Varriale v. State

GEORGE VARRIALE v. STATE OF MARYLAND

No. 85

COURT OF APPEALS OF MARYLAND

Argued: May 7, 2015

September Term, 2014

August 11, 2015

CRIMINAL LAW - SEARCH AND SEIZURE - CONSENT TO SEARCH - SUBSEQUENT USE OF DNA

The use of a buccal swab inside a person's cheek to obtain DNA samples for testing is a search. Generally, a DNA sample may be obtained from an individual for testing by consent, pursuant to a warrant, or other court order. If a person's DNA profile created from a DNA sample is in the lawful possession of the police for examination by consent and does not exceed the scope of the consent given to conduct the search, there is no Fourth Amendment violation. Moreover, the subsequent examination and use of the DNA in an unrelated investigation is not a search. Here, the defendant did not expressly limit the testing and/or use of his DNA. Any legitimate expectation of privacy that Varriale had in the identifying information contained in his DNA obtained from his cheek cells and penile area evaporated when his DNA was lawfully seized; it did not reappear when law enforcement officers compared his DNA sample to other samples and obtained a match.

Circuit Court for Anne Arundel County

Case No. 02-K-13-000548

Barbera, C.J., ^*Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.

Opinion by Greene, J.

Watts, J., joins in judgment only.

Harrell and Adkins, JJ., dissent.

^*Harrell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

In this case, we address whether the subsequent use of a suspect's DNA profile,¹ created from a voluntarily provided DNA sample as part of a criminal investigation, implicates Fourth Amendment principles, where a comparison search of the DNA database reveals a match to forensic evidence obtained from the scene of an earlier, unrelated crime. In 2012, Petitioner George Varriale ("Petitioner" or "Varriale") voluntarily consented to a search of his person, in the form of buccal and penile swabs, for the purpose of furnishing a DNA sample to the Anne Arundel County Police Department during the latter's investigation of a rape allegation. Although the DNA profile created from the extraction of Varriale's DNA supported the conclusion that he did not commit the alleged rape, it subsequently connected him to an earlier, unrelated burglary when Varriale's DNA profile was uploaded to the local DNA database and an automatic search revealed a match to a DNA profile created from the burglary crime scene evidence collected in 2008. Following his indictment on the burglary and related charges, Varriale sought to suppress the DNA evidence as an unlawful search under the Fourth Amendment to the United States Constitution. After the suppression hearing judge denied the motion, Varriale entered into a conditional guilty plea to second degree burglary. He noted a timely appeal of his conviction for burglary. In this case, we shall hold that, where Varriale's consent to searchwas not expressly limited by him, by the State, or by law, the Fourth Amendment does not preclude the State from storing and using his voluntarily provided DNA sample and resultant DNA profile for additional, unrelated criminal investigations.²

FACTUAL AND PROCEDURAL HISTORY

On the morning of July 10, 2012, Detective David Wood of the Anne Arundel County Police Department responded to a call about an alleged rape in the wooded area behind a liquor store in Glen Burnie, Maryland. Upon his arrival at the scene, he was informed that the patrol officers who originally responded to the call had located a possible suspect named"George," a homeless man living in a tent in the wooded area behind the liquor store. Detective Wood approached "George," who then identified himself as George Varriale. Detective Wood identified himself, explained that he was conducting an investigation, and asked Varriale if he would consent to a search of his person. Detective Wood read the Anne Arundel County Police Department's standard Consent to Search Person Form ("consent form") to Varriale and placed a completed consent form in front of him for his signature. Varriale agreed to submit to a search of his person in the form of saliva and penile swabs and signed the form. The consent form stated:

Case #: 12-725920

Date: 7-10-12

I, George Varriale, do hereby consent to a search of my person for the purpose of furnishing evidence relating to one or more of the following:

Hair Blood Saliva Fibers Penile Swabs

Pubic Hair Combings Marks or Injuries Fingerprints Photographs

I know that I do not have to consent to a search of my person.

I realize that if I do consent to a body search, that any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be used in any future criminal prosecution.

