Walker v. State

Kevron Walker v. State of Maryland, No. 19, September Term, 2022. Opinion by Eaves, J. CRIMINAL PROCEDURE — MOTION TO SUPPRESS — MARYLAND DNA COLLECTION ACT — REMAND The Supreme Court of Maryland granted certiorari to consider whether “the destruction and expungement provisions of the Maryland DNA Collection Act, Md. Code (2003, 2018 Repl. Vol) Public Safety Art., § 2-511, apply to DNA samples collected from a person pursuant to a search warrant after the person is arrested and charged, or whether the provisions apply only to so-called ‘arrestee’ samples, as the Act has been interpreted in regulations promulgated by the Department of State Police.” The Supreme Court concluded that the record was unclear as to the whether the trial court made a factual finding as to the origin of the DNA sample at issue and that an exhibit attached to Petitioner’s Motion for Reconsideration before the trial court raised a significant factual question concerning the origin of the DNA sample. The Supreme Court held that, in the interest of justice, a limited remand under Maryland Rule 8-604(d)(1) was warranted for additional factfinding as to the origin of the DNA sample at issue.

The Supreme Court remanded the case to the circuit court for additional factual finding as to whether the DNA sample at issue was recovered pursuant to a search warrant, or as the result of a sample taken upon arrest, or whether the DNA sample was a forensic specimen, recovered from evidence, collected in connection with a different offense, that had previously been linked to Petitioner. Circuit Court for Carroll County Case No. C-06-CR-19-000833 Argued: December 5, 2022 IN THE SUPREME COURT OF MARYLAND* No. 19 September Term, 2022 KEVRON D. WALKER v. STATE OF MARYLAND Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. Opinion by Eaves, J. Filed: July 28, 2023 * At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this Appeals of Maryland to the Supreme Court of document is authentic. Maryland.

The name change took effect on 2023-07-28 December 14, 2022. 11:41-04:00 Gregory Hilton, Clerk I INTRODUCTION Deoxyribonucleic acid (“DNA”) is the molecule of evidence, containing unique genetic markers packed into our chromosomes. Having a powerhouse impact in criminal investigations, forensic DNA analysis and identification has “an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.” Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 55 (2009); id. at 62 (“It is now often possible to determine whether a biological tissue matches a suspect with near certainty.”).

Our case law refers to §§ 2-501 to 2-514 of the Public Safety Article (“PS”) (2003, 2022 Repl. Vol.) as the Maryland DNA Collection Act (the “Act”). See, e.g., Varriale v. State, 444 Md. 400 , 407 n.4 (2015). The Act regulates the collection of DNA samples from certain qualifying arrestees and convicted offenders.

PS § 2-504. The Act requires law enforcement to collect DNA samples from individuals who are arrested for certain crimes of violence. Id.; see Maryland v. King, 569 U.S. 435 , 465–66 (2013) (“[T]aking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”). One provision of the Act states that generally, “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[] a criminal action begun against the individual relating to the crime does not result in a conviction of the individual[.]” PS § 2- 511(a)(1)(i).

Section 2-511(d) goes on to state that “[a]n expungement or destruction of sample under this section shall occur within 60 days of an event listed in subsection (a) of this section.” This case involves issues related to PS § 2-511. First, we are asked to determine whether PS § 2-511 applies to DNA samples collected pursuant to search warrants. If so, we are asked to determine whether there is an exclusionary rule for violations of PS § 2- 511. If we conclude that PS § 2-511 does not apply to DNA samples collected pursuant to search warrants, we are asked to either conclude that the trial court clearly erred in not finding that the instant DNA sample was an arrestee sample1 or to remand the case to the trial court to determine whether the sample was indeed an arrestee sample.

During a homicide investigation in another case, the State, Respondent, collected a DNA sample from Kevron D. Walker, Petitioner, pursuant to a search warrant and developed a DNA profile of Walker. The DNA profile was added to the Combined DNA Index System (“CODIS”).2 The State charged Walker in connection with the homicide, but ultimately nol prossed the charges. Months later, a DNA profile was developed from biological material collected at the scene of the attempted homicide in this case. The DNA 1 The term arrestee sample does not appear in the language of PS § 2-511.

