Williamson v. State

993 A.2d 626, 413 Md. 521, 2010 Md. LEXIS 175

• Court: Court of Appeals of Maryland
• Decided: April 22, 2010
• Docket: 61 September Term, 2009
• Status: Published

Opinions

BATTAGLIA, Judge.

The writers for the NBC television series Law & Order Special Victims Unit would be hard pressed to author an episode full of more issues involving DNA than found in this case in which the Anne Arundel County police, in 2006, matched DNA of the Appellant, Kelroy Williamson, retrieved from his discarded McDonald’s cup to the DNA found in two separate rape victims’ forensic medical examinations in 1994 and 2002. Williamson was convicted by a jury in the Circuit Court for Anne Arundel County in 2007 on charges of rape and related offenses¹ for the 2002 crime, and he appealed to the Court of Special Appeals, arguing that his arrest warrant for the 2002 rape was based on a statement of probable cause predicated upon the illegal testing of the DNA from the discarded cup and the 1994 forensic examination, as well as the uploading of his DNA profile into a local database and search of that database for a profile match. His challenges are premised in the Maryland DNA Collection Act² and the Fourth Amendment to the United States Constitution,³ and he seeks review of the trial judge’s denial of his motion to suppress the obtaining and testing of the 2006 DNA sample and his statement to police as the poisonous fruits of an illegal arrest. We granted certiorari, Williamson v. State, 409 Md. 47, 972 A.2d 861 (2009), prior to any proceedings in the Court of Special Appeals, to consider the following question:

Was it error to deny the motion to suppress evidence obtained in violation of Appellant’s statutory and Fourth Amendment rights?

We hold it was not error to deny the motion to suppress the DNA evidence obtained in 2006 or the Appellant’s statement to police, and we affirm the Circuit Court judge’s dismissal of the motion to suppress.

FACTS AND PROCEDURAL HISTORY

In setting forth the facts, we adopt a timeline suggested by the State in its brief, although we have provided our own recitation of events:

In an unrelated case, an acquaintance of Williamson told the police that Williamson had raped her. She underwent a forensic medical examination, and vaginal swabs were collected but not tested for the presence of the assailant’s deoxyribonucleic acid (DNA). Williamson was arrested for the offense, but he claimed that the sexual intercourse was consensual. He ultimately entered an Alford plea⁴ to battery.

September 21, 2002

Eight years later, a different complainant alleged that she was raped by an unknown assailant. Vaginal swabs containing a DNA sample⁵ were recovered during her forensic medical examination, and the sample, as tested by the Anne Arundel County Police Crime Lab, yielded a DNA profile of the assailant. The DNA profile was uploaded to the statewide DNA database system,⁶ thereby creating a DNA record.⁷ The DNA record was then uploaded to the Federal Bureau of Investigation’s “Combined DNA Index System” or “CODIS.”⁸ After a search of CODIS revealed no match, the complainant’s assailant remained unknown.

May 18, 2004

After Anne Arundel County Police obtained funding through a private grant to conduct DNA tests in cold cases, they submitted the 1994 vaginal swab collected during the forensic medical examination for testing, along with more than 50 samples from other “cold cases.”

September 9, 2005

One year and four months later, the testing of the 1994 vaginal swab yielded a DNA profile of that assailant.

Unknown Date

The Anne Arundel County Police uploaded the DNA profile of the 1994 assailant into CODIS, thereby creating a DNA record.

December 7, 2006

The Anne Arundel County Police Crime Lab compared the DNA record of the 1994 assailant against the records in CODIS and determined that the 1994 DNA record matched the DNA record of the rape victim’s assailant in 2002. Detective Tracy Morgan, an investigator in the Anne Arundel County Sex Offense Division, was informed that Williamson, who pleaded guilty to battery in the 1994 incident, may have been involved in both the 1994 and 2002 incidents.

December 11, 2006

After Detective Morgan learned that Williamson had an open arrest warrant on unrelated charges, she contacted the Anne Arundel County Police Criminal Unit to arrest him and bring him to the Eastern District Police Station in Pasadena. While Williamson was being arrested, arrangements were being made to secure a meal for him while he was awaiting booking, a procedure followed by the Pasadena precinct. A meal from McDonald’s was secured and brought to the Eastern District Police Station where Williamson was held, while awaiting booking. Williamson accepted the meal, and after having finished eating, discarded the wrappers and cup on the floor of the cell. When Williamson left the cell, Detective Morgan entered and retrieved the McDonald’s cup and took it to the crime lab to have it tested for DNA. The crime lab tested Williamson’s DNA on the cup, which yielded a DNA record matching the DNA record of the 2002 assailant.

December 14, 2006

Detective Morgan submitted an application for an arrest warrant for the 2002 rape, upon which she predicated probable cause upon the following: (1) the match between the DNA records from the 1994 and 2002 forensic medical examinations, and (2) the match between the DNA records from the 2002 forensic medical examination and the McDonald’s cup.⁹ Williamson was arrested in connection with the 2002 rape and was interviewed at the Eastern District Police Station at which time he confirmed his home address in 2000 and 2001 at a location not far from the 2002 rape scene.

A grand jury indicted Williamson on charges of rape in the first and second degrees, sexual offense in the first and second degrees, unnatural and perverted sexual practice, assault in the first and second degrees, and reckless endangerment, for the 2002 incident.

