Wilson v. State

MOYLAN, Judge. The appellant, Raymond Davis Wilson, challenges his convictions by a Montgomery County jury, presided over by Judge Martha G. Kavanaugh, of first-degree rape, two counts of a first-degree sexual offense (one involving sodomy and the other, fellatio), first-degree burglary, and robbery. On appeal, he presents the following questions for resolution: 1. Was the evidence legally sufficient to prove the penetration required for both the rape and one of the first-degree sexual assault convictions? 2.

Did the trial court err in refusing to compel the production of validation studies of the DNA evidence conducted by the Cellmark Laboratory? 3. Did the trial court err in denying the appellant’s motion to suppress evidence obtained following his pretextual arrest on an outstanding warrant for a traffic violation? 4. Was the 1991 warrant for the seizure of the appellant’s blood supported by probable cause? 5. Was it a violation of the appellant’s Fourth Amendment rights to examine blood seized from him pursuant to a warrant in an earlier unrelated case without a second warrant? ⁵¹⁶ The Factual Background In the early morning hours of December 12, 1997, seventy-six-year-old Jill Livesey awoke in her Potomac, Maryland home to the sight of a stranger standing in her bedroom doorway.

The intruder, wearing a mask, approached her, pushed her back onto her bed, and attempted to hold her down. Ms. Livesey struck her assailant and scratched him on his face, but he nonetheless succeeded in pulling off her pajamas. The intruder then raped Ms. Livesey “back and front many times.” He also forced the victim to perform fellatio upon him. In the course of the fellatio, he suddenly stopped and demanded money.

Ms. Livesey gave the man four $100 bills that she kept in her dresser. He then fled the scene. Later that day, the victim was taken to Shady Grove Hospital where she was examined by Susan Boch, a nurse practitioner. Ms. Boch took a report from the victim in which the victim stated: He took his pants down and tried to put his penis in the front of me and then the back of me, and when I wasn’t— when he wasn’t so successful, he put that wretched penis in my mouth.

The victim also stated that she “honestly didn’t know” whether her attacker had penetrated her vagina and anus. Ms. Boch took swabs of the victim’s vaginal and rectal areas and photographed both. She also took fingernail clippings. Several other witnesses were also interviewed regarding the crime.

Brian Schwartzback, who was living in an apartment in Ms. Livesey’s barn, testified that he knew the appellant and that he saw the appellant several days after the incident. Schwartzback recalled that at that time, the appellant had his hand wrapped in a gauze bandage. A taxicab driver testified that in the early morning hours of December 12, he picked up an individual in Tobeytown (a neighboring town to Potomac) and the individual paid for his fare with a $100 bill. A tracking dog subsequently followed a trail from Ms. Livesey’s residence to the Tobeytown area. ⁵¹⁷ Tammy Mindick, an acquaintance of the appellant, testified that at 5:30 a.m. on December 12, the appellant unexpectedly arrived at her home by taxicab.

Ms. Mindick noticed scratches on the appellant’s face. When the detectives arrested the appellant on December 22, they also noticed that he had injuries to his hands and a healed scratch under his left eye. The detectives took photographs of the appellant as well as hair and saliva samples. The Element of Penetration: Rape and Sodomy The appellant does not challenge the legal sufficiency of the evidence to support his convictions for robbery, first-degree burglary, and the first-degree sexual offense involving fellatio.

He challenges only his convictions for 1) rape and 2) the first-degree sexual offense involving sodomy. His claim is that the State’s evidence was not legally sufficient to show the penetration that is a required element of both crimes. The appellant argues that Ms. Livesey’s conclusory testimony that the appellant “raped me front and back many times” is not in itself enough to prove that penetration did, in fact, occur. The appellant focuses, moreover, on the victim’s admission to the examining nurse that she “honestly didn’t know” whether the appellant had made vaginal or anal penetration.

