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SJC-11679

                   COMMONWEALTH   vs.   MANUEL ARZOLA.



            Suffolk.    November 6, 2014. - March 4, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Identification. Evidence, Identification, Blood sample, Buccal
     swab. Deoxyribonucleic Acid. Search and Seizure,
     Clothing, Expectation of privacy, Warrant, Blood sample,
     Buccal swab, Probable cause. Probable Cause.
     Constitutional Law, Privacy, Probable cause, Blood test.
     Privacy.



     Indictments found and returned in the Superior Court
Department on January 11, 2011.

     Pretrial motions to suppress evidence and to compel the
provision of a deoxyribonucleic acid sample by means of a buccal
swab were heard by Thomas A. Connors, J., and the cases were
tried before Thomas E. Connolly, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Katherine Essington for the defendant.
     Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
     Ian Stone, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
                                                                   2



     Kirsten V. Mayer, John J. Reynolds III, Sara Perkins Jones,
Matthew R. Segal, & Jessie J. Rossman, for American Civil
Liberties Union Foundation of Massachusetts, amicus curiae,
submitted a brief.


     GANTS, C.J.   The defendant was convicted by a Superior

Court jury of assault and battery by means of a dangerous weapon

and assault and battery.1   The defendant appealed, and we

transferred the case here on our own motion.   On appeal, the

defendant contends that the motion judge erred in denying a

motion to suppress the victim's out-of-court eyewitness

identification of the defendant, where the victim had told the

police that the assailant wore a gray shirt and the defendant

was the only person shown wearing a gray shirt in the

photographic array.   The defendant also argues that

deoxyribonucleic acid (DNA) evidence identifying the victim as

the source of blood found on the defendant's shirt should have

been suppressed, because the DNA analysis of the bloodstain

constituted a search that could only be conducted lawfully with

a warrant supported by probable cause, and no warrant had been




     1
       The defendant was found not guilty of armed robbery. He
was sentenced to from five to seven years in State prison on the
conviction of assault and battery by means of a dangerous
weapon, and to from three years of probation on the conviction
of assault and battery, to commence on his release from State
prison.
                                                                   3



obtained.   We find no error and affirm the defendant's

convictions.2

     Background.   In the early morning of August 23, 2010, the

victim, Mauricio Arevalo, was walking to his home in Chelsea

when a man seated on a bench asked him for money and cigarettes.

The victim continued walking for another two or three blocks

when someone came from behind him and held a knife to his back,

demanding he give up his possessions.   The victim surrendered

his wallet and cellular telephone before the assailant shoved

him to the ground and stabbed him in the neck and shoulder area.

From the ground, the victim turned his head and observed the

assailant, whom he recognized as the same person who had asked

for money and cigarettes.   The victim briefly followed the

assailant but then stopped at a firehouse for assistance with

his wounds.

     Chelsea police Officer Robert Hammond met the victim at the

firehouse before he was taken to the hospital.   The victim

described the assailant as a heavy-set Hispanic male,

approximately five feet, ten inches to six feet tall, wearing a

gray shirt, dark-colored jeans, and possibly a hat.     Shortly

after an ambulance arrived, another officer alerted Officer

     2
       We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and by the American Civil
Liberties Union Foundation of Massachusetts.
                                                                    4



Hammond that a man fitting the victim's description of the

assailant had been stopped about two blocks away from the crime

scene.    Officer Hammond went to where the defendant had been

stopped and observed that he matched the victim's general

description.3   After learning that the defendant had an

outstanding warrant, Officer Hammond arrested him on the warrant

and transported him to the Chelsea police station.

     During booking, the defendant was asked to empty his

pockets and, as he reached into them, Officer Hammond observed

that the defendant had a stain on the left sleeve of his gray

shirt.    Believing the stain to be blood, Officer Hammond asked

the defendant if he had any injuries that might have caused the

stain.    The defendant responded that he was not injured, and no

wounds were found on him.    Before placing the defendant in a

cell, Officer Hammond seized the shirt as evidence of the

alleged armed robbery and assault of the victim, although the

defendant was not yet under arrest for those crimes.    Because

the defendant would have access to a sink and a toilet with

running water in his cell, Officer Hammond was concerned that

the defendant might wash away the stain if the shirt were not

seized.

     3
       No showup identification procedure was conducted with the
victim because he needed to be transported by ambulance to the
hospital.
                                                                     5



     The following day, the victim met with Detective Michael

Noone and described the assailant as a Hispanic male, about five

feet, ten inches tall, with a heavy build and short hair, and

wearing a gray sweatshirt.    Detective Noone created an array of

eight photographs, including the defendant's booking photograph.

