Williamson v. State , 413 Md. 521 ( 2010 )

Dissenting Opinion by BELL, Chief Judge, which GREENE, J., joins.

I.

Kelroy Williamson, the petitioner, was charged with a rape that occurred in 2002. The basis for the charge was the match between the petitioner’s Deoxyribonucleic Acid (“DNA”) profile and DNA acquired by vaginal swab during the examination of the victim in the 2002 case. The DNA from which the petitioner’s DNA profile was developed was obtained by the Anne Arundel County police by a ruse. Having focused on the petitioner as a suspect in the rape as a result of the post-disposition testing of DNA¹ associated with an earlier case, in which the petitioner, although accused of rape, entered an Alford plea to battery,² the police obtained the DNA, from which the profile leading to the petitioner’s charge and eventual conviction was developed, from a cup they had given him and from which the petitioner had drunk the contents, while being detained in a holding cell for failure to appear to answer a drug charge. After the petitioner was removed from the holding cell for booking, leaving the cup behind, as they knew he would, the police swabbed the rim of the cup, obtaining DNA, which was then tested and, as indicated, matched with the 2002 DNA profile. The acquisition of the DNA, its testing and its comparison with DNA profiles in the Maryland statewide DNA database all were accomplished without a warrant. The question this case presents is whether a warrant was required at any time during the police effort to obtain the petitioner’s DNA, at issue in this case, when acquiring the DNA, when testing it and/or when conducting the comparison of it with the State database.³

Believing that a warrant was required, the petitioner moved to suppress the use of his DNA profile. The trial court denied the motion to suppress. Focusing, apparently, solely on the acquisition of the DNA, it ruled that he abandoned the beverage cup and, thus, did not have a reasonable expectation of privacy. It explained:

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

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

^ ^

“The Court finds that the taking of the DNA sample on December 11, 2006, was not unlawful.

The motions court reasoned:

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

“And in this case, the Court finds that the defendant did not have a reasonable expectation of privacy in either the cup or the saliva or genetic material that he left on the cup as a result of drinking the soda or whatever it was that was in it. I think you say that this was, you know, tantamount to them getting his swab is a little bit dramatic. You know, you touch it with your lips, you don’t run it on the inside of your gums like you do for a swab. -

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

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

II.

The majority holds that “it was not error to deny [Williamson’s] motion to suppress the DNA evidence obtained in 2006 or [Williamson’s] statement to police, [thus] affirming] the Circuit Court judge’s dismissal of the motion to suppress.” Williamson v. State, 413 Md. 521, 525, 993 A.2d 626, 629 (2010). The majority’s holding, like the trial court’s ruling, is largely predicated on abandonment:

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

Id. at 533-34, 993 A.2d at 633-34 (footnote omitted)(emphasis added).

Abandonment, as an issue, is not before this Court. Williamson does not disagree. In fact, he concedes that seizure and even the swabbing of the cup was not unlawful. By focusing on abandonment, however, the majority confuses the privacy interest which Williamson asserts. Rather than the seizure of the cup and the concomitant swabbing of that cup, he maintains that it is the chemical analysis of the DNA retrieved as a result of the swabbing, coupled with the comparison of the result of the analysis with profiles stored in the State DNA database, that is at issue.⁴ It is this invasion that, unless it can be shown by the State that some recognized exception applies, warrants Fourth Amendment protection.

When reviewing a denial of a motion to suppress evidence, this Court looks to the record of the suppression hearing and ■draws its legal conclusion using the de novo standard:

