G.B. v. United States (In re G.B.), 15–CO–531.
| Decision Date | 26 May 2016 |
| Docket Number | No. 15–CO–531.,15–CO–531. |
| Court | D.C. Court of Appeals |
| Parties | In re Grand Jury Witness G.B. G.B., Appellant, v. United States, Appellee. |
Murad Hussain, with whom Mary C. Kennedy, John St. Leger, and Joanna G. Persio, Washington, DC, were on the brief, for appellant.
Karen P. Seifert, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christine Macey, Assistant United States Attorneys, were on the brief, for appellee.
Before THOMPSON and EASTERLY, Associate Judges, and NEBEKER, Senior Judge.
, Associate Judge:
In this appeal, appellant G.B., the victim of and witness to a stabbing, asks us to hold that “no valid investigative warrant may issue to forcibly take the DNA of a witness who is not suspected of the crime for which the DNA is sought.” We hold instead that, pursuant to Superior Court Rule of Criminal Procedure 41 and consistent with the Fourth Amendment, a search warrant may issue authorizing the government's proposed buccal swab search (and incidental seizure) of G.B. for the purpose of collecting his DNA.
According to the Gerstein affidavit and a search warrant application filed in United States v. Kelly Hughes, No. 2014–CF3–014232, on August 2, 2014, G.B., suffering from two apparent stab wounds
in his arm, went to a fire station to seek medical attention. Police officers responding to the fire station, and later to the hospital to which G.B. was transported, interviewed G.B. G.B. gave them the address of the apartment where the stabbing occurred and told them that his assailant was “Margaret Jones.” Jones, G.B. told the officers, was an occasional sexual partner who had cut him with a butcher's knife after discovering that he had slept with another woman.1 G.B. also told the police officers that he did not “want to do anything about being stabbed.” The police went to the apartment building, where they found blood droplets on the “entrance floor molding” and in the hallway between apartments # 1 and # 2. They also found a bloody doormat in a nearby trash can. They spoke to an individual at the scene (“W1”), who told them that he was inside G.B.'s apartment when he saw a woman named Kelly Hughes, who had been arguing with G.B., slash at G.B. with a kitchen knife and, before leaving the apartment, attempt to clean up G.B.'s blood. On August 11, 2014, officers searched Hughes's rental vehicle pursuant to a search warrant and found blood on the side of the driver's seat.
The government convened a grand jury and sought an indictment against Hughes.2 In conjunction with the government's efforts to prosecute Hughes, the government asked G.B. to voluntarily give a saliva sample (from which could be extracted a sample of his DNA). After G.B. declined to do so, the government applied for a search warrant to take a sample by the buccal swab method.3 The affidavit in support of the search warrant application averred that the swab would “be submitted for DNA analysis to determine whether the source of the blood” in Hughes's rental vehicle is G.B. The Honorable Henry F. Greene issued the search warrant after determining that probable cause existed to believe that “on the person of [G.B.] ... there is now being concealed evidence, namely the victim's cheek cells/saliva (buccal swab)[.]”
G.B. filed a motion to quash the warrant, emphasizing his status as a victim and arguing that a search warrant authorizing the government to forcibly take a buccal swab sample to extract DNA from a crime victim is invalid. On January 22, 2015, the Honorable Melvin Wright denied G.B.'s (first) motion to quash. By that time, the warrant had actually expired by its own terms because more than ten days had passed since its issuance. The government indicated, however, that it would seek another warrant.4 On March 3, 2015, G.B. filed a motion to quash any search warrant authorizing the government to take a buccal swab and to preclude the government from applying for any future warrant for his DNA. After a hearing on April 21, 2015, Judge Wright found that there was probable cause to issue the search warrant for G.B.'s DNA and denied G.B.'s renewed motion, but restricted the use of any DNA extracted pursuant to warrant to the case against Hughes.5
G.B. noticed this appeal from Judge Wright's ruling, and the government agreed not to seek a new warrant pending the outcome of appellate review. Accordingly, the current posture of this case is that the government still intends to apply for a warrant to obtain G.B.'s DNA. G.B. asks this court to rule that the Superior Court erroneously denied his motion to quash and that “no warrant ... may issue for the suspicionless, forcible extraction of DNA from the non-party victim of a crime.”
G.B.'s briefs on appeal advance three primary arguments: (1) that Superior Court Rule of Criminal Procedure 41(b), which describes the limited circumstances in which the Superior Court may issue a warrant, provides no authority for a warrant—or for the seizure of the person that is necessary to execute the warrant—to obtain the DNA of a victim who is not suspected of a crime6 ; (2) that the seizure of his person that would be entailed in taking a buccal swab would be an arrest, which would be invalid because there has been no finding of “probable cause” to believe he is guilty of a criminal offense; and (3) that under a test balancing his interest in privacy against the government's law enforcement needs, forcibly taking a sample of his saliva would be an unreasonable intrusion in violation of his Fourth Amendment rights. For the reasons discussed below, we disagree. Accordingly, given the specific facts of this case, we affirm the judgment of the Superior Court.
In re Grand Jury Subpoenas, 926 F.2d 847, 854 (9th Cir.1991) (); see also
United States v. Hess, 982 F.2d 181, 184–85 (6th Cir.1992) () (citing DiBella v. United States, 369 U.S. 121, 131–32, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) ()). In this case, G.B.'s motion was “completely collateral” to the case against Hughes because (1) Judge Wright's order fully disposed of G.B.'s challenge and (2) G.B.'s right to be free from search would be irretrievably lost if he were forced to submit to a search while awaiting resolution of Hughes's case. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Whether we analogize to cases examining the right to an immediate appeal from a denial of a motion to quash a subpoena and applying the collateral order doctrine, or, instead, analogize to cases holding that the denial of a third-party's motion for return of property is a final order that may be appealed immediately, the analysis weighs in favor of our exercising jurisdiction. And, while there is no live search warrant for G.B.'s DNA, the government has signaled its intent to apply for another. If the government obtains another warrant (with a ten-day life), G.B. would likely have to submit to the forcible taking of his DNA before being able to obtain appellate review. Thus, the circumstance occasioning his appeal is capable of repetition but evading review. See
Weinstein v. Bradford, 423 U.S. 147, 148–49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (); In re Johnson, 691 A.2d 628, 631 (D.C.1997)
(citing Weinstein ). Given all these considerations, we conclude that we may exercise jurisdiction.
Citing the constitutional avoidance doctrine, G.B. argues that we need not reach the issue of whether issuance of the warrant to collect a sample of his DNA contravenes the Fourth Amendment. He urges us instead to resolve this appeal on the basis of his argument that there is no authority to issue a warrant for the proposed search under Super. Ct.Crim. R. 41(b)
.9 “As this is an issue of regulatory interpretation, our review is de novo.” In re D.F., 70 A.3d 240, 243 n. 5 (D.C.2013).
To continue reading
Request your trial