United States v. Schreiber

• Decision Date: 07 August 2017
• Docket Number: No. 16-3847,16-3847
• Citation: 866 F.3d 776
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Aaron SCHREIBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

866 F.3d 776

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.Aaron SCHREIBER, Defendant-Appellant.

No. 16-3847

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2017

Decided August 7, 2017

Andrew John Dixon, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.

James David Jameson, Attorney, Arlington Heights, IL, for Defendant-Appellant.

Before Bauer, Easterbrook, and Ripple, Circuit Judges.

Ripple, Circuit Judge.

In April 2011, the police arrested Aaron Schreiber for robbing a liquor store in Summit, Illinois. After a state grand jury indicted him for the liquor store robbery, a DNA buccal swab was taken from Mr. Schreiber. That DNA sample later linked him to a 2010 bank robbery, and federal authorities then charged him with that crime.

Prior to his federal bank robbery trial, Mr. Schreiber moved to suppress the DNA evidence. He contended that the state authorities had lacked probable cause to arrest him for the 2011 liquor store robbery and that the buccal swab was the fruit of that illegal arrest. The district court denied the motion to exclude the evidence, and Mr. Schreiber was convicted of bank robbery.

Mr. Schreiber now appeals that conviction and argues that the district court erred in admitting the DNA evidence and, at the very least, erred in failing to hold an evidentiary hearing on his motion to suppress. We now conclude that the district court correctly held that police may take a buccal swab after an arrest supported by probable cause and that a grand jury's issuance of an indictment is conclusive on the question of probable cause. Moreover, because Mr. Schreiber did not come forward with any disputed material facts, the district court did not abuse its discretion in refusing to conduct an evidentiary hearing.

IBACKGROUND

A.

On December 20, 2010, the Archer Bank in Summit, Illinois, was robbed. In their subsequent investigation, the police recovered several items discarded by the bank robber, including a black stocking, gloves, a pair of Nike tennis shoes, and a red sweatshirt. DNA samples were retrieved from the recovered items and entered into the state's DNA indexing system; the crime, however, remained unsolved.

On April 16, 2011, Officer Armando Dominguez of the Summit Police Department observed a black Chevrolet Suburban driving slowly near a liquor store. He attempted to run the license plate and prepared to initiate a traffic stop, but was called to the scene of another incident prior to doing so. 7Shortly thereafter, at approximately 7:03 p.m., the Liquor Stop in Summit was robbed. Witnesses described the robber as a black male wearing a white hooded sweatshirt who, after robbing the store, fired a round from his handgun and fled in a black Chevrolet Suburban. Upon learning these details and reviewing security camera footage, Officer Dominguez radioed local authorities with the license plate of the Suburban that he had seen earlier.

At approximately 7:38 p.m., Officer Dominguez received notification that officers with the Blue Island Police Department had stopped a black Suburban, which was carrying three passengers, including Mr. Schreiber. Officer Dominguez drove to the scene, peered through a window, and saw a white hooded sweatshirt on the back seat and loose cash on the floor of the vehicle. Officer Dominguez arrested the occupants of the car, and, one month later, a state grand jury indicted Mr. Schreiber for armed robbery of the liquor store and related crimes. After the indictment and while Mr. Schreiber was awaiting trial, state officials collected a DNA sample by way of a buccal swab.¹ The results of the sample were entered into Illinois's DNA indexing system.

The DNA sample ultimately linked Mr. Schreiber to the 2010 bank robbery, and, on December 11, 2014, a federal grand jury indicted Mr. Schreiber for that crime.²

Meanwhile, Mr. Schreiber's state proceedings continued. Prior to trial on the state charges, Mr. Schreiber filed a motion to suppress evidence and to quash arrest/dismiss charges on the ground that the police lacked probable cause to arrest him for the liquor store robbery.³ On February 6, 2015, after an evidentiary hearing, the state court granted Mr. Schreiber's motion, ruling that the police may have had reasonable suspicion to stop the vehicle in which Mr. Schreiber was a passenger, but, based on the evidence presented, they had not connected Mr. Schreiber to the liquor store robbery. The state charges were dismissed.