When choosing fillers for the array, he used a computer program

that searched a database of photographs that matched the

defendant's race and ethnicity, gender, height, weight, and age

group.   Detective Noone then selected people who looked similar

to the defendant.   Each of the filler photographs depicted a

Hispanic male in the defendant's age group, with a heavy build

and a similar complexion to the defendant's.   The photographs

themselves showed only each person's face and a small portion of

the upper torso.

     Detective Noone asked Officer Jose Torres, Jr., who was not

involved in the investigation, to conduct the eyewitness

identification procedure.    Before Officer Torres took the victim

into a separate room, Detective Noone read the victim the

Chelsea police department form used to prepare eyewitnesses for

viewing a photographic array.4   In the separate room, Officer


     4
       Among other advisements, the form notifies eyewitnesses
that the perpetrator may or may not be in the array; that it is
as important to clear the innocent as to identify the guilty;
that the Chelsea police would continue to investigate the crime
                                                                    6



Torres began showing each photograph one-by-one for five to ten

seconds.   When he displayed the fourth photograph, which

depicted the defendant, the victim stopped him and stated,

"That’s the man; I’m one hundred percent sure."   The victim

explained that he identified that person as his assailant based

on the person's hair and complexion, and added that he could not

forget the assailant's eyes.

    After a grand jury indicted the defendant, the Commonwealth

moved for an order requiring the defendant to produce a DNA

sample by means of a buccal swab.   The Commonwealth explained

that the victim had submitted a DNA sample to compare with the

DNA from the bloodstain on the defendant's shirt, and that it

was necessary to obtain a DNA sample from the defendant in order

to exclude the defendant as the source of the blood.   The motion

judge (who was not the trial judge) allowed the Commonwealth's

motion, finding probable cause to believe that the defendant

committed the crimes of armed robbery and assault and battery by

means of a dangerous weapon, and that the sample would probably

provide evidence relevant to the defendant's guilt.    At trial,

Kara Tremblay, the chemist who analyzed the defendant's shirt,

testified to her opinion that the DNA profile obtained from the

regardless of whether a suspect were identified; and that if an
identification is made, the witness should signify the level of
certainty.
                                                                     7



bloodstain on the shirt matched the victim and did not match the

defendant.5

     Discussion.   1.   Eyewitness identification procedure.   The

motion judge conducted an evidentiary hearing on the defendant's

motion to suppress eyewitness identification evidence.    In

denying the motion, the judge found that the computerized

process by which the filler photographs were selected was

intended to ensure that no photograph stood out, and that, in

fact, the seven other photographs showed men of a similar age,

complexion, build, and hairline.   Regarding the defendant's gray

shirt, the judge found that (1) the gray shirt was only one of

several descriptive features mentioned by the victim; (2) the

photographs themselves showed a very small portion of the

person's shirt; and (3) the victim explicitly stated that he

made the identification based on the defendant's facial

features, hair, complexion, and eyes.

     "When reviewing the denial of a motion to suppress, we

accept the judge's subsidiary findings of fact absent clear

error, but we conduct an independent review of [the] ultimate

     5
       Kara Tremblay also testified that the probability of a
randomly selected unrelated individual having the
deoxyribonucleic acid (DNA) profile matching the bloodstain
profile was approximately 1 in 107.9 quadrillion in the
Caucasian population, 1 in 262.6 quadrillion in the African-
American population, 1 in 76.98 quadrillion in the Hispanic
population, and 1 in 104.6 quadrillion in the Asian population.
                                                                     8



findings and conclusions of law."     Commonwealth v. Perkins, 450

Mass. 834, 841-842 (2008).    To prevail on a motion to suppress

an eyewitness identification, "the defendant must show by a

preponderance of the evidence that, in light of the totality of

the circumstances, the procedures employed were so unnecessarily

suggestive and conducive to irreparable misidentification as to

deny the defendant due process of law."     Commonwealth v. Cavitt,

460 Mass. 617, 632 (2011), quoting Commonwealth v. Miles, 420

Mass. 67, 77 (1995).   Here, as the motion judge found and as we

confirmed from our own review of the photographic array, the men

depicted were reasonably similar in their features and physical

characteristics, including their hair length, skin complexion,

age, and physical build.     See Commonwealth v. Silva-Santiago,

453 Mass. 782, 795 (2009).    Although the defendant was the only

person shown wearing a gray shirt, the focal point of the

photograph was the defendant's face, and the gray shirt was not

distinctive apart from its color.     See Commonwealth v. Montez,

450 Mass. 736, 755-756 (2008) (although defendant was only

person shown wearing hooded sweatshirt, which was mentioned in

witness's description of assailant, defendant's hooded

sweatshirt was "a generic type" and "defendant's photograph

[did] not stand out as distinctive in any unnecessarily

suggestive way").
                                                                    9



