State v. Raines, 129

• Decision Date: 26 August 2004
• Docket Number: No. 129,129
• Parties: STATE of Maryland v. Charles RAINES.
• Court: Maryland Court of Appeals

857 A.2d 19

383 Md. 1

STATE of Maryland v. Charles RAINES.

No. 129, Sept. Term, 2003.

Court of Appeals of Maryland.

August 26, 2004.

J. Joseph Curran, J., Atty. Gen. of Md., and Gary E. Bair, Sol. Gen., Baltimore, on brief, for appellant/cross-appellee.

Stephen B. Mercer (Rene Sandler, Sandler & Mercer, P.C., Rockville, William G. McLain, Washington, DC, on brief), for appellee/cross-appellant.

Marc Rotenberg, Chris Hoofnagle¹, Marcia Hoffmann, Washington, DC, brief of amicus curiae Elec. Privacy Information Center; Timothy P. O'Toole¹, Todd Cox, Alison Flaum, Jennifer Di Toro, Public Defender Service for the District of Columbia, Washington, DC, brief of amicus curiae, Public Defender Service for the District of Columbia in support of appellee, Charles Raines.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

CATHELL, Judge.

On August 21, 2003, Charles Raines, appellee, was indicted by a Montgomery County Grand Jury on the charges of first degree rape, second degree rape and robbery. On January 29, 2004, the Circuit Court for Montgomery County, the motions court,² granted appellee's motion to suppress physical evidence because it found that the Maryland DNA³ Collection Act, Md.Code (2003), § 2-501 et. seq., of the Public Safety Article,⁴ was in violation of the Fourth Amendment to the United States Constitution.

On February 20, 2004, the State of Maryland, appellant, filed an appeal to the Court of Special Appeals and a petition for writ of certiorari to this Court.⁵ On March 2, 2004, appellee filed a conditional cross-petition. This Court granted both petitions on March 11, 2004. State v. Raines, 380 Md. 230, 844 A.2d 427 (2004). We issued our order and mandate, with opinion to follow, reversing the trial court's granting of the motion to suppress. We now explain our decision.

The sole question presented by the State for our review asks:

"Did the suppression court err in ruling that the Maryland DNA Collection Act is unconstitutional as violative of the Fourth Amendment?"

In addition to a variation of the State's question, appellee's cross-petition asks:

"Did the suppression court err in ruling that the Maryland DNA collection statute was not a penal statute in violation of the ex post facto clauses of the federal and state constitutions, as applied to the appellee?"

We hold that the Maryland DNA Collection Act (hereinafter, "the Act") is constitutional and does not violate the Fourth Amendment or the Ex Post Facto Clauses of the United States and Maryland Constitutions. Accordingly, we reverse the suppression court's order granting the motion to suppress. We agree that its decision regarding the Ex Post Facto clauses of the federal and state constitutions was correct.

I. Facts

At approximately 12:00 a.m. on July 14, 1996, the victim was walking home from the Wheaton Plaza area on Viers Mill Road in Montgomery County when she was grabbed from behind, choked to the point of unconsciousness and dragged into a dark area between two neighborhood houses. The assailant pulled her jacket over her head, took her pants off, placed the pants over her eyes as a blindfold and proceeded to rape her several times. The assailant additionally robbed the victim of $150. She gave a description of her attacker which described him as a black male smelling of cigarette smoke, who was approximately five feet eight inches tall and possibly with facial hair.

The police recovered some evidence at the scene of the attack. A sexual examination of the victim was performed at Shady Grove Adventist Hospital and, using vaginal swabs, semen was recovered from the victim. A subsequent laboratory analysis of the semen produced a DNA profile of the attacker. The authorities, however, were unable to identify a suspect even after the discovery of this evidence and an extensive police investigation. Pursuant to the Maryland DNA Collection Act, on November 8, 1999, appellee, who was incarcerated,⁶ had the inside of his cheek swabbed⁷ so the State could obtain a DNA⁸ sample⁹ to be submitted to the Maryland DNA data bank.¹⁰ In October of 2002, the DNA profile of the victim's 1996 attacker was submitted to the Maryland DNA data bank for comparison in order to discover the identity of her attacker. The attacker's profile matched the DNA profile from appellee's November 8th cheek swab.