“When reviewing the disposition of a motion to suppress evidence alleged to have been seized [and/or searched] in contravention of the Fourth Amendment to the U.S. Constitution, we view the evidence adduced at the suppression hearing, and the inferences fairly deductible therefrom, in the light most favorable to the party that prevailed on the motion. State v. Williams, 401 Md. 676, 678, 934 A.2d 38, 40 (2007); Lewis v. State, 398 Md. 349, 358, 920 A.2d 1080, 1085 (2007). In so doing, ‘[w]e extend great deference to the fact finding of the suppression court and accept the facts as found by the court unless clearly erroneous.’ Nathan v. State, 370 Md. 648, 659, 805 A.2d 1086, 1093 (2002) (quoting Wilkes v. State, 364 Md. 554, 569, 774 A.2d 420, 429 (2001)). Nevertheless, in resolving the ultimate question of whether the ... search of an individual’s person or property violates the Fourth Amendment, we ‘make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.’ Williams, 401 Md. at 678, 934 A.2d at 40; see also Nathan, 370 Md. at 659, 805 A.2d at 1093 (‘We review the legal questions de novo and based upon the evidence presented at the suppression hearing and the applicable law, we then make our own constitutional appraisal.’). Our review ordinarily is limited to the record of the suppression hearing. Lewis, 398 Md. at 358, 920 A.2d at 1085; Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519, 524 (2000).”

Crosby v. State, 408 Md. 490, 504-05, 970 A.2d 894, 902 (2009). The Fourth Amendment to the United States Constitution 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.”⁵ U.S. Const, amend. IV. A “search” occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94 (1984) (footnote omitted).

Generally, a search warrant is issued “only after a neutral and detached magistrate[⁶] determines that probable cause exists ‘therefor from facts or circumstances presented to him under oath or affirmation,’ in order to justify an invasion of privacy.” Winters v. State, 301 Md. 214, 223, 482 A.2d 886, 890 (1984) (quoting Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159, 162 (1933)). “Probable cause” is:

“[A] nontechnical conception of a reasonable ground of a belief of guilt. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Our determination of whether probable cause exists requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge.... Therefore, to justify a warrantless arrest [or search] the police must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion.”

State v. Wallace, 372 Md. 137, 148, 812 A.2d 291, 297-98 (2002) (citations omitted) (quoting Collins v. State, 322 Md. 675, 680, 589 A.2d 479, 481 (1991)); see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To determine whether a person has a reasonable expectation of privacy, courts employ a two-prong test:

“[The] understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view⁵ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”

Venner v. State, 279 Md. 47, 51-52, 367 A.2d 949, 952 (1977).

Generally, warrantless searches are per se unreasonable. McMillian v. State, 325 Md. 272, 281, 600 A.2d 430, 434 (1992); Ricks v. State, 322 Md. 183, 188, 586 A.2d 740, 743 (1991). As explained by the United States Supreme Court:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948) (footnote omitted). Thus, in a case of a warrantless search, such a search is unreasonable under the Fourth Amendment, absent some recognized exception: Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (special needs searches); Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (exigent circumstance—suspect is likely to flee before the pursuing officer can obtain a warrant); Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (inventory searches); United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (boarder searches); Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) (administrative searches); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (container searches); United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) (searches at sea); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (vehicle searches); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (exigent circumstance—the police in “hot pursuit” of a suspect); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (warrantless arrests); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (searches incident to a valid arrest); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (exigent circumstance—evidence sought is in imminent danger of destruction); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (consent searches); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion) (seizure of items in plain view); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (investigatory detentions);and Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)(exigent circumstance-the safety of law enforcement officers or the general public is threatened).

III.

In my view, Williamson possessed a reasonable expectation of privacy in his DNA, which triggered Fourth Amendment protection, and the State failed to establish that any recognized exception to the warrant requirement applied. Accordingly, because non-excepted warrantless searches are per se unreasonable, the search here was unconstitutional.

I do not dispute the majority’s conclusion that the cup, along with the other items used by Williamson, were obtained by the police during the ordinary course of collecting trash for disposal, and neither does Williamson. But, as earlier indicated, that simply is not what is at issue in this case. The issue is whether a separate search, requiring a warrant, occurs when, from abandoned property, here, a McDonald’s cup lawfully in the possession of the police, some other property, in this case, a DNA sample, is extracted for analysis, and analyzed, after which the result of that analysis, a DNA profile, is used for investigative purposes, ie. uploaded to a database for comparison with the other DNA profiles it stores. I believe that it does and, furthermore, that the search is entitled to Fourth Amendment protection.