It is a term that has been used to describe DNA samples taken when a person is arrested in connection with a crime. 2 “‘CODIS’ means the Federal Bureau of Investigation’s ‘Combined DNA Index System’ that allows the storage and exchange of DNA records submitted by federal, state, and local forensic DNA laboratories.” PS § 2-501(c)(1). CODIS “consists of three tiers: the National DNA Index System (NDIS), the State DNA Index System (SDIS), and the Local DNA Index System (LDIS).” Varriale, 444 Md. at 407 (footnote omitted). “CODIS collects DNA profiles provided by [] laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes.” Id. at 407 n.5 (quoting King, 569 U.S. at 445 ). 2 profile was added to CODIS and matched Walker’s DNA profile. The State charged Walker with attempted first-degree murder and related offenses. Walker filed a Motion to Suppress Evidence, seeking to suppress all evidence obtained as a result of the DNA profile match, contending that the State should not have been able to use his previously taken DNA sample because it should have been expunged under PS § 2-511.

Specifically, Walker argued that the DNA sample at issue, the sample allegedly collected from him pursuant to a search warrant in the earlier case, should have been expunged pursuant to PS § 2-511, 60 days after the State nolle prosequi the charges. The State argued that PS § 2-511 did not apply because Walker’s DNA sample was collected pursuant to a search warrant. The circuit court denied the Motion to Suppress. The circuit court ruled that that the General Assembly intended PS § 2-511, the expungement provision, to apply only to “arrestee and convicted-offender DNA samples.” In ruling, the circuit court stated, among other things, that “[t]he DNA obtained pursuant to the search warrant was collected from the handlebars of a motorcycle believed to have been used in connection with [a] Baltimore City homicide, which DNA sample was entered into CODIS[,]” and that “on July 14, 2018, a DNA sample was obtained from [Walker] pursuant to a search warrant in connection with the Baltimore City homicide investigation and entered into CODIS.” Subsequently, Walker filed a Motion to Reconsider Motion to Suppress, attaching an exhibit with information indicating that the DNA sample matched to the sample from the crime scene was not the product of the earlier murder investigation at all, but rather was a match between “two forensic specimens,” with one of the forensic specimens being a 3 gun.3 Walker did not make any argument in his motion for reconsideration regarding the import of this exhibit.

Nor did the State comment on the exhibit in its response to the motion for reconsideration. However, the inference can plausibly be drawn from the exhibit that the DNA sample recovered from the crime scene was not matched to a sample collected by search warrant but rather was matched to a forensic sample that had previously been linked to Walker. The circuit court denied the Motion for Reconsideration without explanation. Walker entered a conditional plea of guilty to attempted first-degree murder; conspiracy to commit first-degree murder; and use of a firearm in the commission of a crime of violence.

Walker appealed, and the Appellate Court of Maryland affirmed.4 Walker v. State, No. 433, 2022 WL 1416675 , at * 1 (App. Ct. Md. May 4, 2022). Walker filed a petition for a writ of certiorari, which we granted. 481 Md. 2 (2022). In his petition for certiorari, Walker presented four questions: 1. Do the destruction and expungement provisions of the Maryland DNA Collection Act, Md. Code (2003, 2018 Repl.

Vol.) Public Safety Art., § 2- 511, apply to DNA samples collected from a person pursuant to a search warrant after the person is arrested and charged, or do those provisions apply only to so-called “arrestee” samples, as the Act has been interpreted in regulations promulgated by the Department of State Police? 2. Did the courts below err in concluding that § 2-511 does not contain an exclusionary rule for violations of the destruction and expungement provisions of the Act? 3 A forensic specimen is a DNA sample collected through the forensic examination process of crime scene evidence. Allen v. State, 440 Md. 643, 660 (2014). 4 At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. 4 3.

Assuming, arguendo, that the destruction and expungement provisions in §2- 511 apply only to arrestee samples, was the trial court’s finding of fact, that the DNA sample at issue here was not an arrestee sample, clearly erroneous; or, in the alternative, if the record is unclear as to whether the DNA sample was an arrestee sample, should the case be remanded to the circuit court for an evidentiary hearing, pursuant to Md. Rule 8-604, so that the court can receive evidence and make findings of fact as to whether the DNA sample was an arrestee sample or was collected from Petitioner pursuant to a search warrant for his DNA? 4. Did the trial court err in denying Petitioner’s motion to suppress DNA evidence? For the reasons explained below, we remand the case under Maryland Rule 8- 604(d)(1) to the circuit court for additional factfinding. Although the case raises issues of importance, the record is unclear as to whether the circuit court determined that the DNA sample at issue was recovered pursuant to a search warrant, or was a so-called arrestee sample, or a forensic sample that was recovered from a gun previously linked to Walker.

