
1148
955
constitutionality
challenge
Although
to the
2000,
in the context of a
decided
Backlog
two decisions of
Analysis
Elimination Act of
of the DNA
Massachusetts,
of
Court for the District
the United States District
(D.Mass.2007),
Stewart,
F.Supp.2d
282
United States v.
468
Weikert,
Cir.2008)
rev’d,
(1st
v.
and United States
“(2) If all criminal are determined to qualifying charges be cause: unsupported probable “(i) the sample immediately destroyed; shall be “(ii) notice shall be sent to the defendant and counsel of record for the defendant was de- stroyed.”
The results in the placement compari- test database profiles son with other DNA is another. There are two searches. create a technology permits аnalysis of DNA to
profile purposes, for identification addition and at the same time, capable revealing creates a DNA record that I personal extensive information. have addressed this issue *36 before: of a be minimal in
“Although may intrusion buccal swab sense, a it is when the vast amount physical certainly great information DNA contains is consid- personal private and As recently explained: ered. we DNA referred to as a profile type While the is often far genetic ‘fingerprint,’ analogy simplistic. this is too Although profiling only current methods utilize limited information, with the genetic mapping amounts of genome underway, analysis may human now future DNA history; medical proclivity soon reveal individual’s diseases; hereditary toward certain information such race, Thus, biological and behavioral traits. physical, potential ... have the to reveal far more intimate samples fin- single information about the individual donor than a ... gerprint. fingerprint, Unlike an individual’s which identification, finger- use is limited to a person’s [because identify can a information print only person] potentially may subject in a an individual to profile contained DNA and even embarrassment, humiliation, hostility, public financial harm.”
% í’js :¡: [*] the useable identi- contain all of which fingerprints, “Unlike taken, the are prints at the time the information fying contrary, the swab. To not end with search does tests, may extract to scientific subjected then swab is humiliating infor- sensitive, potentially personal, very mation.” (Bell, 73-74, at 62-63 Raines, 857 A.2d 383 Md. at v.
State
Kincade, 379 F.3d
v.
C.J.,
see also United States
dissenting);
Cir.2004) (“[U]nlike
(9th
fingerprints, DNA
n. 3
data
personal, private
massive amounts
stores and reveals
individual,
promises
the advance of science
about that
DNA, a
in time. Like
only
revealing
more
make stored
DNA,
fingerprint
a
but unlike
person,
identifies
fingerprint
health,
propensity
their
nothing
person’s
about
says
characteristics, and
disease,
and gender
their race
particular
conduct.”).
for certain
propensity
even their
perhaps
of United States
majority
rejects
applicability
also
(W.D.Pa.
Mitchell,
Nov.
Dist. Lexis 103575
2009 U.S.
v.
(2d
Amerson,
2009)
F.3d 73
Cir.
and United States
his Fourth
support
relies to
2007),
on
cases which Williamson
540-41,
Williamson,
993 A.2d
413 Md. at
claim.
Amendment
reasons,
the context of
characterizing
accurately
It
...
Amerson
analysis in Mitchell and
litigation: “The
requiring
pretrial
constitutionality of the federal statutes
sample,
a DNA
a convicted felon to submit
detainee or
deter
at bar which we
to the case
completely inapplicable
*37
of DNA.” William
and lawful collection
mine abandonment
son,
541,
majority
concludes:
566
I
majority’s point.
take the
This case is not
about
constitutionality
statute,
of the Maryland DNA Collection
that
Raines,
or,
matter,
by
supra,
was decided
for that
statute.
any
Indeed, the
is not at
Maryland
judice.
statute
issue sub
What
is at issue is whether the extraction or collection of DNA from
beverage cup,
analysis
of that DNA and the subse-
quent uploading and
of the
of the
comparison
analysis,
result
any
or
in the
step
process, constitutes a search to which the
Informing
Fourth Amendment
that
applies.
determination is
the nature and
of the
that
significance
any
intrusion
one or
steps
more of those
has on the individual’s privacy interest.