Critical to the majority’s analysis and, thus, its holding is the applicability to this case of Maryland Code (2003) § § 2— 504 and 2-505 of the Public Safety Article, the Maryland DNA Collection Act and State v. Raines, 383 Md. 1, 25, 857 A.2d 19, 33 (2004). It is on the basis of these authorities that it states: “[W]e already recognized that the only information collected from testing and storage of DNA profiles is the identity of the person whose DNA is being tested under the Maryland DNA Collection Act, and the purpose of uploading DNA profiles to CODIS is ‘akin to that of a fingerprint,’ ” 413 Md. at 542, 993 A.2d at 639, and that “DNA testing and storage is limited to identification purposes____” Id. at 542, 993 A.2d at 639.

While the majority accurately states the purpose of the DNA Collection Act⁷ and the holding of Raines, 383 Md. at 5, 857 A.2d at 21, the case that upheld the statute in the face of challenge, its reliance on the statute and Raines is misplaced. The DNA Collection Act expressly authorizes the collection and storage of DNA samples, but it applies only under the circumstances prescribed and to the persons enumerated:⁸ to convicted felons, and those convicted of violations of Maryland Code (2002) § 6-205 or § 6-206 of the Criminal Law Article.⁹ Raines does not expand the reach or the applicability of the statute.

Neither the DNA Collection Act nor Raines has applicability to the DNA collection or, for that matter, to the defendant in this case. Indeed, there is no statute which covers the situation presented in this case. Moreover, the police actions do not fall under any provision found in the Act. Williamson had not been convicted of a felony or a violation of either § 6-205, misdemeanor burglary in the fourth degree, or § 6-206, misdemeanor breaking and entering a motor vehicle, under the circumstances enumerated by the Act. And, of course, none of the “protections” for a defendant was observed. In short, the DNA was not, I reiterate, collected pursuant to the Act, as upheld in Raines.

I do not agree that DNA analysis, whether done pursuant to the Maryland DNA Collection Act or pursuant to some other authority is akin to fingerprint analysis. A fingerprint is an impression “left by the depositing of oil upon contact between a surface and the friction ridges of fingers.” United States v. Mitchell, 365 F.3d at 221; see United States v. Mitchell, No. 2:09cr105, 2009 U.S. Dist. Lexis 103575, at *29 (W.D.Pa. Nov. 6, 2009) (making the point, after observing that “[fingerprints, ... only identify the person who left them,” while DNA typing may not, positing the case of Monozygotic twins, that “[t]he extraction of DNA ... is much more than a mere progression of taking fingerprints and photographs, it represents a quantum leap that is entirely unnecessary for identification purposes. The only reasonable use of DNA is investigative, it is not an identification science it is an information science.”). The description in Mitchell, 365 F.3d at 221-22, of how the FBI conducts its fingerprinting analysis is instructive:

“The FBI ... uses an identification method known as ACEV, an acronym for ‘analysis, comparison, evaluation, and verification.’ The basic steps taken by an examiner under this protocol are first to winnow the field of candidate matching prints by using Level 1 detail[¹⁰] to classify the latent print. Next, the examiner will analyze the latent print to identify Level 2 detail[¹¹] (i.e., Galton points and their spatial relationship to one another), along with any Level 3 detail[¹²] that can be gleaned from the print. The examiner them compares this to the Level 2 and Level 3 detail of a candidate full-rolled print (sometimes taken from a database of fingerprints, sometimes taken from a suspect in custody), and evaluates whether there is sufficient similarity to declare a match.”

That is not the case when conducting a DNA analysis. There is an additional step: with DNA, the cells found on the cup first must be “chemically broken so that [Williamson’s DNA could] be collected.” Then, technology, more sophisticated than fingerprint analysis, is used to analyze the DNA in order to create a DNA record, a profile, capable of, and for, comparison with other profiles. With fingerprinting, the lifting is all that is required for comparison of the latent fingerprint to those in a database.

