Argued April 8, 2014.
Certiorari to the Court of Special Appeals (Circuit Court for Harford County. Case No. 12-K-08-001527), Emory A. Plitt, Jr., JUDGE.
ARGUED BY Byron L. Warnken (Warnken, LLC of Baltimore, MD) on brief FOR PETITTONER/CROSS-RESPONDENT.
ARGUED BY Robert Taylor Jr., Assistant Attorney General (April 11, 2014 Daniel J. Jawor, Assistant Attorney General; Douglas F. Gansler, Attorney General of Maryland, of Baltimore, MD) on brief FOR RESPONDENT/CROSS-PETITIONER.
Amicus Curiae Public Defender's Brief, Paul B. DeWolfe, Esquire Public Defender; Stephen B. Mercer, Esquire Chief Attorney, Office of the Public Defender Forensics Division, Baltimore, MD.
ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, and McAuliffe, John F. (Retired, Specially Assigned), JJ. Opinion by Barbera, C.J. Harrell, Greene, and Adkins, J.J., dissent.
[440 Md. 74] Barbera, C.J.
This appeal has its genesis in the commission of a rape in 2006. More than two years later, the victim of the rape contacted the police and explained that she suspected that Petitioner, Glenn Joseph Raynor, had been the perpetrator. Shortly thereafter, Petitioner agreed to the request of the police to come to the police station for an interview. At some point during the interview, the police requested Petitioner's consent to the taking of a DNA sample for comparison to DNA evidence collected at the scene of the rape. He declined. Minutes after the interview concluded and Petitioner had departed the station, the police, who had noticed Petitioner rubbing his bare arms against the armrests of the chair in which he had been seated, took swabs of the armrests in an attempt to collect his DNA. The police submitted those swabs to the crime lab for DNA analysis, which revealed that the DNA extracted from the swabs matched DNA samples investigators had collected from the scene of the rape.
Further investigation ensued and, eventually, Petitioner was charged with first-degree rape and related offenses. He filed a pre-trial motion seeking suppression of the DNA evidence and all evidence derived therefrom, arguing that the warrantless collection and testing of cellular material that he shed during his interview at the police station violated his right under the Fourth Amendment to be free from unreasonable searches and seizures. The suppression court denied the motion, having concluded that Petitioner had no reasonable expectation of privacy in the DNA evidence left on the chair. The Court of Special Appeals agreed with that ruling.
[440 Md. 75] Petitioner no longer disputes, as he did before the suppression court, that the police
lawfully obtained his DNA from the armrests of the chair in the station, and we assume, solely for purposes of our present analysis, that the police were not required to have a warrant or individualized suspicion of Petitioner's commission of the rape before collecting those DNA samples. Accordingly, the only legal question before us is whether analysis by the police of the 13 identifying " junk" loci contained within Petitioner's DNA was a search for purposes of the Fourth Amendment. For reasons we shall explain, we hold that the DNA testing at issue in the present case was not a search under the Fourth Amendment.
The rape occurred in Bel Air, Harford County, Maryland during the early morning hours of April 2, 2006. The facts material to its commission and the police investigation that followed are undisputed. At approximately 5:00 a.m., the perpetrator broke into the home of the victim through a patio door that led to the basement. Shortly thereafter, the perpetrator entered the victim's bedroom, raped her repeatedly, and fled the scene. The victim did not see her attacker's face because, upon entering the bedroom, he pressed a pillow against her face and blindfolded her with his t-shirt. The victim noticed, however, that her attacker was Caucasian, had a medium build, and emanated a " metallic scent."
After the perpetrator fled, the victim ran to her neighbor's home, where she reported the rape to the police. Investigators responded to the victim's home and a crime scene technician processed it for evidence. The technician collected material possibly containing DNA, including blood from a pillow found in the victim's bedroom and the area near the door through which the perpetrator had entered. Meanwhile, a police officer accompanied the victim to the hospital where she [440 Md. 76] underwent a rape examination, during which a nurse took vaginal and anal swabs.
The victim contacted the police on numerous occasions throughout the next two years to inform them about potential suspects. During that time, the police obtained consensual DNA samples from approximately 20 individuals with possible connections to the 2006 rape, including several of the victim's neighbors. None of those DNA samples matched the DNA collected from the victim's home on the day of the rape.
In July 2008, the victim contacted the lead investigator assigned to the case, Trooper First Class Dana Wenger, to report her suspicion that Petitioner was the rapist. The victim explained that she and Petitioner had gone to school together, he was the previous owner of the home in which the rape occurred, and his body type matched that of the man who raped her. Approximately two weeks later, Trooper Wenger left a note at Petitioner's home asking him to contact her. A few days later, Petitioner called the trooper and agreed to come to the station later that day to answer questions related to the rape investigation.
Upon Petitioner's arrival at the station, Trooper Wenger escorted him to a vacant office and directed him to have a seat. Shortly thereafter, Sergeant James DeCourcey entered the room and a 30-minute interview ensued. The officers noted during the interview that Petitioner, who was wearing a short-sleeved shirt, repeatedly rubbed his bare arms against the armrests of his chair, and his body carried a metallic odor similar to the odor the
victim had described smelling during the rape.
At some point during the interview, Trooper Wenger asked Petitioner for his consent to the taking of a DNA swab of his mouth. Petitioner responded that he would consent only if the police agreed to destroy the DNA sample after they concluded their investigation of the rape. When the police declined to give that assurance, Petitioner refused to provide a DNA sample, and the interview concluded.
