UNITED STATES v. DAVIS

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United States Court of Appeals,Fourth Circuit.

UNITED STATES of America, Plaintiff–Appellee, v. Earl Whittley DAVIS, a/k/a Baby Earl, a/k/a E, Defendant–Appellant.

No. 09–4890.

Decided: August 16, 2012

Before AGEE, DAVIS, and KEENAN, Circuit Judges. ARGUED:Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Deborah A. Johnston, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF:James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Emily N. Glatfelter, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

OPINION

A jury convicted Earl Whittley Davis of various federal offenses arising from a course of conduct that included the armed robbery and murder during that robbery of an armored car employee, Jason Schwindler, as well as a subsequent carjacking.1 On appeal, Davis challenges the use of DNA evidence against him at trial, and also argues that the district court erred in excluding expert testimony proffered by Davis in an attempt to undermine an eyewitness identification of him. For the reasons set forth below, we affirm the judgment of the district court.

I.

All of Davis' convictions arose from the same brief course of events occurring in Prince George's County, Maryland. The district court accurately summarized the facts as follows:

On August 6, 2004, shortly before 1:00 p.m., Jason Schwindler, an armored car employee, picked up a bank deposit from a local business and took it to a nearby BB & T bank in Hyattsville, Maryland. As Schwindler walked up to the bank entrance, two [gunmen] exited a Jeep Cherokee and began shooting at Schwindler, killing him. When their escape in the Jeep was thwarted by the armored truck driver, the assailants carjacked a bank customer and fled in her vehicle[, a Pontiac Grand Am, which] was later recovered.

United States v. Davis, 657 F.Supp.2d 630, 635 (D.Md.2009).

After the murder, officers from the Prince George's County Police Department (“PGCPD”) responded to the scene and collected numerous items of evidence, including a baseball cap worn by one of the shooters, two firearms, ammunition, and the steering wheel covers from the Jeep Cherokee and the Grand Am. After swabbing and analyzing the items for DNA, the profiles of the major contributors to the DNA found in the ball cap and on the triggers and grips of the recovered firearms were entered into the local Combined DNA Index System (“CODIS”) database.2 A search of the local database led to a “cold hit” between the DNA recovered at the Schwindler murder scene and Davis' DNA profile, which was already present in the local database.

Based on the “cold hit,” officers obtained a search warrant to obtain a sample of Davis' DNA directly from him, which again matched the evidence from the Schwindler murder scene. Evidence of this second match was introduced at trial in this case.

Prior to trial, Davis filed a motion to suppress the use of all DNA evidence against him, arguing that his DNA profile had been obtained by police and entered into the local PGCPD DNA database in violation of his Fourth Amendment rights. The district court held an evidentiary hearing, but declined to rule on the motion to suppress immediately, instructing the parties to continue preparing for trial. After a jury found Davis guilty of the charges, the district court issued a lengthy written order denying the motion to suppress. Davis, 657 F.Supp.2d 630–67. Davis was sentenced by the district court on September 18, 2009 to a term of life imprisonment plus 420 months.3

Davis noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Background and Proceedings Below

On August 29, 2000, almost four years before the Schwindler murder, Davis arrived at Howard County General Hospital with a gunshot wound to his leg. He claimed to be a robbery victim and reported that he had been shot by the purported robber. Hospital personnel called the police, as Maryland law required, and Patrol Officer Joseph King of the Howard County, Maryland, Police Department (“HCPD”) responded to the call.4 Officer King found Davis lying on a bed in the emergency room. He was conscious, sitting up, and able to converse with Officer King at the time. Davis' pants and boxer shorts had been removed by hospital personnel and placed in a plastic hospital bag, which was stored on a shelf beneath the bed. Officer King observed Davis' gunshot wound and secured Davis' pants and boxer shorts as evidence of the reported shooting. He did so without express permission from Davis (although Davis saw him take the clothing) and without a warrant. He then gave those items to his colleague, Detective Steven Lampe, who placed them in the HCPD “property room,” to be held as evidence in the prosecution of Davis' assailant.

At the suppression hearing, Officer King testified that he could not recall exactly what the bag looked like containing Davis' clothes, and neither could Detective Lampe, except that the bag was “plastic.” (J.A. 166.) Officer King testified, however, that he had “responded to the hospital on numerous calls,” that he knew it was the hospital's “practice to secure any property” taken from a patient and that the hospital placed that “[c]lothing from a victim ․ under [the patient's] bed.” (J.A. 147.) He also testified that he did not need “permission from anyone in the hospital to access” the bag. (J.A. 150.)

No one was ever charged in the August 2000 shooting of Davis, and neither his clothing nor the blood on it were ever tested in connection with that shooting. Davis was not contacted or advised that the shooting investigation was no longer being pursued by the HCPD, nor was he offered the opportunity to retrieve his clothing. Instead, Davis' clothes, containing his DNA material,5 were simply retained by the HCPD.

In order to give a more complete picture of later events, we note certain additional facts concerning Davis' hospital stay. First, although Davis had given a false name and false driver's license upon his admission to the hospital, police later learned his true identity through fingerprinting analysis. Additionally, from the beginning of their questioning of Davis, Officer King and Detective Lampe believed Davis was being uncooperative so they conducted further investigation. That investigation led to the discovery of marijuana in the vehicle in which Davis had arrived at the hospital, as well as several other potentially incriminating items, such as a t-shirt and a ball cap that said “FBI,” a handheld radio, leg shackles, gloves, and a mask. As a result, Davis was arrested on drug charges upon his release from the hospital, but those charges were later dropped.

The government does not dispute that Davis' clothing was seized initially because it was evidence of a crime in which he was a victim. The clothing was logged into the HCPD property room, however, on the same sheet with the marijuana found in the car and the false ID card Davis had presented. It also was Davis' arrest record on the drug offense that later led the PGCPD to inquire and learn about the existence of the seized clothing. Davis, 657 F.Supp.2d at 634–35 (noting that in April 2004, Lampe “was contacted by members of [PGCPD], who asked him questions about the arrest of Earl Davis in 2000.”). When the clothing was later checked out to the PGCPD for testing in a subsequent murder investigation, however, the form indicated that the clothes and blood were from the victim of a shooting. In effect, then, Davis had a “dual status” throughout the events in this case—he was both victim and arrestee—a fact which becomes important when analyzing his Fourth Amendment claims.

In June 2001, an individual named Michael Neal was murdered in Prince George's County. In April 2004, a PGCPD homicide detective investigating the Neal murder, Detective K. Jernigan, learned that Davis had previously been arrested in Howard County and that the HCPD had Davis' clothes. The PGCPD suspected Davis was involved in the Neal murder.6 As a result, they requested and obtained Davis' clothing, without a warrant, from the HCPD.

In June 2004, the PGCPD extracted Davis' DNA from the blood stains on Davis' pants, again without a warrant, and created a DNA profile from the test results. That DNA was compared to an unknown DNA sample recovered from the scene of the Neal homicide, but there was no match. Despite the fact that Davis' DNA profile excluded him as the source of the evidentiary sample from the Neal murder, the PGCPD nonetheless retained his DNA profile, and approximately one week later, included it in their local DNA database.

At a hearing before a Maryland state court in its Schwindler murder prosecution,7 which is part of the record before us, the DNA analyst for the PGCPD, Julie Kempton, testified concerning the extraction of Davis' profile and its entry into the local database. She testified that she was told by a detective that the boxer shorts were taken “from a suspect, from a hospital emergency room where he had been brought in [she] believe[d] for a shooting[.]” (Supp. J.A. 93.) She further testified that her testing ultimately excluded Davis' profile as a match in the Neal homicide. (Supp. J.A. 93–94.) She also testified that she knew that, at the state level of the CODIS database, a suspect's profile should be deleted if the court ordered expungement based on a vacated conviction. The record does not disclose any other information as to why the profile was retained, whether that was a common policy or practice, or whether it violated any local rule, regulation, policy, or practice to do so .8

As noted earlier, in the course of the investigation of the robbery and murder of Mr. Schwindler, when the DNA profile recovered from the Schwindler crime scene was entered into the PGCPD DNA database, a “cold hit” resulted with the DNA sample that had been lifted from Davis' clothing. The PGCPD then secured a search warrant to obtain a DNA sample directly from Davis. That subsequent DNA profile of Davis also matched the DNA samples from the Schwindler crime scene.

Evidence of the match between the known sample obtained via the search warrant and the crime scene evidence was introduced at Davis' trial. Specifically, DNA analyst Sarah Chenoweth testified that Davis' DNA matched DNA profiles from the baseball cap and both cars' steering wheel covers, and testified as to the infinitesimally small probabilities that the DNA on those items came from any person other than Davis.9

Davis moved to suppress the DNA evidence against him, arguing that it was obtained in violation of the Fourth Amendment. In a lengthy order denying suppression, the district court addressed each of Davis' challenges. The court concluded that Davis' Fourth Amendment rights were violated only when his DNA profile was retained in the local DNA database, after Davis' profile did not match the DNA sample from the Neal murder, but found no other violations. As to the retention of Davis' profile, the court concluded that the “good faith” exception should be applied and thus the application of the exclusionary rule was not warranted.

III.

Davis' Challenge to the DNA Evidence

Davis alleges three separate Fourth Amendment violations regarding the collection and retention of his DNA. Specifically, Davis asserts that each of the following actions by police constituted a Fourth Amendment violation: (1) the seizure of his clothing from the hospital room and its subsequent search; (2) the extraction of his DNA profile and testing in connection with the Neal murder investigation; and (3) the retention of his DNA profile in the local DNA database.10

For the reasons discussed below, we agree with the district court that no Fourth Amendment violation occurred in the seizure of the bag containing Davis' clothing at the hospital. We also agree that any subsequent “search” of the bag was not unlawful because its contents were a foregone conclusion, based in part on Officer King's uncontradicted testimony that he saw “a bag underneath of [Davis'] hospital bed that contained clothing.”11 We further determine that there was a Fourth Amendment violation when the PGCPD extracted Davis' DNA profile from his clothing and tested it as part of the Neal murder investigation. We assume, without deciding, that there was a separate Fourth Amendment violation in retaining Davis' DNA profile in the local CODIS database. Finally, we conclude that the “good faith exception” to the exclusionary rule applies here to both violations and thus the DNA evidence was not required to be excluded.

We review the factual findings underlying a motion to suppress for clear error and the district court's legal determinations de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir.1992). When a suppression motion has been denied, this Court reviews the evidence in the light most favorable to the government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).

A.

The Seizure of Davis' Clothing in His Hospital Room

Davis first argues that the seizure of his clothing from his hospital room constituted a warrantless seizure that was not justified by any exception to the warrant requirement. The government contends that both the seizure and the subsequent search of the bag containing the clothing were justified by the “plain view” exception, as the district court concluded.12

For the plain view exception to the warrant rule to apply, the government must show that: (1) the officer was lawfully in a place from which the object could be viewed; (2) the officer had a “lawful right of access” to the seized items; and (3) the incriminating character of the items was immediately apparent. See United States v. Jackson, 131 F.3d 1105, 1109 (4th Cir.1997). Davis concedes that Officer King was lawfully in the hospital room and thus that the government has satisfied the first requirement, but argues that the government failed to satisfy the latter two requirements. We disagree.

As to the second requirement, Davis contends that, even though Officer King was in the room lawfully, he did not have lawful access to the bag of clothing. The case most heavily relied upon by Davis, United States v. Neely, 345 F.3d 366 (5th Cir.2003), is inapposite. In Neely, the Fifth Circuit held the plain view doctrine did not allow the seizure of the patient's clothing, because the clothing at issue was not in open view but in the hospital property storage room, and required permission from hospital personnel to retrieve it. Id. at 368, 371. Notably, the hospital patient in Neely was the suspect in a criminal investigation, not the victim of a crime like Davis. Id. at 367–68.

Neely aside, we have no difficulty finding that there was lawful access to the clothing here. As suggested in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the lawful access requirement is intended to clarify that police may not enter a premises to make a warrantless seizure, even if they could otherwise see (from a lawful vantage point) that there was contraband in plain sight. Id. at 137 & n. 7 (describing the second requirement and explaining that even if “[i]ncontrovertable testimony of the senses” establishes that an object in plain view is contraband, “the police may not enter and make a warrantless seizure”); see also Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir.2004) (the “lawful right of access” requirement “is meant to guard against warrantless entry onto premises whenever contraband is viewed from off the premises in the absence of exigent circumstances”; thus, while “lawfully positioned” “refers to where the officer stands when she sees the item,” “lawful right of access” refers “to where she must be to retrieve the item”). The example given by the government in this case is apt, i.e., the analysis of the first and second prongs might be different if “the officer were lawfully present outside a building, peering through a window into a room in which he would not be lawfully present.” (Appellee's Br. 32 n. 8.) Here, however, there is no dispute that Officer King was lawfully present in the hospital room, and he thus had lawful access in the ordinary course of his investigation to the bag of clothing which could be evidence against Davis' assailant.13 See Washington v. Chrisman, 455 U.S. 1, 8, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982) (“when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual's area of privacy ․ [,] the Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in these circumstances.”); see also infra at 17–18 (discussing cases permitting seizure of blood-stained clothing in plain view).

The third prong of the plain view doctrine is less readily resolved. Nonetheless, having carefully reviewed the district court's ruling on this point, we find no clear error in its factual findings, nor any error in its legal conclusions.

Davis' primary argument is that while the bag may have been in plain view, the clothes were not. Thus, he contends that both the seizure and any subsequent search of the bag violated his constitutional rights. The seizure implicated Davis' possessory interest in his clothing, and any subsequent search implicated his privacy interest. See Texas v. Brown, 460 U.S. 730, 747, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring in the judgment). As Davis' arguments on this issue acknowledge, under the facts here, the two concepts overlap. Specifically, the seizure of the bag was warranted under the plain view exception only if it was immediately apparent that it contained incriminating evidence. Here, that would require it be immediately apparent that the bag contained evidence of a crime, i .e., Davis' clothing possessing blood, trace evidence, and/or a bullet hole. Similarly, the subsequent search of the bag (whether to identify or examine its contents), was warranted if it was a foregone conclusion that the bag contained the clothing, which was evidence of a crime.