As one of its pretrial motions, the State filed a Motion to Give Saliva Samples, and the Circuit Court for Anne Arundel County ordered Williamson to provide a saliva sample on February 26, 2007. Williamson filed an Emergency Motion for Appropriate Relief, arguing that the Court should rescind or recall its order, because he was challenging and would continue to challenge the testing of his previously acquired samples of DNA and the alleged illegal seizure of his DNA on December 11, 2006. The Court denied Williamson’s motion. A DNA sample was collected from Williamson and again yielded a DNA record matching that of the 2002 rape assailant.

Judge Paul A. Hackner held a suppression hearing and denied Williamson’s motion to suppress the DNA taken from him in 1994, 2006, and 2007. Judge Hackner based his decision, in part, on the following findings and conclusions regarding the 1994 DNA from the vaginal swab:

The Court finds as follows: The proffers—and I don’t think there’s any real factual dispute. And that’s why there’s probably no—there’s no need for any evidence on this point. But the facts as I believe are undisputed are that the defendant’s 1994 genetic material was collected by the police from the victim of the assault that occurred in 1994. It was not obtained from the defendant. And that’s a huge, important distinction between that and all of the issues having to do with the DNA Collection Act.

The material that was deposited on the body or in the body of the victim in the 1994 case was retained by the police department and ultimately was processed, manipulated, if you will, compared to other samples and what have you.

In order for the Court to suppress either that result or anything that flows from it, I would have to conclude that there was a Fourth Amendment violation, which therefore means I would have to find that property was seized from the defendant or obtained from the defendant as a result of an unlawful search or seizure.

And I cannot imagine under what circumstances the Court could come to that conclusion when, by all possible logic, the genetic material that was deposited in the 1994 victim was clearly abandoned. And at that point, there was no longer any expectation of privacy, reasonable or unreasonable for that matter, and certainly not one that society would honor.

And so without there being an expectation of privacy in that material, the defendant long ago lost any right to complain about what was done to it. So to the extent that that implicates his standing to challenge the 1994 sample and any subsequent activity that was involved with it, I find he has no standing.

And to the extent that he might have standing, I find that there is no reasonable expectation of privacy. Therefore, there is no violation of the Fourth Amendment. And I have not been told, and I don’t find in my own readings of the material, that there is any statutory suppression that is appropriate.

So therefore, even if I were to assume for the sake of argument that there was some violation of the DNA Collection Act, I don’t find that that’s a basis to suppress the 1994 sample and the subsequent match of that 1994 sample to any other known information that the police had.

In addressing the motion to suppress the DNA retrieved from the McDonald’s cup in 2006, Judge Hackner stated:

The Constitution, particularly the Fourth Amendment, protects against unreasonable searches and seizures. Period. The end. That’s what it protects. And in order to have a claim that your Fourth Amendment right has been violated, you have to have a reasonable expectation of privacy.

And in this case, the Court finds that the defendant did not have a reasonable expectation of privacy in either the cup or the saliva or genetic material that he left on the cup as a result of drinking the soda or whatever it was that was it.

[T]he Court finds as a factual matter that from the evidence before me there is no reasonable way for the Court to conclude that this defendant had any intentions whatsoever to hold on to that cup or to hold on to that trash or take it with him or to do anything to preserve some sort of property interest in it.

The fact of the matter is that he had neither a privacy interest in the materials, the cup, the paper bag, or what have you, nor did he have a property interest in the place form which they were seized, which is the temporary lockup cell that he was in.

What we have here is clearly an area where he doesn’t have any expectation of privacy to begin with and an object that he quite clearly left behind because he was done with it. And don’t think that it’s unlawful at this point for them to search the cell and collect the trash and then to ultimately analyze it.

So I don’t find that the December 11, 2006 collection, if you will, of his DNA from the McDonald’s cup was unlawful and is not subject to suppression. And I will deny the motion to suppress it.

With respect to Williamson’s statement regarding the location of his home in 2000 and 2001, Judge Hackner denied its suppression and opined:

I find that the arrest that occurred on or about December 14 was premised upon adequate and reasonable probable cause. And that, therefore, means that the statement is lawfully acquired, given that there is no Miranda violation. So with respect to the motion to suppress the statement, the motion is denied.

STANDARD OF REVIEW

When we review a trial court’s grant or denial of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment, we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion. Bailey v. State, 412 Md. 349, 362, 987 A.2d 72, 80 (2010), Crosby v. State, 408 Md. 490, 504, 970 A.2d 894, 902 (2009); Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007); State v. Nieves, 383 Md. 573, 581, 861 A.2d 62, 67 (2004); Laney v. State, 379 Md. 522, 533, 842 A.2d 773, 779 (2004). We defer to the trial court’s fact-finding at the suppression hearing, unless the trial court’s findings were clearly erroneous. Bailey, 412 Md. at 362, 987 A.2d at 80; Crosby, 408 Md. at 504-05, 970 A.2d at 902. Nevertheless, we review the ultimate question of constitutionality de novo and must “make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Bailey, 412 Md. at 362, 987 A.2d at 80.

DISCUSSION

Williamson argues that Circuit Court judge erred in denying his motion to suppress the DNA evidence obtained in 2006 and his statement to police. Williamson contends that at least four acts violated his statutory and constitutional rights, which ultimately led to the “cold hit” match that implicated him in the 2002 rape. First, he appears to argue that the “police-created abandonment” of the McDonald’s cup in 2006 led to its illegal and warrantless DNA testing. Second, he asserts that even though the 1994 DNA may have been obtained lawfully, it was unlawfully uploaded to a database in violation of the Maryland DNA Collection Act. Third, he contends that the subsequent search of the database to find a match for the 1994 DNA sample required a warrant and was conducted in violation of the Maryland DNA Collection Act and the Fourth Amendment. Finally, Williamson argues that the previous three events, which he contends violated the Fourth Amendment and led to his unlawful arrest, tainted his statement to police, despite having been given his Miranda rights.

