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13-P-1953                                              Appeals Court

                COMMONWEALTH   vs.   STEPHEN LUNDEN.


                           No. 13-P-1953.

      Middlesex.        February 3, 2015. - August 10, 2015.

             Present:    Cypher, Hanlon, & Agnes, JJ.


Practice, Criminal, Collateral estoppel. Collateral Estoppel.
     Search and Seizure, Fruits of illegal arrest.
     Constitutional Law, Search and seizure. Evidence,
     Scientific test. Deoxyribonucleic Acid.


     Indictments found and returned in the Superior Court
Department on September 23, 2010.

     A pretrial motion to suppress evidence was heard by Gary V.
Inge, J., and a motion for reconsideration was considered by
him.

     An application for leave to prosecute an interlocutory
appeal was allowed by Margot Botsford, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
     Matthew Harper-Nixon for the defendant.


    AGNES, J.   The defendant is charged in a seven count

indictment that includes drug offenses and multiple charges of
                                                                     2


breaking and entering in the nighttime with the intent to commit

a felony.   The principal question raised by the Commonwealth's

interlocutory appeal is whether, as determined by the motion

judge, the deoxyribonucleic acid (DNA) evidence that the

Commonwealth proposes to offer against the defendant, which is

derived from a 2007 blood sample from the defendant, must be

suppressed as the "fruit of the poisonous tree," namely, the

blood sample seized unlawfully from the defendant in 2000.     See

Commonwealth v. Benoit, 382 Mass. 210, 214-216 (1981).1

     The essential facts are not in dispute.   At the time the

first blood sample was seized in September, 2000, the defendant

was serving a State prison sentence for two counts of violation

of civil rights with injury as a result of a 1998 conviction.

At that time, G. L. c. 22E, § 3, listed thirty-three specific

offenses for which a DNA sample from a convicted person then

serving a sentence could be obtained.   Violation of civil rights

with injury was not one of the listed offenses, and thus the

seizure of the defendant's blood in 2000 was unlawful.     However,

three years later, the Legislature amended the statute,

effective February 10, 2004, and made it applicable to "[a]ny

person who is convicted of an offense that is punishable by

     1
       The evidence was seized to permit the Commonwealth to
create a DNA record so that the defendant would be included in
the State's DNA database established by G. L. c. 22E, § 2,
inserted by St. 1997, c. 106, § 7.
                                                                     3


imprisonment in the state prison."     G. L. c. 22E, § 3, as

amended by St. 2003, c. 107, § 1.     In that amendment the

Legislature also provided that the obligation to provide a DNA

sample applied to persons who then were on probation following a

conviction for a felony offense.2    The defendant was included in

that group because by February, 2004, although he had completed

service of his sentence for the civil rights violations, he was

on probation for a separate offense of unarmed robbery.3       The

defendant was again convicted of felony offenses in August,

2005, and September, 2005, as a result of which he was once

again incarcerated in State prison.    Under G. L. c. 22E, the

defendant was required to supply a DNA sample, but the

Commonwealth again did not seize his blood because his DNA


     2
       Statute 2003, c. 107, § 2, provides in part that "[a]ny
person currently on probation or parole as a result of such
conviction, adjudication or other judicial determination,
notwithstanding the date of such conviction, adjudication or
judicial determination, who has not previously submitted a DNA
sample to the department [of State police] under said chapter
22E, shall submit a DNA sample to the department within 1 year
after the effective date of this act."
     3
       In 1998, the defendant was convicted of one count of
unarmed robbery in violation of G. L. c. 265, § 19(b), two
counts of violation of civil rights with injury in violation of
G. L. c. 265, § 37, and two counts of assault and battery for
purposes of intimidation with injury in violation of G. L.
c. 265, § 39(b). The defendant was sentenced to four to six
years in State prison on the civil rights convictions and to a
ninety-month term of probation on the unarmed robbery conviction
to run concurrently with the State prison sentence for the civil
rights violations.
                                                                   4