As to both the seizure of the bag and any subsequent search of the bag, the district court's reliance on United States v. Williams, 41 F.3d 192 (4th Cir.1994) was appropriate. In Williams, officers had properly seized five packages, which consisted of a brown, opaque material wrapped in heavy cellophane. Id. at 197–98. The defendant challenged the subsequent warrantless search, in which a police officer removed the cellophane wrapping from one of the packages, poked a hole in the opaque material surrounding its contents, removed a small quantity of white powder and field tested the powder, which tested positive for cocaine. Id. at 194.

The Williams Court explained that a search of such a container is permissible under the plain view doctrine when “the contents of a seized container are a foregone conclusion.” Id. at 197. That is, “when a container is not closed, or transparent, or when its distinctive configuration proclaims its contents, the container supports no reasonable expectation of privacy and the contents can be said to be in plain view.” Id. (citations omitted). Williams clearly stated that, “[i]n determining whether the contents of a container are a foregone conclusion, the circumstances under which an officer finds the container may add to the apparent nature of its contents.” Id. (citing Blair v. United States, 665 F.2d 500, 507 (4th Cir.1981)).

Williams also quite plainly allows the experience of the officer to be taken into account when determining whether a container's contents are a “foregone conclusion.” Id. at 198. There, the Court relied on the testimony of the police officer that, based on his ten years of experience, packages wrapped in this manner contained narcotics, to support the Court's holding that the contents of the container were a “foregone conclusion.” Id. at 194, 198. The Court also noted that the other items found in the suitcase with the wrapped packages (towels, dirty blankets, and a shirt with a cigarette burn) were unusual for a traveler, in that they did not contain clothing or other items a person normally carries when traveling across the country. Id. Thus, in conducting this inquiry, we consider both the circumstances under which the container here was found and Officer King's knowledge about this particular hospital's practices and procedures and his experience in responding to the hospital bedsides of gunshot victims in this particular hospital.14

Here, Officer King testified, without contradiction or challenge, that when he entered the curtained-off area where he was told Davis would be, he saw Davis on a hospital bed and observed “a bag underneath of the hospital bed that contained clothing.” (J.A. 140 .) He did not testify that he walked into the area and saw what he thought might be a bag of clothing under the bed. Drawing the inferences from the facts in the government's favor, as we must, see Seidman, 156 F.3d at 547, that testimony fairly supports an inference that Officer King could see the clothing through the bag or that the bag was partially open, revealing clothing. Nothing in the record contradicts such a conclusion. Because the officers were not asked whether the bag was open or closed and could not recall precisely what the bag looked like, however, we do not know for certain “whether the bag was open or closed, or whether it was transparent, opaque or somewhere in-between,” Davis, 657 F.Supp.2d at 638.15 What is clear from this record is that Officer King expressed no doubt he observed “a bag ․ that contained clothing.” (J.A. 140.) Thus, we disagree with the dissent's contention that Officer King's testimony was equivocal, or that his testimony fails to rise to the level of certainty required in Williams. See post at 82–83.16

Officer King also testified that it was the practice and procedure of the hospital to place a patient's clothing in a bag on the shelf under his bed. He further could visibly see that Davis had been shot in his upper right thigh, and that Davis was no longer wearing pants or underwear. Instead, while Davis was wearing clothing on his upper body, his lower body was exposed, except for his genital area, which was covered by a sheet. (See Supp. J.A. 73 (picture of Davis in hospital bed); J.A. 141 (testimony of Officer King that picture accurately depicted what Davis was wearing)).

We agree with the district court that “the totality of the circumstances, taking into account [Officer] King's experience with the hospital's practices regarding patients' property, the appearance of the Defendant at the time [Officer] King spoke with him, and the obvious fact that the Defendant had been shot in an area of the body usually covered by clothing” support the determination that it was a foregone conclusion the bag under Davis' hospital bed contained the clothing he wore when he was shot.

Davis alternatively contends that even if it had been a virtual certainty that the bag contained Davis' clothing, the incriminating nature of those clothes was not “immediately apparent.” We have little trouble, however, in concluding that Davis' pants almost certainly would contain both blood and a bullet hole,17 and would thus be incriminating evidence in the prosecution of the shooter. Such a conclusion is based on the circumstances, Davis' appearance, and the location of his bullet wound. As noted by the district court, moreover, Davis has provided no authority to support imposing a requirement that the evidence be incriminating against the person from whom it is seized. Davis, 657 F.Supp.2d at 640. As the district court reasoned:

[The defendant's failure to provide any authority] may be due to the unique situation presented by the facts of this case; very rarely will a victim from whom evidence is seized later become a criminal defendant with standing and reason to challenge the previous seizure. As a matter of first impression, however, it would seem unwise and overly restrictive to require police to know who will be incriminated by an item in plain view before they are able to seize it and investigate further.

Id.

Indeed, Supreme Court cases and authority from other circuits explain that an item need not itself be contraband before it has an “incriminating nature,” but instead, an item need only be evidence of a crime. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Rehnquist, J., plurality opinion) (discussing plain view doctrine and whether items may be “contraband or stolen property or useful as evidence of a crime ”) (emphasis added); United States v. Smith, 459 F.3d 1276, 1293 (11th Cir.2006) (“the scope of the ‘plain view’ doctrine extends to the seizure of items that, while not contraband themselves, may be used as evidence against a defendant”); United States v. Rodriguez, 601 F.3d 402, 407 (5th Cir.2010) (“The incriminating nature of an item is ‘immediately apparent’ if the officers have ‘probable cause’ to believe that the item is either evidence of a crime or contraband.”) (emphasis added and citation omitted); United States v. Chipps, 410 F.3d 438, 443 (8th Cir.2005) (warrantless seizure of a sweatshirt on the ground outside a house where there had been a reported assault was justified by the plain view doctrine, since “the incriminating nature of a bloody sweatshirt at the site of a potential assault was obvious” and the officer “had a legal right to access the shirt—it was right in front of him on the ground”); Chavis v. Wainwright, 488 F.2d 1077, 1078 (5th Cir.1973) (clothing in plastic hospital bag was properly seized from stabbing victim in hospital without a warrant as evidence of an assault, despite fact that victim told police he did not want to prosecute his assailant girlfriend).18 Here, like the bloody clothing in Chipps and in Chavis, the pants with a bullet hole, which would be clear evidence a shooting occurred and might reasonably provide scientific evidence related to the gun caliber, distance, etc., is evidence of a crime and hence, has an immediately apparent “incriminating nature.”19

For all of the foregoing reasons, we conclude that the plain view doctrine justified both the warrantless seizure and the subsequent search of the bag containing the clothing under Davis' hospital bed.

Before turning to the issues surrounding the extraction and testing of Davis' DNA, we respond briefly to two points raised by the dissent regarding the seizure and search of the clothing and our application of Williams. First, the dissent argues Williams is distinguishable on the grounds that the district court here considered only extrinsic evidence, while the Williams court considered such extrinsic evidence in addition to the physical appearance and character of the container. Relatedly, the dissent further states, without citation to authority, that “[n]arcotics packaging is so readily recognizable as to rise to the level of the archetypal kit of burglar tools or a gun case,” while the bag here was not “distinctive in any way.” Post at 82, 83. We disagree.

The dissent's assertions that drug packaging is “readily recognizable” as such while a bag containing a hospital patient's clothing is not, is true only if the contextual evidence present in Williams is being taken into account, i.e., the fact that the packaging was in a suitcase with very few other items one would suspect to find in a traveler's luggage, and the contextual evidence here is ignored, i.e., that the bag was underneath a gunshot victim's hospital bed. But Williams expressly permits us to consider the context and circumstances of the specific case, as well as the experience of the officer. Here, those factors compel the conclusion that the bag under Davis' bed contained his clothing.20

Second, the dissent suggests an inconsistency between our upholding the seizure of Davis' clothing at the hospital (which obviously contained his DNA), but concluding that he had a reasonable expectation of privacy in his DNA such that its later use violated his Fourth Amendment rights. See post at 84–85 (it is “curious, to say the least, to reason as does the majority that Davis retained, for several years after the bag was seized at the hospital, a reasonable expectation of privacy in the character of his DNA molecules, but that he lacked any reasonable expectation of privacy in the presence of those molecules in his blood while they were embedded in his clothing” while at the hospital). This perceived inconsistency is based on a misunderstanding of our holding.

We do not hold that Davis had no expectation of privacy in his DNA while it was on his clothing at the hospital. What we conclude is that the seizure and search of the bag containing Davis' clothing were permitted under the plain view doctrine because his clothing was evidence of a crime and was in plain view, as applied in Williams. See infra at 29 (“while Davis may not have had any expectation of privacy in the outward appearance of the clothing once it was in police custody, we nevertheless must consider ․ whether Davis retained a reasonable expectation of privacy in his DNA on the clothing or in the DNA profile obtained from it.”)

Davis always had an expectation of privacy in his DNA, but that expectation of privacy was not implicated merely by an effort to identify, describe and catalogue his clothing as evidence of a reported crime, rather than testing anything found on it. It was not until the police sought to obtain a DNA profile from his blood that his privacy interest in his DNA was implicated. As we explain, the search of his DNA did not occur until the police extracted and tested his DNA in conjunction with the Neal murder. See infra at Section III.B.2. The dissent's perceived “inconsistency” in our holdings does not exist.21

B.

The Extraction and Testing of Davis' DNA Profile for Use in the Neal Murder Investigation, and the Retention of Davis' DNA Profile

Having concluded that the HCPD lawfully obtained the clothing that contained Davis' DNA material, we now turn to Davis' contention that the PGCPD violated the Fourth Amendment by extracting his DNA from the blood on that clothing and testing it for use in the Neal murder investigation, as well as in retaining his profile in their local DNA database.

1.

General Fourth Amendment Principles

The general issue of a person's reasonable expectation of privacy in his DNA is a developing and unsettled area of the law, one that has not yet been addressed by the Supreme Court. The relative recency of the technology, especially when coupled with its potential power, is no doubt part of the reason why there is uncertainty over the degree of privacy persons can reasonably expect to have in their DNA. Cf. Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 2316, 174 L.Ed.2d 38 (2009) (“Modern DNA testing can provide powerful new evidence unlike anything known before ․ DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.”); Jones v. Murray, 962 F.2d 302, 307 (4th Cir.1992) (describing DNA as a “dramatic new tool for the law enforcement effort to match suspects and criminal conduct”).22

The Fourth 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, 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.” U.S. Const. amend. IV. However, the protections of the Fourth Amendment are activated only when the state conducts a search or seizure in an area in which there is a “constitutionally protected reasonable expectation of privacy.” New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (citation omitted). When there is no reasonable expectation of privacy, the Fourth Amendment is not implicated.23 See, e.g., United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (no reasonable expectation of privacy in one's voice); United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (no reasonable expectation of privacy in one's handwriting); California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (same as to trash left by the curb). A search or seizure for Fourth Amendment purposes does not occur, therefore, when a person lacks a reasonable expectation of privacy in the material examined. United States v. Breza, 308 F.3d 430, 433 (4th Cir.2002) (citing Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983)).

Even if a search has occurred without a warrant and without individualized suspicion, a Fourth Amendment violation does not necessarily occur. The Fourth Amendment does not prohibit all searches, only those that are unreasonable. Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable”); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“[W]hat the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.”) (quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). And “[a]lthough as a general matter, warrantless searches ‘are per se unreasonable under the Fourth Amendment,’ there are ‘a few specifically established and well-delineated exceptions' to that general rule.” City of Ontario, Ca. v. Quon, –––U.S. ––––, ––––, 130 S.Ct. 2619, 2630, 177 L.Ed.2d 216 (2010) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (“neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance”).

2.

Whether Extraction and Testing of Davis' DNA Profile for Use in the Neal Murder Investigation, or its Later Retention, Constituted Searches?

We first consider the threshold question whether a search occurred when the PGCPD extracted and tested Davis' DNA for use in the Neal murder investigation, or when the PGCPD retained Davis' DNA profile in CODIS. Our analysis turns on the question whether Davis had a reasonable expectation of privacy in his clothing and the blood and DNA it contained, once it was in the lawful custody of the HCPD.

The government argues that there was no search or seizure here, relying primarily on United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), for the proposition that Davis lacked any reasonable expectation of privacy in his clothes or DNA after they were lawfully seized by police.24 In Edwards, the defendant was arrested and charged with an attempted break-in at approximately 11:00 p.m., taken to the local jail and placed in a cell. 415 U.S. at 801. Investigation at the scene revealed that the attempted entry had been made through a wooden window and that paint chips had been left on the window sill and wire mesh. Id. at 801–02. The next morning (approximately ten hours after his arrest), Edwards was given a change of clothing and his clothing was then taken from him and held as evidence. Id. at 802. Examination of the clothing revealed paint chips matching the samples taken from the window. Id. The evidence of the matching paint chips was later introduced at trial, over Edwards' objection. Id. The Sixth Circuit reversed, finding the seizure of the clothing, carried out after “the mechanics of [Edwards'] arrest” had been completed, violated the Fourth Amendment. Id.

The Supreme Court reversed the Sixth Circuit, holding that the warrantless seizure of the clothing was constitutional. The Supreme Court first noted that warrantless searches are permitted incident to custodial arrests, and that they can legally be conducted later when the accused arrives at the place of detention. Id. at 802–03. “Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.” Id. at 803–04.

The government reads Edwards to stand for the proposition that once the police have lawful custody of evidence, like Davis' clothing here, further scientific examination conducted on it by that particular police department or by any other law enforcement body does not first require that a search warrant be obtained. (See Appellee's Br. 46.) As a result, the government argues, Davis did not have a reasonable expectation of privacy in the DNA contained in his clothing because it had been lawfully seized by the HCPD. The government accordingly contends that the PGCPD did not violate the Fourth Amendment when the PGCPD later obtained Davis' clothing and extracted the DNA at issue.

