690 F.3d 226 (4th Cir. 2012), 09-4890, United States v. Davis

Docket Nº:09-4890.
Citation:690 F.3d 226
Opinion Judge:AGEE, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Earl Whittley DAVIS, a/k/a Baby Earl, a/k/a E, Defendant-Appellant.
Attorney:Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Deborah A. Johnston, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attor...
Judge Panel:Before AGEE, DAVIS, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Judge KEENAN joined. Judge DAVIS wrote a dissenting opinion. DAVIS, Circuit Judge, dissenting:
Case Date:August 16, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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690 F.3d 226 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,


Earl Whittley DAVIS, a/k/a Baby Earl, a/k/a E, Defendant-Appellant.

No. 09-4890.

United States Court of Appeals, Fourth Circuit.

August 16, 2012

         Argued: Dec. 9, 2011.

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[Copyrighted Material Omitted]

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         Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant.

         Deborah A. Johnston, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

         ON BRIEF:

         James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant.

         Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Emily N. Glatfelter, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

          Before AGEE, DAVIS, and KEENAN, Circuit Judges.

          Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Judge KEENAN joined. Judge DAVIS wrote a dissenting opinion.


          AGEE, Circuit Judge:

          A jury convicted Earl Whittley Davis of various federal offenses arising from a course of conduct that included the armed robbery and murder during that robbery of an armored car employee, Jason Schwindler, as well as a subsequent carjacking.1 On appeal, Davis challenges the

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use of DNA evidence against him at trial, and also argues that the district court erred in excluding expert testimony proffered by Davis in an attempt to undermine an eyewitness identification of him. For the reasons set forth below, we affirm the judgment of the district court.


         All of Davis' convictions arose from the same brief course of events occurring in Prince George's County, Maryland. The district court accurately summarized the facts as follows:

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 [gunmen] 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[, a Pontiac Grand Am, which] was later recovered.

United States v. Davis, 657 F.Supp.2d 630, 635 (D.Md.2009).

         After the murder, officers from the Prince George's County Police Department (" PGCPD" ) responded to the scene and collected numerous items of evidence, including a baseball cap worn by one of the shooters, two firearms, ammunition, and the steering wheel covers from the Jeep Cherokee and the Grand Am. After swabbing and analyzing the items for DNA, the profiles of the major contributors to the DNA found in the ball cap and on the triggers and grips of the recovered firearms were entered into the local Combined DNA Index System (" CODIS" ) database.2 A search of the local database led to a " cold hit" between the DNA recovered at the Schwindler murder scene and Davis' DNA profile, which was already present in the local database.

         Based on the " cold hit," officers obtained a search warrant to obtain a sample of Davis' DNA directly from him, which again matched the evidence from the Schwindler murder scene. Evidence of this second match was introduced at trial in this case.

         Prior to trial, Davis filed a motion to suppress the use of all DNA evidence against him, arguing that his DNA profile had been obtained by police and entered into the local PGCPD DNA database in violation of his Fourth Amendment rights. The district court held an evidentiary hearing, but declined to rule on the motion to suppress immediately, instructing the parties to continue preparing for trial. After a jury found Davis guilty of the charges, the district court issued a lengthy written order denying the motion to suppress. Davis, 657 F.Supp.2d 630-67. Davis was sentenced by the district court on September 18, 2009 to a term of life imprisonment plus 420 months.3

         Davis noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

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          Background and Proceedings Below

         On August 29, 2000, almost four years before the Schwindler murder, Davis arrived at Howard County General Hospital with a gunshot wound to his leg. He claimed to be a robbery victim and reported that he had been shot by the purported robber. Hospital personnel called the police, as Maryland law required, and Patrol Officer Joseph King of the Howard County, Maryland, Police Department (" HCPD" ) responded to the call.4 Officer King found Davis lying on a bed in the emergency room. He was conscious, sitting up, and able to converse with Officer King at the time. Davis' pants and boxer shorts had been removed by hospital personnel and placed in a plastic hospital bag, which was stored on a shelf beneath the bed. Officer King observed Davis' gunshot wound and secured Davis' pants and boxer shorts as evidence of the reported shooting. He did so without express permission from Davis (although Davis saw him take the clothing) and without a warrant. He then gave those items to his colleague, Detective Steven Lampe, who placed them in the HCPD " property room," to be held as evidence in the prosecution of Davis' assailant.

