Varriale v. State

ARTHUR, J. The State charged George Varriale, appellant, with two counts of second-degree burglary, theft over $1,000, and malicious destruction of property, in connection with a 2008 burglary in Glen Burnie, Maryland. The charges were based solely on DNA evidence from a sample that Varriale had voluntarily given in an earlier, successful effort to clear himself of unrelated rape charges. In pre-trial proceedings in the burglary prosecution, Varriale moved to suppress the DNA evidence. The trial court held a hearing on Varriale’s motion to suppress and, ultimately, denied the motion.

Thereafter, Varriale entered a conditional guilty plea to burglary in the second degree. The circuit court sentenced Varriale to four years of imprisonment, with the entirety of the sentence suspended, except for time served. The circuit court also placed Varriale on probation for two years. The State entered a nolle prosequi for the remaining counts of the indictment.

This timely appeal followed. ⁵⁰ Questions Presented Varriale presents the following questions for our review: I. Whether the County exceeded the bounds of appellant’s consent, thereby rendering its retention and use of his DNA after he was cleared of suspicion, an unreasonable search and seizure?

II

Whether the Maryland DNA Collection Act permits the retention of the DNA of an individual cleared of suspicion in a state or local DNA databank? For the reasons that follow, we answer no to the first question and yes to the second question, and we affirm the judgment of the circuit court. Factual and Procedural History This case involves a homeless man who voluntarily provided DNA samples to the police in order to eliminate himself as a suspect in an alleged rape. Although the DNA sample cleared him of the alleged rape, it disclosed his involvement in an unrelated burglary that took place a few years earlier.

On July 10, 2012, Detective David Wood of the Anne Arundel County Police Department encountered Varriale in a tent in a wooded area behind a liquor store off Crain Highway while the detective was looking for a suspect in an alleged rape. Detective Wood identified himself to Varriale, explained why he was in the area, and asked Varriale if he would sign a form consenting to be searched. The consent form, which states that it is in “Case # 12-725920,” provides as follows: I, George Varriale, do hereby consent to a search of my person for the purpose of furnishing evidence relating to one or more of the following: Hair Blood Saliva Fibers Penile Swabs Pubic Hair Combings Marks or Injuries Fingerprints Photographs I know that I do not have to consent to a search of my person. ⁵¹ I realize that if I do consent to a body search, that any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be used in any future criminal prosecution. This written consent to search my body is being given by me, George Varriale, to Pet.

Wood # 1371 and any member of the Anne Arundel County Police Dept. and/or medical personnel, voluntarily, without threat or promise of any kind. I am not under the influence of any intoxicating beverage or drug, which would affect my judgment in consenting. 1 The words “saliva” and “penile swabs” were circled on the form to denote the evidence that Varriale consented to furnish. Varriale and Detective Wood signed the form, which was dated July 10, 2012. Shortly thereafter, the police collected a sample of Varriale’s saliva and a swab of his penis.

Detective Wood did not arrest Varriale or contact him again after that day. The detective did, however, submit the evidence collected from Varriale to the Anne Arundel County crime laboratory for serological and DNA analysis. Five months later, Ashley Hayes, a forensic DNA analyst at the Anne Arundel County Police Department Crime Laboratory, reported to Detective Wood that a partial DNA profile collected from the alleged rape victim excluded Varriale. Additionally, Ms. Hayes stated that she could not draw a conclusion from a partial DNA profile that was obtained from the swabs of Varriale’s penis. 2 ⁵² Without consulting with Detective Wood or informing Varriale, Ms. Hayes uploaded Varriale’s DNA profile into the “suspect index” of the County and state DNA databanks.

In doing so, Ms. Hayes performed an automatic search of the County databank that compared the DNA profiles of known persons to DNA profiles developed from crime scene evidence. A few days later, Ms. Hayes generated a report that a match had been established between Varriale’s DNA profile and a DNA profile associated with the burglary that is the subject of this case: the police had created that profile from a DNA sample that they took from a Coke can at the scene of the burglary. As stated above, Varriale was subsequently charged with the burglary based on the DNA evidence, and the suppression court denied Varriale’s motion to suppress this evidence. Discussion I. Varriale first argues that by retaining and analyzing his DNA after they had eliminated him as a suspect in the alleged rape, the Anne Arundel County police conducted an unreasonable, warrantless search in violation of the Fourth Amendment of the United States Constitution.

Specifically, Varriale contends that the police exceeded the scope of his consent to a search, which he says was limited to the use of his DNA in the rape investigation alone. While we agree that Varriale may not have unambiguously consented to the use of his DNA outside of the rape investigation, we reject his Fourth Amend ⁵³ ment challenge, because the State had no obligation to obtain a warrant before reexamining the DNA sample that it had lawfully obtained. “When we review a trial court’s grant or denial of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment, we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion.” Williamson v. State, 413 Md. 521, 531-32 , 993 A.2d 626 (2010). Nonetheless, we conduct a de novo review of the “ultimate question of constitutionality.” Id. at 532 , 993 A.2d 626 . The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend.