To be sure, the comparison feature for purposes of identification is similar for fingerprints and DNA. Nevertheless, merely because DNA records are, at some point, capable of being uploaded and compared for the purpose of identification and its use can be limited to that purpose, does not mean that a warrant is not required for the initial analysis. It is what is done prior to the creation of the DNA profile, the analysis, which is the invasion, for without this invasion there would be no other invasion, as there would be no profile for the police to compare in its database of profiles.

Fingerprint analysis and DNA analysis, in fact, are not akin to each other. DNA analysis involves more than just collection of DNA, the testing of the sample collected is a significant invasion, a search, it has been held. State v. Martin, 184 Vt. 23, 955 A.2d 1144, 1151 (2008) (“The initial taking of the DNA sample, either by blood drawn or by buccal swab, and the subsequent analysis, storage, and searching of the DNA profile are independent intrusions upon personal security that merit scrutiny under Article 11.”)¹³ (emphasis added). The DNA Collection Act also recognizes that this is so. Maryland Code (2003, Supp.2009) Section 2-504(d) of the Public Safety Article, DNA Collection Act currently provides:

“(d) Testing of sample from individual charged with crime under subsection (a)(3).—

“(1) A DNA sample collected from an individual charged with a crime under subsection (a)(3) of this section may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date unless requested or consented to by the individual as provided in paragraph (3) of this subsection.

“(2) If all qualifying criminal charges are determined to be unsupported by probable cause:

“(i) the DNA sample shall be immediately destroyed; and

“(ii) notice shall be sent to the defendant and counsel of record for the defendant that the sample was destroyed.”

The placement of the test results in the database for comparison with other DNA profiles is another. There are two searches.

The technology that permits the analysis of DNA to create a profile for identification purposes, in addition and at the same time, creates a DNA record that is capable of revealing extensive personal information. I have addressed this issue before:

“Although the intrusion of a buccal swab may be minimal in a physical sense, it certainly is great when the vast amount of personal and private information DNA contains is considered. As we recently explained:

While the DNA profile is often referred to as a type of genetic ‘fingerprint,’ this analogy is far too simplistic. Although current profiling methods utilize only limited amounts of genetic information, with the mapping of the human genome now underway, future DNA analysis may soon reveal an individual’s medical history; proclivity toward certain diseases; and hereditary information such as race, physical, and behavioral traits. Thus, biological samples ... have the potential to reveal far more intimate information about the individual donor than a single fingerprint. ... Unlike an individual’s fingerprint, which use is limited to identification, [because a person’s fingerprint can only identify a person] information potentially contained in a DNA profile may subject an individual to embarrassment, humiliation, public hostility, and even financial harm.”

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“Unlike fingerprints, which contain all of the useable identifying information at the time the prints are taken, the DNA search does not end with the swab. To the contrary, the swab is then subjected to scientific tests, which may extract very sensitive, personal, and potentially humiliating information.”

State v. Raines, 383 Md. at 73-74, 857 A.2d at 62-63 (Bell, C.J., dissenting); see also United States v. Kincade, 379 F.3d 813, 842 n. 3 (9th Cir.2004) (“[U]nlike fingerprints, DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time. Like DNA, a fingerprint identifies a person, but unlike DNA, a fingerprint says nothing about the person’s health, their propensity for particular disease, their race and gender characteristics, and perhaps even their propensity for certain conduct.”).

The majority also rejects the applicability of United States v. Mitchell, 2009 U.S. Dist. Lexis 103575 (W.D.Pa. Nov. 6, 2009) and United States v. Amerson, 483 F.3d 73 (2d Cir.2007), cases on which Williamson relies to support his Fourth Amendment claim. Williamson, 413 Md. at 540-41, 993 A.2d at 638. It reasons, accurately characterizing the context of the litigation: “The analysis in Mitchell and Amerson ... of the constitutionality of the federal statutes requiring a pretrial detainee or a convicted felon to submit a DNA sample, is completely inapplicable to the case at bar in which we determine abandonment and lawful collection of DNA.” Williamson, 413 Md. at 541, 993 A.2d at 638. The majority concludes: “Had the police compelled Williamson to give a DNA sample as a pretrial detainee, Williamson’s argument [that the search required a warrant] may have had some weight. Williamson, however, was not compelled to give his DNA----” Williamson, 413 Md. at 540, 993 A.2d at 637.

