United States v. Aaron Schreiber , 866 F.3d 776 ( 2017 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 16-3847
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    AARON SCHREIBER,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 1:14-cr-00719-1 — Andrea R. Wood, Judge.
    ____________________
    ARGUED MAY 23, 2017 — DECIDED AUGUST 7, 2017
    ____________________
    Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
    RIPPLE, Circuit Judge. In April 2011, the police arrested Aa-
    ron Schreiber for robbing a liquor store in Summit, Illinois.
    After a state grand jury indicted him for the liquor store rob-
    bery, a DNA buccal swab was taken from Mr. Schreiber. That
    DNA sample later linked him to a 2010 bank robbery, and fed-
    eral authorities then charged him with that crime.
    2                                                    No. 16-3847
    Prior to his federal bank robbery trial, Mr. Schreiber
    moved to suppress the DNA evidence. He contended that the
    state authorities had lacked probable cause to arrest him for
    the 2011 liquor store robbery and that the buccal swab was the
    fruit of that illegal arrest. The district court denied the motion
    to exclude the evidence, and Mr. Schreiber was convicted of
    bank robbery.
    Mr. Schreiber now appeals that conviction and argues that
    the district court erred in admitting the DNA evidence and, at
    the very least, erred in failing to hold an evidentiary hearing
    on his motion to suppress. We now conclude that the district
    court correctly held that police may take a buccal swab after
    an arrest supported by probable cause and that a grand jury’s
    issuance of an indictment is conclusive on the question of
    probable cause. Moreover, because Mr. Schreiber did not
    come forward with any disputed material facts, the district
    court did not abuse its discretion in refusing to conduct an
    evidentiary hearing.
    I
    BACKGROUND
    A.
    On December 20, 2010, the Archer Bank in Summit, Illi-
    nois, was robbed. In their subsequent investigation, the police
    recovered several items discarded by the bank robber, includ-
    ing a black stocking, gloves, a pair of Nike tennis shoes, and a
    red sweatshirt. DNA samples were retrieved from the recov-
    ered items and entered into the state’s DNA indexing system;
    the crime, however, remained unsolved.
    No. 16-3847                                                               3
    On April 16, 2011, Officer Armando Dominguez of the
    Summit Police Department observed a black Chevrolet Sub-
    urban driving slowly near a liquor store. He attempted to run
    the license plate and prepared to initiate a traffic stop, but was
    called to the scene of another incident prior to doing so.
    7Shortly thereafter, at approximately 7:03 p.m., the Liquor
    Stop in Summit was robbed. Witnesses described the robber
    as a black male wearing a white hooded sweatshirt who, after
    robbing the store, fired a round from his handgun and fled in
    a black Chevrolet Suburban. Upon learning these details and
    reviewing security camera footage, Officer Dominguez radi-
    oed local authorities with the license plate of the Suburban
    that he had seen earlier.
    At approximately 7:38 p.m., Officer Dominguez received
    notification that officers with the Blue Island Police Depart-
    ment had stopped a black Suburban, which was carrying
    three passengers, including Mr. Schreiber. Officer Dominguez
    drove to the scene, peered through a window, and saw a
    white hooded sweatshirt on the back seat and loose cash on
    the floor of the vehicle. Officer Dominguez arrested the occu-
    pants of the car, and, one month later, a state grand jury in-
    dicted Mr. Schreiber for armed robbery of the liquor store and
    related crimes. After the indictment and while Mr. Schreiber
    was awaiting trial, state officials collected a DNA sample by
    way of a buccal swab. 1 The results of the sample were entered
    into Illinois’s DNA indexing system.
    1 A buccal swab consists of “applying a cotton swab or filter paper … to
    the inside of [the] cheeks.” Maryland v. King, 
    133 S. Ct. 1958
    , 1965 (2013).
    4                                                           No. 16-3847
    The DNA sample ultimately linked Mr. Schreiber to the
    2010 bank robbery, and, on December 11, 2014, a federal grand
    jury indicted Mr. Schreiber for that crime. 2
    Meanwhile, Mr. Schreiber’s state proceedings continued.