The State contends under the Fourth Amendment that the Circuit Court correctly denied the motion to suppress the DNA evidence and the statement to police, because the evidence was obtained as a result of a lawful arrest and willful abandonment of his DNA. The State asserts that the police lawfully acquired Williamson’s discarded McDonald’s cup, which allowed them to test the DNA on the cup “without running afoul of the Fourth Amendment.” The State then alleges that the testing of the 1994 DNA sample and the uploading of the DNA record was lawful, because the DNA sample was legitimately collected from a crime scene and the Maryland DNA Collection Act neither includes an exclusionary rule nor prohibits the querying of lawfully acquired DNA records in CODIS. Finally, the State argues that Williamson’s arrest was lawful such that his statement to police was admissible.

A. McDonald’s Cup

1. Abandonment of Cup

There is some confusion about whether Williamson is pursuing the issue of abandonment of the McDonald’s cup on appeal, because in his brief, he argues there was no abandonment of the cup, but later states that “its removal from that cell was lawful”; this contradiction was exacerbated at oral argument when Williamson’s counsel was asked about whether the appellant was pursuing an abandonment claim and counsel appeared to vacillate:

We are certainly challenging the use of the DNA from the cup.... It was not the taking of the cup, the seizure of the cup was legal, obviously a cell has to have trash removed from it.... Abandonment implies a volitional act of relinquishment. The Attorney General refers to abandonment in the property law sense and that was the traditional approach prior to Katz v. United States, [389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ]____ A justified expectation of privacy may exist as to items which have been abandoned in the property sense.

Although it is unclear whether the abandonment issue is before us, discretion is the better part of valor,¹⁰ and we will address whether Williamson’s discarding of the McDonald’s cup constituted an abandonment of the cup from which DNA was taken, which would appreciably affect our Fourth Amendment analysis.

The Fourth Amendment to the United States Constitution, made applicable to the States through the adoption of the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961); Paulino v. State, 399 Md. 341, 349, 924 A.2d 308, 313 (2007). The person invoking Fourth Amendment protections bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items seized. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226 (1979). In Laney v. State, 379 Md. 522, 545, 842 A.2d 773, 786-87 (2004), we explained that this burden consists of two inquiries, “(1) whether the individual has a subjective expectation that his or her property or possessions will not be searched, and (2) whether the expectation is objectively reasonable under the circumstances.” Accord Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373, 379 (1998); California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30, 36 (1988); Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387, 401-02 n. 12 (1978); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 587-88 (1967) (Harlan, J., concurring); Wallace v. State, 373 Md. 69, 81, 816 A.2d 883, 890 (2003).

In Katz v. United States, Justice John M. Harlan, in a concurring opinion, expressed a two-prong test, which we have adopted, Venner v. State, 279 Md. 47, 51-52, 367 A.2d 949, 952 (1977), requiring that the person claiming protection under the Fourth Amendment demonstrate an actual (subjective) expectation of privacy in the item or place searched, as well as prove that the expectation is one that society is prepared to recognize as reasonable. Katz, 389 U.S. at 361, 88 S.Ct. at , 19 L.Ed.2d at 587-88. A person demonstrates a subjective expectation of privacy by showing that he or she sought “to preserve something as private.” McFarlin v. State, 409 Md. 391, 404, 975 A.2d 862, 869 (2009), citing Whiting v. State, 389 Md. 334, 349, 885 A.2d 785, 793-94 (2005), quoting Smith, 442 U.S. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226-27. In discussing the scope of a legitimate expectation of privacy, the Supreme Court has opined that an objectively reasonable expectation of privacy has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society,” and constitutes “more than a subjective expectation of not being discovered.” Rakas, 439 U.S. at 143-44 n. 12, 148, 99 S.Ct. at 430-31 n. 12, 433, 58 L.Ed.2d at 401-02 n. 12, 404; see also McFarlin, 409 Md. at 404, 975 A.2d at 869. In Greenwood the Supreme Court stated that, “[a]n expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.” Greenwood, 486 U.S. at 39-40, 108 S.Ct. at 1628, 100 L.Ed.2d at 36; see also Wallace, 373 Md. at 80-81, 816 A.2d at 890.

Fourth Amendment protection, however, does not extend to property that is abandoned or voluntarily discarded, because any expectation of privacy in the item searched is discarded upon abandonment. Stanberry v. State, 343 Md. 720, 731, 684 A.2d 823, 828-29 (1996), citing Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668, 687 (1960); see also Morton v. State, 284 Md. 526, 531, 397 A.2d 1385, 1388 (1979); Everhart v. State, 274 Md. 459, 483, 337 A.2d 100, 114 (1975). The test for determining whether property is abandoned for purposes of the Fourth Amendment differs from the property law concept of abandonment and instead, focuses on whether the owner of the property retained a reasonable expectation of privacy in the article alleged to be abandoned. Stanberry, 343 Md. at 732, 684 A.2d at 829, citing Venner, 279 Md. at 53, 367 A.2d at 952.