The Court in Edwards, however, did not adopt the categorical rule advanced by the government:

In upholding this search and seizure, we do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee. But we do think that the Court of Appeals for the First Circuit captured the essence of situations like this when it said in United States v. DeLeo, 422 F.2d 487, 493 (1970) (footnote omitted): “While the legal arrest of a person should not destroy the privacy of his premises, it does—for at least a reasonable time and to a reasonable extent—take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.”

415 U.S. at 808–09 (footnote omitted and emphasis added); id. at 808 n. 9 (“Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints. This type of police conduct must still be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.”) (internal quotation marks and alteration omitted).

In Edwards, the class of person whose item was seized, an arrestee, and the type of item seized, evidence, were material considerations in the Court's analysis. Further, Edwards recognized that even an arrestee, who has a diminished expectation of privacy, does not forfeit forever all privacy interests in his effects. Therefore, the Edwards decision itself does not support the government's broad categorical assertion that any item in the lawful custody of law enforcement can be subjected to laboratory analysis at any later time and for any purpose related to law enforcement.

Moreover, because the analysis of biological samples, such as those derived from blood, urine, or other bodily fluids, can reveal “physiological data” and a “host of private medical facts,” such analyses may “intrude[ ] upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 616–17. Therefore, such analyses often qualify as a search under the Fourth Amendment. Id. at 618 (concluding that “the collection and subsequent analysis of the requisite biological [blood and urine] samples must be deemed Fourth Amendment searches”). Similarly, an analysis required to obtain a DNA profile, like the chemical analysis of blood and urine at issue in Skinner, generally qualifies as a search, because an individual retains a legitimate expectation of privacy in the information obtained from the testing. See, e.g., United States v. Mitchell, 652 F.3d 387, 407 (3d Cir.2011) (en banc) (after discussing the Fourth Amendment search that occurs when a DNA sample is collected directly from a person's body, discussing separately “[t]he second ‘search’ at issue,” which was, “of course, the processing of the DNA sample and creation of the DNA profile for CODIS. This search also has the potential to infringe upon privacy interests.”).

By contrast, in Edwards, the analysis at issue examined paint chips found in the defendant's clothing, which did not implicate the privacy concerns inherent in the use of physiological and medical information obtained from DNA analysis that was addressed in Skinner. See Edwards, 415 U.S. at 801–02. Thus, in the present case, while Davis may not have had any expectation of privacy in the outward appearance of the clothing once it was in police custody, we nevertheless must consider the type of analysis conducted on that clothing to determine whether Davis retained a reasonable expectation of privacy in his DNA on the clothing, or in the DNA profile obtained from it.

The district court concluded that Edwards is inapplicable here because, unlike the defendant's clothing in Edwards, Davis' clothing was not seized pursuant to his arrest on the drug charges, but was seized before his arrest when his status was that of a reported crime victim. As noted by the district court, to allow the testing and retention of DNA profiles from any evidence lawfully obtained by police could expose a victim of a crime whose blood, or other material from which DNA could be obtained, to having his or her DNA extracted and retained indefinitely in a law enforcement database. The district court reasoned:

Taken to its logical extreme, the application of Edwards and its progeny to the instant case would mean that any citizen whose blood finds its way into lawful police custody as a result of victimization (e.g., child abuse, sexual assault and domestic violence victims, etc.), would then lose any expectation of privacy in the DNA markers in that blood, which could be used against him or her at a later date without the constitutional safeguard that a warrant supported by probable cause first be issued.

Id. at 647. It was on this basis, the distinction between the DNA of a victim and an arrestee, that the district court found Edwards inapplicable.

Although we are not faced here with the full range of potential problems identified by the district court, we agree with the district court that a person who is solely a crime victim does not lose all reasonable expectation of privacy in his or her DNA material simply because it has come into the lawful possession of the police. And, although Davis later was arrested, because the police seized his clothing when he was solely a crime victim, we conclude that his later arrest does not eradicate his expectation of privacy in his DNA material.

Our conclusion that Davis' status as a victim materially distinguishes the present case from Edwards is supported by our precedent and by decisions of our sister circuits. These decisions, in addressing whether, and under what circumstances, the Constitution allows the collection of DNA samples, uniformly recognize that persons who have not been arrested have a greater privacy interest in their DNA than would persons who have been arrested, such as the arrestee in Edwards.

First, our decision in Jones v. Murray, 962 F.2d 302 (4th Cir .1992), is instructive. There, we rejected a Fourth Amendment challenge to a Virginia law that required convicted felons in custody to submit blood samples for DNA analysis. We concluded that the identification of a person arrested upon probable cause “becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Id. at 306. Additionally, we recognized that “we do not accept even [a] small level of intrusion, [such as fingerprinting] for free persons without Fourth Amendment constraint .” Id. at 306–07 (citing Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969)). Thus, we emphasized that a court's constitutional analysis may differ depending on whether the person is an arrestee or a “free person.”

Our sister circuits, in upholding DNA collection statutes against Fourth Amendment challenges, likewise have recognized that the status of an individual whose DNA is sought is material to the issue whether he had a reasonable expectation of privacy in that DNA. In Mitchell, for example, the Third Circuit sitting en banc upheld the suspicionless collection of DNA samples from arrestees principally on the basis that the fingerprinting of arrestees did not violate the Fourth Amendment. 652 F.3d at 411 (citing Hayes v. Florida, 470 U.S. 811, 813–18, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) and Davis, 394 U.S. at 727); see also Mitchell, 652 F.3d at 402 & n. 13 (collecting authority and noting that “[e]very federal circuit court to have considered [the federal DNA Act and its state law analogues] as applied to an individual who has been convicted and is either incarcerated or on probation, parole, or supervised release has upheld the constitutionality of the challenged statute”). Additionally, in United States v. Kincade, 379 F.3d 813 (9th Cir.2004) (en banc), a plurality of the Ninth Circuit held that the federal DNA act requiring the collection of DNA samples from convicted felons was constitutional. See 379 F.3d at 835–36 (O'Scannlain, J., plurality opinion) (noting “the obvious and significant distinction between the DNA profiling of law-abiding citizens who are passing through some transient status (e.g., newborns, students, passengers in a car or on a plane) and lawfully adjudicated criminals whose proven conduct substantially heightens the government's interest in monitoring them and quite properly carries lasting consequences that simply do not attach from the simple fact of having been born, or going to public school, or riding in a car”); see also Green v. Berge, 354 F.3d 675, 678–79 (7th Cir.2004) (rejecting Fourth Amendment challenge to law requiring DNA samples from felons and contrasting felons from persons not otherwise in custody); id. at 679–81 (Easterbrook, J ., concurring) (constitutional challenges to DNA—collection statutes differ depending on the status of the person whose DNA is being collected, and noting that “[t]his appeal does not present the question whether DNA could be collected forcibly from the general population”).

Unlike the cases cited immediately above, however, which concerned parolees, persons on supervised release, convicted felons, or arrestees, the HCPD had possession of Davis' DNA because he was the victim of a crime. Thus, the above cases inferentially provide support for Davis' position, because they all distinguish an arrestee or one convicted of a crime from members of the general public at large.

These cases, however, do not directly answer the question before us, because they involved challenges to the collection of DNA samples, and not, as here, a challenge to the extraction of DNA or retention of a DNA profile when the police already had lawful possession of the DNA sample. And, for the same reason, these cases do not eliminate any consideration of Edwards in circumstances like these. But see United States v. Weikert, 504 F.3d 1, 16–17 (1st Cir.2007) (suggesting that “it may be time to reexamine the proposition that an individual no longer has any expectation of privacy in information seized by the government so long as the government has obtained that information lawfully․ In short, there may be a persuasive argument on different facts that an individual retains an expectation of privacy in the future uses of her DNA profile”).

Nevertheless, we are persuaded by the Supreme Court's analysis in Skinner, as applied in Mitchell and other cases in the context of DNA, that the extraction of DNA and the creation of a DNA profile result in a sufficiently separate invasion of privacy that such acts must be considered a separate search under the Fourth Amendment even when there is no issue concerning the collection of the DNA sample. See Mitchell, 652 F.3d at 407 (citing United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir.2005) (citing Skinner, 489 U.S. at 616)).

Based on the foregoing, we conclude that the holding in Edwards does not give a law enforcement agency carte blanche to perform DNA extraction and analysis derived from clothing lawfully obtained from the victim of a crime in relation to the investigation of other crimes. Instead, a victim retains a privacy interest in his or her DNA material, even if it is lawfully in police custody. Therefore, we conclude that the extraction of Davis' DNA sample from his clothing and the creation of his DNA profile constituted a search for Fourth Amendment purposes.

We turn to consider whether a separate search occurred when the PGCPD retained Davis' DNA profile in the local CODIS database after the profile did not implicate him in the Neal murder. Our sister circuits do not appear to be uniformly settled on the question whether such entry of a DNA profile into this type of database is a search entitled to Fourth Amendment protection. Compare, e.g., Boroian v. Mueller, 616 F.3d 60, 67–68 (1st Cir.2010) (concluding that the retention and later matching of a lawfully obtained DNA profile is not a search for Fourth Amendment purposes and collecting authority for the same) with United States v. Amerson, 483 F.3d 73, 85 (2d Cir.2007) (in addition to the collection of the DNA sample from a probationer, determining that “[t]here is ․ a second and potentially much more serious invasion of privacy occasioned by the DNA Act” because the “analysis and maintenance of [offenders'] information in CODIS ․ is, in itself, a significant intrusion”) (citation omitted) and Kincade, 379 F.3d at 841–42 (en banc) (Gould, J., concurring) (suggesting the retention of a lawfully obtained DNA profile once a person has “fully paid his or her debt to society” and “left the penal system” would implicate the person's privacy interest).

These differing conclusions illustrate the fact that at least some courts have concluded that once a DNA profile has been lawfully obtained and entered into CODIS, the retention of that profile and “periodic matching of the profile against other profiles in CODIS for the purpose of identification[,]” is not a search because it does not intrude upon an offender's legitimate expectation of privacy. Boroian, 616 F.3d at 67–68 (so holding and citing other authority for the same).25 Other courts, at least in principle, have left open the possibility that an unrelated examination after DNA retention could be a separate search for Fourth Amendment purposes. See, e.g., Amerson, 483 F.3d at 85 n .12.

We need not choose among these competing principles in this case because, as discussed in the next section, we conclude that the extraction and initial testing of Davis' profile was an unreasonable Fourth Amendment search. Accordingly, for purposes of this opinion, we will assume, without deciding, that Davis had a continuing right of privacy in his DNA profile, and that a search occurred in the retention of that profile. We now turn to consider the issue whether the two searches were reasonable.

3.

Whether the Searches Were Reasonable Under the Fourth Amendment?

As noted above, not every warrantless search violates the Fourth Amendment. Instead, a Fourth Amendment violation occurs when a warrantless search is unreasonable. See Skinner, 489 U.S. at 619. Courts have employed several different approaches in assessing reasonableness.26 With regard to searches in which there is an absence of individualized suspicion, the “general Fourth Amendment approach” is to “examine the totality of the circumstances” to determine whether a search is reasonable. Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Under this approach, the reasonableness of a search “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. (citation and internal quotation marks omitted).

For example, in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Supreme Court applied the totality of the circumstances approach in upholding the search of a probationer's apartment based on the presence of “reasonable suspicion,” but in the absence of probable cause. Id. at 118, 121. Similarly, in Samson, the Court upheld a suspicionless search of a parolee applying the same approach. 547 U.S. at 846.

Courts also have applied a “special needs” analysis in certain circumstances to uphold contested searches. See Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); Kincade, 379 F.3d at 823–832 (en banc) (O'Scannlain, J., plurality opinion) (describing development of the special needs doctrine and various Supreme Court cases utilizing it). The special needs doctrine allows warrantless searches “where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement” and “when balancing the individual's privacy expectations against the government's interests leads to the determination that it is ‘impractical to require a warrant or some level of individualized suspicion in the particular context.’ “ United States v. Rendon, 607 F.3d 982, 989 (4th Cir.2010) (quoting Von Raab, 489 U.S. at 665–66) (emphasis in Rendon )).

The district court found here that the special needs doctrine was inapplicable, because “the governmental interest in this case cannot be characterized as anything other than an ordinary interest in law enforcement.” Davis, 657 F.Supp.2d at 651. Thus, the district court employed the totality of the circumstances test. Applying that test, the district court found the extraction of Davis' DNA in conjunction with the Neal murder investigation was “reasonable.” Id. at 654.

On appeal, Davis argues that the totality of the circumstances test is not applicable, because it applies only when a person being searched has “substantially diminished privacy rights.” (Appellant's Br. 53.) Instead, Davis argues that nothing less than a warrant and probable cause would have allowed the testing and retention of his DNA profile. Davis further argues that, even if the totality of the circumstances test were applicable, the district court applied the test incorrectly. The government also argues that the district court erred in applying the totality of the circumstances test because, in the government's view, Edwards resolves the issue against Davis.27

We begin this part of our analysis by restating our conclusion that the holding in Edwards is not dispositive of the matter under the unique facts before us, and that Davis retained a reasonable expectation of privacy in his DNA profile. We also consider as part of our analysis the fact that Davis' expectation of privacy may have been diminished to some degree because Davis knew that the police had retained his clothing, yet had taken no action to retrieve his personal effects following his release. Thus, we analyze the reasonableness of the searches here under the “totality of the circumstances test.”28 Our employment of this test is consistent with the decisions of most of our sister circuits, which have applied the test in cases where there was a diminished expectation of privacy. See Mitchell, 652 F.3d at 403 n. 15 (noting that only the Second and Seventh Circuits have consistently held that the “special needs” test should apply instead of the totality of the circumstances test in addressing the constitutionality of a DNA indexing statute).