    Prior to trial on the state charges, Mr. Schreiber filed a motion
    to suppress evidence and to quash arrest/dismiss charges on
    the ground that the police lacked probable cause to arrest him
    for the liquor store robbery. 3 On February 6, 2015, after an ev-
    identiary hearing, the state court granted Mr. Schreiber’s mo-
    tion, ruling that the police may have had reasonable suspicion
    to stop the vehicle in which Mr. Schreiber was a passenger,
    but, based on the evidence presented, they had not connected
    Mr. Schreiber to the liquor store robbery. The state charges
    were dismissed.
    B.
    After this victory in state court, Mr. Schreiber, now de-
    fending against the bank robbery charges in federal court,
    moved to suppress the DNA evidence recovered through the
    buccal swab. In support of his motion, he first argued that the
    state court’s determination that there was no probable cause
    to arrest Mr. Schreiber precluded a contrary ruling by the fed-
    eral district court. Alternatively, he argued that the taking of
    the buccal swab was unconstitutional because the police
    2 Because Mr. Schreiber was charged with bank robbery in violation of 18
    U.S.C. § 2113(a), the district court had jurisdiction pursuant to 18 U.S.C.
    § 3231. Our jurisdiction is premised on 28 U.S.C. § 1291.
    3   R.34 at 115.
    No. 16-3847                                                   5
    lacked sufficient evidence to arrest and to detain him after the
    initial investigatory stop by the Blue Island police.
    The district court initially denied the motion to suppress,
    but then ordered additional briefing. Later, after hearing oral
    argument, the district court again denied the motion. The
    court rejected Mr. Schreiber’s contention that the state court’s
    determination precluded a redetermination by the federal
    court. The district court noted that the state court’s judgment
    was unclear, but then held that, because the Government had
    not been a party to the state court proceeding, it was not
    bound by the state court’s judgment. The district court then
    went on to uphold the taking of the DNA sample from
    Mr. Schreiber. It held that taking buccal swabs is permissible
    as part of a booking procedure following an arrest supported
    by probable cause. The grand jury indictment was, moreover,
    conclusive on the question of probable cause. The court fur-
    ther noted that, “[j]ust as a law enforcement officer may rely
    in good faith on the finding of probable cause inherent in a
    facially valid search warrant, a law enforcement officer may
    rely in good faith on a grand jury’s indictment to conduct a
    search.” 4 The court accordingly concluded that “[t]he state of-
    ficial who swabbed Schreiber’s cheek was entitled to rely on
    the fact of Schreiber’s indictment to swab him for DNA, and
    the United States was entitled to rely on the fact of the state
    grand jury indictment in choosing to use that evidence for its
    own prosecution.” 5
    4   R.52 at 5 (citations omitted).
    5   
    Id. 6 No.
    16-3847
    Following a bench trial, the district court found
    Mr. Schreiber guilty of bank robbery and sentenced him to
    eighty-four months’ imprisonment.
    II
    DISCUSSION
    A.
    Mr. Schreiber now asks that we review the district court’s
    ruling. In his view, the district court should have suppressed
    the DNA evidence under the “fruit of the poisonous tree” doc-
    trine because it was the result of the allegedly illegal 2011 ar-
    rest for the liquor store robbery.
    We cannot accept this contention. 6 It is foreclosed by the
    Supreme Court’s decisions in Maryland v. King, 
    133 S. Ct. 1958
    (2013), and Kaley v. United States, 
    134 S. Ct. 1090
    (2014). In
    King, the defendant was arrested, charged with assault, and
    processed for detention. In accordance with state law, book-
    ing personnel took a buccal sample from the defendant and
    uploaded it to the state’s DNA database. Shortly thereafter, in-
    vestigators in an unsolved rape case matched DNA evidence
    to that sample. In the subsequent rape prosecution, the state
    appellate court held that taking the sample had violated the
    defendant’s Fourth Amendment rights. The Supreme Court
    reversed. It held that
    6“In reviewing the district court’s denial of a motion to suppress, we re-
    view questions of law de novo and factual findings for clear error.” United
    States v. Garcia-Garcia, 
    633 F.3d 608
    , 612 (7th Cir. 2011).