record was already in the State DNA database as a result of the

Commonwealth's earlier seizure of a blood sample in 2000.4

     The issue before us arose on February 17, 2006, when police

learned that deposits of DNA on physical evidence from a series

of unsolved burglaries in Bristol and Middlesex Counties matched

the DNA record belonging to the defendant that was stored in the

Combined DNA Index System (CODIS), the national DNA database.5

In June, 2007, while the defendant was in custody being held on

bail for those crimes, the Commonwealth obtained fresh samples

of the defendant's blood and produced a DNA profile that

resulted in a second CODIS "hit" confirming the 2006 CODIS

"hit."   The Commonwealth wants to use the 2007 DNA evidence

against the defendant at his pending trial in Superior Court in

Middlesex County.   See Commonwealth v. Guy, 454 Mass. 440, 447

     4
       It is the policy of the Department of Correction not to
take multiple samples of DNA from individuals out of a concern
for the risk of infection.
     5
       "Authorized by Congress and supervised by the Federal
Bureau of Investigation, the Combined DNA Index System (CODIS)
connects DNA laboratories at the local, state, and national
level. Since its authorization in 1994, the CODIS system has
grown to include all 50 States and a number of federal agencies.
CODIS collects DNA profiles provided by local laboratories taken
from arrestees, convicted offenders, and forensic evidence found
at crime scenes. To participate in CODIS, a local laboratory
must sign a memorandum of understanding agreeing to adhere to
quality standards and submit to audits to evaluate compliance
with the federal standards for scientifically rigorous DNA
testing." Maryland v. King, 133 S. Ct. 1958, 1968 (2013). See
Landry v. Attorney Gen., 429 Mass. 336, 339 (1999), cert.
denied, 528 U.S. 1073 (2000).
                                                                     5


(2009).   As to those charges, the defendant filed a motion to

suppress the 2007 DNA evidence, arguing that the 2006 CODIS hit

and the resulting incarceration that led to the 2007 blood

sample were the result of the unlawful seizure of his blood in

2000.   The motion was eventually allowed.

    Discussion.    1.   Collateral estoppel.   The Commonwealth

argues that because in January, 2008, the defendant pleaded

guilty to a breaking and entering charge in Bristol County that

also resulted from the 2006 CODIS hit that made use of the

evidence seized unlawfully by the Commonwealth in 2000, and he

did not move to suppress the evidence in that case, the

collateral estoppel doctrine bars him from raising the issue in

his pending Middlesex County prosecution.      See Commonwealth v.

Lopez, 383 Mass. 497, 499 (1981); Commonwealth v. Cabrera, 449

Mass. 825, 829 (2007).

    In Commonwealth v. Ringuette, 60 Mass. App. Ct. 351, 357,

S.C., 443 Mass. 1003 (2004), we identified the five requirements

that must be met in order for collateral estoppel to apply:

"(1) the issues in the two proceedings must be the same; (2) the

defendant must have had sufficient incentive to have vigorously

and thoroughly litigated the issue in the previous proceeding;

(3) the defendant estopped must have been a party to the

previous litigation; (4) the applicable law must be identical in

both proceedings; and (5) the first proceeding must have
                                                                      6


resulted in a final judgment on the merits such that the

defendant was provided with sufficient incentive and an

opportunity to appeal."   In the Bristol case, the defendant did

not move to suppress the blood evidence match, and therefore

despite the defendant's conviction the Bristol proceeding did

not result in a final judgment on the merits regarding the fruit

of the poisonous tree argument.   See Bay State Gas Co. v.

Department of Pub. Util., 459 Mass. 807, 817 n.20 (2011).       The

burden of showing that the circumstances for collateral estoppel

are met falls on the Commonwealth as the moving party, see

Kimbroughtillery v. Commonwealth, 471 Mass. 507, 511 (2015), and

they have not met that burden.    See Lopez, supra.