    "Although we disapprove of an array of photographs which

distinguishes one suspect from all the others on the basis of

some physical characteristic, we have sustained numerous such

identifications when it is clear that the victim did not select

the photograph on that basis."   Commonwealth v. Melvin, 399

Mass. 201, 207 n.10 (1987).   Here, the witness stated that he

identified the defendant based on his hair, complexion, and

eyes; the gray shirt was not mentioned as a factor that

contributed to the identification.    Compare Commonwealth v.

Mobley, 369 Mass. 892, 896 (1976) (defendant's distinctive

feature of wearing hat was "neutralized by the witness's

unequivocal testimony . . . that [in substance] he was not

looking for a hat when he examined the pictures"), with

Commonwealth v. Thornley, 406 Mass. 96, 99-100 (1989)

(identifications suppressed as impermissibly suggestive where

defendant was only person in array who was wearing eyeglasses

and eyewitnesses testified that eyeglasses were "significant

factor" in making identifications).    We conclude that the judge

did not err in denying the motion to suppress eyewitness

identification evidence.

    2.   DNA profile.   Before trial, the defendant moved to

suppress the bloodstained shirt and any evidence deriving from

it as the fruit of an unlawful seizure.   The motion judge denied
                                                                   10



the motion, concluding that Officer Hammond lawfully seized it

in plain view, because (1) he had a legal right to be conducting

the booking process when the stain was discovered; (2) the stain

was found inadvertently, as the defendant was being booked on an

unrelated warrant; and (3) the incriminating character of the

object was immediately apparent where the police already had

knowledge of the assault of the victim, and the defendant

matched the assailant's description.6

     On appeal, the defendant does not challenge the seizure of

the shirt, the court-ordered buccal swab for a known sample of

the defendant's DNA, or the subsequent analysis of the

defendant's known sample.   Rather, the defendant argues that the

DNA analysis of the bloodstained shirt was itself a search that

required a warrant, even where the shirt was lawfully seized in

plain view.   Because this claim was not raised in the motion to

suppress, we ordinarily would consider it waived.   See

Commonwealth v. Silva, 440 Mass. 772, 781-782 (2004).     However,

we shall exercise our discretion to consider the claim, in order

to determine whether there was an error that created a

substantial risk of a miscarriage of justice.   See Commonwealth


     6
       The motion judge also found that the police "may well have
had" probable cause to arrest the defendant for the alleged
robbery and assault, thus enabling them to seize the shirt as a
search incident to a lawful arrest.
                                                                   11



v. Vuthy Seng, 436 Mass. 537, 550, cert. denied, 537 U.S. 942

(2002), S.C., 456 Mass. 490 (2010); Commonwealth v. Johnson, 46

Mass. App. Ct. 398, 400 (1999).   The record before us is

sufficient to resolve the defendant's claim, the matter has been

fully briefed (including by the amici), and we transferred this

case from the Appeals Court to address this novel issue.    See

Commonwealth v. Daniel, 464 Mass. 746, 755 (2013); Commonwealth

v. Bettencourt, 447 Mass. 631, 633-634 (2006).   Given these

considerations, we shall proceed to address the claim on the

merits.

     Before determining whether the DNA analysis of the

defendant's shirt constituted a search that required a warrant,

we first clarify the nature and scope of the DNA analysis at

issue in this case.   Here, the shirt was known to be worn by the

defendant, but the source of the bloodstain was unknown, meaning

the bloodstain was treated as an unknown DNA sample.7   Tremblay

testified that she examined sixteen loci on the unknown DNA

sample, which were "chosen by the [Federal Bureau of

Investigation (FBI)] . . . [b]ecause they are highly variable




     7
       Tremblay testified that she treated the sample from the
defendant's shirt as an "unknown" or "question" sample, which
she defined as evidence taken from a crime scene.
                                                                   12



between individuals" and the "most discriminating."8   After the

defendant's known sample was provided through the court-ordered

buccal swab, and the victim voluntarily provided a known sample

of his DNA, Tremblay compared the DNA profile from the unknown

sample with the victim's and the defendant's known profiles.

