UNITED STATES DISTRICT COURT F I L E D
l F C MBIA
FOR THE DISTR CT O OLU  1 o 2009

C|erk, U.S. District and
Bankruptcy Courts

UNITED STATES OF AMERlCA

v. Criminal N0. 08-0376 (PLF)
GREGORY LASSITER,
RYAN WHEELER,
DEVRO HEBRON,
DEVON HEBRON,
DAVID COOPER, and
DARRIN MCCAULEY,

Defendants.

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MEMORANDUM OPINION AND ORDER
This matter is before the Court on the government’s Motion for Court Ordered

Maj or Case Prints and DNA Samples ("Mot."). By this motion, the government sought to
compel the defendants to submit to the taking of major case prints and buccal cell cheek swabs
from all six defendants in this action. Only defendant Devro Hebron opposed the motion.' The
Court previously granted the motion as unopposed with respect to Mr. Hebron’s five co-
defendants, and also ordered defendant Devro Hebron to provide major case prints while it
considered his Fourth Amendment challenge to the taking of a DNA sample. §e_e Orders of
March 13, 2009 [Docket Nos. 40 and 41]. After carefully considering the government’s original

motion as well as defendant Hebron’s opposition ("Opp."), the Court will grant the government’s

‘ 'l`here are two defendants named Hebron in this case, Devro Hebron and Devon
Hebron. References throughout this opinion to "defendant Hebron" or "Mr. Hebron" refer to
Devro Hebron.

motion with respect to the collection of DNA from Mr. Hebron.

The defendants are charged in a nine-count indictment with numerous violent
offenses, including kidnapping, assault with intent to commit robbery while armed, and assault
with intent to kill Gregory Lyles. The government charges that the defendants lured Mr. Lyles to
defendant Darrin McCauley’s house and assaulted him there, leaving him bloodied and dazed.
They took his jewelry, wallet and car keys, duct taped his hands behind his back, and placed a
helmet and shirt over him to hide his injuries and the blood on his clothing. _Sg Mot. at 2. The
defendants then drove Mr. Lyles in his truck from Maryland into the District of Columbia,
pointed a gun at him and ultimately stabbed him with a boxcutter, allegedly purchased by Mr.
Hebron, and left him in the back of his truck, bleeding profusely. lc_l. at 2-5. The government
seeks to take buccal cell cheek swabs from Mr. Hebron in order to compare his DNA to DNA
material discovered at the crime scene. Specifically, in Mr. Hebron’s case, they wish to compare
his DNA with swabs taken from a bloodstained white tube sock recovered from defendant Darrin

McCauley’s house near the spot where Mr. Lyles was assaulted.z

DISCUSSION
Compelling an accused to give a DNA sample is a search within the meaning of
the Fourth Amendment. §_<;e Johnson v. Quander, 440 F.3d 489, 493 (D.C. Cir. 2006) (""l`here is
no question that the compulsory extraction of blood for DNA profiling constitutes a ‘search’

within the meaning of the Fourth Amendment.") (citing Skinner v. Ry. Labor Executives’ Ass’n,

2 The governments concedes that there is no probable cause to believe that the

swabs taken from the victim’s truck or the shoes turned over to the government that allegedly
belong to defendant Lassiter have anything to do with defendant Devro Hebron. § Mot. at 8-9.

2

489 U.S. 602, 616 (l989)); see also Schmerber v. California, 384 U.S. 757, 767 (l966) (finding
that the compulsory drawing of blood was a search and seizure under the Fourth Amendment);
Skinner v. RV. Labor Executives’ Ass’n, 489 U.S. at 617 (taking urine sample implicates Fourth
Amendment, even though taking urine sample is less invasive of the body than drawing blood;
analysis of a urine sample, like that of blood, "can reveal a host of private medical facts," and the
actual act of taking the sample implicates privacy interests).

The government in this case proposes to take the DNA sample with a buccal cell
cheek swab, which requires scraping the inside of the subject’s cheek, rather than by drawing
blood as in Schmerber and  . The Court does not find this difference significant,
however; both methods involve a bodily intrusion where an individual has an "expectation[] of
privacy." §ee Winston v. Lee, 470 U.S. 753, 758 (l985). As the courts have recognized, an
individual’s DNA reveals extensive private medical information, and the act of reaching into the
subject’s mouth to conduct the swab, although not a surgical invasion, is still an invasion into the
body. §:_e_ Padgett v. Donald, 401 F.3d 1273, 1277 (l lth Cir. 2005) (swabbing inmates’ cheeks
for saliva to create a DNA database is a search within the meaning of the Fourth Amendment);
Schlicher v. Peters, 103 F.3d 940, 942-43 (l0th Cir. l996) (taking a saliva sample for DNA
information is a search within the meaning of the Fourth Amendment).

