657 F.Supp.2d 630 (D.Md. 2009), Crim. RWT 07-0199, United State v. Davis

Docket Nº:Criminal Case RWT 07-0199.
Citation:657 F.Supp.2d 630
Opinion Judge:ROGER W. TITUS, District Judge.
Party Name:The UNITED STATES of America v. Earl Whittley DAVIS.
Attorney:Deborah A. Johnston, Emily N. Glatfelter, Office of the U.S. Attorney, Greenbelt, MD, Sandra Wilkinson, Office of the U.S. Attorney, Baltimore, MD, for Plaintiff.
Case Date:September 15, 2009
Court:United States District Courts, 4th Circuit, District of Maryland

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657 F.Supp.2d 630 (D.Md. 2009)

The UNITED STATES of America


Earl Whittley DAVIS.

Criminal Case No. RWT 07-0199.

United States District Court, D. Maryland.

September 15, 2009

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Deborah A. Johnston, Emily N. Glatfelter, Office of the U.S. Attorney, Greenbelt, MD, Sandra Wilkinson, Office of the U.S. Attorney, Baltimore, MD, for Plaintiff.


ROGER W. TITUS, District Judge.

On June 3, 2009, a jury convicted the Defendant, Earl Whittley Davis, on six counts related to the robbery and murder of Jason Schwindler on August 4, 2004. At trial, a large portion of the Government's case against Davis consisted of demonstrating that he was, to a reasonable degree of scientific certainty, the source of DNA deposited on three pieces of evidence recovered from the crime scene. Davis is currently awaiting sentencing.

Prior to trial, Davis moved to suppress DNA evidence obtained in violation of the Fourth Amendment [Paper No. 29], arguing

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that his DNA profile had been obtained by police and entered into a local law enforcement database unconstitutionally. The Court conducted a hearing on the motion to suppress on September 15, 2008. At the conclusion of the hearing, the Court indicated that it would not make an immediate disposition of Defendant's motion, and that the parties should continue preparing for trial.

The Court now issues this memorandum opinion and accompanying order denying the Defendant's motion.


A. The Acquisition of Davis' DNA Profile

Jason Schwindler was murdered on August 4, 2004, but the series of events serving as the basis for the Defendant's motion to suppress actually began nearly four years earlier.

On August 29, 2000, Davis was admitted to Howard County General Hospital with a gunshot wound to his right leg. Davis told hospital staff that he was a victim who had been shot during the course of a robbery. As required by law, the hospital notified the Howard County Police Department that it was treating a gunshot victim. See Md.Code Ann. Health-Gen. § 20-703. Detective Joseph King of the Howard County Police Department, then a uniformed patrol officer, was the first to respond to the hospital and speak with Davis concerning the circumstances of the shooting. Detective King testified that when he arrived at the hospital, he located Davis in the emergency room laying on a bed or gurney. Detective King observed Davis' gunshot wound and secured Davis' pants and boxer shorts, which had been removed by hospital personnel, placed in a bag, and stored on a shelf beneath the bed. Detective King considered the clothing to be evidence of the crime reported, i.e., Davis' shooting. A short time later, Lieutenant Steven Lampe also responded to the hospital. Lieutenant Lampe retrieved the seized clothing from Detective King and submitted it to the property room to be held as evidence.

Because Detective King and Lieutenant Lampe believed that Davis was being uncooperative with their investigation 1, officers located the vehicle in which Davis' friend had driven him to the hospital, and requested a K-9 officer to do a scan of the car. The dog positively alerted to the presence of a controlled dangerous substance (" CDS", i.e., illegal drugs), and the car was subsequently searched. A small amount of marijuana was found in the vehicle, and Davis was consequently arrested upon his release from the hospital. The marijuana charges were later dropped.

The investigation into Davis' shooting concluded without an arrest, and the case was considered closed as of November 7, 2000. To that point, no forensic testing had been conducted on the bloody clothing seized from Davis at the hospital. Davis was not contacted or otherwise advised that the shooting investigation was being terminated.