In Venner, 279 Md. at 48-49, 367 A.2d at 950-51, Charles Venner, having been convicted on drug charges, argued that evidence derived from the seizure of balloons, containing hashish oil, from his stools, excreted in a hospital, should be suppressed, because the police did not obtain a search warrant for the balloons. We held that Venner did not maintain an expectation of privacy in his excrement, and that the stools were abandoned property, because he “could not have had an ‘expectation ... that society [would be] prepared to recognize as “reasonable” ’ a property right in human excreta for the simple reason that human experience is to abandon it immediately.” Id. at 59, 367 A.2d at 956 (alterations in original), quoting Katz, 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 587-88.

In finding the warrantless search of the defendant’s stools constitutional, we relied on United States v. Cox, 428 F.2d 683 (7th Cir.1970), and found persuasive its examination of the warrantless seizure and analysis of hair clippings procured from an incarcerated individual named Charles Layton Cox and used to connect him to another strand of hair left at the scene of a robbery. The hair samples in question were obtained after a routine haircut of Cox while he was in jail, although at the behest of the FBI in the instance in question. After Cox’s hair was cut, the “barber” preserved the hair clippings in an envelope and sent them to the FBI for analysis. Cox argued that, absent emergency circumstances, the warrantless seizure of his hair samples by the police constituted a violation of his Fourth Amendment rights. The Seventh Circuit, however, found that the Government’s seizure and preservation of the hair clippings occurred after Cox had voluntarily abandoned his hair, so Cox could not object to the appropriation and subsequent testing of his hair. Id. at 687-88.

Here, Williamson unequivocally abandoned the McDonald’s cup after he had been offered a meal, accepted it, and then threw the debris from the meal on the floor. He certainly did not retain the cup as his own and clearly, while in the premises of the prison, could not reasonably expect that the police would not collect, and potentially investigate, the trash he discarded in his cell. See Brashear v. State, 90 Md.App. 709, 723, 603 A.2d 901, 907, 1992 Md.App. Lexis 129, *19-20 (1992) (holding that it would be “ludicrous” for a prisoner to presume that a crumbled piece of paper left in an interrogation room would be disposed of without police examination), citing Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393, 402-03 (1984) (holding that a prisoner had no reasonable expectation of privacy in his jail cell).

We have found no cases, and Williamson cites to none, that support the notion that Williamson did not abandon the cup, from which he drank, when he discarded it on the floor of the holding cell.¹¹ Rather, quite the opposite is true. In similar circumstances, courts in other jurisdictions have ordained that abandonment had occurred. See Piro v. State, 146 Idaho 86, 190 P.3d 905 (Ct.App.2008) (holding that a suspect did not have a reasonable expectation of privacy in his discarded genetic material left on a water bottle in an interrogation room); State v. Glynn, 38 Kan.App.2d 437, 166 P.3d 1075 (2007) (holding there was no constitutional violation or infringement of privacy rights when the police used a lawfully obtained DNA profile from one case to investigate and charge the DNA donor in a subsequent and different case); Commonwealth v. Perkins, 450 Mass. 834, 883 N.E.2d 230 (2008) (holding that a defendant did not have a reasonable expectation of privacy in his abandoned cigarette butts or soda can that he left in an interrogation room and were subsequently tested for his DNA); Commonwealth v. Cabral, 69 Mass.App.Ct. 68, 866 N.E.2d 429 (2007) (holding a defendant did not maintain an expectation of privacy in spit he expectorated on a public sidewalk, or the DNA retrieved from his saliva; objectively, society would not recognize his expectation of privacy in his spittle as reasonable); Commonwealth v. Ewing, 67 Mass.App.Ct. 531, 854 N.E.2d 993 (2006) (holding that a defendant did not have a reasonable expectation of privacy in cigarette butts that he voluntarily abandoned as trash, and the DNA evidence obtained was admissible, absent evidence of coerced abandonment, even if the defendant’s trash was obtained under a ruse); People v. Sterling, 57 A.D.3d 1110, 869 N.Y.S.2d 288 (2008) (holding that once the police lawfully obtained a discarded milk carton from an imprisoned defendant, he no longer retained any expectation of privacy in his discarded genetic material); People v. Ayler, 5 Misc.3d 1020, 799 N.Y.S.2d 162 (N.Y.Sup.Ct.2004) (holding that a defendant did not have any expectation of privacy in his discarded cigarette butts seized from an interrogation room, as well as the DNA results obtained therefrom); People v. Barker, 195 Misc.2d 92, 757 N.Y.S.2d 692 (Monroe County Ct.2003) (holding that a jailed defendant had no reasonable expectation of privacy in a plastic spoon discarded in his cell or his DNA profile gleaned from the spoon after it was thrown away); State v. Athan, 160 Wash.2d 354, 158 P.3d 27 (2007) (holding that a police ruse to obtain DNA from a suspect’s saliva after his licking an envelope was constitutional and the DNA evidence was admissible under both state and federal constitutions, because the defendant could not maintain a reasonable expectation of privacy in his discarded genetic material, there was no recognized privacy interest in voluntarily discarded saliva, and there exists a legitimate government purpose in collecting a suspect’s discarded DNA for identification purposes).

2. Testing of Cup

Williamson argues that even if the police officer’s seizure of the cup was lawful, the testing of DNA on the cup was a separate search, and that it was unreasonable to conduct the test merely because the police had lawfully seized something with Williamson’s DNA, because he was being detained and because he had a reasonable expectation of privacy in his DNA. Williamson contends that the testing of the DNA sample violated the Maryland DNA Collection Act, and specifically, Section 2-504 of the Public Safety Article. The State argues, conversely, that a “search” of the cup never occurred, because the cup was abandoned property not entitled to Fourth Amendment protection, and neither the Maryland DNA Collection Act nor the Fourth Amendment prohibited the State from analyzing a lawfully acquired DNA sample.

