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COMMONWEALTH OF PENN SYLVANIA 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

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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 Ph iladelphia 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 c lothing and person. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm.

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502, 3701 and 6108, respectively.J

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The specifics of the underlying crime are not directly relevant to the resolution of the issue presented. Accordingly, we s imply note that in the early morning hours of July 26, 2012, Smith shot and killed Andre Strum (the Victim) near the corner of 66 th Street and Haddington Lane, Philadelphia. Smith also stole approximately $2,800.00 from the Victim. As he was being arrest ed, 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 resid ence. 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 t o 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

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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 deter mining 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 o f 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 det ermine 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 P ennsylvania 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 r eport 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 forJ

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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 argumen t 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
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- shirt, shoes, and buccal swabs were all legally seized by the police. S ee 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 (4 th 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. M itchell , 652 F.3d 387 (3 rd 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.J

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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 o f 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 insta nce in which the type of information he instantly seeks to protect has ever been either obtained orJ

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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 preve nt 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 no t 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 protecta ble 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 t hat 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.J

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In an early case, the Second Circuit held that fingerprin ting 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 ascerta in ... 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 involve d 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 whe n 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) (“[F ingerprinting] 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 n ot 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 privacyJ

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“is not surprising when we consider th at 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 Fo urth Amendment.” Jones [ v. Murray ], 962 F.2d [302] at 306 [(4 th Cir. 1992)]; see also [ United States v. ] Kincade , 379 F.3d [813] at 864 [(9 th Cir. 2004) ( en banc )] (Reinhardt, J., dissenting) (“Arrestees' privacy interests ... appear to be significantly re duced.”). 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 legit imate 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 15 59

- 60 [(9 th 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

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We recognize t hat 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 i s, 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 inte rest 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
convince s 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 con sideration herein.J

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private medical information about him is nothin g 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 mor e 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 de nying Smith’s motion to suppress the DNA analysis. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/31/2017