Based on the record before us, we conclude that this DNA

analysis was conducted for the sole purpose of identifying the

source of the unknown sample.



     8
       The Federal Bureau of Investigation (FBI) generally
requires that a minimum of thirteen "Core" loci be tested for
inclusion in the Combined DNA Index System (CODIS). See FBI,
Frequently Asked Questions (FAQs) on the CODIS Program and the
National DNA Index System, available at
http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-
and-ndis-fact-sheet [http://perma.cc/X76V-TXZL] (last visited
Mar. 2, 2015). Tremblay tested the thirteen Core loci,
Amelogenin (a gene used to determine sex), and two additional
loci, both of which are commonly tested along with the thirteen
Core loci. See J.M. Butler & C.R. Hill, Biology and Genetics of
New Autosomal STR Loci Useful for Forensic DNA Analysis, in
Forensic DNA Analysis: Current Practices and Emerging
Technologies 183 (J.G. Shewale & R.H. Liu eds., 2014). These
loci, other than Amelogenin, are generally believed not to
contain personal genetic information. See United States v.
Mitchell, 652 F.3d 387, 400-401 (3d Cir. 2011), cert. denied,
132 S. Ct. 1741 (2012). See also Maryland v. King, 133 S. Ct.
1958, 1966-1967 (2013) (loci tested in DNA profiling "useful and
even dispositive for purposes like identity"); Boroian v.
Mueller, 616 F.3d 60, 65-66 (1st Cir. 2010) (Core loci "not
associated with any known physical or medical characteristics"
[citation omitted]). The resulting DNA profile was essentially
a set of numbers corresponding to each locus. See Boroian,
supra at 66 (DNA profile is "represented as a series of
digits"). The analysis of Amelogenin only revealed "XY" to
indicate a male.
                                                                   13



    Whether the DNA analysis in this case was a "'search' in

the constitutional sense . . . depends on whether the

[Commonwealth's] conduct has intruded on a constitutionally

protected reasonable expectation of privacy."    Commonwealth v.

Lopez, 458 Mass. 383, 389 (2010).    We recognize that the DNA

found in the bloodstain could potentially reveal more

information than the identity of the source, including the

source's ancestry and predisposition to medical or psychiatric

conditions.   See Skinner v. Railway Labor Executives' Ass'n, 489

U.S. 602, 617-618 (1989) (chemical analysis of biological

samples may reveal "a host of private medical facts"); United

States v. Mitchell, 652 F.3d 387, 412-413 (3d Cir. 2011), cert.

denied, 132 S. Ct. 1741 (2012) ("DNA samples may reveal private

information regarding familial lineage" [citation omitted]).

See also Raynor v. State, 440 Md. 71, 103 (2014) (Adkins, J.,

dissenting) ("With today's technology, scientists have the power

to discern [from DNA] genetic traits, behavioral tendencies,

propensity to suffer disease or defects, other private medical

information, and possibly more").    But when limited to these

sixteen loci, DNA analysis "does not show more far-reaching and

complex characteristics like genetic traits."    Maryland v. King,

133 S. Ct. 1958, 1966-1967 (2013).    Apart from the source's sex,

the DNA analysis of the unknown sample taken from the
                                                                  14



defendant's lawfully seized shirt revealed nothing more than the

identity of the source, which is what an analysis of latent

fingerprints would have revealed (albeit with less accuracy) had

they been found on the clothing.   Therefore, the DNA analysis

was no more a search than an analysis of latent fingerprints

would be.   See Boroian v. Mueller, 616 F.3d 60, 66 (1st Cir.

2010) (DNA profile provides genetic fingerprint to uniquely

identify individual but does not provide additional information

about that person); Raynor, 440 Md. at 96 ("DNA testing of the

[thirteen] identifying . . . loci within genetic material, not

obtained by means of a physical intrusion into the person's

body, is no more a search for purposes of the Fourth Amendment

[of the United States Constitution], than is the testing of

fingerprints").   See also United States v. Dionisio, 410 U.S. 1,

15 (1973), quoting Davis v. Mississippi, 394 U.S. 721, 727

(1969) (fingerprinting does not involve "probing into an

individual's private life and thoughts that marks an

interrogation or search").