The appellant is, of course, correct in his assertion that penetration is a required element of both first-degree rape under Md.Code Ann., art. 27 § 462, and of certain first-degree sexual offenses (sodomy or anal intercourse) under Md.Code Ann., art. 27 § 464. As to rape, see Smith v. State, 224 Md. 509 , 168 A.2d 356 (1961) and Robert v. State, 220 Md. 159 , 151 A.2d 737 (1959). As to sodomy or anal intercourse, see Bradbury v. State, 233 Md. 421, 423 , 197 A.2d 126 (1964) and Canter v. State, 224 Md. 483, 485 , 168 A.2d 384 (1961). And see Md. Ann.Code, art. 27 § 461(g) (“Penetration, however slight, is evidence of vaginal intercourse.”) and § 461(e) (“Penetration, however slight, is evidence of anal intercourse.”). ⁵¹⁸ We turn our attention first to the element of penetration that was always a requirement of common law rape and is still, unchanged, a requirement of art. 27, § 462.

In terms of its basic elements, the 1976 statute is simply declarative of the common law felony of rape. Although § 461(g) may tell us that “[pjenetration, however slight, is evidence of vaginal intercourse,” it neglects the arcane, but sometimes critical, follow-up question “Penetration of what?” Especially in rape cases involving very young victims, the evidence of penetration is frequently very problematic. The critical difference between consummated rape and attempted rape may turn on overlooked nuances of the genital geography of the human female. Craig v. State, 214 Md. 546 , 136 A.2d 243 (1957), was the first Maryland appellate opinion to examine the required element of penetration in this anatomical context of distinguishing the vulva generally from the vagina specifically as the locus of required penetration.

It pointed out, 214 Md. at 547 , 136 A.2d 243 : Penetration, however slight, will sustain a conviction for the same, but the proof thereof must sustain a res in re; that is, an actual entrance of the sexual organ of the male within the labia (majora) of the pudendum (the external folds of the vulva) of the female organ, and nothing less will suffice. In Kackley v. State, 63 Md.App. 532, 537 , 493 A.2d 364 (1985), we explained that “penetration into either the labia minora or the vagina is not required; invasion of the labia majora, however slight, is sufficient to establish penetration.” (Emphasis supplied). The external female genitalia are covered by two folds of fatty or adipose tissue known as the labia majora, the major or outer lips. That is the critical locus for the legally significant element of penetration.

When the labia majora are pushed aside, access is permitted into the pudenda or vulva generally. Within that vulvar vestibule, in a more anterior position, is the clitoris or external opening of the female urethra, which is surrounded by two smaller fatty or adipose ⁵¹⁹ folds, known as the labia minora — the smaller or inner lips. Also within the vulva or pudenda but in a more posterior position is the opening or orifice of the vaginal canal itself. The vaginal canal is the sheath that connects the vulva with the cervix or opening of the uterus.

In a virginal female, the opening to the vaginal canal is covered by a thin membrane known as the hymen or maidenhead, unless that membrane has somehow been ruptured. It is a well-settled principle of rape law that the penetration that is required is penetration only of the labia majora. No penetration of or entry into the vaginal canal itself is now or has ever been required. As Craig v. State pointed out, 214 Md. at 549 , 136 A.2d 243 , “[Tjhere may, of course, be penetration without the rupture of the hymen.” That basic principle was not changed by the 1976 statute, which did not undertake to alter in any way the common law meaning or definition of rape.

The use of the term “vaginal intercourse” by §§ 462 and 463 does not require any penetration, even slight penetration, into the literal vaginal canal itself. The penetration required remains simply the vulvar penetration that has always been required to prove common law rape. Section 461(g) stands for this proposition as it states that “ ‘vaginal intercourse’ has its ordinary meaning of genital copulation.” 1 ⁵²⁰ The appellant’s challenge in this case goes not to the substantive law of penetration but to the State’s evidence with respect to penetration. We hold that the testimony from the victim was itself enough to generate a prima facie case of ⁵²¹ penetration.

Ms. Livesey testified that she had been raped “back and front many times.” When asked to elaborate, she explained, “Well, I mean the front part of me, my vagina, and the back, the rectum.” The victim’s description of what occurred to her was sufficient to establish, prima facie, that penetration occurred. As we said in Simms v. State, 52 Md.App. 448, 453 , 449 A.2d 1196 (1982), it is clear that the victim need not go into sordid detail to effectively establish that penetration occurred during the course of a sexual assault. Where the key to the prosecutor’s case rests with the victim’s testimony, the courts are normally satisfied with descriptions which, in light of all the surrounding facts, provide a reasonable basis from which to infer that penetration has occurred. (Emphasis supplied).