Applying the totality of the circumstances test here requires us to “assess [ ], on the one hand, the degree to which [the search] intrudes upon [Davis'] privacy, and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Knights, 534 U.S. at 119. When considering the magnitude of the intrusion upon Davis' privacy, we think it very significant that these DNA searches were conducted in 2004, at a time when Davis was a free citizen and had never been convicted of a felony. The PGCPD extracted Davis' DNA from his clothing, created Davis' DNA profile, and checked that profile against evidence on the CODIS database, all while Davis was a free citizen who retained a reasonable privacy interest in his DNA sample and DNA profile, as we have discussed. However, his privacy interest was diminished to a degree by the fact that he knew that the police had retained his bloody clothing, and yet did nothing to retrieve the clothing or otherwise claim ownership in it.

In contrast to many DNA privacy cases, the privacy interest in Davis' bodily integrity was not implicated when police obtained the DNA sample, because it was taken from his clothing, rather than from his person. This too is a factor that we must consider under the totality of the circumstances. See e.g., Mitchell, 652 F.3d at 404 (weighing the “minimal” intrusion of privacy caused by DNA sample collection by blood test); Jones, 962 F.2d at 307 (weighing “minor intrusion” caused by DNA sample collection by blood test).

We next turn to consider the government's interest in conducting the search. The police, of course, have a strong and important interest in apprehending and prosecuting those who have committed violent crimes, like the Neal murder and the murder of Schwindler in this case. The government also has a legitimate interest in entering and maintaining information in CODIS and in increasing the number of entries in CODIS to improve its efficacy as a crime-solving tool. See Haskell v. Harris, 669 F.3d 1049, 1062 (9th Cir.2012), reh'g en banc granted, 686 F.3d 1121, 2012 WL 3038593 (July 25, 2012) (upholding California law requiring police to collect DNA samples from all adult felony arrestees and citing the government's four “key interests”: “identifying arrestees, solving past crimes, preventing future crimes, and exonerating the innocent”).

In balancing these competing interests to determine the reasonableness of the searches at issue, we are guided by the weighty reasons underlying the warrant requirement: to allow a detached judicial officer to decide “[w]hen the right of privacy must reasonably yield to the right of search,” and not “a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 13–14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (quoted in Davis, 657 F.Supp.2d at 653.) The right protected is “a right of personal security against arbitrary intrusions by official power.” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The importance of the judge or magistrate in the process is why the exceptions to the warrant requirement are “jealously and carefully drawn.” Id.

The potential for arbitrary intrusions of one's privacy from warrantless searches in cases involving felons, parolees, or arrestees is mitigated by the fact that officials are required to collect from everyone in that certain group of persons. They cannot selectively choose which persons within a particular group must submit a DNA sample. See, e.g., Mitchell, 652 F.3d at 415 (the search is further rendered reasonable because “there is no room for law enforcement officials to exercise (or abuse) discretion by deciding whether or not to collect a DNA sample”); Amerson, 483 F.3d at 82 (“[T]he programmatic nature of the 2004 DNA Act—all felons are required to submit DNA samples, and the uses of those samples are strictly circumscribed—leaves no discretion for law enforcement personnel to decide whether to force an individual to submit to a taking of a DNA sample or how to use the information collected. This lack of discretion removes a significant reason for warrants—to provide a check on the arbitrary use of government power. See Skinner, 489 U.S. at 621–22.”).

In this case, by contrast, Davis' DNA was specifically sought as a result of police suspicions that he was involved in the Neal murder, and based on some quantum of proof amounting to less than probable cause. Indeed, the parties' briefs and the record before us are devoid of any factual basis for concluding that Davis was involved in the Neal murder. Thus, the precise concern that the warrant requirement was designed to alleviate is plainly before us here. That fact alone severely diminishes the reasonableness of the search. Thus, our comparison of the respective interests leads us to conclude that the government's extraction of Davis' DNA sample from his clothing and creation of his DNA profile for testing in the Neal murder investigation constituted unreasonable searches under the Fourth Amendment.

Lastly, we assume, without deciding, that the entry and retention of Davis' profile into the CODIS database under these circumstances was also unreasonable under the Fourth Amendment, because the police only had Davis' DNA profile as a result of a Fourth Amendment violation resulting from the extraction and testing of his DNA profile against the DNA in the Neal investigation.

The conclusion that Fourth Amendment violations occurred does not end our inquiry, however. Instead, as we discuss next, we conclude that the exclusionary rule should not be applied to remedy these violations.29

IV.

The “Good Faith” Exception to the Remedy of Suppression

Having determined that there was a Fourth Amendment violation in the extraction and testing of Davis' DNA profile, and having assumed, but not decided, there was a second violation in the retention of his profile, we address whether suppression is the proper remedy. Leon, 468 U.S. at 906 (“Whether the exclusionary sanction is appropriately imposed in a particular case ․ is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”) (citation and internal quotation marks omitted). As noted, the district court concluded that suppression was not warranted because the “good faith” exception to the exclusionary rule was applicable. For the reasons discussed below, we agree.

The Supreme Court articulated the “good faith” exception to the exclusionary rule in Leon, 468 U.S. at 920. In that case, the Court refused to apply the exclusionary rule where police properly executed a search warrant, but it was later determined the issuing magistrate had erred as the warrant lacked probable cause. Id. at 922. The Supreme Court has also applied the “good faith” exception to warrantless administrative searches performed in good-faith reliance on a statute later declared unconstitutional, Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), and to an arrest by police who reasonably relied on erroneous information, entered by a court employee into a court database, that an arrest warrant was outstanding, Arizona v. Evans, 514 U.S. 1, 14, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).

The Supreme Court's recent decisions applying the exception have broadened its application, and lead us to conclude that the Fourth Amendment violations here should not result in the application of the exclusionary rule. See Herring, 555 U.S. at 135; Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).

In both Herring, and Davis, the Supreme Court emphasized the crucial role that deterrence plays in determining whether to apply the exclusionary rule. Specifically, “the benefits of deterrence must outweigh the costs.” Herring, 555 U.S. at 141 (citing Leon, 468 U.S. at 910 (1984)). That is, courts must weigh the deterrent effect of applying the rule against the cost to society. The “principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that ‘offends basic concepts of the criminal justice system.’ “ Id. at 141 (quoting Leon, 468 U.S. at 908).

In determining the deterrent effect of applying the rule, the Herring Court explained that the deterrent effect is higher where law enforcement conduct is more culpable. Thus, “ ‘an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus' of applying the exclusionary rule.” Id. at 143 (quoting Leon, 468 U.S. at 911).

The Herring Court explained that the rule should not be applied where excluding the evidence would have little deterrent effect on future constitutional violations by law enforcement officers, and the cost to society of such a rule is high. Id. at 147–148 (concluding that “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way’ “ and the exclusionary rule should not be applied).

In Herring, the mistake made by police was that a police department in Dale County, Alabama told the neighboring Coffee County police that the defendant had an outstanding arrest warrant in Dale County. Id. at 137–38. In fact, the Dale County arrest warrant had been recalled five months earlier, but had never been deleted from the electronic database. Id. at 138. After being given the incorrect information that the warrant was outstanding, a Coffee County police officer detained Herring, and found drugs and a gun on his person. Id. Herring sought to exclude the evidence seized from his person. Id. at 137.

The majority distinguished the negligent conduct involved in Herring from earlier cases where the good faith exception did not apply, calling the error before it the “result of isolated negligence attenuated from the arrest.” Id. at 137.

More recently, the Supreme Court followed the Herring analysis in Davis, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285, where the Court considered “whether to apply [the exclusionary rule] when the police conduct a search in compliance with binding precedent that is later overruled.” Id. at 2423. The Court ruled that the exclusionary rule should not be applied in those circumstances, “[b]ecause suppression would do nothing to deter police misconduct ․ and because it would come at a high cost to both the truth and the public safety.” Id. In so ruling, the Court again expounded on the balancing test that courts must apply after finding a Fourth Amendment violation: “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Id. at 2427 (citing Herring, 555 U.S. at 141, and Leon, 468 U.S. at 910). Justice Alito, writing for the Court, elaborated:

The basic insight of the Leon line of cases is that the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue. When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force and exclusion cannot pay its way.

Davis, 131 S.Ct. at 2427–28 (internal citations, quotation marks and brackets omitted).

The Davis Court also reviewed the line of “good faith exception” cases, starting with Leon, concluding that “in 27 years of practice under Leon's good-faith exception, we have ‘never applied’ the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct.” Id. at 2429 (quoting Herring, 555 U.S. at 144.)

Indeed, the Davis Court focused on the issue of culpability as the decisive factor in the case before it:

Under our exclusionary-rule precedents, this acknowledged absence of police culpability dooms Davis' claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “meaningfu[l]” deterrence, and culpable enough to be “worth the price paid by the justice system.” Herring, 555 U.S. at 144. The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis's Fourth Amendment rights deliberately, recklessly, or with gross negligence. See ibid. Nor does this case involve any “recurring or systemic negligence” on the part of law enforcement. Ibid.

Davis, 131 S.Ct. at 2428.

In order to properly apply Leon, Herring, and Davis here, we must focus on the culpability of the actors who committed the violations. The government mistakenly argues that we should focus on the conduct and “good faith” of PGCPD Detective Blazer, who, based on the cold hit, obtained the warrant for Davis' known DNA. It is true that nothing in the record suggests that Detective Blazer engaged in any culpable, or even negligent, conduct. He relied in good faith on the cold hit obtained and followed proper procedures in getting a search warrant based on it. There is nothing to suggest that his conduct was improper or that he had any obligation to look behind the cold hit match to see if there was some earlier constitutional violation.

But the deterrent effect of the exclusionary rule must be judged at the point of the constitutional violation, and the culpability of the actors involved then. The pertinent inquiry is whether we apply the exclusionary rule to keep similar violations from happening again; here, to prevent and deter the warrantless extraction of a victim's DNA from materials lawfully in police custody when he later becomes a suspect and then to deter that DNA profile from being retained. Thus, we look at the culpability of the police officers involved in those decisions, not at Detective Blazer.

As to the first violation, the extraction and testing of Davis' DNA in connection with the Neal murder, we find nothing in the conduct of the PGCPD officers that would warrant exclusion. As an initial matter, the PGCPD officers had no reason to question that Davis' blood was lawfully within HCPD custody and indeed, we have concluded that the clothing was properly in police custody.

Although we do not have detailed testimony before us as to the subjective motivations of the PGCPD officers who obtained the clothing and requested it be tested, the unique facts of this case reflect, at most, isolated negligence. What the officers did here was to obtain clothing that was lawfully in police custody and to test it for evidence. Significantly, the only reason they knew of the clothing's existence was because of Davis' arrest on drug charges when he left the hospital in Howard County. Had the clothing been obtained initially because of his arrest (like the other items on the property form), Edwards and Wallace v. State, 373 Md. 69, 816 A.2d 883 (Md.2003), a Maryland Court of Appeals decision applying Edwards, likely would have permitted the testing. Thus, attributing culpability to the officers at this stage would be based on either: (1) their failure to learn, or recognize, that the clothing was in police custody because Davis was a victim, rather than an arrestee; or (2) assuming they did know the clothing had been seized from a crime victim, their failure to recognize that Davis' dual status as victim and arrestee might change the legal analysis set forth in Edwards and Wallace. This is simply not the type of “flagrant,” or “intentional ․ patently unconstitutional” conduct that warrants the application of the exclusionary rule. See Herring, 555 U.S. at 143–44. The conduct of PGCPD officers, in testing the blood contained on otherwise lawfully-seized clothing, does not constitute the type of “deliberate, reckless or grossly negligent” conduct that warrants exclusion. See id. at 144. As the Herring Court explained, “[a]n error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the rule in the first place.” Id.

The dissent's mantra of “deliberate and intentional” police conduct at each step in the factual scenarios here, see post at 93, does not alter the facts as we have set them forth or the proper analysis to be applied to them. To be sure, the police took the steps that they did deliberately and intentionally in the sense that their actions were not accidental. But for the reasons we explain, one could insert “innocently” or “without knowledge of any constitutional violation,” before each of those actions.

Likewise, as to any violation that occurred when the analyst entered Davis' DNA profile into the database after he was not a match in the Neal murder investigation, the record simply does not disclose anything that suggests that this action was anything other than an isolated, negligent incident at best. There is nothing, first of all, to show that the analyst here knew or should have known entering the data would violate the Fourth Amendment. Indeed, the many court decisions (including this Court's decision in Jones ), that have considered challenges to the use of DNA evidence have uniformly upheld statutes and other laws allowing the collection and testing of DNA evidence.

Additionally, while the paperwork accompanying Davis' clothing indicated that it came from a victim's clothing (J.A. 164, Supp. J.A. 76), it is not at all clear that the analyst actually knew anything other than that the evidence came from a “suspect in a shooting.” (Supp. J.A. 93.) Similar to Leon and Herring, where officers relied on records from others in law enforcement, the PGCPD officers were relying on the fact that the HCPD had lawfully obtained the evidence. Indeed, while we rejected the government's broad construction of Edwards based on the fact that Davis was a victim when police seized his clothing, courts have repeatedly held, in broad terms, that evidence lawfully seized by one police agency may be given to another, even for a different purpose and even for additional testing.30

So, while we have determined for purposes of this opinion that Edwards did not allow the testing because Davis, as a victim, retained an objectively reasonable expectation of privacy in his DNA, that does not mean that the PGCPD officers and DNA analyst were not acting in a good faith belief that they had authority to do that testing under Edwards and similar cases.

Additionally, there is no evidence before this Court that the retention of a DNA profile in circumstances like that of Davis, is a systemic or recurring problem. The dissent disagrees, relying heavily on what it describes as an “admission” of the government at oral argument that the constitutionally violative conduct here was “clearly systemic.” See post at 90. In our view, that reliance is misplaced. At oral argument, in response to questioning, counsel for the government briefly set forth the basic PGCPD policy or practice that the analyst was following.31 Specifically, counsel explained that if a piece of evidence was analyzed for DNA evidence and a DNA profile was obtained from it, or if a DNA profile was obtained from a “known sample,” then those DNA profiles were uploaded into the local CODIS database.