In ruling on the Motion to Suppress, the circuit court stated that there were DNA samples that were entered in CODIS as a result of a sample collected from a motorcycle pursuant to a search warrant obtained during the investigation of a homicide that Walker had been charged with, and as a result of a search warrant executed on Walker “on July 14, 2018,” during the same homicide investigation. Both the State and Walker argued at the suppression hearing that the DNA sample at issue was collected from his person pursuant to a search warrant on January 19, 2019, and the exhibit attached to the Motion for Reconsideration presented evidence that the DNA sample was a forensic specimen collected from a gun. However, the circuit court did not make a factual finding as to the origin of the sample at issue that comported with either the State or Walker’s position as to the source of the DNA sample at the suppression hearing or later with the information 5 in the attached exhibit in the Motion for Reconsideration. Given that the origin of the DNA sample at issue in this case is at best unclear, we decline to reach the merits of the questions for which we granted certiorari.

Rather, we remand the case to the circuit court for additional fact finding as to the origin of the DNA sample at issue. II BACKGROUND The record in the circuit court, provides a confusing picture as to the various DNA samples. Below, we outline the relevant facts of the various cases in which Walker was alleged to be involved and the relevant procedural history of the instant case to show how the confusion arose as to the different DNA samples. A. Facts We begin with the case that occurred in July 2018, when Baltimore City police had arrested Walker in connection with its homicide investigation, in which Stephon Gabriel was the victim.

Baltimore police collected a DNA sample from Walker incident to his arrest and charging “on or about July 14, 2018.” The State filed a five-count indictment in the Circuit Court for Baltimore City against Walker, which included a charge of first- degree murder. Baltimore City police became aware of Walker’s alleged involvement in this homicide case through eyewitnesses and surveillance footage from nearby residences and businesses. Police learned from witnesses that two suspects “were riding on a Black Ca[n] Am Spyder motorcycle moments prior to the shooting.” Walker was identified as the shooter, and the second suspect, the driver of the motorcycle, was identified as Romesh 6 Vance. After arresting Walker, police learned that Vance’s girlfriend owned a 2016 Can Am Spyder motorcycle and that Vance had driven it in the past.

Police went to the shared residence of Vance and his girlfriend and seized the motorcycle. According to police, the recovered motorcycle “look[ed] similar to the motorcycle shown on the surveillance footage which captured th[e] incident.” Police obtained a search warrant for the recovered motorcycle on August 28, 2018, and served it on September 4, 2018. Pursuant to this search warrant, police obtained “swabs of suspected DNA” from the motorcycle. Based on the above information, Baltimore City police applied for a search warrant for Walker’s DNA.

In January 2019, the police obtained a search warrant for a sample of Walker’s DNA “in hopes of obtaining evidence that would further link him to the . . . motorcycle believed to have been used in the murder of Stephon Gabriel[.]” The State thereafter executed the search warrant and collected a second DNA sample from Walker. On January 23, 2019, the State entered a nolle prosequi of the five charges against Walker for the July 2018 Baltimore City homicide. On October 24, 2019, the DNA sample collected upon Walker’s arrest on July 14, 2018, was destroyed and all records relating to it were expunged. Walker received notice of this expungement, as the Act requires,5 on November 6, 2019.

There are no records indicating whether the DNA sample collected from Walker pursuant to the January 2019 search warrant was destroyed and if the related sample results were expunged. 5 The Act requires the State to send “[a] letter documenting expungement of the DNA record and destruction of the DNA sample . . . to the defendant and the defendant’s attorney at the address specified by the court in the order of expungement.” PS § 2-511(e). 7 We now turn to the case for which Walker filed the instant petition for certiorari. On July 10, 2019, at approximately 5:25 a.m., deputy sheriffs responded to a report of gunshots fired around an industrial park in Eldersburg, Maryland. There, deputies found Gilbert Dodd lying on the sidewalk suffering from six gunshot wounds. Although Dodd sustained gunshots to his torso and head, he survived his injuries.

Among the items that police recovered from the crime scene were, in pertinent part, swab samples of DNA extracted from human vomit. Forensic analysts developed a DNA profile from the vomit and entered that profile into the statewide DNA database, including CODIS. The purpose for doing so was to determine the identity of Dodd’s assailant. According to an exhibit attached to Walker’s Motion for Reconsideration, “a routine search of the State DNA database [] resulted in a high stringency match between two forensic specimens” relating to the July 2019 attempted homicide.6 The match was between the forensic DNA sample derived from the vomit and another forensic DNA sample collected from a homicide that occurred on February 25, 2018.