The appellant seeks to counteract that testimony by Ms. Livesey with her admission to the examining nurse that she “honestly didn’t know” whether the appellant had made vaginal or anal penetration. That arguable equivocation on her part, her trial testimony versus her out-of-court declaration, goes only to the weight of Ms. Livesey’s trial testimony and not to its admissibility. It concerns only the burden of persuasion and not the burden of production. The issue of legal sufficiency, of course, has nothing to do with the burden of persuasion.

Proof of penetration, moreover, need not rely on the observation and the testimony of a victim but may be established by extrinsic medical evidence. In many cases where the victim is a young child, medical testimony is the only way of establishing the element of penetration. We observed in Kackley that “[t]he proof [of penetration] may be supplied by medical evidence, by the testimony of the victim, or by a combination of both.” 63 Md.App. at 537 , 493 A.2d 364 (internal citations omitted). In Kackley itself, the State introduced, along with the eleven-year-old victim’s testimony, testimony from the child’s examining physician that the victim had “superficial abrasions on the posterior aspects of the vaginal ⁵²² opening” and fresh blood on the child’s underwear. 63 Md.App. at 538 , 493 A.2d 364 .

Such evidence supported the establishment of penetration. In Smith v. State, 6 Md.App. 581, 585-86 , 252 A.2d 277 (1969), evidence of penetration of the four-year-old victim' was sufficient where “medical evidence showed that the vagina of the victim was split by the insertion of some object, which could have been a penis, and that spermatozoa were all around the area, and probably within the vagina as well.” In Edmondson v. State, 230 Md. 66, 68-69 , 185 A.2d 497 (1962), evidence of the penetration of a mentally disabled adult woman was sufficient to prove rape when there was “laceration and bleeding in the vaginal region.” See also Young v. State, 228 Md. 173, 175 , 179 A.2d 340 (1962); Shorey v. State, 227 Md. 385, 388 , 177 A.2d 245 (1962). In Moore v. State, 23 Md.App. 540, 551 , 329 A.2d 48 (1974), we explained that “[w]e know of no rule of law that requires a rape victim to observe the entry of a male organ into her body.” The State’s proof in this case does not depend exclusively on the perception or the testimonial narration of the victim-witness. Susan Boch, the nurse practitioner who examined Ms. Livesey immediately following the incident, took numerous pictures of the victim’s vaginal and anal areas.

At trial, Ms. Boch explained to the jury that during the examination she applied blue .dye to the victim in order to highlight injuries to the tissue. She then pointed out to the jury those injuries as evidence of penile penetration. She concluded by offering her opinion that the injuries to Ms. Livesey’s vagina and anus were consistent with the description by Ms. Livesey that she had been “raped back and front, many times.” 2 We hold that the evidence of penetration was legally sufficient to support the appellant’s conviction for the crime of rape. There is no distinction with respect to the legal sufficiency of the evidence of penetration in the sexual offense case ⁵²³ involving sodomy or anal intercourse.

The testimony of Ms. Livesey and the medical testimony, recounted by Susan Boch, both establish a clear prima facie case in that regard. Validation Studies of Testing Techniques for DNA Evidence Key trial evidence establishing the criminal agency of the appellant consisted of DNA test results. Two employees from the Cellmark Laboratory testified on behalf of the State. Paula Yates, the forensic supervisor at Cellmark, testified as an expert witness in DNA testing.

Julie Kempton, a staff employee at Cellmark at all relevant times, also testified as a DNA testing expert. Ms. Yates explained that she had tested both fingernail scrapings and rectal swabs obtained from the victim and compared those samples with blood samples taken from the appellant. She used a technique known as PCR testing. Ms. Yates concluded that the appellant, who is an African-American, could not be excluded as a source from either the fingernail scrapings or the rectal swabs, which produced trace amounts of sperm.

She further testified that approximately 99.99 per cent of the African-American population could be excluded as a potential source. Ms. Kempton testified that she performed a different type of test on the samples called a Short Tandem Repeat Test. Based on the results of her tests, coupled with the results of Ms. Yates’s tests, Ms. Kempton concluded that the appellant could not be excluded as a potential source and that the frequency of the profile was 1 in every 50 million individuals in the African-American population. In the Caucasian population, the frequency of the profile would be 1 in every 9.5 billion; in the Hispanic population, 1 in every 1.6 billion.

