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Varriale v. State

Court of Special Appeals of Maryland

July 30, 2014

GEORGE VARRIALE
v.
STATE OF MARYLAND

Appeal from the Circuit Court for Anne Arundel County, Paul G. Goetzke, JUDGE.

ARGUED BY Thomas J. Mack (David A. Clarke School of Law of Washingto, D.C., Paul B. DeWolfe Public Defender, Stephen B. Mercer, Chief Attorney of Baltimore, MD) on the brief FOR APPELLANT.

ARGUED BY Robert Taylor, Jr. (Douglas Gansler, Attorney General on the brief) all of Baltimore, MD FOR APPELLEE.

Panel: Zarnoch, Hotten, Arthur, JJ.

OPINION

Page 794

[218 Md.App. 49] Arthur, J.

The State charged George Varriale, appellant, with two counts of second-degree burglary, theft over $1,000, and malicious destruction of property, in connection with a 2008 burglary in Glen Burnie, Maryland. The charges were based solely on DNA evidence from a sample that Varriale had voluntarily given in an earlier, successful effort to clear himself of unrelated rape charges.

In pre-trial proceedings in the burglary prosecution, Varriale moved to suppress the DNA evidence. The trial court held a hearing on Varriale's motion to suppress and, ultimately, denied the motion. Thereafter, Varriale entered a conditional guilty plea to burglary in the second degree.

The circuit court sentenced Varriale to four years of imprisonment, with the entirety of the sentence suspended, except for time served. The circuit court also placed Varriale on probation for two years. The State entered a nolle prosequi for the remaining counts of the indictment. This timely appeal followed.

[218 Md.App. 50]Questions Presented

Varriale presents the following questions for our review:

I. Whether the County exceeded the bounds of appellant's consent, thereby rendering its retention and use of his DNA after he was cleared of suspicion, an unreasonable search and seizure?
II. Whether the Maryland DNA Collection Act permits the retention of the DNA of an individual cleared of suspicion in a state or local DNA databank?

For the reasons that follow, we answer no to the first question and yes to the second question, and we affirm the judgment of the circuit court.

Factual and Procedural History

This case involves a homeless man who voluntarily provided DNA samples to the police in order to eliminate himself as a suspect in an alleged rape. Although the DNA sample cleared him of the alleged

Page 795

rape, it disclosed his involvement in an unrelated burglary that took place a few years earlier.

On July 10, 2012, Detective David Wood of the Anne Arundel County Police Department encountered Varriale in a tent in a wooded area behind a liquor store off Crain Highway while the detective was looking for a suspect in an alleged rape. Detective Wood identified himself to Varriale, explained why he was in the area, and asked Varriale if he would sign a form consenting to be searched. The consent form, which states that it is in " Case #12-725920," provides as follows:

I, George Varriale, do hereby consent to a search of my person for the purpose of furnishing evidence relating to ...

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