The February 25, 2018, forensic DNA sample was “previously linked” to Walker’s DNA. As we discuss 6 According to the FBI, a match stringency determines whether two DNA profiles match. High stringency means that all alleles of the two profiles match. Federal Bureau of Investigation, Frequently Asked Questions on CODIS and NDIS, https://www.fbi.gov/how-we-can-help-you/dna-fingerprint-act-of-2005-expungement- policy/codis-and-ndis-fact-sheet (last visited Jun. 21, 2023). “The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells.” King, 569 U.S. at 442 . “Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on “repeated DNA sequences scattered throughout the human genome,” known as ‘short tandem repeats’ (STRs).” Id. at 443 . “The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as ‘alleles,’ . . . and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual.” Id. 8 later, however, during the suppression hearing both the State and Walker proffered to the court that Walker’s DNA was in CODIS as a result of the January 2019 search warrant for his DNA.

The parties did not mention or address the February 25, 2018, forensic DNA sample.7 The exhibit attached to Walker’s motion for reconsideration describing the “high stringency match between two forensic specimens” is the only document in the record showing a CODIS match on September 11, 2019. Based on the September 2019 DNA match, the Carroll County Sheriff’s Office obtained search warrants for Walker’s residence and a sample of his DNA. On October 2, 2019, police arrested Walker, executed the search warrants, and collected Walker’s DNA sample. They did so to independently test Walker’s DNA sample against the forensic sample derived from the vomit to confirm the results of the CODIS match.8 B. Relevant Procedural History On October 24, 2019, in the Circuit Court for Carroll County, the State charged Walker in connection with the July 2019 Carroll County attempted homicide investigation with (1) attempted first-degree murder; (2) conspiracy to commit first-degree murder; and (3) use of a firearm in the commission of a crime of violence.

Walker thereafter filed a Motion to Suppress Evidence requesting that the circuit court “suppress all evidence obtained from the DNA CODIS match.” Specifically, Walker asserted that the DNA 7 It is unclear from the record whether at the time of the suppression hearing Walker’s counsel and the prosecutor knew of the February 25, 2018, forensic DNA sample. 8 “A match obtained between an evidence sample and a database entry may be used only as probable cause and is not admissible at trial unless confirmed by additional testing.” PS § 2-510 (emphasis added). 9 evidence was used unlawfully in violation of PS § 2-511 and the Fourth Amendment of the United States Constitution. On March 10, 2020, the circuit court held a hearing on the Motion to Suppress. At the hearing, defense counsel explained that the State swabbed DNA from Walker pursuant to the January 2019 search warrant issued in the July 2018 Baltimore homicide case. The State, likewise, said that it “used the DNA collected pursuant to the search and seizure warrant obtained in the investigation of that homicide.” The State explained that Walker’s DNA “was in CODIS twice[:]” Once for the [July 2018] arrest, based on that charge, and the detectives in Baltimore City had his DNA separately pursuant to a search and seizure warrant [in January 2019] where they swabbed to compare to the crime scene.

So they have his DNA two times over and for two different reasons. The parties agreed that the January 2019 search warrant DNA sample from Walker was the DNA sample at issue: the sample that matched the DNA of the vomit left at the Carroll County crime scene. The parties did not address the February 25, 2018, forensic DNA sample, but identified that September 11, 2019, was the date of the CODIS match that gave law enforcement probable cause to obtain a search warrant for Walker’s DNA and to arrest Walker for the July 2019 attempted homicide. The only document in the record showing a CODIS match on September 11, 2019, is the match describing the “high stringency match between two forensic specimens.” Walker argued that, under the expungement provision in PS § 2-511, the State should have destroyed his DNA sample, collected through the January 2019 search warrant, in March 2019—within 60 days of the State’s nolle prosequi of the charges in the 10 July 2018 Baltimore City case.

Walker contended that if the DNA sample had been destroyed in March 2019, the State would not have been able to match and confirm that his DNA was present at the crime scene in Carroll County. In essence, Walker argued that the State would have lacked probable cause to obtain the October 2019 search warrant for his DNA. The State countered that the expungement provision is inapplicable to DNA that the State collects pursuant to a search warrant and applies only to DNA the State obtains under the statute (i.e., for qualifying arrestees and convicted offenders). At the conclusion of the hearing, the court took the matter under advisement.

On March 27, 2020, the circuit court entered a Memorandum Opinion and Order denying the Motion to Suppress Evidence. In the background section of its opinion, the court recounted the various DNA samples involved in this case. The court stated that DNA, obtained pursuant to a search warrant, was collected from the handlebars of a motorcycle and entered into CODIS: CODIS generated a match between the DNA sample derived