The defense sought to counteract the impact of the DNA evidence by casting doubt on the procedural validity of Cell-mark’s testing techniques. Prior to trial, the court held a hearing on defense counsel’s Motion to Compel Discovery. Specifically, the defense sought to obtain information concern ⁵²⁴ ing “validation studies,” studies conducted by Cellmark Laboratory to ensure the reliability and accuracy of the genetic testing done in the appellant’s case. At the hearing, the defense called Dr. Theodore Kessis of the Johns Hopkins University, who testified as an expert in molecular biology and DNA testing.

He initially thought that validation studies were required to guarantee the accuracy of the testing. Dr. Kessis explained that Cellmark offered to provide him with either of two alternatives. First, Cellmark offered to provide Dr. Kessis with the validation studies it had performed in the instant case for a fee of $4,000. In the alternative, Cellmark offered to provide Dr. Kessis an opportunity to visit the laboratory and view the files himself for a fee of $200 per hour.

Defense counsel, a public defender, argued that the failure to provide such evidence to the appellant unless the defense paid the required price effectively penalized the appellant because of his indigence. At that hearing before Judge Kavanaugh, the State responded in several ways. Its first response was to establish that if the “controls” used in the course of the DNA testing in this case were shown to have been working properly, validation studies become unnecessary. The State introduced the testimony of Dr. Jennifer Reynolds, Director of the Identity Laboratory at Cellmark, who was qualified as an expert in the application of forensic DNA testing.

Dr. Reynolds explained for the court in detail what a validation study is and how it is conducted. She explained that defense counsel’s requests were “excessive” because 1) the controls were shown to have been working properly 3 and 2) validation studies were actually ⁵²⁵ performed in this case which showed that all tests had been performed properly. Rather than take Dr. Reynolds’s expert opinion as fact, however, the defense then decided that it wanted to make its own review of Cellmark’s validation studies. The critical question before the court became that of who would pay for such a review.

Cellmark was willing to make and provide copies of the extensive validation studies themselves to the defense at a cost of $4,000. In the alternative, Cellmark was willing for a defense expert to visit its laboratory and review the validation records directly at a cost of $200 per hour. Judge Kavanaugh was willing for the defense to employ either modality it chose in that regard, but she was not willing to impose the cost of such a defense investigation on the State. At the conclusion of the hearing, the following occurred: The Court: ...

I am not going to order that they provide them to you for $4,000. [Defense Counsel]: Well, I don’t know whether the Public Defender is going to pay the $4,000 to get them. The Court: Right. Well, I mean your witness can go over there and look them over. I mean ... he can go through those, and prove them, and see if there is anything there. [Defense Counsel]: Very well.

The Court: All right. So we will do it that way. I think— hopefully he can read pretty quickly and get to the heart of that. (Emphasis supplied).

The appellant now complains that Judge Kavanaugh’s ruling substantially impaired his ability to present a defense. Specifically, he argues that “in light of the refusal of the Office of the Public Defender to pay the $4,000 required for those materials, the judge’s ruling was tantamount to a denial of the defense request for discovery on grounds of indigence.” ⁵²⁶ In the first place, the issue is not preserved for appellate review. Immediately after Judge Kavanaugh explained that Dr. Kessis could visit Cellmark and examine the validation studies in person, defense counsel responded, “Very well.” There was no further comment from the defense. The appellant did not note a continuing objection for the record or give any other indication that he disagreed with the court’s ultimate ruling.

As the Court of Appeals explained in Gilliam v. State, 331 Md. 651, 691 , 629 A.2d 685 (1993), “As Gilliam did not object to the course of action proposed by the prosecution and taken by the court, and apparently indicated his agreement with it, he cannot now be heard to complain that the trial court’s action was wrong.” See also Maryland Rule 8-131(a); White v. State, 324 Md. 626, 640 , 598 A.2d 187 (1991). The same result follows here. Even if the issue had been preserved for our review, however, we would not be persuaded on the merits of the contention. “[T]he supplying of expert pretrial services to indigent defendants in criminal cases at public expense is a matter within the sound discretion of the trial court.” Collins v. State, 14 Md.App. 674, 679 , 288 A.2d 221 (1972). See also Byrd v. State, 16 Md.App. 391, 394 , 297 A.2d 312 (1972); Swanson v. State, 9 Md.App. 594, 596-602 , 267 A.2d 270 (1970).