Both of these concerns
to the
germane
were
issue that Mitch-
ell and Amerson addressed. Both of
recognized
those cases
that,
statute,
even under the
the collection of the DNA from
blood,
person,
prescribed,
by
the manner
either
drawing
swab,
“subject
or
use of a buccal
is a search
to Fourth
Mitchell,
scrutiny,”
103575,
Amendment
2009 U.S. Dist. Lexis
*3-4,
at
v.
citing, respectively,
Railway
Skinner
Labor Execu-
Ass’n,
602, 616,
1402, 1412,
tives’
489 U.S.
109 S.Ct.
103
639,
Donald,
1273,
Padgett
L.Ed.2d
659
401 F.3d
(11th
Amerson,
Cir.2005);
see also
483 F.3d at
citing
(2d
Goord,
Cir.2005),
Nicholas v.
tainee, liberty who has a lesser interest than an ‘ordinary citizen,’” Mitchell, *30, 2009 U.S. Dist. Lexis retains an in the expectation privacy information contained and, therefore, analysis, his her DNA characterized the comparison collection, if storage, extraction or DNA, as intrusive. “his Acknowledging liberty restricted detainee,” noted, nevertheless, a pretrial the Mitchell court that it
“has found that he maintains a high expectation in the comprehensive, inherently private information con- Therefore, tained in sample. though his DNA even *38 intrusive, unreasonably the may of a not be taking sample intrusive, affecting quite severely of is search the mat- of in his most intimate privacy Mitchell’s expectation ters.” severely limits the Although concluding that Act
Id. “[t]he can profiles for the purposes circumstances and for significant any misuse penalties released and provides be Amerson, 483 F.3d at profiles,” the DNA or samples of adequate safe- provides and satisfied that “the federal statute by occasioned the to insure that the invasion guards minimized,” id,., the court profiles is maintenance of the “analysis and maintenance Amerson characterized CODIS, the federal database” information’ [offenders’] Id., intrusion.” significant invasion of “a privacy” “serious Nicholas, 670. 430 F.3d at citing germane are to the issue pronоuncements simply
These not Indeed, Court, with force. it is they apply greater this before now regulates the reason no statute precisely or, of this collection of DNA under the circumstances ease time, it, regulated disposi- that these considerations are tive.
IV categor- It is not that the has chosen to surprising majority and, this one involving, ize the issue case as presented therefore, to utilizing, address it the doctrine abandonment. easy approach It is an even and solution simple, simplistic, permits a most This complex problem. approach majority addressing required to be struck avoid balance expectation pri- determining when whether individual’s to Fourth Amendment vacy his her DNA is entitled “the implicates heart of which reasonable- protection, very sure, requirement ness of the Fourth Amendment.”14 To be that, record, upon probable would I do doubt based cause existed, Morgan have if Detective did not use ruse in order even beverage cup. DNA from a Well retrieve Williamson McDonald's ruse, match before the decided to use its it was aware the DNA left, as Williamson trash—abandoned—a from which he which, therefore, DNA, had drunk and retained his DNA. The in the form that it can and will extracted or be collected from however, the cup, virtually meaningless—it provides no *39 uninitiated; information to the untrained or the meaningful information, capable of identifying Williamson and of being information, compared identifying to other must await and only can through be obtained the use of sophisticated technol- is, The ogy. question given the Fourth applica- Amendment’s interests, bility Amendment, to privacy under that may the State—not a private person, who is unrestrained by constitu- warrant, tional restrictions—without the authorization of a go beyond seizure of the cup extraction from it of data it analysis contains and conduct an of that data and subsequently a comparison of the results with other data it has amassed? The answer must be no.
The Supreme Court has stated that person “what a know- ingly exposes office, to the even in his public, own home or is subject of Fourth Amendment protection. But what he seeks to preserve private, as even in the area accessible to the constitutionally protected.” Katz v. United may be public, States, 347, 351, 507, 511, 389 U.S. 88 S.Ct. 19 L.Ed.2d (1967) (citations omitted). It also has held that a search goes “beyond ‘physical mere ... characteristics constant- ly exposed to the ... public type constitute^] severe’ ... upon intrusion personal security subject cherished that is Cupp, scrutiny” to constitutional U.S. at S.Ct. 905(internal 2003, 36 L.Ed.2d at quotation citation and marks known, between the 1994 assailant and the 2002 It assailant. was also incident, plea that Williamson entered an for the 1994 in which Alford alone, having he admitted to sexual intercourse with victim. This may magis- have been sufficient evidence for a neutral and detached probable trate to find cause and issue a search warrant. It would be a assumption magistrate mere probable to conclude that the found cause alone, application the 1994 and on 2002 match for the for a warrant probable asserted that cause existed because of both the 1994 and 2002 match and the match between the DNA retrieved from Williamson’s cup and the 2002 match. aban- omitted). have relevance pronouncements These donment context. reason, need, correct, no there would be majority
If the do it did could statutes. State DNA collection it, analyze disposing here, instead supply litigation questions on it. A lot of constitutional thereby be avoided. could
I dissent. expressed. joins in the views herein GREENE Judge A.2d 655 *40 DALLAS. Isaac E. Maryland.
STATE Sept.Term, No. 17 Appeals Maryland. Court 26, 2010.
April