J-A02009-17

                                  2017 PA Super 170



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID SMITH

                            Appellant                  No. 521 EDA 2015


          Appeal from the Judgment of Sentence September 11, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013850-2012


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

OPINION BY OTT, J.:                                      FILED MAY 31, 2017

        David Smith appeals from the judgment of sentence imposed on

September 11, 2014, in the Court of Common Pleas of Philadelphia County

following his conviction by jury on charges of first-degree murder, robbery,

and carrying a firearm on public streets of Philadelphia without a license.1

Smith was sentenced to a term of life incarceration. In this timely appeal,

he raises one issue. Smith claims the trial court erred in failing to suppress

results of the warrantless testing of DNA evidence taken from his clothing

and person.      After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502, 3701 and 6108, respectively.
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       The specifics of the underlying crime are not directly relevant to the

resolution of the issue presented. Accordingly, we simply note that in the

early morning hours of July 26, 2012, Smith shot and killed Andre Strum

(the Victim) near         the corner of 66th Street and Haddington Lane,

Philadelphia. Smith also stole approximately $2,800.00 from the Victim. As

he was being arrested, the police noticed what appeared to be blood on

Smith’s shoes.       The shoes were confiscated pursuant to Smith’s lawful

arrest. The police also recovered a stained t-shirt belonging to Smith while

executing a search warrant at Smith’s girlfriend’s residence. Both shirt and

shoes were submitted for DNA analysis.2              Pursuant to a warrant, buccal

swabs were taken from Smith after his arrest.

       Smith     sought    to    suppress      the   DNA   evidence,   claiming   the

Commonwealth was required to obtain a warrant specifically to conduct the

DNA test on the blood samples. The trial court denied the motion and Smith

was subsequently convicted of the crimes mentioned above. In this timely

appeal, Smith claims the trial court erred in failing to suppress the DNA

evidence that was obtained without the benefit of a warrant.

       The standard of review for the denial of a motion to suppress evidence

is as follows:
____________________________________________


2
  There were at least two contributors to the blood on the shoe. The Victim
was positively identified as one and Smith could not be ruled out as the
second contributor. The Victim was found to be the sole contributor of blood
on the t-shirt.



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      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court's factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. Because the Commonwealth
      prevailed before the suppression court, we may consider only
      the evidence of the Commonwealth and so much of the evidence
      for the defense as remains uncontradicted when read in the
      context of the record as a whole. Where the suppression court’s
      factual findings are supported by the record, [the appellate court
      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous. Where ... the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the courts below are subject to [ ]
      plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has ruled that when

reviewing a motion to suppress evidence, we may not look beyond the

suppression record.   See In re L.J., 79 A.3d 1073 (Pa. 2013).         This is

important as the certified record is unclear whether the DNA analysis report

had been generated or delivered to Smith at the time of the suppression

hearing.

      Here, the trial court determined the seizure of the physical evidence,

Smith’s shirt, shoes and the buccal swab, were all constitutionally sound.

The shirt and buccal swabs were obtained by search warrant. See Search

Warrants 167301 (shirt) and 167303 (buccal swab).          We note Warrant

167303 was obtained for the stated purpose “to obtain a DNA sample for

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comparison against any/all other evidence in this investigation.”            Id.

Accordingly, the purpose of DNA analysis of the buccal swab was established

in the warrant. Smith’s shoes were properly seized in a search incident to

his lawful arrest.    See Commonwealth v. Ingram, 814 A.2d 264 (Pa.

Super. 2002) (warrantless search incident to lawful arrest is reasonable, and

no justification other than the arrest is required). Accordingly, the trial court

reasoned Smith’s constitutional rights were not violated.       This analysis is

sound, yet does not address Smith’s specific argument that the extraction

and analysis of the DNA samples represented an additional search that

required a warrant.

      Smith concedes that the physical evidence consisting of his orange

t-shirt, shoes, and buccal swabs were all legally seized by the police. See

Smith’s Brief at 29, 40. However, he asserts that because DNA can “reveal

‘physiological data’ and a ‘host of private medical facts,’ such analyses may

‘intrude [] upon expectations of privacy that society has long recognized as

reasonable.’” Smith’s Brief, at 23 (citing United States v. Davis, 690 F.3d

226, 243 (4th Cir. 2012)). As such, Smith contends his privacy interest in

information that may have been obtained by the DNA analysis of his blood,

required a separate warrant.     See Commonwealth v. Mitchell, 652 F.3d

387 (3rd Cir. 2011). See also, Commonwealth v. Barton, 690 A.2d 293

(Pa. Super. 1997) (Pennsylvania citizens have a reasonable expectation of

privacy in their medical records).        We conclude Smith’s argument is

unavailing.