From this, our dissenting colleague assumes that evidence tainted by antecedent constitutional violations would also be uploaded to the database. But while it is possible to imagine, given the policy as articulated, that DNA evidence obtained by an illegal search or pursuant to an illegal arrest might end up in CODIS, there is no testimony before us as to whether that actually happened in any other instance. Indeed, defense counsel conceded at oral argument that the evidentiary record before this Court does not contain a single other example of a person's DNA being placed into the PGCPD local CODIS database without a proper constitutional basis. Any conclusion to that effect is purely speculative.

Moreover, as we have repeatedly made clear, our finding of a constitutional violation in this case was based on the specific and unusual facts of this case. Here, the police properly seized a piece of evidence from a victim in one crime, but then unconstitutionally used DNA evidence extracted from that evidence in investigating an unrelated crime in which the original victim was a suspect. They did so without consent from the victim and without obtaining a warrant, and thus we have found a violation. But a change in any one of those facts might have rendered the inclusion of Davis' DNA in CODIS constitutionally permissible. For example, had the clothing been taken from Davis as part of an inventory search at the time of his arrest for the present crime, as was the clothing in Edwards, rather than seized from him when he was a victim of a different crime, the result likely would have been different. Similarly, had the police obtained a search warrant to extract Davis' DNA from his pants and test it in conjunction with the Neal murder, the result likely would have been different.32 So, the mere fact that other victims' DNA might be present in the database does not mean there were other constitutional violations.

Likewise, there is no evidence before us that the analyst acted with knowledge that she should not retain the profile.33 Like the conduct at issue in Herring and in Davis, then, the conduct here stands in stark contrast to the cases in which the exclusionary rule has been applied, described by the Herring Court as “patently unconstitutional” conduct. See Herring, 555 U.S. at 143. Moreover, given the evolving and unsettled law governing DNA searches and seizures (as amplified by the district court's lengthy decision in this case, the briefs on appeal, and the lack of controlling Fourth Circuit or Supreme Court precedent), the conduct of the officers entering and retaining Davis' DNA profile can hardly be characterized as brazen or reckless.

We also note that Congress and the Maryland legislature, through their imposition of fines and criminal penalties for failures to comply with their respective DNA statutes, already provide a deterrent effect against similar and future potential misuses of DNA information. Md.Code Ann. Pub. Safety § 2–512 (providing penalties for persons who misuse, disclose, or fail to destroy certain DNA records as required by the Maryland Act); 42 U.S.C. §§ 14135e(c), 14132(c) (same as to federal DNA act). This factor, too, militates in favor of judicial restraint in exercising the remedy of suppression, which exacts a “costly toll upon truth-seeking and law enforcement objectives.” Cf. Herring, 555 U.S. at 141 (citation omitted); see also Osborne, 557 U.S. 52, 129 S.Ct. at 2312, 174 L.Ed.2d 38 (describing the response of the federal government and the states in regulating DNA testing as “prompt and considered”).

In short, the obtaining and testing of Davis' DNA from his bloody clothing, and the subsequent inclusion of his DNA profile in the database were, at best, “isolated negligence attenuated from the arrest” [for the Schwindler murder]. See Herring, 555 U.S. at 137. We have no proof before us showing that victims' DNA profiles or individuals cleared of suspicion in an investigation are routinely entered into the local database by PGCPD, or have been entered into the database in any other instance. There is nothing in the record to suggest that the acts here are likely to reoccur. Moreover, the particularly unusual facts of this case—where a victim, with a dual status as an arrestee, later becomes a suspect in an unrelated crime, and there is DNA evidence available as a result of the crime in which the person was a victim—diminish further the likelihood of reoccurrence. The price to society of application of the exclusionary rule here, especially since the DNA evidence against Davis was compelling, would be to allow a person convicted of a deliberate murder to go free. The deterrent effect, if any, would be minimal, especially considering the lack of culpable conduct on the part of the police. Exclusion, therefore, would not “pay its way.” See Davis, 131 S.Ct. at 2428.34

For the foregoing reasons, the good faith exception to the exclusionary rule applies and we affirm the district court's denial of Davis' motion to suppress.

V.

Davis' second and final contention is that the district court erred in excluding the testimony of his proffered expert, Dr. Jeffrey Neuschatz. We review a district court's evidentiary rulings, including rulings on the admissibility of expert testimony, for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–42, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Barsanti, 943 F.2d 428, 432 (4th Cir.1991) (decision whether to admit expert testimony “will not be reversed absent a clear abuse of discretion”). We have reviewed the pertinent portions of the record on this issue and find no abuse of discretion with regard to this evidentiary ruling.

At trial, in addition to the DNA evidence and other evidence concerning the offenses, there was one witness, Laverda Jessamy, who identified Davis as being one of the robbers at the scene of the bank robbery and Schwindler shooting. She had done so both from a photographic array and in person at trial. In response to this identification, Davis sought to introduce the testimony of Dr. Jeffrey Neuschatz as an expert in eyewitness identifications. According to his expert witness report, Dr. Neuschatz intended to testify that the lineup procedure used with Ms. Jessamy did not meet the good practices guidelines of the American Psychology–Law Society and to testify concerning a number of factors which might result in a misidentification.

The government moved to exclude this evidence, contending that much of the proffered testimony consisted of common sense factors within the jury's understanding and not requiring expert testimony. After a hearing, the district court granted the government's motion to exclude Dr. Neuschatz's testimony on the grounds that it would not assist the jury. The court also explained that the testimony was not admissible under Fed.R.Evid. 403. In particular, the district court concluded that the probative value of the testimony was low because there was significant other evidence of guilt other than the eyewitness testimony and it was not a case where the government was relying, either exclusively or primarily, on eyewitness testimony. Thus, the danger of unfair prejudice, confusing of the issues or misleading the jury heavily outweighed the probative value of the testimony.

We have reviewed Dr. Neuschatz's report and his testimony at the Daubert hearing, and find that the district court did not abuse its discretion in concluding that the proffered evidence was not “scientific knowledge” that would be of benefit to the jury. This is consistent with our prior decision in United States v. Harris, 995 F.2d 532 (4th Cir.1993). In Harris, we recognized the “trend in recent years to allow such testimony under [narrow] circumstances,” but nonetheless concluded that “jurors using common sense and their faculties of observation can judge the credibility of an eyewitness identification, especially since deficiencies or inconsistencies in an eyewitness's testimony can be brought out with skillful cross-examination.” Id. at 534–35.

The district court also did not abuse its discretion when concluding that, even if it qualified as a proper subject of expert testimony, the probative value of the testimony, which was low, was outweighed by the danger of prejudice or confusing the jury. Accordingly, it was not an abuse of discretion to exclude the evidence on Rule 403 grounds.

Finally, we also agree with the government that, even if the testimony was wrongfully excluded, it was at most, harmless error. Most of the points that would have been made by Dr. Neuschatz were made by Davis' counsel on cross-examination. The compelling DNA evidence against Davis, as well as the evidence of unexplained cash purchases by him and his girlfriend in the days following the robbery were overwhelming evidence of guilt. The detailed jury instruction given by the court, moreover, further recognized and correctly advised the jury as to the legal issues concerning eyewitness identifications. In light of all these factors, we find no abuse of discretion by the district court in excluding the witness.

VI.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

There is much in the majority's thoughtful and thorough opinion with which I agree. Alas, however, “I feel constrained by a sense of duty to express my nonconcurrence in the action of the court in this present case.” Twining v. New Jersey, 211 U.S. 78, 114, 29 S.Ct. 14, 53 L.Ed. 97 (1908) (Harlan, J., dissenting). I part company from the majority on two issues: (1) its application of the plain view exception to justify the seizure of the bag containing Davis's clothing from the hospital and the subsequent search of that bag and (2) its refusal to apply the exclusionary rule.1 I conclude for the reasons explained herein that the seizure of the bag was unlawful and, even assuming the seizure could somehow be justified, the subsequent search of the bag effected a distinct violation of Davis's constitutionally protected privacy interests. Furthermore, I conclude that the majority's creation of a free-standing, ad hoc exception to the exclusionary rule is unwise and unsupported by the facts of this case, extant Supreme Court precedents, or our own precedents. Thus, I would vacate the judgment, reverse the denial of Davis's motion to suppress, and remand this case for further proceedings, as appropriate.2

I.

A.

On August 29, 2000, Davis was treated at Howard County (Maryland) General Hospital for a gunshot wound to his right thigh. Davis told hospital staff that he had been shot in the course of a robbery. As required by state law, hospital personnel notified the Howard County Police Department (“HCPD”) that it was treating a gunshot victim. See Md.Code Ann., Health–Gen. § 20–703. Detective Joseph King of the HCPD, then a uniformed patrol officer, was the first to respond to the hospital; King spoke with Davis concerning the circumstances of the shooting. Detective King testified at the suppression hearing that the hospital had been on his beat for approximately two years, and that he had responded on previous occasions to individuals with gunshot wounds. When he arrived at the hospital, he located Davis in the emergency room on a bed or gurney. According to Detective King, Davis presented him with a District of Columbia driver's license that showed his photograph and the name “Gary Edmonds.”

Detective King observed Davis's gunshot wound. He then seized a bag containing Davis's pants and boxer shorts, which had been removed by hospital personnel, placed in the bag, and stored on a shelf beneath the bed. Detective King testified that he considered the clothing to be evidence of the crime reported, i.e., Davis's shooting. Detective King did not receive assistance from hospital personnel in retrieving the bag, which he testified was similar to other occasions on which he had responded to the hospital to investigate shootings. Detective King did not seek or obtain Davis's consent to take the bag or otherwise discuss the matter with Davis. He assumed Davis was aware that he was taking the bag because Davis observed him take possession of it. Detective King described Davis's attitude towards questioning as “uncooperative.” J.A. 143.

A short time later, Lieutenant Steven Lampe appeared at the hospital. Lieutenant Lampe took the bag from Detective King and later submitted it to the HCPD property room to be held as evidence. Lieutenant Lampe testified that the clothing was in a plastic bag when he took it from Detective King, but he could not recall what the bag looked like. Lieutenant Lampe did not inspect the clothing right away. Consistent with Detective King's testimony, he stated that Davis was not forthcoming in response to questioning, gave only vague information about the shooting, and was not interested in reporting the crime. After speaking with Davis, the police attempted to confirm his identity through various computer inquiries and found no history of a “Gary Edmonds.”

Because the officers believed that Davis was being untruthful in his report of how he was shot, in part due to his lack of cooperation, the officers located the vehicle in which Davis's friend had driven him to the hospital, observed what appeared to be blood on the front passenger seat, and requested a K–9 officer to have his dog scan the car. The dog positively alerted to the presence of a controlled dangerous substance (“CDS”), and the car was searched. The police recovered a small amount of marijuana in the vehicle and accordingly arrested Davis and took him into custody upon his release from the hospital later that day. Lieutenant Lampe testified that the hospital staff had given Davis something to wear, Davis's clothing having been seized by Detective King. The police subsequently identified Davis by his fingerprints as “Earl Davis,” and he admitted his true identity. Davis was charged with possession of marijuana and possession of CDS paraphernalia, but the charges were later dismissed.

The investigation into Davis's shooting concluded without an arrest, and the case was considered closed as of November 7, 2000. To that point, no forensic testing had been conducted on the bloody clothing seized from Davis at the hospital. Davis was not contacted or otherwise advised that the shooting investigation was closed.

Several months later, in June 2001, an individual named Michael Neal was murdered in nearby Prince George's County, Maryland. At some point in the ensuing three years detectives in the Prince George's County Police Department (“PGCPD”) came to suspect Davis of having committed the murder. In the course of investigating the Neal murder, in April 2004 members of the PGCPD contacted Lieutenant Lampe to inquire about Davis's arrest at Howard County General Hospital in 2000. The PGCPD officers specifically asked whether any property had been seized from Davis that might contain his DNA. Lieutenant Lampe understood from this inquiry that Davis was now a suspect in a homicide. Later that month, two PGCPD homicide detectives who were familiar with the facts of the Neal murder went to the HCPD to pick up Davis's clothing for the purpose of DNA testing. Lieutenant Lampe delivered the clothing to the PGCPD detectives on April 29, 2004. On the property form for the clothing, Davis was clearly identified as a “victim.” J.A. 164. Davis was not notified that the PGCPD had obtained his clothing. The PGCPD detectives submitted Davis's clothing to their DNA lab in connection with their investigation of the Neal murder.

Shortly thereafter, in or around June 2004, Davis's DNA was extracted from the blood stains on his boxer shorts, his profile was created, and the profile was compared to an unknown DNA profile derived from evidence obtained at the scene of the Neal homicide. The profiles did not match, and Davis was therefore excluded as the source of the evidentiary sample from the Neal murder. Davis's DNA profile was then entered into the local Prince George's County Combined DNA Index System (“CODIS”) database. His DNA profile was never expunged or otherwise removed from the database.

B.

On August 6, 2004, shortly before 1:00 p.m., Jason Schwindler, an armored car employee, picked up a bank deposit from a local business and took it to a nearby BB & T bank in Hyattsville, Maryland, located in Prince George's County. As Schwindler walked up to the bank entrance, two gunmen exited a Jeep Cherokee and shot Schwindler, killing him. When their escape in the Jeep was thwarted by the armored truck driver, the assailants carjacked a bank customer and fled in her Pontiac Grand Am. The carjacked vehicle was later recovered.

After Schwindler's murder, officers from the PGCPD responded to the crime scene and collected evidence. Numerous items were recovered, including a baseball cap worn by one of the shooters, two firearms, and steering wheel covers from the Jeep Cherokee and the Pontiac Grand Am, the vehicles the shooters had driven to and away from the crime scene, respectively. These items were swabbed and analyzed for DNA. The DNA profiles of the major contributor to the DNA found in the ballcap and on the trigger and grip of the recovered firearms were entered into the Prince George's County CODIS database. As a result of a search of the local database, on or about August 14, 2004, there was a “cold hit” between the DNA profile derived from material found on the baseball cap recovered at the crime scene and Davis's DNA profile in the database.