As the Act provides, this match resulted in probable cause to obtain another DNA sample from appellee. In February of 2003, the State secured a search warrant for the purpose of obtaining a saliva sample from appellee for a second DNA profile. This February 2003 DNA profile of appellee produced a second match to the DNA profile of the victim's attacker. After the second match between appellee's DNA and the attacker's DNA was made, the statistical probability of anyone other than appellee being the source of the DNA of the attacker was determined to be one in six billion.

On August 21, 2003, as a result of these DNA profile matches and the victim's testimony, appellee was indicted by a Montgomery County Grand Jury on the charges of first degree rape, second degree rape and robbery. Appellee filed a motion to suppress the DNA evidence obtained from him in February of 2003 because of his belief that the procedure used to obtain the November 8, 1999 DNA sample (which lead to the DNA profile match constituting the probable cause for the search warrant that produced the latter DNA sample) was unconstitutional. On January 28, 2004, the motions court, without a hearing, granted appellee's motion to dismiss, stating that the collection of appellee's DNA in 1999 and 2003 violated his Fourth Amendment right to be free from unreasonable searches and seizures. The suppression court relied on the United States Supreme Court cases of City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), and Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), in finding that appellee's legitimate expectation of privacy was violated in 1999 because the State had no "probable cause or individualized suspicion to justify a search that unquestionably is to advance the general needs of law enforcement."

II. Discussion

While several other states have decided issues similar to that in the case sub judice, this is the first time in which this Court has addressed the constitutionality of Maryland's DNA collection statute. The central issue dealing with the constitutionality of the Act is whether the collection of DNA from a certain class of convicted persons is in accord with the protections of the Fourth Amendment of the United States Constitution to be free from unreasonable searches and seizures. Appellee also challenges the Act as being in violation of the Ex Post Facto clauses of the federal constitution and the State declaration of rights.

A. Fourth Amendment

The Fourth Amendment of the United States Constitution protects individuals from unreasonable government searches and seizures, and it guarantees:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

These guaranteed Fourth Amendment protections are applicable to the State of Maryland through the Fourteenth Amendment of the United States Constitution. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961)

; Owens v. State, 322 Md. 616, 622, 589 A.2d 59, 61,

cert. denied, 502 U.S. 973, 112 S.Ct. 452, 116 L.Ed.2d 470 (1991).

In the last fifteen years, state governments began to enact DNA collection statutes, and currently all fifty states and the federal government, see 42 U.S.C. §§ 14131-34, have some type of DNA collection statute that requires some or all convicted felons to submit a tissue sample, either blood, saliva or other tissue, for DNA profile analysis and storage in a DNA data bank. See Michelle Hibbert, DNA Databanks: Law Enforcement's Greatest Surveillance Tool?, 34 Wake Forest L.Rev. 767, 771 n. 12 (1999) (citing all state statutes); Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 1087 (1999); see also Robin Cheryl Miller, Validity, Construction, and Operation of State DNA Database Statutes, 76 A.L.R.5th 239 (2000) (citing to several state DNA collection statutes).

Specific to the case sub judice, the Maryland DNA Collection Act is located within Title 2, Subtitle 5 of the Public Safety Article of the Maryland Code. The initial provisions of the Act set up the regulatory scheme, identify the classes of persons subject to the Act and establish the procedures and purposes of the Act. After defining terms in § 2-501, the Act focuses on the creation of a statewide regulatory DNA data base system, including the establishment of the Office of Director. Md.Code (2003), § 2-502 of the Public Safety Article.¹¹ It then calls for the Director and Secretary of the State Police to consult with each other in reference to adopting appropriate regulations for the administration of the system in addition to several other required regulations. § 2-503. The procedures for the collection of DNA samples are set out in § 2-504 of the Act as follows:

"§ 2-504. Collection of DNA samples.

(a) In general. — (1) In accordance with regulations adopted under this subtitle, and if adequate funds for the collection of DNA samples are appropriated in the State budget, an individual who is convicted of a felony or a violation of § 6-205 or § 6-206 of the Criminal Law Article shall:

(i) have a DNA sample collected on intake to a correctional facility, if the individual is sentenced to a term of imprisonment; or

(ii) provide a DNA sample as a condition of sentence or probation, if the individual is not sentenced to a term of

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