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      Initially, we agree with the Commonwealth’s assertion that historically

no separate warrant has ever been required to conduct scientific testing

upon physical evidence lawfully obtained by the Commonwealth. However,

the cases cited by the Commonwealth, Commonwealth v. Stallworth, 781

A.2d 110 (Pa. 2001), and Commonwealth v. Aljoe, 216 A.2d 50 (Pa.

1966) addressed the warrantless seizure of clothing incident to the arrest of

the defendant.       Although, in those cases, the clothing was subsequently

tested   for   the   presence   of   biological   or   other   trace   evidence,   the

constitutionality of that testing was not at issue.            While such scientific

testing was allowed, the privacy issues currently before this panel were not

before prior panels.     Accordingly, while those cases have some instructive

value, they do not resolve the issues before us.

      Smith bases his argument upon the assertion that DNA can reveal

medical information he is entitled to protect. There are multiple failings in

that argument.

      While we agree with Smith’s assertion as a matter of science, he

presented no evidence to the suppression court that such personal medical

information would actually be obtained. DNA analysis has been in use for

many years, yet Smith has provided no instance in which the type of

information he instantly seeks to protect has ever been either obtained or




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used at trial.3    Because Smith has not demonstrated that this information

would actually be obtained by the Commonwealth, he is essentially seeking

to prevent a harm that he cannot show has occurred; without anything other

than his unsupported concern, the suppression court had no proof of a

demonstrable harm to prevent or correct.4        Without a showing that such

information would actually be obtained, we do not believe Smith has

articulated a protectable privacy interest in the blood sample.

       Although Smith cites Miller in support of his argument,5 our reading of

Miller leads to the opposite conclusion. Miller holds that an individual does

not have a protectable privacy interest in a blood sample that is used for

identification purposes. Specifically:

       A useful analogue is case law assessing the validity of
       fingerprinting arrestees and pretrial detainees as part of a
       routine booking process.
____________________________________________


3
  For informational purposes only, we surveyed a number of Pennsylvania
and Federal criminal appeals and found no indication that any protectable
medical information was ever obtained or used. The only use of DNA
identified in these cases was for identification purposes. Smith has not
challenged the use of DNA for identification purposes.
4
  We are mindful of the United States Supreme Court admonition, “The
judiciary risks error by elaborating too fully on the Fourth Amendment
implications of emerging technology before its role in society has become
clear.” City of Ontario, California v. Quon, 560 U.S. 746, 759, 130 S.Ct.
2619, 177 L.Ed.2d 216 (2010).        The Supreme Court was addressing
electronic technology in Quon, but we believe the concern is equally
applicable in the instant matter.
5
 Smith is correct in that Miller acknowledges a person can have protectable
privacy interest in DNA samples.



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     In an early case, the Second Circuit held that fingerprinting is a
     “means for the identification of prisoners so that they may be
     apprehended in the event of escape, so that second offenders
     may be detected for purposes of proper sentence where
     conviction is had, and so that the government may be able to
     ascertain ... whether the defendant has been previously
     convicted.” United States v. Kelly, 55 F.2d 67, 68 (2d Cir.
     1932). Acknowledging that “[a]ny restraint of the person may be
     burdensome,” the court held that “[t]he slight interference with
     the person involved in finger printing seems to us one which
     must be borne in the common interest.” Id. The court
     emphasized that fingerprinting arrestees is for the purpose of
     identification:

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

     Id.; accord United States v. Krapf, 285 F.2d 647, 650-51 (3d
     Cir. 1961) (“[Fingerprinting] is a means of identification which is
     useful in many circumstances some of which relate to the
     enforcement of our laws.”). The court upheld the booking
     procedure based on “the general right of the authorities charged
     with the enforcement of the criminal law to employ finger
     printing as an appropriate means to identify criminals and detect
     crime.” Kelly, 55 F.2d at 70.