We perceive no abuse of discretion. The Adjective “Pretextual” Is Not Pejorative The appellant contends that Judge Kavanaugh failed to suppress evidence seized from him as a result of an allegedly pretextual arrest on December 22, 1997. We can immediately narrow the focus of the contention. In making his complaint about alleged police misconduct, the appellant complains that the arresting officers 1) unconstitutionally seized hair and saliva samples from him, 2) held him for an undue length of time and failed to give him Miranda warnings before questioning him, and 3) unconstitutionally photographed him.

The quick answer to two of these alleged abuses is 1) that no hair ⁵²⁷ or saliva samples were introduced into evidence and 2) that no statements taken from the appellant were introduced into evidence. What earthly difference does non-suppression make when the non-suppressed items are never offered in evidence? Several photographs of the appellant were introduced, however, and we shall, therefore, deal with the subject of the allegedly pretextual arrest. Based on a general description of her attacker given to the police by the victim as well as on interviews with other individuals, the police arrested the appellant on December 22.

Detective Edward Golian made the arrest on an outstanding traffic warrant. Following the arrest, the appellant was transported to police headquarters for an interview. Detective Golian readily admitted that the appellant’s apprehension on the outstanding traffic warrant was pretextual in the sense of being opportunistic. Detective Golian acknowledged that he knew at the time he effected the arrest that the appellant was a suspect in a rape that had recently occurred in the area.

Once at police headquarters, the appellant was interviewed by Detectives David Anderson and Paula Hamill. He was questioned about the Livesey rape. During the appellant’s trial, both detectives admitted that it was their intention to arrest the appellant on the outstanding traffic warrant “in order to look at him to see if he had any observable injuries” in light of the fact that Ms. Livesey stated that she had attempted to fight off her attacker. Both detectives admitted that it was not “standard procedure” to interview a suspect in an unrelated case when that person had been arrested on a traffic warrant.

Rather, the person arrested is usually brought immediately before a commissioner. According to the appellant, given that he was arrested only for an outstanding traffic warrant, he should have been immediately taken to the commissioner. Thus, all evidence seized during that encounter with the police was in violation of his Fourth Amendment rights. In this regard, however, the appellant weaves for himself a much tighter net of Fourth Amendment protection than that woven by James Madison ⁵²⁸ and the other framers of the Amendment or by the Supreme Court in the intervening centuries.

Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), established unequivocally that as long as the police have, objectively speaking, a legitimate reason for making either a Terry-stop or an arrest (with or without a warrant), the fact that they also have, subjectively speaking, an additional or more compelling motivation to make the stop or the arrest is immaterial. In this case, the appellant does not question that there was an outstanding arrest warrant for him for a traffic infraction. Objectively speaking, the police were entitled to arrest him on that warrant and to bring him to the station house. Instead of commending the police for their candor in acknowledging their dual and opportunistic purpose, the appellant seeks to punish them for it with the sanction of the Exclusionary Rule.

In the context of using a traffic-related arrest warrant or a traffic-related warrantless stop as an opportunity to accomplish a dual purpose, Maryland actually anticipated the Supreme Court by almost three decades. In State v. Sedacca, 252 Md. 207 , 249 A.2d 456 (1969), police officers observed Sedacca’s car while parked and unattended, and the officers suspected that the vehicle might be carrying untaxed cigarettes. The officers waited for Sedacca,, to return to his vehicle and then they followed him. When Sedacca failed to stop for a stop sign the officers pulled him over, arrested him for the traffic violation, and searched his vehicle.

The Court of Appeals determined that the search of Sedacca’s vehicle was not in violation of his Fourth Amendment rights. Judge Barnes, writing for the Court, explained: The trial court found that the trooper “who did the checking admitted to the additional motive that the opening of the car might reveal the contents in the rear.” (Emphasis supplied). The trooper who checked the serial number on the door had two motives, one to make a bona fide and routine check of the serial number, the other to ascertain if possible in the usual and normal course of that check of the serial number, what was contained in the rear portion of the ⁵²⁹ vehicle. In our opinion, this was proper under the circumstances of the arrest for the violation of the motor vehicle law and the check of the serial number was not a “mere pretext” to discover what was contained in the rear portion of the Sedacca vehicle. 252 Md. at 221-22 , 249 A.2d 456 (underlining supplied; italics in original).