    No. 16-3847                                                                   7
    [i]n light of the context of a valid arrest sup-
    ported by probable cause respondent’s expecta-
    tions of privacy were not offended by the minor
    intrusion of a brief swab of his cheeks. By con-
    trast, that same context of arrest gives rise to sig-
    nificant state interests in identifying respondent
    not only so that the proper name can be attached
    to his charges but also so that the criminal jus-
    tice system can make informed decisions con-
    cerning pretrial custody. … When officers make
    an arrest supported by probable cause to hold
    for a serious offense and they bring the suspect
    to the station to be detained in custody, taking
    and analyzing a cheek swab of the arrestee’s
    DNA is, like fingerprinting and photographing,
    a legitimate police booking procedure that is
    reasonable under the Fourth Amendment.
    
    King, 133 S. Ct. at 1980
    .
    The manner of collecting Mr. Schreiber’s DNA sample was
    identical to the procedure employed in King; 7 authorities
    7 At oral argument, Mr. Schreiber’s counsel argued that, in King, the sam-
    ple was taken at the time the defendant was booked, whereas the buccal
    sample was taken from Mr. Schreiber after he had been in custody for sev-
    eral months. Even if Mr. Schreiber had made this argument in a timely
    fashion, see United States v. Conley, 
    291 F.3d 464
    , 468 n.3 (7th Cir. 2002) (de-
    clining to consider arguments not presented to the district court nor raised
    in the briefs on appeal), it is a nonstarter. In King, the Court noted that the
    state’s interests in the buccal sample—knowing the defendant’s complete
    history to protect prison employees, fellow inmates, and the public and,
    possibly, freeing wrongly imprisoned persons—continues throughout the
    defendant’s detention. See 
    King, 133 S. Ct. at 1971
    –75. Consequently, as
    8                                                         No. 16-3847
    used a buccal swab to take a DNA sample and then submitted
    it to a state DNA directory. The only remaining question,
    therefore, is whether Mr. Schreiber’s detention was supported
    by probable cause when authorities took the sample.
    The state grand jury indictment, which occurred prior to
    the procurement of the sample, established definitively the
    requisite probable cause. See 
    Kaley, 134 S. Ct. at 1097
    . In Kaley,
    a grand jury previously had indicted the defendants for re-
    selling stolen medical devices and for laundering the pro-
    ceeds. The Government then obtained a restraining order un-
    der 21 U.S.C. § 853(e)(1), which froze the defendants’ forfeita-
    ble assets. The defendants challenged the restraining order on
    the ground that the Government had proceeded with the for-
    feiture even though it lacked probable cause to believe that
    they had committed the offenses permitting forfeiture. The
    Supreme Court held, however, that “[a]n indictment fair upon
    its face, and returned by a properly constituted grand jury, …
    conclusively determines the existence of probable cause to believe
    the defendant perpetrated the offense alleged.” Kaley, 134 S.
    Ct. at 1097 (emphasis added) (internal quotation marks omit-
    ted). The defendants could not challenge the grand jury’s de-
    termination of probable cause, reasoned the Court, because
    “[a] defendant has no right to judicial review of a grand jury’s
    determination of probable cause,” and because the defend-
    ants, “in contesting the seizure of their property,” sought
    “only to relitigate such a grand jury finding.” 
    Id. at 1100.
        Here, the state grand jury determination plays the same
    role as it did in Kaley. It conclusively determined that there
    long as the swab occurs after a probable cause determination, the timing
    is otherwise irrelevant.
    No. 16-3847                                                                     9
    was probable cause to believe that Mr. Schreiber robbed the
    liquor store. His motion to suppress evidence seeks to reliti-
    gate this conclusion, the precise approach foreclosed by Ka-
    ley. 8 The district court, therefore, did not err in denying
    Mr. Schreiber’s motion to suppress the DNA evidence. 9
    8 Mr. Schreiber maintains that the Supreme Court’s recent decision in Ma-
    nuel v. City of Joliet, 
    137 S. Ct. 911
    (2017), alters this reasoning. He notes
    that, in a footnote, the Court suggests that grand jury determinations of
    probable cause, reached as a result of tainted evidence, cannot “expunge”
    a Fourth Amendment violation. 
    Id. at 920
    n.8. We do not read Manuel as
    effecting a sub silentio overruling of both Kaley v. United States, 
    134 S. Ct. 1090
    (2014), and United States v. Calandra, 
    414 U.S. 338
    (1974), which held
    that the exclusionary rule does not apply to grand jury deliberations. See
    
    id. at 349–52;
    see also United States v. Greve, 
    490 F.3d 566
    , 571 (7th Cir. 2007).
