Anderson v. Com.

• Decision Date: 14 September 2007
• Docket Number: Record No. 062051.
• Parties: Angel M. ANDERSON v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

650 S.E.2d 702

Angel M. ANDERSON v. COMMONWEALTH of Virginia.

Record No. 062051.

Supreme Court of Virginia.

September 14, 2007.

Dawn M. Butorac, Deputy Public Defender, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., and KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and LACY, S.J.¹

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider whether pursuant to Code § 19.2-310.2:1, the taking of a person's DNA upon arrest for certain crimes constitutes an unconstitutional seizure. We also consider whether the presentation of DNA evidence in this case violated the defendant's right of confrontation under the Sixth Amendment.

I. Facts and Proceedings Below

On July 23, 1991, Laura M. Berry ("Berry") was raped, sodomized, and robbed while walking to the school where she worked. After the attack, Berry walked to the school and notified police. Berry was taken to the hospital where Detective Steven G. Milefsky ("Milefsky") took her statement. Dr. Val Chapman ("Dr.Chapman") examined Berry and used a physical evidence recovery kit ("PERK") to collect specimens for evidence. Dr. Chapman then gave the PERK to Milefsky.

Milefsky took the PERK he received from Dr. Chapman to the Virginia Forensic Laboratory in Fairfax County (the "laboratory") and gave the PERK to a clerk at the laboratory. On July 25, 1991, Karen C. Ambrozy ("Ambrozy"), a forensic scientist employed by the Commonwealth of Virginia's Division of Forensic Science obtained the PERK. Ambrozy received the PERK from another person working in the laboratory's forensic biology section. Ambrozy analyzed and conducted DNA analysis on vaginal swabs contained in the PERK. On January 9, 1992, Milefsky picked the PERK up from a clerk at the laboratory and returned it to the Fairfax County police property room (the "police property room").

In 2001, Milefsky took the PERK to the laboratory and again left it with one of the laboratory clerks. During the time the PERK was at the laboratory in 2001, Ambrozy conducted more DNA analysis. As part of the process, Kari Yoshida ("Yoshida"), a laboratory technician, prepared the product gel as part of the process for Ambrozy to determine if she had obtained any amplified DNA. Then, on September 4, 2001, Milefsky picked the PERK up from the laboratory and returned it to the police property room.

From 1991 to 2003, Berry's case was not investigated. In early 2003, Angel M. Anderson ("Anderson") was arrested in Stafford County on unrelated charges of rape and sodomy. Pursuant to Code § 19.2-310.2:1, a sample of Anderson's DNA was taken upon his arrest and entered into a DNA databank. Upon entry into the DNA databank, a routine analysis resulted in a "cold hit" that appeared to match Angel's DNA to that found in Berry's PERK.

In December of 2003, Milefsky received a certificate of analysis from the laboratory preliminarily identifying Anderson as a possible suspect in Berry's attack. As a result of the investigative lead provided by the certificate of analysis, on January 6, 2004, Milefsky went to Stafford County to serve Anderson with a search warrant. The search warrant permitted a sample of Anderson's DNA to be obtained "by means of buccal (cheek) swabs in sufficient quantity to obtain laboratory results."

Pursuant to the search warrant, Milefsky obtained two buccal swabs from Anderson and took them to the laboratory along with Berry's PERK. Ambrozy compared the buccal swabs taken from Anderson with the DNA found in the PERK. Milefsky then received a certificate of analysis prepared by Ambrozy which stated that the sperm fraction from the vaginal swabs taken from Berry were "consistent with the DNA profile of Angel M. Anderson."

On March 15, 2004, the case was presented to the grand jury which indicted Anderson for the rape, robbery, and sodomy of Berry. At trial, a jury found Anderson guilty on all counts, and the trial court imposed the recommended two life terms plus ten years. Anderson appealed to the Court of Appeals, where his convictions were affirmed. Anderson v. Commonwealth, 48 Va.App. 704, 718, 634 S.E.2d 372, 379 (2006). Anderson appeals to this Court upon two assignments of error:

1. The Court of Appeals erred when [it] held that it is not a Constitutional violation to seize Mr. Anderson's DNA, pursuant to Va.Code § 19.2-310.2:1, upon arrest for an unrelated felony.