The following year, in June 2001, an individual named Michael Neal was murdered in Prince George's County. In April 2004, Lieutenant Lampe was contacted by members of the Prince George's County Police Department (" PGCPD" ), who asked him questions about the arrest of Earl Davis in 2000. The PGCPD officers specifically asked whether any property had

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been seized from Davis that might have his DNA on it. Lieutenant Lampe understood from this inquiry that Davis was now a suspect in an unrelated homicide. Later that month, Sergeant Jeff Reichert and Detective K. Jernigan of the PGCPD homicide unit, who were familiar with the facts of the Neal murder, went to the Howard County Police Department to recover Davis' clothing for potential DNA testing. Lieutenant Lampe released the clothing to Detective Jernigan, who signed the property form for the items on April 29, 2004. On the property form for the clothing, Davis was clearly identified as a " victim."

Shortly thereafter, in or around June 2004, Davis' DNA profile was extracted from the blood stains on his clothing and compared to an unknown sample recovered from the scene of the Neal homicide. The samples did not match, and Davis was therefore excluded as the source of evidentiary sample from the Neal murder. Subsequently, Davis' DNA profile was placed in the local Prince George's County DNA database.

B. The Jason Schwindler Murder

On August 6, 2004, shortly before 1:00 p.m., Jason Schwindler, an armored car employee, picked up a bank deposit from a local business and took it to a nearby BB & T bank in Hyattsville, Maryland. As Schwindler walked up to the bank entrance, two gunman exited a Jeep Cherokee and began shooting at Schwindler, killing him. When their escape in the Jeep was thwarted by the armored truck driver, the assailants carjacked a bank customer and fled in her vehicle. The carjacked vehicle was later recovered.

After the murder, officers from the Prince George's County Police Department responded to the crime scene and collected evidence. Numerous items were recovered, including a baseball cap worn by one of the shooters, two firearms, and steering wheel covers from a Jeep Cherokee and a Pontiac Grand Am that were used by the suspects in the commission of the offense. These items were swabbed and analyzed for DNA. The DNA profiles of the major contributor to the DNA found in the ballcap and on the trigger and grip of the recovered firearms were entered into the local CODIS 2 database. As a result of a search of the local database, on or about August 14, 2004, there was a " hit" between the DNA found on the baseball cap recovered at the scene and the DNA of the Defendant. Law enforcement officers were notified of the match and advised to obtain a known sample from the Defendant. Pursuant to a search warrant, a DNA sample was taken from him and compared to the items recovered from the crime scene. The DNA analyst concluded that, to a reasonable degree of scientific certainty, Davis was the source of the DNA recovered from three pieces of evidence related to the Schwindler murder: (1) the steering wheel of the stolen Jeep Cherokee the assailants drove to the bank, (2) a baseball cap dropped by one of the assailants during the course of the robbery, and (3) the steering wheel of the Pontiac Grand Am in which the assailants fled the scene.

After a number of pretrial proceedings, Davis' trial began on May 5, 2008. The trial lasted five weeks, at the conclusion of

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which he was convicted on all counts. He is currently awaiting sentencing.


Defendant moves the Court to suppress DNA evidence arising from prior interactions with Prince George's County and Howard County police. He argues that there were at least three separate Fourth Amendment violations leading to the " cold hit" match that implicated him in the Schwindler murder. First, he alleges that the initial seizure of his clothing without a warrant was unlawful, rendering all further uses of evidence derived therefrom inadmissible as fruit of the poisonous tree. Second, he claims that the extraction of his DNA profile from his clothing without a warrant was a separate violation of the Fourth Amendment, Finally, he argues that the retention of his DNA profile in the local CODIS database constituted yet another Fourth Amendment violation.

The Government bears the burden of proving, by a preponderance, the legality of the search and seizure of evidence which it intends to introduce at trial. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

A. Initial Seizure of Defendant's Clothing at Howard County General Hospital

The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. A warrantless seizure is " per se unreasonable ... subject to only a few specifically established and well-delineated exceptions" to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The government bears the burden of establishing that the circumstances of a warrantless search or seizure bring it within an exception to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is undisputed that Davis' clothing was seized from his hospital room without a warrant. Therefore, the seizure was unreasonable unless justified by an established warrant exception.

As the Supreme Court explained in United States v. Jacobsen, the Fourth Amendment

protects two types of expectations, one involving " searches," the other " seizures." A " search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A " seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property.

United States v. Jacobsen, 466 U.S. 109, 112, 104 S.Ct. 1652, 80 L.Ed.2d...

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