Section 2-504 of the Public Safety Article, which limits collection of DNA samples from certain convicted individuals, provides in relevant part:

(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 [Section] 6-205 [misdemeanor burglary in the fourth degree] or [Section] 6-206 [misdemeanor breaking and entering a motor vehicle] 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 imprisonment.

Had the police compelled Williamson to give a DNA sample as a pretrial detainee, Williamson’s argument may have had some weight. Williamson, however, was not compelled to give his DNA, which, according to Section 2-505(a) of the Public Safety Article, could be collected and tested for a number of reasons:

(a) In general.—To the extent fiscal resources are available, DNA samples shall be collected and tested:

(1) to analyze and type the genetic markers contained in or derived from the DNA samples;

(2) as part of an official investigation into a crime;

(3) to help identify human remains;

(4) to help identify missing individuals; and

(5) for research and administrative purposes, including:

(i) development of a population data base after personal identifying information is removed;

(ii) support of identification research and protocol development of forensic DNA analysis methods; and

(iii) quality control.

Williamson, nevertheless, cites United States v. Mitchell, 2009 U.S. Dist. Lexis 103575 (W.D.Pa.2009), and United States v. Amerson, 483 F.3d 73 (2d Cir.2007), for the proposition that the collection of DNA from a pretrial detainee and a probationer, respectively, pursuant to federal law, the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a, and the Justice for All Act of 2004, which expanded the 2000 law, respectively, violate the Fourth Amendment, under totality of the circumstances and special needs tests. In Mitchell, the Government requested that a pretrial detainee, Ruben Mitchell, who had been arrested on a drug charge and was then before a magistrate judge for his initial appearance, provide a DNA sample pursuant to the federal act, to which Mitchell objected. The federal district judge held that the Government could not forcibly collect a DNA sample from a pretrial detainee, even though the federal act so provided, because of the absence of a warrant, in violation of the Fourth Amendment. In Amerson, two convicted felons who were sentenced to probation for non-violent crimes, challenged the constitutionality of the Justice for All Act, which requires all felons to submit a DNA sample for testing and storage. The Second Circuit Court of Appeals held that the primary purpose of the Act was “to obtain a reliable record of an offender’s identity that can then be used to help solve crimes,” and because the testing and storage of DNA samples fulfilled important governmental interests, and the invasion of privacy of the convicted felons was relatively small, the Act was constitutional, because it did not constitute an unreasonable search or seizure in violation of the Fourth Amendment. Amerson, 483 F.3d at 81, 89. The analysis in Mitchell and Amerson, however, of the constitutionality of the federal statutes requiring a pretrial detainee or a convicted felon to submit a DNA sample, is completely inapplicable to the case at bar in which we determine abandonment and lawful collection of DNA.

Williamson also argues that the Fourth Amendment proscribes that a warrant is required to test lawfully acquired DNA samples and that he had a heightened privacy interest in avoiding DNA testing, because of the amount of information that could be revealed, rather than the identity information gleaned in the present case. He claims that, “DNA samples can reveal comprehensive, inherently private information including family lineage, predisposition to over 4,000 types of genetic conditions and diseases, and genetic markers for traits like aggression, sexual orientation, substance addiction, and criminal tendencies.” He argues that the State’s use of technology to test Williamson’s DNA and “reveal information not visible to the naked eye” was a search, which violated his reasonable expectation of privacy.

The State counters that while genetic privacy concerns are important and worthy of public debate, there is no constitutional or legislative prohibition against testing lawfully acquired DNA for identification purposes. The State contends that because Williamson never developed a reasonable expectation of privacy in the disposable paper products from the McDonald’s meal, the police did not violate, and could not have violated, his Fourth Amendment rights, because no unlawful search or seizure took place.

It is important from the outset to emphasize that the Maryland DNA Collection Act limits the depth of DNA testing and the storage of the results to that data that is directly related to the identification of an individual. Specifically, Section 2-505(b) of the Public Safety Article provides:

(1) Only DNA records that directly relate to the identification of individuals shall be collected and stored.

(2) DNA records may not be used for any purposes other than those specified in this subtitle.

At no point does Williamson ever allege that the State misused his DNA for purposes other than identification in contravention of the Maryland DNA Collection Act, but relies on allegations of a “parade of horribles.”

In State v. Raines, 383 Md. 1, 25, 857 A.2d 19, 33 (2004), we already recognized that the only information collected from testing and storage of DNA profiles is the identity of the person whose DNA is being tested under the Maryland DNA Collection Act, and the purpose of uploading DNA profiles to CODIS is “akin to that of a fingerprint.”¹² Our sister courts also have recognized, as we did in Raines, that DNA testing and storage is limited to identification purposes, such as in the present case. See State v. Hauge, 108 Hawai'i 38, 79 P.3d 131 (2003) (rejecting a parade of horribles argument where DNA is being used for identification purposes only); United States v. Davis, 657 F.Supp.2d 630, 656 n. 6 (D.Md.2009) (noting that DNA profiles contained in CODIS consist of analyses of 13 “junk” loci consisting of stretches of DNA, which do not presently recognize traits and were purposely selected because they are not associated with any known physical or medical characteristics).