2. The Court of Appeals erred by holding that the presenting of DNA evidence did not violate Mr. Anderson's Constitutional right of confrontation.

II. Analysis

A. The DNA Sample

Anderson first argues that the Court of Appeals erred when it held that it was not a constitutional violation to seize Anderson's DNA, pursuant to Code § 19.2-310.2:1, upon arrest for an unrelated felony. Code § 19.2-310.2:1 states in relevant part that:

Every person arrested for the commission or attempted commission of a violent felony as defined in § 19.2-297.1 or a violation or attempt to commit a violation of § 18.2-31, 18.2-89, 18.2-90, 18.2-91, or 18.2-92, shall have a sample of his saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.

This Court as well as the United States Court of Appeals for the Fourth Circuit has held that Code § 19.2-310.2, requiring a convicted felon to provide a blood, saliva, or tissue sample for DNA analysis, does not violate the Fourth Amendment. Jones v. Murray, 962 F.2d 302, 308 (4th Cir.1992); Johnson v. Commonwealth, 259 Va. 654, 672, 529 S.E.2d 769, 779 (2000). While Code § 19.2-310.2:1 requires a DNA sample after an arrest for specific offenses, as opposed to a conviction, like Code § 19.2-310.2, it too does not violate the Fourth Amendment.

Upon arrest, the accused is subjected to a routine booking process, including the taking of fingerprints. A DNA sample of the accused taken upon arrest, while more revealing, is no different in character than acquiring fingerprints upon arrest.

[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes. This becomes readily apparent when we consider the universal approbation of "booking" procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect's crime will involve the use of fingerprint identification.

Jones, 962 F.2d at 306. Like fingerprinting, the "Fourth Amendment does not require an additional finding of individualized suspicion" before a DNA sample can be taken. Id. at 306-07.

The analogous treatment of the taking of DNA samples to the taking of fingerprints has been widely accepted. In addition to the Fourth Circuit in the Jones case, the Second Circuit held "[t]he collection and maintenance of DNA information, while effected through relatively more intrusive procedures such as blood draws or buccal check swabs, in our view plays the same role as fingerprinting." Nicholas v. Goord, 430 F.3d 652, 671 (2d Cir.2005), cert. denied, ___ U.S. ___, 127 S.Ct. 384, 166 L.Ed.2d 270 (2006). The Third Circuit held that "[t]he governmental justification for [DNA] identification ... relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods." United States v. Sczubelek, 402 F.3d 175, 185-86 (3d Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2930, 165 L.Ed.2d 977 (2006). The Ninth Circuit said "[t]hat the gathering of DNA information requires the drawing of blood rather than inking and rolling a person's fingertips does not elevate the intrusion upon the plaintiffs' Fourth Amendment interests to a level beyond minimal." Rise v. State, 59 F.3d 1556, 1560 (9th Cir. 1995).

Some state appellate courts have also concluded that DNA samples should be treated like fingerprints. See State v. Raines, 383 Md. 1, 857 A.2d 19, 33 (2004) ("The purpose [of the DNA profile] is akin to that of a fingerprint. As such, appellee and other incarcerated individuals have little, if any, expectation of privacy in their identity."); State v. O'Hagen, 189 N.J. 140, 914 A.2d 267, 280 (2007) ("We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person.... [T]hat intrusion is no more intrusive than the fingerprint procedure and the taking of one's photograph that a person must already undergo as part of the normal arrest process."); and State v. Brown, 212 Or.App. 164, 157 P.3d 301, 303 (2007) ("Because [using a swab to take a DNA sample from the mucous membrane of an arrestee's cheek] is akin to the fingerprinting of a person in custody, we conclude that the seizure of defendant's DNA did not constitute an unreasonable seizure under [the Constitution.]").

Fingerprinting an arrested suspect has long been considered a part of the routine booking process. Similarly, the taking of a DNA sample by minimally intrusive means "is justified by the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution." 3 Wayne R. LaFave, Search and Seizure § 5.3(c), at 168 (4th ed.2004).

Anderson argues that the saliva samples taken from him upon his arrest in Stafford County led to the "cold hit" implicating him in the offenses involved in this appeal. He maintains that the taking of saliva was a "suspicionless" seizure² contrary to the Fourth Amendment and that all evidence flowing from such a...