    A defendant generally has a reasonable expectation of

privacy in the shirt he or she is wearing, but where, as here,

the shirt is lawfully seized, a defendant has no reasonable

expectation of privacy that would prevent the analysis of that

shirt to determine whether blood found on it belonged to the
                                                                  15



victim or to the defendant.   See Raynor, 440 Md. at 92

(defendant "does not possess a reasonable expectation of privacy

in the identifying characteristics of his DNA").   See also State

v. Athan, 160 Wash. 2d 354, 374 (2007) ("There is no subjective

expectation of privacy in discarded genetic material just as

there is no subjective expectation of privacy in fingerprints or

footprints left in a public place").   Requiring police to obtain

a warrant whenever they seek to analyze lawfully seized evidence

for the sole purpose of identifying the unknown source of a

genetic fingerprint would "impose[] substantial burdens on law

enforcement without vindicating any significant values of

privacy."9   Commonwealth v. Varney, 391 Mass. 34, 39 (1984),

quoting Robbins v. California, 453 U.S. 420, 429 (1981) (Powell,

J., concurring in the judgment).   See Commonwealth v. Robles,


     9
       An amicus notes that DNA analysis of the shirt potentially
could reveal the identities of persons who have touched the
defendant's shirt, thereby intruding into his interest in
keeping his associations private. We do not address whether our
analysis would differ if the purpose of the DNA analysis were
not to investigate the commission of a crime, but instead to
determine the identity of persons intimately involved with the
defendant. We note, however, that DNA analysis of blood found
on a defendant's lawfully seized clothing, for the sole purpose
of identifying the unknown source of blood, is unlikely to
constitute an "undue intrusion" into a defendant's intimate
relationships. Roberts v. United States Jaycees, 468 U.S. 609,
617-618 (1984). The mere presence of another person's DNA on a
defendant's clothing does not reveal a significant amount of
information or detail about the nature of the relationship
between the defendant and the source of the DNA.
                                                                  16



423 Mass. 62, 65 n.8 (1996) (if lawfully seized, police need not

obtain warrant to conduct chemical analysis of bloodstained

coat).

    Although we recognize that the science of DNA analysis may

evolve and enable DNA profiling to uncover from these loci

information more personal than the identity and sex of its

source, the loci tested in this case "are not at present

revealing information beyond identification" and sex.   King, 133

S. Ct. at 1979, quoting Katsanis & Wagner, Characterization of

the Standard and Recommended CODIS Markers, 58 J. Forensic Sci.

S169, S171 (2013).   See Boroian, 616 F.3d at 68-69 (government

use of DNA profile for more than identification "merely [a]

hypothetical possibilit[y]").   If the Commonwealth were to

obtain more than identification and sex information from these

loci, use the DNA profile for any purpose other than identifying

the unknown source of the sample, or analyze different loci that

contained more personal genetic information, we would have to

revisit the question whether such DNA analysis is a search in

the constitutional sense.   See King, supra ("If in the future

police analyze samples to determine, for instance, an arrestee's

predisposition for a particular disease or other hereditary

factors not relevant to identity, that case would present

additional privacy concerns not present here"); Mitchell, 652
                                                                  17



F.3d at 408 ("Should technological advancements change the value

of [loci analyzed in a DNA profile], reconsideration of our

Fourth Amendment analysis may be appropriate").    Cf. Riley v.

California, 134 S. Ct. 2473, 2490, 2493 (2014) (warrant is

generally required for search of cellular telephone, even when

lawfully seized incident to arrest, because "many of the more

than [ninety per cent] of American adults who own a [cellular

telephone] keep on their person a digital record of nearly every

aspect of their lives -- from the mundane to the intimate").

     The defendant's argument rests heavily on United States v.

Davis, 690 F.3d 226, 250 (4th Cir. 2012), where the court

concluded that the police conducted an unreasonable search in

violation of the Fourth Amendment when they extracted the

defendant's DNA profile from his lawfully seized clothing and

tested it as part of a murder investigation.10    In Davis, the

defendant's clothing was seized as evidence while he was in the

hospital as a gunshot victim, and his DNA profile was later

obtained from the bloodstains on his pants in order to compare




     10
       The Fourth Amendment violation, however, did not result
in the suppression of the DNA evidence because the court
concluded that the exclusionary rule should not apply in these
circumstances under the "good faith" exception established in
United States v. Leon, 468 U.S. 897, 919-920 (1984). See United
States v. Davis, 690 F.3d 226, 251, 257 (4th Cir. 2012).
                                                                    18



it with an unknown DNA profile from an unrelated homicide.11    Id.

at 230-231.   After the defendant was excluded as the source of

the evidentiary sample from that murder, the police retained his

DNA profile and included it in their local DNA database, where

it triggered a "cold hit" with another sample from a different

homicide crime scene.    Id. at 229, 231-232.   The court concluded

that the defendant's clothing was lawfully seized in plain view.