    Notably, there is no allegation here of fabricated evidence or that the
    grand jury indictment was otherwise invalid.
    Mr. Schreiber notes that Calandra states that “[t]he incentive to disre-
    gard the requirement of the Fourth Amendment solely to obtain an indict-
    ment from a grand jury is substantially negated by the inadmissibility of
    the illegally seized evidence in a subsequent criminal prosecution of the
    search 
    victim.” 414 U.S. at 351
    . Although bereft of explanation,
    Mr. Schreiber may be arguing that the rationale of Calandra does not apply
    here because prosecutors will have an incentive to disregard the Fourth
    Amendment in grand jury proceedings in order to obtain a buccal swab
    from defendants, which may then tie defendants to other crimes. If so, this
    argument is, under the circumstances here, too speculative to be persua-
    sive. There is no evidence in this record of any collusion between state and
    federal authorities to obtain the DNA sample in order to tie Mr. Schreiber
    to the bank robbery investigation.
    9Although unnecessary to our decision today, we note in passing that we
    are uncertain as to how the state court reached its conclusion that probable
    cause to arrest Mr. Schreiber was lacking. In particular, it is clear that
    Mr. Schreiber was found in a car matching the description of the getaway
    vehicle, with money and an article of clothing matching that of the thief
    10                                                          No. 16-3847
    We accordingly hold that the district court did not err in
    declining to exclude the DNA evidence.
    B.
    Mr. Schreiber further argues that, “[a]t the very least, the
    district court should have held an evidentiary hearing to as-
    certain whether the arrest … was unconstitutional in the opin-
    ion of the district court.” 10
    We cannot accept this contention. It is well established that
    “[e]videntiary hearings are not required as a matter of
    course.” United States v. McGaughy, 
    485 F.3d 965
    , 969 (7th Cir.
    2007). Rather, “a district court need conduct a hearing only
    ‘when the allegations and moving papers are sufficiently def-
    inite, specific, non-conjectural and detailed enough to con-
    clude that a substantial claim is presented and that there are
    disputed issues of material fact which will affect the outcome
    of the motion.’” 
    Id. (quoting United
    States v. Villegas, 
    388 F.3d 317
    , 324 (7th Cir. 2004)). “We review the denial of an eviden-
    tiary hearing on a motion to suppress for abuse of discretion.”
    United States v. Curlin, 
    638 F.3d 562
    , 564 (7th Cir. 2011).
    Here, the denial of Mr. Schreiber’s motion to suppress pro-
    ceeds as a matter of law from the Court’s decisions in King and
    clearly visible (a white hooded sweatshirt). Admittedly, Mr. Schreiber is
    white, whereas the thief was described as black. Nonetheless, this racial
    difference does not appear to negate the possibility that Mr. Schreiber was
    otherwise involved in the crime. We note that the time between the crime
    and seizure of the Suburban, when police found Mr. Schreiber in the back
    seat of the car amidst loose cash and clothing worn during the robbery,
    was approximately thirty-five minutes.
    10   Appellant’s Br. 17.
    No. 16-3847                                                   11
    Kaley. King establishes that a buccal swab taken by state au-
    thorities after a determination of probable cause does not vi-
    olate the Fourth 
    Amendment. 133 S. Ct. at 1980
    . Kaley holds
    that a grand jury indictment conclusively establishes probable
    
    cause. 134 S. Ct. at 1097
    . Mr. Schreiber does not dispute any of
    the facts that bear on the application of King or Kaley: the na-
    ture of the DNA sample (buccal swab), the timing of the buc-
    cal swab (after the grand jury indictment), or the regularity of
    the grand jury proceedings. Because Mr. Schreiber has not
    come forward with disputed material facts that alter the sup-
    pression analysis, the district court did not abuse its discre-
    tion in failing to hold an evidentiary hearing.
    Conclusion
    For the foregoing reasons, we conclude that the district
    court did not err in declining to exclude the DNA evidence,
    nor did it abuse its discretion in failing to hold an evidentiary
    hearing.
    AFFIRMED