Law enforcement officers were notified of the match and, based on the cold hit, they promptly sought, and a state judge issued, warrants authorizing them to obtain DNA from Davis and to search the home of his girlfriend, Dana Holmes. Pursuant to the search warrant, a DNA sample was taken from Davis and his DNA profile was compared to the profiles derived from the DNA deposited on items recovered from the crime scene. The DNA analyst concluded that, to a reasonable degree of scientific certainty, Davis was the source of the DNA recovered from three pieces of evidence related to the Schwindler murder: (1) the steering wheel cover of the stolen Jeep Cherokee the assailants drove to the bank; (2) a baseball cap dropped by one of the assailants during the course of the robbery; and (3) the steering wheel cover of the Pontiac Grand Am in which the assailants fled the scene.

C.

On March 31, 2008, a federal grand jury returned a superseding indictment charging Davis with one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1959; two counts of possession and discharge of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c); one count of possession and discharge of a firearm resulting in death (murder), in violation of 18 U.S.C. § 924(j); one count of carjacking, in violation of 18 U.S.C. § 2119; and one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Davis pleaded not guilty and proceeded to trial.

Prior to trial, Davis moved to suppress all direct and derivative evidence obtained from the warrantless seizure of his clothing at Howard County General Hospital, including his DNA profile. The district court denied Davis's motion to suppress after holding an evidentiary hearing and, following the conclusion of trial, filed a thoughtful opinion accepting some of Davis's arguments and rejecting others, but ultimately reaffirming its earlier denial of the motion to suppress. United States v. Davis, 657 F.Supp.2d 630 (D.Md.2009).

The DNA evidence presented at trial consisted of the PGCPD analyst's finding that Davis's DNA profile matched the DNA profile derived from the evidence recovered from the scene of the Schwindler murder to a reasonable degree of scientific certainty. Davis challenged the validity of the analyst's findings. In particular, he questioned whether the amount of DNA recovered from the crime scene was sufficient to produce accurate results and whether the government's statistical probability calculations (i.e., the statistics supporting the conclusion that Davis was the source of the DNA on each of the three items recovered from the crime scene) were reliable and accurate.

Davis's trial began on May 5, 2009, and lasted approximately five weeks. At the conclusion of the trial on June 3, 2009, the jury returned a guilty verdict on all counts. The district court sentenced Davis to a term of life imprisonment plus 420 months. Davis timely appealed the district court's denial of his motion to suppress and grant of the government's motion to exclude expert testimony.

II.

As the majority explains, Davis argues the district court committed reversible error in denying his motion to suppress DNA evidence. He contends that the following separate Fourth Amendment violations led to the “cold hit” match that implicated him in the Schwindler murder.3 First, Davis argues that the initial nonconsensual, warrantless seizure of the bag of clothing from Howard County General Hospital by the HCPD in 2000 violated his Fourth Amendment rights. Second, he contends that the related, subsequent nonconsensual, warrantless search of the bag was unlawful, rendering all further uses of the evidence derived therefrom inadmissible as “fruit of the poisonous tree.” Third, he asserts that PGCPD officials violated the Fourth Amendment when they extracted and chemically analyzed a sample of his DNA from the clothing without consent or a warrant in 2004. Fourth, Davis contends that the nonconsensual, warrantless uploading and retention of his DNA profile in the local CODIS database constituted yet a further Fourth Amendment violation. Of these four alleged violations, the district court found that only the retention of Davis's DNA profile in the CODIS database constituted a Fourth Amendment violation, although it ultimately concluded that applying the exclusionary rule was not appropriate on the basis of the good-faith exception.

The majority agrees with the district court's analysis in significant part. In particular, the majority agrees that the warrantless seizure of the bag containing Davis's clothing, as well as the subsequent, distinct search of the bag, and the subsequent seizure of the contents of that bag, resulting in the extraction of Davis's biological material, all may be justified on the basis of the plain view seizure exception to the warrant clause of the Fourth Amendment. I respectfully dissent from that extraordinary holding. The plain view exception does not apply under the circumstances in this case. Furthermore, even if it could be applied in some plausibly recognizable manner, the plain view seizure doctrine could not possibly justify the separate search of the bag containing Davis's clothing. Accordingly, the majority's substantive Fourth Amendment analysis is fatally flawed, quite apart from its unwarranted refusal to apply the exclusionary rule.

A.

As the district court correctly observed, Davis, 657 F.Supp.2d at 636, the government bears the burden of proving, by a preponderance, the legality of the search and seizure of evidence obtained without a warrant (or evidence derived therefrom) which it intends to introduce at trial. See Welsh v. Wisconsin, 466 U.S. 740, 749–50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (exigent circumstances); United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (consent); United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (same); cf. Illinois v. McArthur, 531 U.S. 326, 338, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (Souter, J., concurring) (“[M]ost states follow the rule which is utilized in the federal courts: if the search or seizure was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant the burden of proof is on the prosecution.”) (quoting 5 W. LaFave, Search and Seizure § 11.2(b), p. 38 (3d ed.1996)). In assessing a trial court's ruling on a motion to suppress, we review factual findings for clear error and legal determinations, including “determination[s] of whether the historical facts satisfy a constitutional standard,” de novo. United States v. Gwinn, 219 F.3d 326, 331 (4th Cir.2000); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Wilson, 484 F.3d 267, 280 (4th Cir.2007). When a motion to suppress has been denied in the court below, we review the evidence in the light most favorable to the government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).

B.

The HCPD's original nonconsensual, warrantless procurement of Davis's bloody boxer shorts and pants in 2000 requires that we decide whether the district court erred in its legal conclusion that Detective King was entitled to both seize the bag containing the clothing and to search its contents without consent and in the absence of a judicial warrant. Echoing the district court's analysis, the majority concludes that Detective King was justified in seizing the bag because he had “lawful access” to it and because it was “immediately apparent” to him, and would have been so to any reasonable officer in his position, that the bag contained Davis's pants and that the pants contained a bullet hole, i.e., evidence of a crime. Maj. Op. at 15–16. The majority further elaborates its unique reconception of the longstanding plain view seizure doctrine by concluding that King was justified in searching the bag's contents, without obtaining Davis's consent or a warrant, because it was a “foregone conclusion” that the bag contained evidence of a crime. Maj. Op. at 14, 16 (relying upon Williams, 41 F.3d 192).

The majority's analysis is deeply flawed. As I explain in subsection II.B.1, application of rudimentary and long-established Fourth Amendment principles demonstrates that Detective King's seizure of the bag from Davis's possession violated Davis's Fourth Amendment right to be free of an unreasonable seizure of his personal “effects” and cannot be shoehorned into a plain view seizure analysis. Furthermore, as I show more specifically in subsections II.B.2 and II.B.3, long-settled understandings of the plain view seizure doctrine demonstrate that under no reasonable interpretation of the facts found by the district court can it be said that the nonconsensual, warrantless search of the bag was justified under that doctrine. As I demonstrate, neither Williams, nor any other precedent cited to us by the government supports, let alone compels, the remarkable application of the plain view seizure doctrine engaged in by the majority.

1.

It is common ground among the panel that a well-established exception to the Fourth Amendment's warrant requirement provides that a law enforcement officer may seize evidence in “plain view” without a warrant where (1) the officer is lawfully located in a place from which the item can plainly be seen; (2) the officer has a lawful right of access to the item itself; and (3) the incriminating nature of the seized item is immediately apparent. See Horton v. California, 496 U.S. 128, 136–37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). As this test makes clear, the intrusions implicated by the first two prongs of the test must be lawful. In other words, in both viewing the item to be seized and in actually taking physical possession of it, police must not infringe constitutionally protected privacy or possessory interests in the absence of a warrant or other well-recognized exception to the warrant requirement. See Texas v. Brown, 460 U.S. 730, 738–39, 103 S.Ct. 1535, 75 L.Ed.2d 502 (opining that “plain view” should not be considered an independent exception to the warrant requirement, but rather an extension of a prior justification for an officer's “access to an object”) (plurality opinion); see also Horton, 496 U.S. at 137 n. 7 (explaining that the lawful right of access requirement is “simply a corollary of the familiar principle ․ that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances' ”) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion)).

In addition, the item's incriminating nature must be “immediately apparent” at the time the police view it, meaning that there is a “practical, nontechnical probability that incriminating evidence is involved.” Brown, 460 U.S. at 742 (internal quotation marks omitted); see also Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (“If ․ the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object—i.e., if its incriminating character is not immediately apparent, Horton, 496 U.S. at 136—the plain-view doctrine cannot justify its seizure.”) (internal quotation marks and brackets omitted); Soldal v. Cook County, Illinois, 506 U.S. 56, 66, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (explaining that “ ‘plain view’ seizures ․ can be justified only if they meet the probable-cause standard”).

The government has failed to meet its burden here to establish that the seizure of the bag containing Davis's clothing can be justified by application of the plain view seizure doctrine, and the subsequent search of the bag could never be justified by the plain view seizure doctrine in any event, no matter how much evidence the government could muster.

There is no dispute that Detective King was lawfully present in the emergency room where Davis was being treated, and thus viewed the bag from a lawful vantage point. There is a constitutionally cognizable distinction, however, between the emergency room generally and the more narrowly delineated area beneath Davis's bed where the bag had been stored. Thus, the majority fails (or simply refuses) to recognize that although this case does not involve the paradigmatic factual scenario in which police view an item through a window before entering a premises to retrieve it, see Maj. Op. at 11–12, the lawful vantage point and lawful access prongs do not necessarily rise and fall together. Rather, there are distinct possessory and privacy interests implicated by the facts before us, namely the specific location of the bag and the fact that it contained non-contraband personalty or, to use the constitutional parlance, Davis's constitutionally protected “effects.”

As a matter of law, Davis never relinquished his possessory rights in his effects prior to their seizure. See United States v. Neely, 345 F.3d 366, 369 & n. 4 (5th Cir.2003) (“[A]n emergency room patient does not forfeit his possessory rights to clothing simply by walking (or in many cases being carried) through the hospital door.”) (collecting cases). Howard County General Hospital personnel ensured that Davis's clothing was in his immediate personal possession and control when they placed it in a bag on the shelf directly beneath his bed. See People v. Yaniak, 190 Misc.2d 84, 738 N.Y.S.2d 492, 495–96 (Co.Ct.2001) (“[T]he placing of the garments in the green plastic bag by hospital personnel evinced an objective belief that the items were still the personal property of the defendant and that, when he felt better, they would be returned to him.”).

Of course, Davis would have retained his possessory interest in the clothing (and thus the bag containing the clothing), as well as his residual privacy interest in his clothing,4 even if the hospital had safeguarded it in some other location. See Neely, 345 F.3d at 370 (explaining that once clothing is taken from the patient and secured by hospital employees, the hospital becomes a bailee and employees have no authority to permit police to retrieve the clothing without a warrant) (citation omitted). In addition, there is no evidence that Davis abandoned his clothing or that he consented to the seizure. Accordingly, under the circumstances, the police no more had “lawful access” to the bag containing Davis's clothing as he lay in the hospital receiving treatment than they would have had if the bag had been locked in a cabinet for patients' belongings or, indeed, held in Davis's hands while he was being treated.5

Manifestly, an officer's physical access to a citizen's non-contraband personalty in the possession of the citizen is not equivalent to an officer's “lawful access” to that personalty under the plain view doctrine. In other words, the mere existence of probable cause to believe a container in the possession of a citizen holds evidence of criminal activity, where the evidence is not contraband, is not alone sufficient to effect a warrantless seizure of that container from the possession of the citizen.6

As Davis correctly argues, and as the district court acknowledged, “A warrantless seizure is ‘per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions' to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted); Flippo v. West Virginia, 528 U.S. 11, 13–14, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (same).” Appellant's Br. at 21; see Davis, 657 F.Supp.2d at 636. The plain view seizure doctrine does not supplant the need for such an exception where an officer intrudes upon constitutionally protected privacy or possessory interests in physically retrieving the item to be seized from the person of its owner. See Horton, 496 U.S. at 137 (“[N]ot only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.”); Jones v. State, 648 So.2d 669, 678 (Fla.1994) (explaining that the lawful access requirement “ensures that the scope of the intrusion into Fourth Amendment rights is no greater than that already authorized in connection with the lawful entry”); see also infra pp. 83–84 (explaining why seizures of containers holding “mere evidence” are distinguishable from containers holding contraband). Accordingly, in the absence of a recognized justification (e.g., exigent circumstances, which the district court did not find applicable) for intrusion upon Davis's protected interests, Detective King could not lawfully seize the bag under the plain view seizure doctrine from Davis's possession without a warrant or consent, irrespective of whether it was “immediately apparent” that the clothing suspected of being contained therein constituted evidence of a crime.7 As the government accurately describes the relevant circumstances, “the [bag containing the] clothing was readily accessible to Detective King,” Govt's Br. at 33–34, but that most assuredly does not mean that Detective King had “lawful access” to the bag or the clothing contained therein under the plain view seizure doctrine.

2.

Of course, even if Detective King could conceivably, on some theory, lawfully seize the bag, that does not mean that he could inspect its contents, i.e., search the bag, without obtaining Davis's consent or a judicial warrant.8 “Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband [or mere evidence], the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package,” United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (brackets added), or otherwise satisfy one of the exceptions to the warrant requirement. Horton, 496 U.S. at 141 n. 11. In other words, as Judge Niemeyer (who, three years earlier, had been a member of the panel in Williams ) has cogently explained, “The ‘plain-view’ doctrine provides an exception to the warrant requirement for the seizure of property, but it does not provide an exception for a search.” United States v. Jackson, 131 F.3d 1105, 1108 (4th Cir.1997) (emphasis in original); accord United States v. Rumley, 588 F.3d 202, 205 (4th Cir.2009).

