King v. State

434 Md. 472

76 A.3d 1035

Alonzo Jay KING, Jr.

v.STATE of Maryland.

No. 68, Sept. Term, 2011.

Court of Appeals of Maryland.

Sept. 25, 2013.

Celia Anderson Davis, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Appellant.

Sandra K. Levick, Esq., Tara Mikkilineni, Esq., David A. Taylor, Esq., Public Defender Service for the District of Columbia, Washington, D.C., David Rocah, Esq., ACLU Maryland Foundation, Baltimore, MD, for Amici Curiae brief of Public Defender Service for the District of Columbia and American Civil Liberties Union of Maryland in Support of Appellant, Alonzo Jay King, Jr., Urging Reversal.

Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD), on brief, for Appellee.

Argued before BARBERA, C.J., HARRELL, GREENE, ADKINS, BELL, ^*ALAN M. WILNER (Retired, Specially Assigned) and DALE R. CATHELL (Retired, Specially Assigned), JJ.

HARRELL, J.

In King v. State, 425 Md. 550, 42 A.3d 549 (2012) (“King I ”), this Court held that the Maryland DNA Collection Act (the “Act”), which permits the collection by local law enforcement authorities of a DNA sample from individuals arrested for a crime of violence or other enumerated offenses, see Md. Code (2003, 2011 Repl. Vol.), Pub. Safety Art., § 2–504(a)(3), violated the Fourth Amendment to the United States Constitution as applied to Appellant, Alonzo Jay King, Jr. (“King”). In Maryland v. King, –––U.S. ––––, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), the Supreme Court of the United States reversed this Court's judgment, holding instead that the “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” akin to fingerprinting and photographing. Id. at ––––, 133 S.Ct. at 1980, 186 L.Ed.2d at 28. The Court concluded, therefore, that the DNA search of King did not violate his Fourth Amendment rights, and accordingly upheld his conviction for a 2003 rape. Id.

On remand from the Supreme Court, we are presented again with the opportunity to consider the constitutionality of King's conviction.¹ King argued originally before this Court for the reversal of his conviction on the grounds that the Act violated his constitutional rights as provided by the Fourth Amendment, as well as by Article 26 of the Maryland Declaration of Rights. Alternatively, King argued that, by presuming that the seizure of King's DNA was effected in accordance with the Act, the Circuit Court for Wicomico County shifted impermissibly the burden of proof to the defense, thus mandating reversal of his conviction. In King I, we examined King's constitutional argument under the Fourth Amendment, but did not consider expressly his Article 26 argument and did not reach his alternative argument.² King asks this Court now to consider the issues left unresolved by King I. The remaining two questions are:

(1) Does the Maryland DNA Collection Act violate Article 26 of the Maryland Declaration of Rights?; and

(2) Did the trial judge improperly shift the burden of proof to the defense to demonstrate that a search or seizure made without individualized suspicions is reasonable?

I. King Did Not Preserve His Article 26 Argument For Appellate Review.

As a threshold matter, before we might reach the merits of King's Article 26 argument, we must address the State's challenge that King failed to raise this argument before the trial court. This Court will not consider ordinarily any issue “unless it plainly appears by the record to have been raised in or decided by the trial court ...” Md. Rule 8–131(a). “[T]he animating policy behind Rule 8–131(a) is to ensure fairness for the parties involved and to promote orderly judicial administration.” Jones v. State, 379 Md. 704, 714, 843 A.2d 778, 784 (2004). See also State v. Bell, 334 Md. 178, 189, 638 A.2d 107, 113 (1994).

King's argument in the trial court focused solely upon the Fourth Amendment challenge. He failed to include any reference to the Maryland Declaration of Rights. King mentioned Article 26 of the Maryland Declaration of Rights for the first time in his brief to the Court of Special Appeals. Due to this error, the trial court was never given the opportunity to rule on the issue.

Nevertheless, it is well-settled that Md. Rule 8–131(a) vests this Court with the discretionary power “to decide such an [unpreserved] issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Md. Rule 8–131(a). See Abdul–Maleek v. State, 426 Md. 59, 69, 43 A.3d 383, 389 (2012) (“Despite the applicability of general preservation principles, however, we are not precluded absolutely from reviewing Petitioner's [unpreserved] claim.”); Bible v. State, 411 Md. 138, 148, 982 A.2d 348, 354 (2009) (plurality) (“[A]n appellate court's review of arguments not raised at the trial level is discretionary, not mandatory. The use of the word ‘ordinarily’ clearly contemplates both those circumstances in which an appellate court will not review issues if they were not previously raised and those circumstances in which it will.” (internal quotation marks and citation omitted)); Jones v. State, 379 Md. at 712, 843 A.2d at 783 (“The word ‘ordinarily’ in Rule 8–131(a) anticipates that an appellate court will, on appropriate occasion, review unpreserved issues.”). In considering whether to exercise this discretion, this Court examines, through a two-step analysis, whether such an exercise will further or hinder the goals of Rule 8–131(a):

First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties ... Second, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice.