Id. at 239.   However, the court held that the defendant had an

expectation of privacy in his DNA that was implicated once the

police extracted the DNA from his clothing and obtained his DNA

profile.   Id. at 246.

     In contrast with the instant case, the police in Davis

treated the DNA sample on the defendant's clothing as the

defendant's known sample, and created a DNA profile in order to

compare it with other unknown samples obtained from various

crime scenes.   Id. at 231-233.   The court's conclusion that the

defendant "retained a reasonable expectation of privacy in his

DNA profile" was premised on the finding that the sample from

his clothing was known to contain the defendant's DNA.     Id. at


     11
       Because the parties' briefs and the record were "devoid
of any factual basis" for concluding that the defendant was
involved in the murder, Davis, 690 F.3d at 250, the court
presumed that the police obtained the defendant's DNA profile
based on suspicions that amounted to less than probable cause.
Id. at 231 n.6, 250.
                                                                    19



248.    Even if we were to accept the Davis court's reasoning with

regard to a DNA sample known to belong to the defendant, a

defendant does not have a reasonable expectation of privacy in a

DNA profile from an unknown sample that was taken from lawfully

seized evidence.12

       Moreover, we doubt that the Fourth Amendment reasoning of

the Davis court will be adopted by the United States Supreme

Court.13    The Davis court never fully addressed the limited scope

of the DNA analysis:    to develop a DNA profile that would serve

as a genetic fingerprint to be compared with unknown DNA

profiles.    See id. at 240 n.22 (declining further to discuss

science of DNA profiling after noting that some courts analogize

       12
       We note that where we have concluded that a known DNA
sample of a defendant was lawfully obtained without a court
order, we have not required a search warrant to analyze the DNA
from that sample to compare its profile with the profile from an
unknown sample in the criminal investigation. See Commonwealth
v. Bly, 448 Mass. 473, 489-491 (2007) (no warrantless search or
seizure occurred where police retrieved cigarette butts and
water bottle used by defendant during interview in order to
obtain known DNA sample, because defendant failed "to manifest
any expectation of privacy in the items whatsoever");
Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 539-540 (2006)
(defendant had no expectation of privacy in cigarette butts that
he abandoned and that were used to obtain known DNA sample). We
also note that the defendants in Bly and Ewing did not claim
that, if the items were lawfully collected, a search warrant was
required to conduct a DNA analysis of the known sample.
       13
        The Davis court acknowledged that the "issue of a
person's reasonable expectation of privacy in his DNA . . . has
not yet been addressed by the Supreme Court." Davis, 690 F.3d
at 240.
                                                                   20



DNA to fingerprints while others recognize limitations of that

analogy).   The Supreme Court's subsequent opinion in King, 133

S. Ct. at 1979, noted that the loci that comprise a DNA profile

"come from noncoding parts of the DNA that do not reveal . . .

genetic traits," and that the sole purpose of DNA profiling is

to generate "a unique identifying number against which future

samples may be matched."   Although the Court was addressing the

suspicionless collection of a DNA sample through a buccal swab

of certain arrestees, rather than the analysis of such a sample,

we think it is likely that the limited information provided by a

DNA profile and the limited purpose of identification will lead

the Supreme Court to reach a conclusion that is different from

that of the Davis court.   See Raynor, 440 Md. at 90, petition

for cert. filed, U.S. Supreme Ct., No. 14-885 (Jan. 19, 2015)

("The Davis Court's conclusion that the DNA testing at issue in

that case constituted a Fourth Amendment search rested on what

may now be a faulty premise, given the discussion in King that

DNA analysis limited to the [thirteen Core] loci within a

person's DNA discloses only such information as identifies with

near certainty that person as unique").

    We conclude that where, as here, DNA analysis is limited to

the creation of a DNA profile from lawfully seized evidence of a

crime, and where the profile is used only to identify its
                                                                21



unknown source, the DNA analysis is not a search in the

constitutional sense.   Therefore, no search warrant was required

to conduct the DNA analysis of the bloodstain from the

defendant's clothing that revealed that the victim was the

source of the blood.

    Conclusion.   Because we find no error, the defendant's

convictions are affirmed.

                                    So ordered.