Only in a very limited subset of cases involving “closed, opaque container[s]” may an officer open the container without first obtaining a warrant or the owner's consent, Robbins v. California, 453 U.S. 420, 426, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (plurality opinion), at least where, as here, the container is not located in a vehicle. One exception to the search warrant requirement in this context is in cases involving exigency. See Chadwick, 433 U.S. at 15 n. 9 (“Of course, there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon.”).9 Another exception, the one the district court and the majority erroneously rely on, is for “containers (for example a kit of burglar tools or a gun case) [that] by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Sanders, 442 U.S. at 764 n. 13. In those cases, because “the distinctive configuration of [the] container proclaims its contents,” the owner of the container has no reasonable expectation of privacy in those contents, Robbins, 453 U.S. at 427 (plurality opinion)—and thus an officer's observation of those contents does not constitute a separate “search” for Fourth Amendment purposes. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (“If the inspection by police does not intrude upon a legitimate expectation of privacy, there is no ‘search’․”). In such cases the shape and/or character of the container, including where relevant its labeling, even if closed and opaque, is constitutionally equivalent to one that is open or transparent, because it “clearly reveal[s] its contents.” Id.; see also Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (“[A] truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes, and therefore does not even require reasonable suspicion.”); United States v. Payne, 181 F.3d 781, 787 n. 4 (6th Cir.1999) (“There is no such thing as a ‘plain-view search.’ ”).10

We have carefully limited the scope of this “proclaims its contents” exception to cases where the incriminating nature of the contents is a “foregone conclusion.” See Williams, 41 F.3d at 192; see also Sanders, 442 U.S. at 764 n. 13 (requiring that the container's owner not maintain “any reasonable expectation of privacy” in the contents) (emphasis added).11 Indeed in United States v. Corral, 970 F.2d 719 (10th Cir.1992), on which Williams principally relied, the court found that no search occurred only because there was a “virtual certainty” that the package contained, in that case, cocaine. Id. at 726 (quoting Brown, 460 U.S. at 751 n. 5 (Stevens, J., concurring in the judgment)). The obviousness of a container's contents must be such that an officer's view of the container is “equivalent to the plain view” of the incriminating contents themselves. Id. (emphasis added).12 The analogy we used in Williams illustrates both the centrality to the plain view seizure doctrine of the character of the container and the high degree of certainty required: “[W]hen a person opens a Hershey bar, it is a foregone conclusion that there is chocolate inside.” 41 F.3d at 198; see also Brown, 460 U.S. at 750–51 (Stevens, J., concurring in the judgment) (concurring in the application of the exception because the container there—a knotted party balloon located in a car close to several small plastic vials, quantities of loose white powder, and an open bag of party balloons—was “one of those rare single-purpose containers which ‘by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance’ ”). Only if the character of a closed, opaque container proclaims its incriminating contents to such a degree do we excuse officers from obtaining a search warrant to open the container, assuming the officer has lawfully come into possession of the container.13

The above principles reflect the longstanding interplay between the two separate interests at stake: citizens' interest in retaining possession of their property and their interest in maintaining personal privacy. These two interests roughly correspond to seizures and searches, respectively, as “[a] seizure threatens the former, a search the latter.” Brown, 460 U.S. at 747 (Stevens, J., concurring in the judgment). This distinction, in turn, informs the plain view seizure doctrine in this context. As Justice Stevens has explained,

As a matter of timing, a seizure is usually preceded by a search, but when a container is involved the converse is often true. Significantly, the two protected interests are not always present to the same extent; for example, the seizure of a locked suitcase does not necessarily compromise the secrecy of its contents, and the search of a stopped vehicle does not necessarily deprive its owner of possession.

Id. at 747–48.

Apart from the special concerns arising from seizures of containers, we allow police officers to seize incriminating objects in plain view with a showing only of probable cause because the seizure “threatens only the interest in possession;” such objects “can be seized without compromising any interest in privacy.” Id. at 748. “[I]f an officer has probable cause to believe that a publicly situated item is associated with criminal activity” the owner's interest in possession is “diminish[ed],” and becomes “outweighed by the risk that such an item might disappear or be put to its intended use before a warrant could be obtained,” and the object may be seized without a warrant. Id. (citing G.M. Leasing Corp. v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 50 L.Ed.2d 530 (1975); Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).

Where there is a “link” between the seizure and “a prior or subsequent search,” however, there is a “danger ․ that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.” Id. Averting that danger requires not only that the officer have probable cause to connect the item with criminal behavior, but also that the seizure “entail[s] no significant additional invasion of privacy.” Id. This danger is particularly acute where, as here, “an officer comes upon a container in plain view and wants both to seize it and to examine its contents.” Id. at 749. The Court has “emphasiz[ed] the Fourth Amendment privacy values implicated whenever a container is opened.” Id.

3.

In light of these controlling principles, the dispositive issues bearing on the applicability of the plain view seizure doctrine before the district court were fairly straightforward. Given the above concerns, the issues can be easily framed: Could the government justify Detective King's nonconsensual, warrantless seizure of the bag, a closed, opaque container, on the one hand? Relatedly (but distinctly), did King's immediate opening of such a container constitute a “non-search” (because it does not invade its owner's reasonable expectation of privacy) or, instead, an impermissible warrantless search, on the other hand? Although the district court and the majority of the panel conclude that our Williams precedent provides easy answers to those questions, upon a close view of the facts in Williams and in light the precedents discussed above, it is clear that the majority's reliance on that case is wholly misplaced.

In Williams, an airline employee conducted a private search of the defendant's luggage and found several cellophane-wrapped packages that, according to her, “looked like dope.” 41 F.3d at 198. She alerted police officers, who seized the packages and then removed some of the content, conducting a chemical field test that revealed that the packages contained cocaine. Id. at 194. The seizure was proper under the plain view doctrine, we concluded, because not only did the officers have lawful access to the packages; there was “no doubt” of the packages' “incriminating nature”: “the packages were wrapped in heavy cellophane with a brown opaque material inside, and were found with towels, dirty blankets and a shirt in an otherwise empty suitcase.” Id. at 196–97. In fact, the seizing officer later testified that “in his ten years of experience such packages always contained narcotics .” Id. at 197 (emphasis added).

We then turned to whether the police needed a warrant to remove any of the contents of the packages. To justify the warrantless search, we explained, the government must not only show there was probable cause the container contained evidence of a crime, but rather that, based on characteristics of the container itself and “the circumstances under which an officer [found] the container,” the contents' incriminating nature was “a foregone conclusion.” Id. at 197 (citing Blair, 665 F.2d at 507). We concluded that “the incriminating nature of the five packages found in Williams' suitcase was a foregone conclusion,” given

(1) the manner in which the cocaine was packaged (apparently weighing approximately one kilogram each, heavily wrapped in cellophane with a brown opaque material inside); (2) Detective Finkel's firm belief, based on his ten years' experience, that packages appearing in this manner always contained narcotics; (3) [the airline employee's] belief that the packages contained narcotics; and (4) that the only items found in Williams' suitcase besides the five packages of cocaine were towels, dirty blankets, and a shirt with a cigarette burn.

Id. at 198. Because the presence of illegal narcotics in the packages was a foregone conclusion, Williams had no reasonable expectation of privacy in those contents. Accordingly, under the venerable Katz principle, see Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), the officers' observation of those contents did not constitute a “search,” and thus “a search warrant was unnecessary.” Williams, 41 F.3d at 198; See Jackson, 131 F.3d at 1108 (reaffirming that no “search” occurs when the plain view seizure doctrine properly applies to the contents of an opaque container).

Simply put, despite the majority's labored efforts to the contrary, this case is not Williams or Corral. Most important, under a proper plain view seizure analysis, it cannot be said that a reasonable officer in King's position had “knowledge approaching certainty,” Corral, 970 F.2d at 725, that the bag under Davis's hospital bed contained evidence of a felonious shooting in which Davis was a “victim.”14 The district court and the majority treat the bag of Davis's clothing as analogous to the cellophane-wrapped cocaine in Williams. See Maj. Op. at 16 (holding that “the totality of the circumstances ․ support[s] the determination that it was a foregone conclusion the bag under Davis' hospital bed contained the clothing he wore when he was shot,” and that the clothing was evidence of a crime). I disagree.

As a matter of law, based on what was known by the officers after they attempted to interview Davis at the hospital, the likelihood that the bag contained probative evidence of a felonious shooting in which Davis was a victim does not rise to the level of probable cause. In the first place, there is unwarranted confidence shown by the district court and the majority that Davis's pants would contain a bullet hole. See id. at 16–17, 527 S.E.2d 131 (“We have little trouble, however, in concluding that Davis' pants would contain a bullet hole, and would thus be incriminating evidence in the prosecution of his assailant. Such a conclusion is based on the circumstances, Davis' appearance, and the location of his bullet wound.”). The facts of United States v. Jamison, 509 F.3d 623 (4th Cir.2007), illustrate why this confidence is misplaced.

The defendant in Jamison was a felon who accidentally shot himself in the groin area with a gun he had been carrying in his waistband. 509 F.3d at 625. Like Davis here, when Jamison was transported by his associates to the hospital for treatment, he relayed to investigating officers a fanciful falsehood that he was the victim of an attempted robbery. Id. at 626. The investigating officer noticed Jamison's clothing on a chair in the treatment room and confirmed by the absence of a bullet hole in Jamison's pants that Jamison was lying about the circumstances surrounding how he was shot.15 Id. It was far from “a foregone conclusion” that, apart from the likely presence of blood on Davis's clothing, the contents of the bag would serve as useful evidence in the prosecution of an illusory “shooter” about whom Davis would provide no information. Indeed, the photograph in the record of Davis's high-thigh wound depicts a wound that is entirely consistent with one that would be suffered from an accidental discharge of a weapon by someone carrying a firearm in his waistband.

Equally important, there can be scant doubt that, in view of Davis's refusal to cooperate with the officers who responded to the hospital to investigate, the HCPD officers fairly quickly turned their attention to Davis as a suspect in criminal activity, just as Jamison quickly became a suspect in his own shooting. Indeed, even the government contends on appeal (contrary to the majority's facile attempt to show that in seizing Davis's personal property the Howard County police were seeking to “protect” Davis), that the police appropriately deemed Davis to be “not an innocent crime victim.” Govt's Br. at 46–47 n. 13. But see Davis, 657 F.Supp.2d at 640 (“Davis was positively the victim of a violent crime.”).

The actions of the officers in searching the car in which Davis was transported to the hospital and in eventually arresting Davis and his friend bear out this highly likely scenario. Indeed, the facts of this case show that because Davis used a falsely made District of Columbia driver's license bearing his photograph under the alias “Gary Edmonds,” the only way in which the HCPD could reliably identify Davis was to arrest him and take his fingerprints. That is exactly what they were determined to do and that is exactly what they did. In short, even the investigating officers did not believe Davis was a victim; rather, they were investigating his possible involvement in criminal activity. Thus, rather than accept uncritically the officers' post hoc rationalization that they needed Davis's clothing to prosecute the unknown person who allegedly shot him, under the circumstances of this case, “[w]e should be reiterating the usual exhortation: ‘Get a warrant.’ “ United States v. Norman, 701 F.2d 295, 302 (4th Cir.) (Murnaghan, J., concurring), cert. denied, 464 U.S. 820, 104 S.Ct. 82, 78 L.Ed.2d 92 (1983).16

As should thus be apparent, the “incriminating” nature of the contents of the bag here was nowhere close to being so obvious that no “search” occurred—unlike in Williams. In Williams, the drug packaging at issue was so readily recognizable that even a lay person, the airline employee who originally opened the baggage, testified that she immediately reported her discovery because “the bags looked like dope.” See 41 F.3d at 198 (noting that “[b]ecause Lee is a layperson, not trained in law enforcement, her belief that the five packages contained ‘dope’ strongly supports the district court's conclusion that the contents of the packages were a foregone conclusion”). The hearing testimony in this case did not indicate that the bag was distinctive in any way; thus, the government did not satisfy its burden on that issue. Indeed, the district court noted that “[t]here was no testimony as to whether the bag was open or closed, or whether it was transparent, opaque, or somewhere in-between.” Davis, 657 F.Supp.2d at 638. Neither Detective King nor Lieutenant Lampe was able to provide a description of the bag beyond Lieutenant Lampe's comment that it was probably plastic.

Moreover, the Williams court emphasized Detective Finkel's testimony that, based on his ten years of experience in narcotics enforcement, packages of the sort at issue “always ” contain narcotics. 41 F.3d at 198 (emphasis in original). In this case, Detective King testified on cross-examination that “the hospital makes a practice to secure any property that they take. Clothing from a victim, they place it under their bed.” J.A. 147. When asked the follow up question, “So you're familiar it's the hospital's practice to secure that clothing in a white opaque plastic bag; is that correct?,” Detective King responded, “It's been in different things. Sometimes it all depends on if somebody bags it or not.” Id. In addition, as stated supra, neither Detective King nor Lieutenant Lampe was able to describe the bag. Detective King's testimony clearly does not rise to the level of familiarity or certainty expressed by Detective Finkel in Williams . Manifestly, it does not rise to Justice Stevens's “virtually certain” metric. The government's evidence of the nature of the bag and the surrounding circumstances was equivocal at best, and clearly did not rise to the level of virtual certainty that the bag would contain contraband, which the government would have to show to establish that no “search” of the bag's contents occurred.