IV

Because Varriale does not complain of an unconstitutional seizure, we shall focus solely on whether he was subjected to an unconstitutional search. “A search occurs when an expectation of privacy that society is prepared to recognize as reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984). It is obvious that a person has a reasonable expectation of privacy in the physical integrity of his or her body. See, e.g., Maryland v. King, 569 U.S. -, -, 133 S.Ct. 1958, 1969 , 186 L.Ed.2d 1 (2013). It is equally obvious that, when the police collected a sample of Varriale’s saliva and a swab of his penis, they engaged in a search.

Id. A search, however, does not violate the Fourth Amendment if a person consents to it. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). Here, Varriale signed a form consenting to provide a sample of his saliva and a swab of his penis to police.

Although consent must be voluntary in order to be valid, see In re Anthony F., 293 Md. 146, 152 , 442 A.2d 975 (1982), Varriale does not argue that he was coerced into signing the consent form. Nor does he dispute that he consented to providing his DNA to police. Rather, he con ⁵⁴ tends that the scope of his consent was limited to the initial rationale for the gathering of his DNA: the police’s investigation into the alleged rape. We agree that the consent form is not a model of clarity.

While the form states that Varriale’s DNA “can be used in any future criminal prosecution,” the form does not clearly specify whether the State may use the DNA only in a “criminal prosecution” for the alleged rape that the police were actually investigating, as opposed to some other “criminal prosecution” that is entirely unrelated to the alleged rape. Because we must construe this ambiguity against the State as the drafter, we conclude that the consent form does not contain Varriale’s consent to the use of his DNA in criminal prosecutions that are unrelated to the alleged rape. Nevertheless, if the State lawfully obtains a DNA sample, the retention and subsequent examination of the sample ordinarily does not itself amount to a search. See Maryland v. King, 569 U.S. at -, 133 S.Ct. at 1979 ; Williamson, 413 Md. at 547 , 993 A.2d 626 ; Raynor, 201 Md.App. at 213-16 , 29 A.3d 617 ; Wilson v. State, 132 Md.App. 510, 550 , 752 A.2d 1250 (2000).

Thus, for example, the Court of Appeals has held that when the State lawfully obtained a paper cup that the defendant had discarded, it had no obligation to obtain a warrant before extracting a DNA sample from the saliva on the cup. Williamson, 413 Md. at 547 , 993 A.2d 626 . Similarly, this Court has held that when the State lawfully obtained the defendant’s blood sample in one criminal investigation, it had no obligation to obtain a warrant before extracting a DNA sample from the blood in a subsequent investigation. Wilson, 132 Md.App. at 550 , 752 A.2d 1250 .

As the Wilson Court explained, the re-examination of the validly-obtained sample was no more of a search, for Fourth Amendment purposes, than is the reexamination of validly-obtained fingerprints. See id. 3 ⁵⁵ For that reason, the ambiguity in the consent form is ultimately immaterial. Even if Varriale did not unambiguously consent to the use of his DNA in criminal prosecutions that are unrelated to the alleged rape, he unquestionably consented to the taking of a DNA sample at least for the purpose of the rape investigation itself. Furthermore, once the State had validly obtained the sample, as it did when Varriale consented to the taking of the sample in connection to the rape investigation, it had no obligation to obtain a warrant before using the sample in a subsequent investigation.

Williamson, 413 Md. at 547 , 993 A.2d 626 ; Wilson, 132 Md.App. at 550 , 752 A.2d 1250 . Accordingly, we reject Varriale’s Fourth Amendment challenge to the use of his DNA sample.

II

Varriale next argues that Maryland’s DNA Collection Act does not permit the retention of a person’s DNA if he or she has been cleared of suspicion in the investigation in which the sample was obtained. We review Varriale’s argument under the same standards that we articulated above. Varriale predicates his argument on Md.Code (2003, Repl.Vol. 2011) § 2-511(c) of the Public Safety Article. In pertinent part, that statute provides that “any DNA samples and records generated as part of a criminal investigation or prosecution shall be destroyed or expunged automatically from the State DNA database if: (i) a criminal action begun against ⁵⁶ the individual relating to the crime does not result in a conviction of the individual....” 4 When we interpret statutes, we begin by examining the “normal, plain meaning of the language of the statute.” Doe v. Montgomery Cnty.

Bd. of Elections, 406 Md. 697, 712 , 962 A.2d 342 (2008). Parsing the words of this particular statute, it appears