Williamson’s arguments regarding his expectation of privacy in his DNA do not relate to the 13 “junk” loci used for identification, but on the potential misuse of DNA, which is not in issue in the present case, whereby Williamson’s DNA was tested for identification only. While there may be debate regarding privacy concerns should technological advances permit testing of DNA to glean more information from acquired DNA than mere identification, that debate does not have “feet” in the present case. See Elizabeth E. Joh, Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy, 100 Nw. U.L.Rev. 857, 870-71 (2006); Simon A. Cole, Is the “Junk” DNA Designation Bunk?, 102 Nw. U.L.Rev. Colloquy 54 (2007); D.H. Kaye, Please, Let’s Bury the Junk: The CODIS Loci and the Revelation of Private Information, 102 Nw. U.L.Rev. Colloquy 70 (2007).

In a creative assertion, Williamson then cites to Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), and Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), for the proposition that DNA is akin to a container that requires a warrant to be searched for its contents. In Walter, the Federal Bureau of Investigation (FBI) lawfully acquired “12 large, securely sealed packages containing 871 boxes of 8-millimeter film depicting homosexual activities” that were delivered to a private company and later handed over to the FBI. 447 U.S. at 651-52, 100 S.Ct. at 2399, 65 L.Ed.2d at 414-15. The boxes suggested explicit content, and several FBI agents viewed the films without first obtaining a warrant. The defendants were thereafter indicted on obscenity charges. A motion to suppress and return the films was denied, and the defendants were convicted. The Supreme Court reversed, holding that the defendants had a reasonable expectation of privacy in the packages, and their Fourth Amendment rights were violated when the government viewed the films without a search warrant. The Court held that “the unauthorized exhibition of the films constituted an unreasonable invasion of their owner’s constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.” Id. at 654, 100 S.Ct. at 2400, 65 L.Ed.2d at 416.

Walter is distinguishable, however, because the DNA collected in the present case is more akin to that of fingerprints, as we noted in Raines, 383 Md. 1, 18 n. 11, 857 A.2d 19, 29 n. 11. Judge Irma S. Raker, then an active member of this Court, in her concurring opinion in Raines, aptly noted that although the analogy to fingerprints may be employed, a DNA profile really resembles a series of numbers, such as a social security number:

DNA type need be no more informative than an ordinary fingerprint.... The numbers [constituting the DNA profile] have no meaning except as a representation of molecular sequences at DNA loci that are not indicative of an individual’s personal traits or propensities.

Raines, 383 Md. at 45, 857 A.2d at 45-46 (Raker, J., concurring).

Williamson argues, nevertheless, that even if he abandoned the McDonald’s cup, he did not abandon his privacy interest in his genetic material, and the testing of the DNA found on the McDonald’s cup constituted a warrantless search implicating the Fourth Amendment. He cites United States v. Davis, 657 F.Supp.2d 630 (D.Md.2009), for the proposition that the extraction and testing of his DNA were searches subject to Fourth Amendment scrutiny, as well as Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) and Blasi v. State, 167 Md.App. 483, 893 A.2d 1152 (2006), for the suggestion that testing of DNA is akin to urine analysis and field sobriety tests, respectively, which have been held to constitute searches under the Fourth Amendment. The State counters that Davis is inapplicable to the instant case, because the Fourth Amendment query relies on the expectation of privacy in the item left behind, rather than the genetic information contained "within it, and because Williamson abandoned the McDonald’s cup, he also abandoned any expectation of privacy.

In Davis, 657 F.Supp.2d at 630, a gunshot-wound victim, Earl Whittley Davis, had his clothes lawfully seized and taken into evidence by police. Years later, after Davis became a suspect in an unrelated murder case, the police retrieved Davis’ bloody clothes, extracted the blood from the clothes, and tested the DNA, which exculpated Davis in a murder investigation. Id. at 634-35. Davis’ DNA profile was then placed in the local DNA database.

Several months later, a DNA sample of an unknown assailant was retrieved from evidence at a murder scene, tested, and uploaded to CODIS. The uploading resulted in a “hit” between the DNA found at the crime scene and the DNA profile of Davis. A search warrant was executed and a second DNA sample was taken from Davis and compared to the evidence recovered at the crime scene. A DNA analyst concluded that, to a reasonable degree of scientific certainty, Davis was the source of the DNA located on evidence recovered from the crime scene. Id. at 635. Davis moved to suppress the DNA evidence arguing that the seizure of his clothing, the extraction of DNA from his clothing, and the uploading of his DNA to CODIS violated his Fourth Amendment rights. Id. at 636.

The federal district court held that Davis, who had his clothes lawfully seized when he was a victim of a crime, had a greater expectation of privacy in his DNA than someone who had been arrested, convicted, or otherwise compelled to give a sample of his DNA. The district court judge noted, however, that television series such as “CSI” and “NCIS” “should have put Davis on notice that his DNA could someday be tested.” Id. at 651-52 (emphasis in original). The Court stated that in a situation where a victim becomes a suspect, the best practice for the police would be to seek a warrant before performing a DNA search on a sample, but held that under the totality of the circumstances, the extraction and testing of Davis’ DNA profile for comparison to the crime scene sample from the murder was reasonable, because the government’s compelling interest in identifying the perpetrator in an ongoing homicide investigation outweighed Davis’ diminished privacy interests in his DNA. Id. at 653-54.