Williams is also inapposite on its facts in two additional meaningful respects, such that the case does not support, let alone dictate, the result reached by the majority. First, the Williams court, in language and reasoning that was wholly unnecessary to the outcome of its analysis, considered not only the extrinsic evidence of the contents of the packages, but also the physical appearance and character of the packages to bolster its conclusion, whereas the district court in this case considered only extrinsic evidence. Considering only extrinsic evidence, and not the physical appearance and character of the container itself, takes the “foregone conclusion” analysis too far from the origins of the plain view seizure container exception acknowledged in Sanders footnote 13, in which the Supreme Court provided the quintessential examples of a single-purpose container, namely “a kit of burglar tools or a gun case.” 442 U.S. at 764 n. 13. The Sanders Court noted that the contents of such containers “can be inferred from their outward appearance.” Id. Narcotics packaging is so readily recognizable as to rise to the level of the archetypal kit of burglar tools or a gun case. A non-descript plastic bag does not so betray its contents.17

Second, and critically, the search in Williams was a search for contraband and not mere evidence of someone's criminal act.18 For the reasons expressed above, see supra pp. 65–66, in addition to his possessory interest in the bag and its contents, Davis clearly enjoyed a reasonable expectation of privacy in his own clothing and their contents every bit as much as he enjoyed a reasonable expectation of privacy, as the majority rightly holds, in the chemical facts concerning his biological material and blood.19 Indeed, it is curious, to say the least, to reason as does the majority that Davis retained, for several years after the bag was seized at the hospital, a reasonable expectation of privacy in the character of his DNA molecules, but that he lacked any reasonable expectation of privacy in the presence of those molecules in his blood while they were embedded in his clothing and hidden from the government in a bag which was effectively in his actual possession at the hospital. Thus, I would limit Williams and its reliance on extrinsic indicia of the container's contents to cases involving the plain view seizure of containers holding contraband.

For all these reasons, Williams does not control the outcome in this case.20

C.

For the foregoing reasons, unlike the majority, I would hold, at minimum, that not only the extraction of Davis's DNA, the creation of his DNA profile and its retention in the local DNA database violated Davis's constitutional right to be free from unreasonable searches, but that the nonconsensual, warrantless search of the bag containing his personal effects likewise violated that right. Accordingly, I respectfully dissent from the majority's contrary resolution of the merits of the Fourth Amendment issue. “[T]he value of the Fourth Amendment derives from the consideration that only when it is applied evenhandedly-to smugglers, murderers, and rapists as well as to others-does it retain its effectiveness for the decent citizenry.” Norman, 701 F.2d 295 at 302 (Murnaghan, J., concurring). I regret the majority's distortion of the plain view doctrine in order to save the unconstitutional search challenged in this case.

III.

The majority, having concluded that only the extraction and analysis of Davis's DNA by the PGCPD violated the Fourth Amendment, and having assumed that the retention of his DNA in the local CODIS database was a further violation, nevertheless refuses to apply the exclusionary rule. I respectfully dissent from that choice. I would find that the district court erred in admitting evidence flowing from the HCPD's unlawful seizure and search of Davis's clothing and the PGCPD's unlawful extraction, analysis and retention of his DNA profile, including in particular the evidence of the match between the known sample obtained pursuant to the search warrant and DNA recovered from the scene of the Schwindler murder. Because this case does not fall within any version of the “good faith” exception recognized under extant Supreme Court or Fourth Circuit precedent, I would reject the district court's decision not to apply the exclusionary rule.

The Fourth Amendment protects the fundamental “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” U.S. Const. amend. IV, but “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). Thus, the Supreme Court created the exclusionary rule, an auxiliary to the Amendment which “compel[s] respect for the constitutional guaranty,” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), by forbidding the use of illegally obtained evidence at trial. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) (adopting federal exclusionary rule); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying exclusionary rule to the states through the Fourteenth Amendment). Suppression is not an automatic consequence of all Fourth Amendment violations, however. See Herring v. United States, 555 U.S. 135, 137, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).

The Supreme Court created the “good-faith” exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court held that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held invalid. Id. at 922; see also Massachusetts v. Sheppard, 468 U.S. 981, 990–91, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (companion case declining to apply exclusionary rule where warrant held invalid as a result of judge's clerical error). In the twenty-eight years since deciding Leon, a sharply-divided Supreme Court has applied variations on the Leon good-faith exception in several specific circumstances. In Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), the Court applied the good-faith exception to a search conducted in reasonable reliance on a subsequently invalidated statute. Id. at 349–50. In Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34, the Court applied the good-faith exception where police reasonably relied on erroneous information concerning an arrest warrant in a database maintained by non-law enforcement, judicial employees. Id. at 6, 14–16.

More recently, in Herring, decided approximately nine months prior to the district court's decision in this case, the Supreme Court addressed a question left unresolved by Evans, namely “whether the evidence should be suppressed if police personnel were responsible for the error.” 555 U.S. at 142–43 (quoting Evans, 514 U.S. at 16 n. 5) (internal quotation marks omitted). Considering whether the exclusionary rule applies where police failed to update records in a warrant database, leading to the unlawful arrest of the defendant on the basis of a recalled warrant, the Herring Court held, over a spirited dissent, that where “the error was the result of isolated negligence attenuated from the arrest ․ the jury should not be barred from considering all the evidence.” Id. at 137–38. The Court reasoned that, “when police mistakes are the result of negligence ․, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way.” Id. at 147–48 (internal quotation marks omitted). Most recently, the Court in United States v. Davis, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), applied a further variation on the Leon good-faith exception where police conducted a search in objectively reasonable reliance upon binding judicial precedent that was later overruled. Id. at 2423–24.

The majority reasons that, “[i]n order to properly apply Leon, Herring, and Davis here, we must focus on the culpability of the actors who committed the violations.” Maj. Op. at 45. The majority assumes without discussion that Leon and its progeny govern here, and thus proceeds directly to the broad cost-benefit analysis that underlies the narrow holdings in those cases. As discussed infra, however, each of the cases upon which the majority relies is clearly distinguishable from the case at bar. Thus, the majority's application of the good-faith exception to preclude suppression in this case marks a departure from the Supreme Court's exclusionary rule precedents and represents a new, free-standing exception never sanctioned by the Court or by precedent in this Circuit.

In Leon, Krull, Evans and Davis, the Supreme Court reasoned that exclusion does not serve to deter unconstitutional police conduct where the actor primarily responsible for the Fourth Amendment violation is not a law enforcement officer. See Leon, 468 U.S. 897 (magistrate judge); Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (legislators); Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (clerk in the employ of the judiciary); Davis, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (judiciary). This rationale clearly does not apply here, where HCPD and PGCPD employees violated the Fourth Amendment. In this respect, our case is most like Herring, which also dealt with unconstitutional conduct by law enforcement personnel. Nevertheless, Herring is likewise inapplicable because it crafted a narrow exception to the exclusionary rule that applies only where “the error was the result of isolated negligence attenuated from arrest.” 555 U.S. at 137. The majority fails to recognize that neither of the qualifiers present in Herring, namely “isolated negligence” and “attenuation,” is present here.

Instead, the record in our case shows unmistakably that the constitutionally violative conduct is not only deliberate and intentional but is systemic; most assuredly, it was not an isolated blunder. Detective King testified that, as on previous occasions when he has responded to Howard County General Hospital to investigate shootings, hospital personnel did not assist him in obtaining Davis's effects. This statement indicates that Detective King has seized patients' belongings in the manner at issue here on other occasions. See supra n. 11. In addition, the DNA analyst who entered Davis's profile into the local CODIS database testified that she was aware that Davis had been cleared of suspicion in the Neal murder before his DNA profile was added to the local CODIS database.

Furthermore, the “Request for Examination” form submitted to the PGCPD Serology DNA Laboratory (“DNA Lab”) along with Davis's bloody clothing indicated that “these samples are from a shooting the suspect was a victim of in Howard Co. MD.” Supp. J.A. 76. The DNA analyst testified that the database contained profiles of both suspects and victims, indicating that the PGCPD regularly retained the DNA profiles of persons, such as Davis, who had not been arrested, charged with, or convicted of any crime. The government confirmed at oral argument that it was the PGCPD's policy to upload every DNA profile it analyzed into the local CODIS database, regardless of the individual's status, the method by which the sample was obtained, or whether the sample might be tainted by an antecedent constitutional violation. Oral Arg. Tr. at 28:40. Thus, the record indicates that the PGCPD analyst and officers knew that Davis was a victim at the time the sample was collected, that Davis was not a suspect when his DNA profile was entered into the local database, and that it was the PGCPD's policy and practice to retain the DNA profiles of such persons. Thus, by the government's own admission, the constitutionally violative conduct was clearly systemic. See Hudson v. Michigan, 547 U.S. 586, 604, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (Kennedy, J., concurring in part and concurring in the judgment) (opining that, “[i]f a widespread pattern of violations were shown, and particularly if those violations were committed against persons who lacked the means or voice to mount an effective protest, there would be reason for grave concern”).

The expungement provisions in the Maryland and federal indexing statutes also recognize a privacy interest for those in Davis's position. As the district court recognized, “[b]oth laws require that an individual's DNA record be expunged from the database if the defendant is never convicted, his conviction is reversed or vacated, or the charges are dismissed.” Davis, 657 F.Supp.2d at 659 (citing 42 U.S.C. §§ 14132(d)(1)(A)(i)-(ii); 42 U.S.C. §§ 14132(d)(2)(A)(i)-(ii); Md.Code Ann., Pub. Safety § 2–511). While “[t]he expungement provisions do not directly apply to Davis' situation because they are drafted specifically to address circumstances in which an individual's DNA was placed in the database on the basis of a conviction or arrest,” I agree with the district court that “the construction of the statute strongly suggests that Congress and the Maryland legislature respected the privacy interest of those individuals never convicted for qualifying offenses, and did not intend for ordinary citizens' or victims' DNA to be included in the database.” Id.

In addition, unlike the constitutionally violative conduct at issue in Herring, the conduct in this case is not “attenuated” from the discovery of Davis's identity as the source of the DNA recovered from the scene of the Schwindler murder; the cold hit which led to Davis's arrest was a direct result of the seizure and search of his clothing and the subsequent extraction, analysis and retention of his DNA profile. Cf. Hudson, 547 U.S. at 592 (exclusionary rule inapplicable where violation of the knock and announce rule was not but-for cause of obtaining evidence pursuant to search warrant). Given that the cold hit supplied the sole probable cause for the search warrant leading to the known DNA match, the causal connection required to invoke the exclusionary rule is clearly present in this case.

As we recognized in United States v. Oscar–Torres, 507 F.3d 224 (4th Cir.2007), application of the exclusionary rule is the “usual remedy” where evidence of identity is derived from unlawful searches and seizures:

Indisputably, suppression of evidence obtained during illegal police conduct provides the usual remedy for Fourth Amendment violations. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Courts will also suppress evidence that is the indirect product of the illegal police activity as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Of course, not all evidence that “would not have come to light but for the illegal actions of the police” is suppressible as fruit of the poisonous tree. Id. Rather, the critical inquiry is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. (internal quotation marks omitted).

Id. at 227. There is no real dispute that the seizure of the bag containing Davis's clothing, the search of the bag and of Davis's clothing, including the extraction of his DNA therefrom, and the subsequent creation and uploading of his DNA profile, means that the identification evidence introduced at trial was the product of an “exploitation” of the searches and seizures at issue in this case.21 Rather than noting the critical distinctions between our case and extant good-faith exception precedents, the majority invents an ad hoc version of the exception by focusing on broad principles espoused by the Herring Court, including most notably its admonition that the deterrent effect of exclusion must outweigh its costs. This is unsurprising, perhaps, given that the Herring Court's “ ‘analysis' ․ far outruns the holding.” Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule, 99 J.Crim. L. & Criminology 757, 770 (2009). In other words, there is a gap between the holding of Herring, which is quite narrow, and its rationale, which sweeps quite broadly. We should not so readily depart from the narrow holding of Herring, and the Supreme Court's other good-faith exception jurisprudence, given the critical role that the exclusionary rule plays in ensuring the vitality of the Fourth Amendment.

The rule provides an essential “incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment,” Illinois v. Gates, 462 U.S. 213, 221, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring in judgment), thereby “safeguard[ing] Fourth Amendment rights generally through its deterrent effect,” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). See also Herring, 555 U.S. at 152 (Ginsburg, J., dissenting) (describing exclusionary rule as a “remedy necessary to ensure that the Fourth Amendment's prohibitions are observed in fact”) (internal quotation marks omitted); cf. United States v. Jones, 678 F.3d 293 (4th Cir.2012).22

In this case, the HCPD officers deliberately and intentionally dispossessed Davis of his personal property. The HCPD officers then deliberately and intentionally retained that property. Then, the HCPD deliberately and intentionally delivered that property to the PGCPD officers, who deliberately and intentionally made a request for it. Having thus obtained possession, the PGCPD officers then deliberately and intentionally delivered Davis's property to their DNA lab for analysis and uploading into the local CODIS database, and, of course, the analyst, charged with knowledge that she was handling biological material taken from a crime victim, deliberately and intentionally uploaded the DNA profile into the database. This case is a poor candidate for the creation of a new variation on the good-faith exception to the exclusionary rule.

Davis has been convicted of a heinous crime. The cold-blooded mid-day murder of Jason Schwindler, a man simply conscientiously going about his work to support himself and his family, understandably generates outrage and dismay, an all-too-common episode of modern life from which all decent people recoil in horror. There is little reason to doubt that customary, equally conscientious, work by dedicated state and federal law enforcement officers would have brought deserved justice to those who participated. Nevertheless, duty to the judicial oath requires that we apply the law faithfully and evenhandedly.23

In short, I would apply the exclusionary rule in this case and leave it to the Supreme Court to extend the good-faith exception to the particular situation now before us, should it see fit to do so. I am mindful that the obituary marking the long slow death of the exclusionary rule has been written long before the rule will be interred.24 Understandably, perhaps, there has been no want of volunteers among the judiciary to serve as pallbearers. I regret this development and fear that a measureable lessening in liberty will result from this freeing of law enforcement from the constraints of the Fourth Amendment through the invention of an ad hoc good-faith exception to suppression of unlawfully obtained evidence. To quote the second Justice Harlan, “I can see no good coming from this constitutional [mis]adventure.” Ker v. California, 374 U.S. 23, 46, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (Harlan, J., concurring in the judgment).

For the reasons set forth, I respectfully dissent.

AGEE, Circuit Judge:

Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Judge KEENAN joined. Judge DAVIS wrote a dissenting opinion.

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