I take the majority’s point. This case is not about the constitutionality of the Maryland DNA Collection statute, that was decided by Raines, supra, or, for that matter, any statute. Indeed, the Maryland statute is not at issue sub judice. What is at issue is whether the extraction or collection of DNA from the beverage cup, the analysis of that DNA and the subsequent uploading and comparison of the result of the analysis, or any step in the process, constitutes a search to which the Fourth Amendment applies. Informing that determination is the nature and significance of the intrusion that any one or more of those steps has on the individual’s privacy interest. Both of these concerns were germane to the issue that Mitchell and Amerson addressed. Both of those cases recognized that, even under the statute, the collection of the DNA from the person, in the manner prescribed, either by drawing blood, or by use of a buccal swab, is a search “subject to Fourth Amendment scrutiny,” Mitchell, 2009 U.S. Dist. Lexis 103575, at *3-4, citing, respectively, Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1412, 103 L.Ed.2d 639, 659 (1989) and Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir.2005); see also Amerson, 483 F.3d at 84, citing Nicholas v. Goord, 430 F.3d 652 (2d Cir.2005), as is the “ ‘ensuing chemical analysis of the sample to obtain physiological data.’ ” Mitchell, 2009 U.S. Dist. Lexis 103575, at *4, quoting Skinner, 489 U.S. at 616, 109 S.Ct. at 1413, 103 L.Ed.2d at 659; Amerson, 483 F.3d at 77.

Mitchell and Amerson also recognized that a pretrial detainee, who has a lesser liberty interest than an “ ‘ordinary citizen,’” Mitchell, 2009 U.S. Dist. Lexis 103575, at *30, retains an expectation of privacy in the information contained in his or her DNA and, therefore, characterized the analysis, comparison and storage, if not the extraction or collection, of that DNA, as intrusive. Acknowledging “his restricted liberty as a pretrial detainee,” the Mitchell court noted, nevertheless, that it

“has found that he maintains a high expectation of privacy in the comprehensive, inherently private information contained in his DNA sample. Therefore, even though the taking of a sample may not be unreasonably intrusive, the search of the sample is quite intrusive, severely affecting Mitchell’s expectation of privacy in his most intimate matters.”

Id. Although concluding that “[t]he Act severely limits the circumstances and purposes for which the DNA profiles can be released and provides significant penalties for any misuse of the DNA samples or profiles,” Amerson, 483 F.3d at 85, and satisfied that “the federal statute provides adequate safeguards to insure that the privacy invasion occasioned by the maintenance of the DNA profiles is minimized,” id,., the court in Amerson characterized the “analysis and maintenance of [offenders’] information’ in CODIS, the federal database” a “serious invasion of privacy” and “a significant intrusion.” Id., citing Nicholas, 430 F.3d at 670.

These pronouncements are not simply germane to the issue before this Court, they apply with greater force. Indeed, it is precisely for the reason that no statute now regulates the collection of DNA under the circumstances of this ease or, at the time, regulated it, that these considerations are dispositive.

IV

It is not surprising that the majority has chosen to categorize the issue presented by this case as one involving, and, therefore, to address it utilizing, the doctrine of abandonment. It is an easy and simple, even simplistic, approach and solution to a most complex problem. This approach permits the majority to avoid addressing the balance required to be struck when determining whether an individual’s expectation of privacy in his or her DNA is entitled to Fourth Amendment protection, the very heart of which implicates “the reasonableness requirement of the Fourth Amendment.”¹⁴ To be sure, Williamson left, as trash—abandoned—a cup from which he had drunk and which, therefore, retained his DNA. The DNA, in the form that it can and will be extracted or collected from the cup, however, is virtually meaningless—it provides no information to the untrained or the uninitiated; meaningful information, capable of identifying Williamson and of being compared to other identifying information, must await and only can be obtained through the use of sophisticated technology. The question is, given the Fourth Amendment’s applicability to privacy interests, under that Amendment, may the State—not a private person, who is unrestrained by constitutional restrictions—without the authorization of a warrant, go beyond seizure of the cup and extraction from it of data it contains and conduct an analysis of that data and subsequently a comparison of the results with other data it has amassed? The answer must be no.