     Suspicionless fingerprinting of all citizens would violate the
     Fourth Amendment. See Hayes v. Florida, 470 U.S. 811, 813-
     18, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Davis v.
     Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676
     (1969). Nevertheless, it is “elementary” that blanket
     fingerprinting of individuals who have been lawfully arrested or
     charged with a crime does not run afoul of the Fourth
     Amendment. Smith [v. United States], 324 F.2d [879] at 882
     [D.C. Cir. 1963)]. The universal approbation of fingerprinting as
     a method of identifying arrestees despite the invasion of privacy

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     “is not surprising when we consider that probable cause had
     already supplied the basis for bringing the person within the
     criminal justice system. With the person’s loss of liberty upon
     arrest comes the loss of at least some, if not all, rights to
     personal     privacy  otherwise    protected    by   the  Fourth
     Amendment.” Jones [v. Murray], 962 F.2d [302] at 306 [(4th
     Cir. 1992)]; see also [United States v.] Kincade, 379 F.3d
     [813] at 864 [(9th Cir. 2004) (en banc)] (Reinhardt, J.,
     dissenting) (“Arrestees' privacy interests ... appear to be
     significantly reduced.”). This analysis rests on two foundational
     principles—the presence of probable cause to arrest and the use
     of fingerprints as a method of identification:

        [W]hen a suspect is arrested upon probable cause, his
        identification becomes a matter of legitimate state interest
        and he can hardly claim privacy in it. We accept this
        proposition because the identification of suspects is
        relevant not only to solving the crime for which the
        suspect is arrested, but also for maintaining a permanent
        record to solve other past and future crimes.


     Jones, 962 F.2d at 306. Moreover, we permit such fingerprinting
     “whether or not the proof of a particular suspect’s crime will
     involve the use of fingerprint identification.” Id.; accord Rise
     [v. Oregon], 59 F.3d [1556] at 1559-60 [(9th Cir. 1995)].

     This logic extends to the collection and analysis of DNA samples
     from arrestees and pretrial detainees. See Anderson v.
     Virginia, 274 Va. 469, 650 S.E.2d 702, 705 (2007) (“A DNA
     sample of the accused taken upon arrest, while more revealing,
     is no different in character than acquiring fingerprints upon
     arrest.”). DNA collection occurs only after it has been determined
     that there is probable cause to believe that the arrestee
     committed a crime. In light of this probable cause finding,
     arrestees possess a diminished expectation of privacy in their
     own identity, which has traditionally justified taking their
     fingerprints and photographs.


     United States v. Mitchell, 652 F.3d 387, 410-12 (3rd Cir. 2011)

(footnotes omitted).



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       We recognize that Miller, as a federal decision, is not binding upon us.

However, we agree with the reasoning and conclusion that when the

prospective DNA sample is being used for identification purposes, the donor

of that sample has no more privacy interest in it than in his fingerprints.

       We also recognize that as a practical matter, Smith’s argument is

flawed.    As an evidentiary consideration, the blood samples taken from

Smith’s shoe and shirt were only relevant if they ultimately linked Smith to

the crime.6 That is, the stains were relevant only if they proved to be the

Victim’s blood, thereby linking Smith to the Victim. However, Smith cannot

assert any privacy interest in the Victim’s DNA analysis.

       Accordingly, in addition to having no protectable privacy interest in

DNA samples to be used for identification purposes, he cannot demonstrate

a privacy interest in the DNA samples, after they were analyzed, because

the relevant DNA was not his.

       Smith has provided no case law, nor any logical construct that

convinces us that he had a protectable privacy interest in the DNA samples

taken from his shirt and shoe prior to their analysis.         Smith’s general

concern that the government might use any DNA sample of his to obtain


____________________________________________


6
  There may be circumstances where identifying a DNA sample can
exonerate a defendant. If Smith believed that to be the case instantly, it is
doubtful he would have sought to suppress the analysis. Therefore, we need
not address that consideration herein.




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private medical information about him is nothing more than speculation.

The common understanding of the purpose and use of trace evidence

analysis in situations such as this is to determine the identity of the source.

As such, the government does not require a warrant to conduct such

analysis any more than it needs a warrant to take an arrested person’s

fingerprints.     Unless   and   until   Smith   can   demonstrate    another,

impermissible, use of DNA analysis, his argument fails. Therefore, the trial

court committed no abuse of discretion or error of law in denying Smith’s

motion to suppress the DNA analysis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2017




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