         At the suppression hearing, Officer King testified that he could not recall exactly what the bag looked like containing Davis' clothes, and neither could Detective Lampe, except that the bag was " plastic." (J.A. 166.) Officer King testified, however, that he had " responded to the hospital on numerous calls," that he knew it was the hospital's " practice to secure any property" taken from a patient and that the hospital placed that " [c]lothing from a victim ... under [the patient's] bed." (J.A. 147.) He also testified that he did not need " permission from anyone in the hospital to access" the bag. (J.A. 150.)

         No one was ever charged in the August 2000 shooting of Davis, and neither his clothing nor the blood on it were ever tested in connection with that shooting. Davis was not contacted or advised that the shooting investigation was no longer being pursued by the HCPD, nor was he offered the opportunity to retrieve his clothing. Instead, Davis' clothes, containing his DNA material, 5 were simply retained by the HCPD.

          In order to give a more complete picture of later events, we note certain additional facts concerning Davis' hospital stay. First, although Davis had given a false name and false driver's license upon his admission to the hospital, police later learned his true identity through fingerprinting analysis. Additionally, from the beginning of their questioning of Davis, Officer King and Detective Lampe believed Davis was being uncooperative so they conducted further investigation. That investigation led to the discovery of marijuana in the vehicle in which Davis had arrived at the hospital, as well as several other potentially incriminating items, such as a t-shirt and a ball cap that said " FBI," a handheld radio, leg shackles, gloves, and a mask. As a result, Davis was arrested on drug charges upon his

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release from the hospital, but those charges were later dropped.

         The government does not dispute that Davis' clothing was seized initially because it was evidence of a crime in which he was a victim. The clothing was logged into the HCPD property room, however, on the same sheet with the marijuana found in the car and the false ID card Davis had presented. It also was Davis' arrest record on the drug offense that later led the PGCPD to inquire and learn about the existence of the seized clothing. Davis, 657 F.Supp.2d at 634-35 (noting that in April 2004, Lampe " was contacted by members of [PGCPD], who asked him questions about the arrest of Earl Davis in 2000." ). When the clothing was later checked out to the PGCPD for testing in a subsequent murder investigation, however, the form indicated that the clothes and blood were from the victim of a shooting. In effect, then, Davis had a " dual status" throughout the events in this case— he was both victim and arrestee— a fact which becomes important when analyzing his Fourth Amendment claims.

         In June 2001, an individual named Michael Neal was murdered in Prince George's County. In April 2004, a PGCPD homicide detective investigating the Neal murder, Detective K. Jernigan, learned that Davis had previously been arrested in Howard County and that the HCPD had Davis' clothes. The PGCPD suspected Davis was involved in the Neal murder.6 As a result, they requested and obtained Davis' clothing, without a warrant, from the HCPD.

         In June 2004, the PGCPD extracted Davis' DNA from the blood stains on Davis' pants, again without a warrant, and created a DNA profile from the test results. That DNA was compared to an unknown DNA sample recovered from the scene of the Neal homicide, but there was no match. Despite the fact that Davis' DNA profile excluded him as the source of the evidentiary sample from the Neal murder, the PGCPD nonetheless retained his DNA profile, and approximately one week later, included it in their local DNA database.

          At a hearing before a Maryland state court in its Schwindler murder prosecution,7 which is part of the record before us, the DNA analyst for the PGCPD, Julie Kempton, testified concerning the extraction of Davis' profile and its entry into the local database. She testified that she was told by a detective that the boxer shorts were taken " from a suspect, from a hospital emergency room where he had been brought in [she] believe[d] for a shooting[.]" (Supp. J.A. 93.) She further testified that her testing ultimately excluded Davis' profile as a match in the Neal...

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