The Supreme Court has stated that “what a person knowingly exposes to the public, even in his own home or office, is not subject of Fourth Amendment protection. But what he seeks to preserve as private, even in the area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967) (citations omitted). It also has held that a search that goes “beyond mere ‘physical characteristics ... constantly exposed to the public ... constitute^] the type of severe’ ... intrusion upon cherished personal security that is subject to constitutional scrutiny” Cupp, 412 U.S. at 295, 93 S.Ct. at 2003, 36 L.Ed.2d at 905(internal citation and quotation marks omitted). These pronouncements have relevance in the abandonment context.

If the majority is correct, there would be no reason, or need, for DNA collection statutes. The State could do as it did here, supply the cup and instead of disposing of it, analyze the DNA on it. A lot of constitutional questions and litigation could thereby be avoided.

I dissent.

Judge GREENE joins in the views herein expressed.

1 . We need not decide whether the testing and the uploading of Williamson's Deoxyribonucleic Acid ("DNA”) from this earlier case was valid under the Fourth Amendment, as that, as we shall see, is not dispositive. Whether, indeed, there would have been probable cause for a search of the petitioner’s DNA is irrelevant since there was no search sought until after the DNA profile at issue in this case had been developed.

2 . An " ‘Alford plea’ ” is a " ‘guilty plea containing a protestation of innocence.’ ” Marshall v. State, 346 Md. 186, 189 n. 2, 695 A.2d 184, 185 n. 2 (1997).

3 . Although acquiring DNA is separate and distinct from its analysis and testing, they are critically inextricably related. The acquisition of DNA without analyzing it is virtually meaningless. In its pure form, without the development of a profile, comparison is impossible. The late Ralph Brave, a science writer and former Center for Genetics Society Fellow, in his article, So Much for the Evidence: DNA Profiling Could Revolutionize Law Enforcement in Maryland—If We Let It, Baltimore City Paper (August 7, 2002), makes this clear. Discussing how the Bode Technology Group lab, located in Maryland and the one that did the analysis in this case, conducted DNA analysis, Brave explained:

“Blood or semen cells are extracted from whatever material they’ve become attached to and chemically broken open so that their DNA can be collected.

“After making sure that there is enough DNA, a test is run to confirm that it is human by identifying a DNA sequence that has been conserved by evolution for millions of years and is only carried by humans and higher primates.

"The DNA is then put into a machine called a thermocycler. After two and a half hours and several adjustments in temperature, the DNA in the thermocycler will have chemically copied itself millions of times. "Small tubes of the DNA are then placed in a genetic analyzer.... The number of repeats at each of the 13 sites is measured and the results fed into a computer, which produces a series of colored wave bands indicating the number of repeated patterns. This is that person’s DNA profile, and only that person’s (or his or her identical twin).

"The system for storing these profiles has three levels. Local law-enforcement agencies are charged with processing the evidence and obtaining the DNA profile. These profiles are uploaded and incorporated into state databases of convicted criminals (the states vary as to what crimes warrant inclusion) in Maryland and it is maintained by the State Police. Finally, the FBI operates the Combines DNA Index System (CODIS), through which states can compare a DNA profile gathered from a crime scene to all those in other states' systems.

"Even if a particular profile doesn’t match one in CODIS, the system is designed to periodically rerun the profile against any and all new additions.”

Fingerprinting is quite different. A fingerprint is an impression "left by the depositing of oil upon contact between a surface and the friction ridges of fingers.” United States v. Mitchell, 365 F.3d 215, 221 (3d Cir.2004). When the “latent”—which is derived “from the Latin [word] lateo, 'to lie hidden’ [and is] often not visible to the naked eye,” id.—print is lifted, there immediately is a comparison ready specimen. As Mitchell explains, there may be different levels of detail that may be employed, but they relate to how the comparison is made, the means employed, rather than a further analysis of the print itself.