Id., 379 Md. at 713–15, 843 A.2d at 783–85 (discussing the principles this Court laid out “to guide the courts when consideration of unpreserved issues might be proper”).

In the case sub judice, no unfair prejudice results to either the parties or the lower court in our determining King's Article 26 argument. King raises the issue and therefore waives any prejudice for his side. Neither the State nor the lower court is prejudiced by the resolution of this issue because, as will be seen, our conclusion will not upset King's conviction. Furthermore, exercising our discretion to consider this unpreserved issue today will further the goals of Md. Rule 8–131(a) by “ promot[ing] the orderly administration of justice.” Id., 379 Md. at 715, 843 A.2d at 784. “[D]eciding this question will provide guidance to trial courts, which are likely to be faced with the issue in other cases, as well as to lawyers and the public generally.” Bible, 411 Md. at 152, 982 A.2d at 356. Therefore, we choose to exercise our discretion to excuse this default and address King's Article 26 argument.

We caution strongly, however, that “[o]ur decision to review unpreserved issues in this particular case should not be viewed as an indication that we will review unpreserved issues in future cases.” Conyers v. State, 354 Md. 132, 151, 729 A.2d 910, 920 (1999). “While an appellate court has some discretion to address and decide unpreserved issues, ordinarily this discretion will not be exercised.” Id., 354 Md. at 150, 729 A.2d at 919.See also Chaney v. State, 397 Md. 460, 468, 918 A.2d 506, 511 (2007) (“It is a discretion that appellate courts should rarely exercise, as considerations of both fairness and judicial efficiency ordinarily require that all challenges that a party desires to make to a trial court's ruling, action, or conduct be presented in the first instance to the trial court ...”).

II. The Maryland DNA Collection Act Does Not Violate Article 26 Of The Maryland Declaration Of Rights.

Because the Supreme Court determined that the DNA Collection Act complies with the Fourth Amendment, see––– U.S. at ––––, 133 S.Ct. at 1980, 186 L.Ed.2d at 28, King asks us to invalidate instead the search and seizure of his DNA under Article 26 of the Maryland Declaration of Rights. He contends that the collection of DNA samples from all individuals arrested for a crime listed under § 2–504(a)(3) of the Public Safety Article violates Article 26 by authorizing suspicionless general searches. Because King asserts that the collection of his DNA violatedArticle 26, he urges this Court to suppress the DNA evidence.

Article 26 provides:

That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

Although Article 26 pre-dates the Fourth Amendment, Gahan v. State, 290 Md. 310, 319, 430 A.2d 49, 53 (1981), both provisions “grew out of the same historical background,” Givner v. State, 210 Md. 484, 492, 124 A.2d 764, 768 (1956), and contain similar verbiage. Gahan, 290 Md. at 319, 430 A.2d at 54 (quoting A. Niles, Maryland Constitutional Law 50 (1915)); see Liichow v. State, 288 Md. 502, 509 n. 1, 419 A.2d 1041, 1044 n. 1 (1980) (noting that, like the Fourth Amendment, Article 26 “prohibits unreasonable search and seizures”).

As King acknowledges, this Court has interpreted historically Article 26in pari materia with the Fourth Amendment of the U.S. Constitution. See, e.g., Parker v. State, 402 Md. 372, 386, 396, 400–01, 936 A.2d 862, 870, 876, 878–79 (2007); Byndloss v. State, 391 Md. 462, 465 n. 1, 893 A.2d 1119, 1121 n. 1 (2006); Fitzgerald v. State, 384 Md. 484, 506, 864 A.2d 1006, 1019 (2004); Gahan, 290 Md. at 319, 430 A.2d at 54.See also Irma S. Raker, Fourth Amendment and Independent State Grounds, 77 Miss. L.J. 401, 403 (2007) (“With respect to Article 26, Maryland has not resolved Fourth Amendment issues on independent state grounds and continues to interpret ...