The question before the Court, then, is whether the proposed search of Mr.
Hebron is "reasonable" under the Fourth Amendment, As the Supreme Court stated in
Schmerber, in addition to the existence of probable cause under the Fourth Amendment, the
procedures employed in taking blood must be reasonable. §§ Schmerber v. California, 384 U.S.

at 768, 769-70. As the Supreme Court later noted, in addition to the requirement of probable

cause, "Schmerber’s inquiry considered a number of other factors in determining the
‘reasonableness’ of the [intrusion]." Winston v. Lee, 470 U.S. at 76l. These factors include
(l) "the extent to which the procedure may threaten the safety or health of the individual," and
(2) "the extent of intrusion upon the individual’s dignitary interests in personal privacy and
bodily integrity." M. “Weighed against these individual interests is the community’s interest in
fairly and accurately determining guilt or innocence." I_d. at 762.

ln opposing the compelled extraction of his DNA, Mr. Hebron argues that under

Schmerber and Winston, compelling the submission of Mr. Hebron’s DNA is unreasonable. He
argues that taking the sample is highly intrusive and that there is little likelihood that collecting

Mr. Hebron’s DNA will have any impact on proving his guilt or innocence. Opp. at 4-5.

A. Probable Cause
Probable cause to conduct a search or seizure of a person, like the DNA

submission the government seeks to compel in this case, must be "particularized with respect to
the person to be searched or seized." Barham v. Ramsey, 434 F.3d 565, 573 (D.C. Cir. 2006)
(quoting Magland v. Pringle, 540 U.S. 366, 370-7l (2003)). The government may not show
probable cause to search Mr. Hebron merely by establishing probable cause to search his co-
defendants. §_e_e § The Court agrees with Mr. Hebron _ and, as noted, the government
effectively concedes - that the government has not shown any connection between defendant
Hebron and the victim’s truck, or between defendant Hebron and the shoes that allegedly belong
to co-defendant Gregory Lassiter. §§ Mot. at 8. The only question before the Court is whether

the government has shown probable cause to believe that Mr. Hebron’s DNA may match that

found in the white tube sock recovered from Mr McCauley’s townhouse.

While "probabl cause is a fluid concept _ turning on the assessment of
probabilities in particular factu l contexts - not readily, or even usefully, reduced to a neat set
of legal rules . . . the substance of all the definitions of probable cause is a reasonable ground for
belief of guilt," or, in this case? a reasonable ground for belief that Mr. Hebron’s DNA may
match that recovered from the white tube sock. Magland v. Pringle, 540 U.S. at 370-71 (internal
citation and quotations omitteq). Defendant Hebron argues that the govemment cannot connect
the sock to him because (l) the sock was not recovered from his residence, (2) there is no
evidence that Mr. Hebron owned the sock, and (3) there is no evidence that he was one of the
individuals who assaulted Mr. Lyles near the location where the sock was discovered. §e§ Opp.
at 5. ‘

Although it is ncertain who owns the sock, Mr. Lyles saw Mr. Hebron in Mr.
McCauley’s townhouse at the ime of the assault in the room where the assault took place, and he
has stated that Mr. Hebron participated in the assault at least to the extent that he held a gun and
made threatening statements. §e_e_ Mot. at 2. During the course of the assault, Mr. Lyles became
"dazed," and bloodied. M. Inl that condition, it seems unlikely to the Court that Mr. Lyles would
be able to identify precisely where each of the defendants, including Mr. Hebron, were while he
was being assaulted. There is probable cause to believe, however, that Mr. Hebron was in the

room where and when the assault took place. In addition, a blood stain was discovered on the

sock located near the couch where Mr. Lyles was assaulted. § Mot. at 8-9. Its proximity to the

location of the assault makes t probable that one of the individuals involved in the assault may

have been wearing the sock and that one or more of them had some contact with the sock. The
l

l 5

Court finds that there is suffici<

that recovered from the sock.