4 . As indicated, supra, I do not address the legality or the propriety of uploading Williamson's DNA from the earlier case. That is because, whether legal or not, it does not dispose of the issue as to whether there was probable cause when the magistrate issued the search warrant pursuant to which the DNA profile admitted into evidence in this case was obtained. The affidavit submitted to establish the existence of probable cause relied on both the 1994 DNA profile and the 2006 DNA profile, developed from the DNA retrieved from the cup. It is the evidence resulting from the 2006 DNA analysis that is challenged as an illegal search and, thus, as requiring a search warrant.

5 . Through the Due Process Clause of the Fourteenth Amendment, the Fourth Amendment is applicable to the states. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961).

6 . A neutral and detached magistrate has “severance and disengagement from activities of law enforcement.” Shadwick v. Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2123, 32 L.Ed.2d 783, 789 (1972).

7 . Maryland Code (2003) Section 2-505(b) of the Public Safety Article provides:

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

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

8 . Maryland Code (2003) Section 2-504 of the Public Safety Article provides:

"Collection of DNA samples:

"(a) In general.—

"(1) In accordance with regulations adopted under this subtitle, and if adequate funds for the collection of DNA samples are appropriated in the State budget, an individual who is convicted of a felony or a violation of § 6-205 or § 6-206 of the Criminal Law Article shall:

"(i) have a DNA sample collected on intake to a correctional facility, if the individual is sentenced to a term of imprisonment; or

"(ii) provide a DNA sample as a condition of sentence or probation, if the individual is not sentenced to a term of imprisonment.

"(2) If adequate funds for the collection of DNA samples are appropriated in the State budget, an individual who was convicted of a felony or a violation of § 6-205 or § 6-206 of the Criminal Law Article on or before October 1, 2003 and who remains confined in a correctional facility on or after October 1, 1999, shall submit a DNA sample to the Department.

"(b) Place of collection.—In accordance with regulations adopted under this subtitle, each DNA sample required to be collected under this section shall be collected:

"(1) at the correctional facility where the individual is confined, if the individual is confined in a correctional facility on or after October 1, 2003, or is sentenced to a term of imprisonment on or after October 1,2003; or

"(2) at a facility specified by the Director, if the individual is on probation or is not sentenced to a term of imprisonment.

"(c) Authorized collectors.—A DNA sample shall be collected by an individual who is:

"(1) appointed by the Director; and

"(2) trained in the collection procedures that the Crime Laboratory uses.

"(d) Second DNA sample.—A second DNA sample shall be taken if needed to obtain sufficient DNA for the statewide DNA data base or if ordered by the court for good cause shown.

"(e) Failure to provide DNA sample.—Failure of an individual who is not sentenced to a term of imprisonment to provide a DNA sample within 90 days after notice by the Director is a violation of probation.”

9 . Maryland Code (2002) Section 6-205 of the Criminal Law Article provides:

"Burglary in the fourth degree

(a) Prohibited—Breaking and entering dwelling.—A person may not break and enter the dwelling of another.

(b) Same—Breaking and entering storehouse.—A person may not break and enter the storehouse of another.

"(c) Same—Being in or on dwelling, storehouse, or environs.—A person, with the intent to commit theft, may not be in or on:

"(1) the dwelling or storehouse of another; or

"(2) a yard, garden, or other area belonging to the dwelling or storehouse of another.

"(d) Same—Possession of burglar’s tool.—A person may not possess a burglar’s tool with the intent to use or allow the use of the burglar’s tool in the commission of a violation of this subtitle.

"(e) Penalty.—A person who violates this section is guilty of the misdemeanor of burglary in the fourth degree and on conviction is subject to imprisonment not exceeding 3 years.

"(f) Conviction of theft.—A person who is convicted of violating § 7-104 of this article may not also be convicted of violating subsection (c) of this section based on the act establishing the violation of § 7-104 of this article.”

Section 6-206 of the Criminal Law Article provides:

“Breaking and entering motor vehicle—Rogue and vagabond

"(a) Prohibited—Possession of burglar’s tool.—A person may not possess a burglar’s tool with the intent to use or allow the use of the burglar’s tool in the commission of a crime involving the breaking and entering of a motor vehicle.