[440 Md. 77] Minutes after Trooper Wenger escorted Petitioner out of the station, Sergeant DeCourcey took swabs of the armrests of the chair in which Petitioner had sat during the interview, sealed those swabs in an envelope, and placed them in an evidence locker. Two days later, Trooper Wenger submitted the swabs to the Maryland State Police Forensic Sciences Division laboratory for DNA analysis. The analysis revealed that the DNA extracted from the swabs of the armrests matched the DNA extracted from blood collected at the scene of the rape.
Trooper Wenger relied upon the results of the lab's DNA analysis, as well as other evidence the police had gathered during their investigation, in applying for and obtaining warrants to arrest Petitioner, collect an additional DNA sample, and search his home. After arresting Petitioner, the police transported him to the station, interviewed him, and, at some point, took a DNA sample via a buccal swab. That DNA sample, like the DNA samples collected from the chair in the police station, matched DNA collected from the victim's home on the day of the rape. A second DNA analysis of the buccal swab revealed a match to DNA extracted from the vaginal and anal swabs obtained during the victim's rape examination.
The State charged Petitioner with several counts of rape, assault, burglary, and related crimes. He was tried before a jury, which heard the results of the DNA analyses and other evidence linking him to the crimes. The jury found Petitioner guilty of two counts of rape and related crimes, for which the court sentenced him to a total of 100 years' imprisonment.
The Suppression Hearing
Petitioner filed a pre-trial motion to suppress the DNA evidence the police obtained from the chair in the police station, and the fruits derived therefrom. He argued that the [440 Md. 78] police violated his right under the Fourth Amendment to be free from unreasonable searches and seizures, by seizing his genetic material from the armrests of the chair and then searching that material for the 13 loci on the DNA strand that allowed the police to connect him to the rape. He claimed in the alternative that, even if the police officer's obtaining his genetic material by swabbing the chair was not an unlawful seizure for purposes of the Fourth Amendment, the police nonetheless conducted a separate search that violated the Fourth Amendment when they performed a DNA analysis
of the material.
The suppression court denied the motion, reasoning in pertinent part:
[D]oes [the] Fourth Amendment apply at all in this case? . . . This is a very simple matter as I see it. Does he have a reasonable expectation of privacy that society is prepared to recognize of what's left [on] a chair when he gets up and leaves? The answer to that as far as I am concerned is no, he has no such expectation of privacy. He is in a public building. . . . Yes, he refused [to submit voluntarily a DNA sample], there is no doubt about that. He refused to give consent. So when he refuses to give consent, does that mean that if the police can get [a DNA sample] some other way, they can't use it? Of course not.
[440 Md. 79] So I think that the seizure of the sample did not violate the Fourth Amendment at all because I don't think the Fourth Amendment applies in this situation because I don't think he had any reasonable expectation of privacy with regard to the [genetic material] he left on the chair.
I don't think DNA is any different in terms of leaving it anywhere than a fingerprint [or] than if he walks out of the [police station] and somebody takes his photograph. He is sitting in there and [the police] ask can we take a picture of you . . . to have other people look at it. He says no . . . . So [he] walks outside the [station], is standing on the sidewalk, and they take his picture. He is in a public place. When he goes in there, does he have any expectation that anything he leaves that he is going to continue to have a privacy right in it? I don't think so. And because I don't think so, because I don't think the Fourth Amendment applies at all, because I don't think he had any reasonable expectation [of privacy] . . . that society is prepared to recognize as reasonable, then the same logic applies because the use of [the DNA evidence] to obtain the search warrants also is perfectly legitimate.
So the Motion to Suppress is going to be denied . . . .
On appeal to the Court of Special Appeals, Petitioner contended that, in the absence of a proper warrant, the police were prohibited from " analyzing the swab they took from the chair, developing a DNA profile, and comparing it to the DNA recovered from the crime scene." Raynor v. State, 201 Md.App. 209, 217, 29 A.3d 617 (2011). The Court of Special Appeals held that the Fourth Amendment did not apply to the testing of the genetic material Petitioner left on the chair, reasoning that Petitioner's DNA profile was used for identification purposes only and he had " no objectively reasonable expectation of privacy in the identifying characteristics that [440 Md. 80] could be gleaned from the normal biological residue he left behind." Id. at 225. The court relied upon certain similarities between DNA evidence and
fingerprints: " [L]ike the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis in the instant case of DNA evidence . . . was not a constitutionally protected search." Id. at 222.
We granted Petitioner's petition for a writ of certiorari to consider the following questions posed by Petitioner:
1. Whether, under the Fourth Amendment . . . , a free citizen maintains an objectively reasonable expectation of privacy in the DNA found in genetic
material involuntarily and unknowingly deposited through ordinary biological processes?
2. Whether, under the Fourth Amendment . . ., the determination of an individual's expectation of privacy requires consideration of the privacy interest in the information obtained, and not just the privacy interest in the place in which it was found?
We also granted the State's conditional cross-petition, which asks, assuming the Fourth Amendment applies, whether the testing of Petitioner's genetic material constituted a limited intrusion justified by reasonable suspicion that he had committed the rape and, if not, whether the police conduct in this case compels application of the Fourth Amendment exclusionary rule. Given our disposition of the case on the basis of the threshold questions presented by Petitioner, we need not, and [440 Md. 81] therefore do not, reach the questions the State presents in its conditional cross-petition.
In reviewing the denial of a motion to suppress evidence, as we do here, " we must rely solely upon the record developed at the suppression hearing." See Briscoe v. State, 422 Md. 384, 396, 30 A.3d 870 (2011). " We view the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion," id., here, the State. We accept the suppression court's factual findings unless they are shown to be clearly erroneous. Id. We, however, make our own independent ...