    2.   Fruit of the poisonous tree.    Despite the fact that the

2007 blood sample from which the present DNA evidence is derived

was obtained as a result of the blood sample seized unlawfully

from the defendant in 2000, we agree with the Commonwealth's

argument that the exclusionary rule is not applicable and that

it was error for the judge to suppress the evidence.    Under the

"fruit of the poisonous tree" doctrine enunciated in Wong Sun v.

United States, 371 U.S. 471, 487–488 (1963), evidence must be

suppressed in circumstances in which it is deemed to have been

tainted by a prior search or seizure that was unlawful.       See

Commonwealth v. Damiano, 444 Mass. 444, 453-454 (2005).       It is

not a "but for" rule.   Id. at 453.   Instead, the question
                                                                        7


becomes "whether . . . the evidence . . . has been come at by

exploitation of [that] illegality or instead by means

sufficiently distinguishable to be purged of the primary taint."

Wong Sun v. United States, supra at 488.    Commonwealth v.

Bradshaw, 385 Mass. 244, 258 (1982).    "To determine 'whether the

connection between the evidence and the improper conduct has

become so attenuated as to dissipate the taint, the facts of

each case must be examined in light of three factors:      the

temporal proximity of the arrest to the obtaining of the

evidence; the presence of intervening circumstances; and the

purpose and flagrancy of the misconduct.'"    Commonwealth v.

Manning, 44 Mass. App. Ct. 695, 698 (1998), quoting from

Commonwealth v. Fredette, 396 Mass. 455, 460 (1985).      See

Commonwealth v. Sylvia, 380 Mass. 180, 183-184 (1980).       "In this

sense, the attenuation rule is 'not an exception to the

exclusionary rule but a test of its limits.'"    Damiano, supra at

454.    The Commonwealth has the burden of establishing that the

attenuation rule is applicable.    Fredette, supra at 459.

       In the present case, the presence of intervening

circumstances warrants application of the attenuation rule.

There were at least three other times since 2000, especially

after G. L. c. 22E, § 3, was amended in 2003, that the defendant

was required to supply a DNA sample or Massachusetts law

enforcement authorities were required to obtain DNA evidence
                                                                    8


from the defendant.   The record indicates that the Department of

Correction would have lawfully seized a blood sample from the

defendant in 2005 (a year before the first CODIS hit) if it did

not already have the defendant's DNA record in the State DNA

database.   Given the significant changes in the law since G. L.

c. 22E was first adopted, and the passage of time between the

unlawful seizure in 2000 and the initial CODIS hit in 2006, "the

connection between the improper conduct and the derivative

evidence has become so attenuated as to dissipate the taint."

Fredette, supra at 459.   There is no evidence in the record

before us of purposeful misconduct on the part of law

enforcement.6

     The primary purpose of the exclusionary rule is to deter

unlawful conduct by law enforcement authorities.   Commonwealth

v. Maingrette, 86 Mass. App. Ct. 691, 697 (2014). Applying the

exclusionary rule in a case such as this would not serve that



     6
       It should be noted that when G. L. c. 22E was adopted in
1997, the Legislature included a statement of broad public
policy underlying the new law: "It shall be the policy of the
commonwealth to assist local, state and federal criminal justice
and law enforcement agencies in: (1) deterring and discovering
crimes and recidivistic criminal activity; (2) identifying
individuals for, and excluding individuals from, criminal
investigation or prosecution; and (3) searching for missing
persons. Said policy shall be served by establishing facilities
for comparing biological evidence recovered during criminal
investigations with biological material obtained from offenders
convicted of crimes in the commonwealth." St. 1997, c. 106,
§ 1.
                                                                  9


purpose.   See Commonwealth v. Sheppard, 394 Mass. 381, 389–391

(1985).

    Conclusion.    For the reasons set forth above, we reverse

the order allowing the defendant's motion to suppress.

                                   So ordered.