The district court judge, however, specifically distinguished his suggestion that a warrant was preferred, from those facts implicated in cases such as the present one, in which “covert involuntary DNA sampling” has been upheld under an abandonment analysis. Id. at 649, citing California v. Greenwood, 486 U.S. 35, 39-40, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30, 36 (1988); Commonwealth v. Bly, 448 Mass. 473, 862 N.E.2d 341, 356-57 (2007) (suspect connected to murder by DNA analysis of abandoned water bottle and cigarette butts left in an interview with police); State v. Wickline, 232 Neb. 329, 440 N.W.2d 249, 252-53 (1989) (DNA testing of abandoned cigarettes left at police station did not violate Fourth Amendment); State v. Athan, 160 Wash.2d 354, 158 P.3d 27, 31, 33-34 (2007) (comparison of DNA analysis of DNA obtained without forcible compulsion and DNA left at a crime scene was constitutional). The district court judge noted that in situations involving “covert involuntary DNA sampling,” such as when a person spits out gum or throws away a used tissue, “the individual has actively demonstrated an intent to abandon the item, and, necessarily, any DNA that may be contained thereon.” Davis, 657 F.Supp.2d at 649.

The analysis in Davis is supportive of our holding in the present case, because the voluntary abandonment of the McDonald’s cup did not implicate an unconstitutional seizure under the Fourth Amendment. Similarly, although Skinner and Blasi held that a urine test and field sobriety test, respectively, constituted searches within the meaning of the Fourth Amendment, the Supreme Court and Court of Special Appeals held that these warrantless searches in their respective cases, were not unreasonable and, therefore, constitutionally permissible.

We have found no case that limits the testing of blood or fingerprint impressions by computer in the fashion that Williamson suggests is necessary with his saliva containing the DNA in the present case, and certainly no case that has limited the testing of lawfully acquired DNA. It would be anomalous, indeed, for us to hold that a warrant would be necessary to analyze the contents of lawfully acquired abandoned property—property in which the previous owner did not retain a reasonable expectation of privacy, because the resulting information was inculpatory of Williamson’s identity, while encouraging testing without a warrant to determine exculpatory information. See State v. Sampson, 362 Md. 438, 765 A.2d 629 (2001) (holding that the warrantless search and seizure of garbage left for collection within the curtilage of the home did not violate the Fourth Amendment because the owner did not maintain a reasonable expectation of privacy in the trash), citing California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (holding that the warrantless search and seizure of garbage left for collection outside the curtilage of the home did not violate the Fourth Amendment).

B. Uploading the 1994 DNA Sample to a Database and the Query of the Database

Williamson next argues that his DNA could not be uploaded to a database, because it was not a “forensic unknown” sample from a crime scene. Williamson also asserts that he was not in the class of persons whose sample could be lawfully uploaded to the database pursuant to the Maryland DNA Collection Act. The State argues that no provision of the Maryland DNA Collection Act limits the DNA records that may be uploaded to CODIS to records of convicted felons or “forensic unknowns,” and further, that the statute does not have an exclusionary rule. The State also contends that the uploading of Williamson’s DNA record to CODIS was lawful, because the statute implies that DNA records from sources other than convicted offenders will be uploaded to CODIS, such as in the situation where DNA records are used to exonerate existing suspects.

The question remains whether there are any statutory or constitutional restrictions to uploading the test results of lawfully obtained DNA. It would be counterintuitive to say that the police could not upload a lawfully obtained DNA sample to identify an assailant, but could upload a DNA sample to exclude a defendant from a class of people who may have committed a crime. As we remarked in Raines, 383 Md. at 41, 857 A.2d at 43, there is a “legitimate governmental interest in identifying persons involved with crimes, including vindicating those falsely convicted.” If knowing the identity of the individual from whom the DNA sample was taken makes it unlawful to upload, then what is the future of any attempt to vindicate a falsely convicted individual or to exclude people suspected of crimes? See United States v. Davis, 657 F.Supp.2d 630, 634-35 (D.Md.2009) (the uploading of a lawfully obtained DNA sample excluded the defendant as a murder suspect).¹³ The same result must abide the uploading of the DNA sample from the McDonald’s cup.

Even though the Defendant separates the warrantless uploading of a DNA sample to a database from the warrantless searching of the database as two distinct illegal actions, we address them together and hold that it would be illogical to allow the police to upload a DNA sample but not allow a search of the database for a match.

C. Statement to Police

Williamson argues that his statement to police regarding the location of his home in 2002 should be suppressed, because his arrest was based upon an illegally obtained DNA profile match—a result of the alleged violation of testing the DNA from the McDonald’s cup, uploading the 1994 DNA sample to the database, and searching the database to find a match. He contends that Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), which held that in-custody statements made after an illegal arrest, were not admissible despite Miranda warnings, supports his contention that his statement was tainted and therefore inadmissible as the indirect fruit of an illegal search and arrest. The State contends that Williamson’s arrest was legal, and thus, his statement to police should not be suppressed as fruit of a poisonous tree. We agree with the State.

The arrest warrant and statement of charges against Williamson were based “upon the facts contained in the application of [Detective] Morgan,” which rooted probable cause upon the match of the DNA retrieved from the crime scenes in 1994 and 2002, and upon the match of Williamson’s DNA on the McDonald’s cup to the 2002 DNA. Because we have held that the DNA samples leading to matches of Williamson’s DNA were lawfully obtained and tested, Williamson’s arrest warrant was founded upon probable cause. A statement to police pursuant to a lawful arrest and free of any Fifth Amendment violations, is admissible. See Prioleau v. State, 411 Md. 629, 638-39, 984 A.2d 851, 857 (2009). Thus, the motion to suppress Williamson’s statement to police was properly denied.

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY APPELLANT.