"(b) Same—Presence in another’s vehicle.—A person may not be in or on the motor vehicle of another with the intent to commit theft of the motor vehicle or property that is in the motor vehicle.

"(c) Penalty.—A person who violates this section is guilty of a misdemeanor, shall be considered a rogue and vagabond, and on conviction is subject to imprisonment not exceeding 3 years.”

10 . "Level 1 detail is visible with the naked eye; it is the familiar pattern of loops, arches, and whorls.” Mitchell, 365 F.3d at 221.

11 . "Level 2 detail involves 'ridge characteristics’—the patterns of island, dots, and forks formed by the ridges as they begin and end and join and divide.” Mitchell, 365 F.3d at 221.

12 . "Level 3 detail focuses on microscopic variations in the ridges themselves.” Mitchell, 365 F.3d at 221.

13 . Article 11 of the Vermont Constitution provides: "that the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.” Vt. Const. Ch. I. Art. 11. Vermont's Chapter I, Article 11 is " 'similar in purpose and effect' to the Fourth Amendment to the United States Constitution.” State v. Martin, 184 Vt. 23, 955 A.2d 1144, 1148 (2008).

Although decided in the context of a challenge to the constitutionality of the DNA Analysis Backlog Elimination Act of 2000, two decisions of the United States District Court for the District of Massachusetts, United States v. Stewart, 468 F.Supp.2d 261, 265, 282 (D.Mass.2007), rev’d, 532 F.3d 32 (1st Cir.2008) and United States v. Weikert, 421 F.Supp.2d 259, 266 (D.Mass.2006) rev’d, 504 F.3d 1 (1st Cir.2007), addressing the nature of the intrusion caused by the collection and analysis of DNA, deserve mention. Both courts held that the analysis of DNA was far more invasive than retrieving the DNA sample from the person. Relying on Weikert, 421 F.Supp.2d at 266, the Stewart court explained:

“[The] chemical analysis of []DNA presents an even greater intrusion. As Judge Keeton held in United States v. Weikert, 'the later analysis and identifying information that is then stored in CODIS are likely much more of an invasion of an individual's privacy than the initial blood test.’ This second intrusion is generally downplayed by courts that have upheld this search regime. It is this second intrusion that contains information about one’s genetic make-up and physiological data discussed above. This intrusion had a physical predicate that is brief, yet it is expansive in scope and breadth regarding the private information revealed. The degree of information available from DNA distinguishes this intrusion from the limited nature of a fingerprint search that cannot reveal anything other than identifying marks.”

468 F.Supp.2d at 277-78. (internal citations omitted).

To be sure, the First Circuit Court of Appeals reversed the ruling of both courts that the Act was unconstitutional. That Court did not, however, reject its analysis on this point; rather, in the context of the statute, in particular, its limits on the use of the DNA data, it “concluded that the risk of misuse of the DNA information stored in CODIS did not 'significantly increase’ the conditional releasee's privacy interest because the DNA Act includes significant criminal penalties for such abuse and because the ‘junk DNA’ that is collected currently poses little risk of abuse.” United States v. Stewart, 532 F.3d at 35, quoting United States v. Weikert, 504 F.3d at 12-13.

14 . I do not doubt that, based upon the record, probable cause would have existed, even if Detective Morgan did not use a ruse in order to retrieve Williamson DNA from a McDonald's beverage cup. Well before the police decided to use its ruse, it was aware of the DNA match between the 1994 assailant and the 2002 assailant. It was also known, that Williamson entered an Alford plea for the 1994 incident, in which he admitted to having sexual intercourse with the victim. This alone, may have been sufficient evidence for a neutral and detached magistrate to find probable cause and issue a search warrant. It would be a mere assumption to conclude that the magistrate found probable cause on the 1994 and 2002 match alone, for the application for a warrant asserted that probable cause existed because of both the 1994 and 2002 match and the match between the DNA retrieved from Williamson’s cup and the 2002 match.