This written consent to search my body is being given by me, George Varriale, to Det. Wood # 1371 and any member of the Anne Arundel County Police Dept. and/or medical personnel, voluntarily, without threat or promise of any kind. I am not under the influence of any intoxicating beverage or drug, which would affect my judgment in consenting.

The words "saliva" and "penile swabs" were circled to denote the areas to be searched forthe collection of evidence.³ Shortly thereafter, an evidence technician collected a sample of Varriale's saliva and a swab of his penis for DNA testing. Detective Wood did not arrest Varriale, question him further, or contact him again after July 10, 2012.

Detective Wood submitted the swabs collected from Varriale as well as evidence samples obtained from the female complainant to the County crime laboratory for serological and DNA analysis. The crime laboratory issued a report dated December 12, 2012, stating that a partial DNA profile was obtained from fingernail swabs collected from the alleged victim and that Varriale was excluded as a source of that DNA.

Following the analysis and comparison of the known DNA samples, Varriale's DNA profile was uploaded into the suspect index of the County and State DNA databanks. An automatic search of the County databank compared the DNA profiles of known persons, such as Varriale, to unidentified DNA profiles developed from crime scene evidence. On December 14, 2012, the crime laboratory issued a report to Detective Wood stating that the automatic search resulted in a match between Varriale's DNA profile and a DNA profile associated with an unsolved commercial burglary that occurred in 2008.

Based on that DNA evidence, on March 29, 2013, Varriale was charged in the Circuit Court for Anne Arundel County with two counts of second degree burglary, theft over $ 1,000, and malicious destruction of property. Varriale filed a motion to suppress the State'sDNA match evidence, on the grounds that the subsequent use of his DNA to conduct a comparison search of the DNA databank exceeded the scope of his consent and, therefore, constituted an unreasonable search in violation of his Fourth Amendment rights. The Circuit Court held a hearing on Varriale's motion on August 2, 2013.

At the hearing, Ashley Hayes, a forensic DNA analyst and CODIS Administrator at the County crime laboratory, described the operation of the DNA database system and her analysis of Varriale's DNA sample. She explained that the County crime laboratory participates in CODIS, the FBI's Combined DNA Index System, which consists of three tiers: the National DNA Index System (NDIS), the State DNA Index System (SDIS), and the Local DNA Index System (LDIS).⁴ Each tier represents a separate database within the combined system, CODIS.⁵ Ms. Hayes testified that the Anne Arundel County crimelaboratory maintains a local DNA database, or LDIS, containing DNA samples from cases within the County, over which the County maintains ownership, to include any forensic case work samples and any suspect known samples tested within the County laboratory. She further explained that a "forensic sample" is a DNA sample associated with a crime scene, and a "suspect sample" is a DNA sample taken directly from a known individual who is a suspect in the case. Once samples are uploaded, Ms. Hayes explained, the database program automatically runs a weekly search and generates a report for any matches found within the LDIS, which the laboratory will review prior to determining eligibility for and uploading any DNA profiles to the SDIS or NDIS. Although the NDIS created a "suspect index," Ms.Hayes testified that the County lab does not upload suspect samples, such as Varriale's sample, to either the SDIS or NDIS.

Next, Ms. Hayes testified regarding the analysis and treatment of Varriale's DNA sample. She explained that Varriale's DNA samples were analyzed to develop a DNA profile and then compared to the DNA profile developed from DNA evidence taken from the alleged rape victim. Ms. Hayes testified, and the lab report states, that there was no match between Varriale's DNA profile and the DNA profile obtained from the sexual assault evidence kit. Following the direct comparison analysis, and without informing Detective Wood or giving notice to Varriale, Ms. Hayes designated Varriale's DNA profile as a suspect sample and uploaded it to the LDIS and SDIS.

Following the suppression hearing, the Circuit Court for Anne Arundel County denied Varriale's motion to suppress the DNA evidence. Thereafter, on August 13, 2013, Varriale entered a conditional guilty plea to the second degree burglary charge, reserving his right to appeal the hearing judge's ruling on his motion to suppress. The State entered a nolle prosequi of the remaining charges. The Circuit Court sentenced Varriale to four years, suspending all but time served, and placed him on two years' probation. The same day, Varriale filed an appeal to the Court of Special Appeals.

In a reported opinion, ...