BELL, C.J., dissents and files opinion in which GREENE, J., joins.

1 . Kelroy Williamson was convicted of rape in the first and second degrees, sex offense in the first and second degrees, unnatural and perverted sexual practice, assault in the first and second degrees, and reckless endangerment. He was sentenced to two consecutive life sentences for first-degree rape and first-degree sexual offense.

2 . The Maryland DNA Collection Act is found in Sections 2-501 to 2-512 of the Public Safety Article, Maryland Code (2003). Chapter 337 of the Maryland Laws of 2008 revised the Act and took effect on January 1, 2009. All citations herein refer to the 2003 version of the Act, which was in effect during the period in which Williamson alleges that the State violated the Act.

3 . The Fourth Amendment to the United States Constitution provides: 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.

4 . We have defined an Alford plea, derived from the Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), as "a guilty plea containing a protestation of innocence.” See Marshall v. State, 346 Md. 186, 189 n. 2, 695 A.2d 184, 185 n. 2 (1997), citing Pennington v. State, 308 Md. 727, 728 n. 1, 521 A.2d 1216, 1216 n. 1 (1987); see also Rule 4-242(c) (court may accept plea of guilty even though defendant does not admit guilt).

5 . Section 2-501(g) of the Public Safety Article, Maryland Code (2003) defines "DNA Sample” and provides:

"DNA Sample” means a body fluid or tissue sample that is (1) provided by an individual who is convicted of a felony or a violation of [Section] 6-205 [misdemeanor burglary in the fourth degree] or [Section] 6-206 [misdemeanor breaking and entering a motor vehicle] of the Criminal Law Article; or (2) submitted to the statewide DNA data base system for analysis as part of a criminal investigation.

6 . Section 2-501(h) of the Public Safety Article, Maryland Code (2003) defines "Statewide DNA data base system” and provides:

“Statewide DNA data base system” means the DNA record system administered by the Department [of Maryland State Police] for identification purposes.

7 . Section 2—501(f) of the Public Safety Article, Maryland Code (2003) defines "DNA record” and provides:

(1) "DNA record” means DNA information stored in CODIS or the statewide DNA database system. (2) "DNA record” includes the information commonly referred to as a DNA profile.

8 . Section 2—501(b)(1) of the Public Safety Article, Maryland Code (2003) defines "CODIS” and provides:

"CODIS” means the Federal Bureau of Investigation’s "Combined DNA Index System” that allows the storage and exchange of DNA records submitted by federal, state, and local forensic DNA laboratories.

Section 2-502 mandates that Maryland’s DNA database system be compatible with CODIS.

9 . Section 2-510 of the Public Safety Article, Maryland Code (2003) provides that, "[a] match obtained between an evidence sample and a data base entry may only be used as probable cause and is not admissible at trial unless confirmed by additional testing.”

10 . William Shakespeare, The First Part of King Henry the Fourth act 5, sc. 4. (Falstaff: "The better part of valour is discretion; in the which better part I have saved my life.”).

11 . Williamson cites State v. Reed, 182 N.C.App. 109, 641 S.E.2d 320 (2007), for the proposition that the "police created abandonment” of the McDonald's cup was involuntary and did not justify the detective’s "furtive” seizure of the item containing his DNA.

In Reed, a police officer who had requested Blake Reed to submit a DNA sample as part of an ongoing investigation, questioned Reed on the patio of his home. During the conversation, Reed smoked a cigarette and placed the remains of the cigarette in his pocket while mentioning the television show CSI: Crime Scene Investigation. Reed lit another cigarette, and after smoking it, discarded it on a pile of trash on the patio. The police detective kicked the butt off the patio into the common grassy area, and later retrieved the butt for DNA testing, which confirmed that the DNA from the cigarette matched the DNA on the victim’s shirt. At trial, Reed's motion to suppress the evidence was denied, and in his appeal argued that the DNA evidence was seized in violation of a warrantless, nonconsensual search of an area in which he had a reasonable expectation of privacy. The appellate court held that Reed had a reasonable expectation of privacy on his patio and the seizure of the cigarette was unconstitutional. Id. at 321.

Reed is distinguishable from the case at bar, because Reed maintained an expectation of privacy in that cigarette discarded on the patio of his home, unlike Williamson who maintained no reasonable expectation of privacy in the McDonald’s cup he voluntarily discarded on the floor of his holding cell.

12 . We note that fingerprinting was challenged in its infancy because it was alleged to be a humiliating process, but the Second Circuit Court of Appeals in United States v. Kelly, 55 F.2d 67 (2d Cir.1932), determined that the procedure served the same function of identification that had been used for years:

Finger printing seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.

Id. at 69. In holding that a fingerprint requirement of arrested people was justified, the federal court relied on Downs v. Swann, 111 Md. 53, 73 A. 653 (1909), and equated fingerprinting to another constitutional method of identification—photographs.

13 . In United States v. Davis, 657 F.Supp.2d 630 (D.Md.2009), the federal district court found that the warrantless maintenance of the victim’s DNA profile in the local DNA database, after he was excluded as the assailant in the initial murder case, violated his Fourth Amendment rights as an unreasonable violation of his privacy. Id. at 665-66. Nevertheless, the district judge held that the exclusionaty rule was not appropriate, because the police did not upload the DNA profile in flagrant or deliberate disregard of Davis’ rights that would have warranted suppression. In any event, assuming the Davis rationale with regard to uploading were regarded as compelling, the uploading in the present case of the DNA profile is sustainable based on the dissimilar circumstances in the present case.