B.

After this victory in state court, Mr. Schreiber, now defending against the bank robbery charges in federal court, moved to suppress the DNA evidence recovered through the buccal swab. In support of his motion, he first argued that the state court's determination that there was no probable cause to arrest Mr. Schreiber precluded a contrary ruling by the federal district court. Alternatively, he argued that the taking of the buccal swab was unconstitutional because the police lacked sufficient evidence to arrest and to detain him after the initial investigatory stop by the Blue Island police.

The district court initially denied the motion to suppress, but then ordered additional briefing. Later, after hearing oral argument, the district court again denied the motion. The court rejected Mr. Schreiber's contention that the state court's determination precluded a redetermination by the federal court. The district court noted that the state court's judgment was unclear, but then held that, because the Government had not been a party to the state court proceeding, it was not bound by the state court's judgment. The district court then went on to uphold the taking of the DNA sample from Mr. Schreiber. It held that taking buccal swabs is permissible as part of a booking procedure following an arrest supported by probable cause. The grand jury indictment was, moreover, conclusive on the question of probable cause. The court further noted that, "[j]ust as a law enforcement officer may rely in good faith on the finding of probable cause inherent in a facially valid search warrant, a law enforcement officer may rely in good faith on a grand jury's indictment to conduct a search."⁴ The court accordingly concluded that "[t]he state official who swabbed Schreiber's cheek was entitled to rely on the fact of Schreiber's indictment to swab him for DNA, and the United States was entitled to rely on the fact of the state grand jury indictment in choosing to use that evidence for its own prosecution."⁵

Following a bench trial, the district court found Mr. Schreiber guilty of bank robbery and sentenced him to eighty-four months' imprisonment.

IIDISCUSSION

A.

Mr. Schreiber now asks that we review the district court's ruling. In his view, the district court should have suppressed the DNA evidence under the "fruit of the poisonous tree" doctrine because it was the result of the allegedly illegal 2011 arrest for the liquor store robbery.

We cannot accept this contention.⁶ It is foreclosed by the Supreme Court's decisions in Maryland v. King , ––– U.S. ––––, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), and Kaley v. United States , ––– U.S. ––––, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). In King , the defendant was arrested, charged with assault, and processed for detention. In accordance with state law, booking personnel took a buccal sample from the defendant and uploaded it to the state's DNA database. Shortly thereafter, investigators in an unsolved rape case matched DNA evidence to that sample. In the subsequent rape prosecution, the state appellate court held that taking the sample had violated the defendant's Fourth Amendment rights. The Supreme Court reversed. It held that

[i]n light of the context of a valid arrest supported by probable cause respondent's expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody.... When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

King , 133 S.Ct. at 1980.

The manner of collecting Mr. Schreiber's DNA sample was identical to the procedure employed in King;⁷ authorities used a buccal swab to take a DNA sample and then submitted it to a state DNA directory. The only remaining question, therefore, is whether Mr. Schreiber's detention was supported by probable cause when authorities took the sample.

The state grand jury indictment, which occurred prior to the procurement of the sample, established definitively the requisite probable cause. See Kaley , 134 S.Ct. at 1097. In Kaley , a grand jury previously had indicted the defendants for re-selling stolen medical devices and for laundering the proceeds. The Government then obtained a restraining order under 21 U.S.C. § 853(e)(1), which froze the defendants' forfeitable assets. The defendants challenged the restraining order on the ground that the Government had proceeded with the forfeiture even though it lacked probable cause to believe that they had committed the offenses permitting forfeiture. The Supreme Court held, however, that "[a]n indictment fair upon its face, and returned by a properly constituted grand jury, ... conclusively determines the existence of probable cause to believe the defendant perpetrated the offense alleged." Kaley , 134 S.Ct. at 1097 (emphasis added) (internal quotation marks omitted). The defendants could not challenge the grand jury's determination of probable cause, reasoned the Court, because "[a] defendant has no right to judicial review of...