Once probable c
balancing "the extent to which
and "the extent of intrusion up

bodily integrity," against "the c

\
./

v
a

:nt probable cause to believe that Mr. Hebron’s DNA may match

B. T he Schmerber Balancing Test

ause has been established, Schmerber and Winston require

the procedure may threaten the safety or health of the individual,"

on the individual’s dignitary interests in personal privacy and

ommunity’s interest in fairly and accurately determining guilt or

innocence." Winston v. Lee, ii
770-7l). The Court will consi

As to the first f
taking a buccal cell swab from
along the inside of the defenda
that this procedure poses any t
less invasive and poses less of
-the type of search that was
496-97. The Court finds thatt
DNA sample,

As to the secon
personal and sensitive inform¢

Opp. at 4. While there may b

taking Mr. Hebron’s DNA in

70 U.S. at 761-62 (citing Schmerber v. California, 384 U.S. at

der the factors in turn.

actor, the government seeks to obtain the defendant’s DNA by

the defendant. This procedure involves rubbing a cotton swab

nt’s cheek. For good reason, defendant Hebron does not argue

hreat to his health or safety. Indeed, this procedure is considerably

a threat to the health and safety of the defendant than taking blood

permitted in Schmerber. §§ Johnson v. Quander, 440 F.3d at

his factor weighs in favor of the government and its request for the

d factor, defendant argues that DNA contains "a plethora of very

ition," and thus the test should be considered "highly intrusive."
: potential for misuse of stored DNA information, the purpose of

this case is only to compare his identity with DNA recovered at the

crime scene for purposes of the trial in this criminal case. As Judge Walton has noted, when

DNA is sought for a limited pul'pose, a court may wait to consider challenges to other potential

use or misuse of an individual’

s DNA until those uses have actually occurred. S_ee Johnson v.

Quander, 370 F. Supp. 2d 79, 88 n. 6 (D.D.C. 2005) affd 440 F.3d 489. The govemment has not

sought to use the DNA for any
of the perpetrators of the offen

not render the use of DNA for

purpose other than for identification of defendant Hebron as one
ses with which he is charged. Hypothetical privacy intrusions will

these purposes unreasonable. See Q. This factor therefore also

weighs in the government’s favor.

Finally, the Court must weigh the first two factors against the community’s

interest in fairly and accurately
Given the violent nature of the
determining guilt or innocence

2d 115, 132 (D.D.C. 2001). Vl

7

determining guilt or innocence. Winston v. Lee, 470 U.S. at 762.
alleged acts in this case, the community’s interest in accurately

is particularly strong. Qf_`. United States v. Weston, 134 F. Supp.

/ hile the defendant argues that "the requested DNA sample is of

little, if any, significance" to t e ultimate resolution of this case, Opp. at 5, he cannot know this.

lf the DNA recovered from th crime scene does in fact match Mr. Hebron’s DNA, that evidence

would be probative of the gov

rnment’s assertion that Mr. Hebron was at the crime scene and

l
participated in the assault of Mr. Lyles. Defendant also argues the govemment has failed to show

a need for the sample because
victim as well as the staternen
evidence might be duplicative
their identification of l\/Ir. Hek

evidence of a different form a

its evidence already includes the eyewitness testimony of the

ts of various of the co-defendants. §_e§ § Although the DNA

or corroborative of testimony given by the victim and others and

)ron as a participant in the charged crimes, DNA evidence is

nd nature than eyewitness identification testimony and is not

susceptible to the same type of reliability challenges. Under the circumstances presented, the
Court concludes that the third factor also weighs in favor of the government.

Balancing Mr. Hebron’s privacy interests against the public’s interest in
determining guilt or innocence, the Court finds that it is reasonable under the Fourth Amendment
to compel Mr. Hebron to submit to a buccal cell swab for the purposes of conducting DNA
analysis. The government’s motion will be granted. Accordingly, it is hereby

ORDERED that the Government’s motion for Court Ordered Major Case Prints
and DNA Samples [32] is GRANTED as to defendant Devro Hebron. Devro Hebron shall

submit to the taking of a DNA sample by buccal cell cheek swab.

SO ORDERED.
PAUL L. FRIEDMA§ 
United States District Judge
DATE: »4 ¢o\ 0 ‘l

 

