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,5our 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