Fourteen years later, in Foster v. State, 297 Md. 191 , 464 A.2d 986 (1983), the Court of Appeals recognized that an arrest may not be used as a pretext to search for evidence. Additionally, this Court has stated that when an arresting officer has two or more purposes for making an arrest, one of which is to make a valid arrest for the commission of the crime and the other of which is to obtain evidence of a different crime, the duality of purpose will not, in an of itself, transform the arrest into a pretext arrest (Emphasis supplied; citations omitted). The notion of “duality of purpose” expressed in both Foster and Sedacca was reaffirmed by this Court more recently in Thanner v. State, 93 Md.App. 134, 141 , 611 A.2d 1030 (1992). Chief Judge Wilner, writing for our Court, there said: The thrust of Foster and Sedacca is that, if there is a valid, basis for making a stop, including observation of a legitimate traffic violation, the fact that the officer made the stop in the hope of obtaining evidence of some other crime does not make the stop unlawful. ... [S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.

(Citations and quotations omitted; emphasis supplied). In the instant case, Detective Golian had two distinct purposes w’hen arresting the appellant on December 22, 1997. The first purpose was to arrest him for an outstanding traffic warrant. That warrant was presumptively valid and no attempt has been made by the appellant, either at trial or on appeal, to argue otherwise.

The second purpose was to ⁵³⁰ gather information from the appellant about his potential involvement in the Livesey rape. As we made abundantly clear in Thanner , “if there is a valid basis for making a stop ... the fact that the officer made the stop in the hope of obtaining evidence of some other crime does not make the stop unlawful.” 93 Md.App. at 141 , 611 A.2d 1030 . After the police made the objectively unassailable arrest of the appellant on the outstanding warrant and brought him to the station house, the fact that they did not follow their ordinary pattern or habit in processing such an arrestee is immaterial. We know of no law that would inhibit them from photographing the appellant after bringing him to the station house on an outstanding arrest warrant.

Even if, arguendo, the photographs of the appellant at the time of his arrest on December 22, 1997, were erroneously not suppressed, we are persuaded beyond a reasonable doubt that such an assumed error would have been harmless. We have looked at the photographs and they are completely innocuous. They are not at all lurid or dramatic. The so-called scratch mark under the eye would pass for a very minor and faded wrinkle.

The so-called nicks on the hands appear on the photographs to be nothing more than a couple of dots. The evidence of scratches on the appellant’s face and hands was much more vividly introduced by no less than four eyewitnesses. Detective David Anderson testified that when he came into contact with the appellant on December 22, he noticed the scratch mark on the appellant’s eye and “what looked like nicks on his hands.” Detective Paula Hamill testified that she, at the same time, had noticed an injury under the appellant’s left eye and healing injuries on his hands. Tammy Mindick, an acquaintance of the appellant through her boyfriend, recalled how the appellant had unexpectedly arrived at her home by taxicab at about 5:30 a.m. on the morning of the rape.

She testified further that she noticed fresh scratches on his face. Brian Schwartzback testified that when he saw the appellant several days after the attack on Ms. Livesey, the appellant had one of his hands ⁵³¹ wrapped in a gauze bandage. There was no objection by the appellant to this testimony on the part of any of the four witnesses. If anything, it seems to us as if the appellant himself would have wished to introduce the photographs of December 22 in order to minimize the testimony given by the four eyewitnesses.

In any event, the photographs were harmless. In terms of the harmlessness of any arguable error, moreover, the whole subject of scratches on the appellant’s face and hands was with respect to one circumstance offered to help prove his criminal agency. The other circumstantial evidence of that criminal agency, however, was overwhelming. The DNA evidence, of course, clinched the proof of his criminal agency to a mathematical certainty.

The 1991 Search and Seizure Warrant Shortly after the crime occurred, a nurse practitioner at the Shady Grove Hospital took from the victim both 1) fingernail scrapings and 2) a rectal swab that contained a small amount of sperm. Following the arrest of the appellant, the police decided to request a DNA analysis, comparing the DNA found in the fingernail scrapings and on the rectal swab with DNA obtained in a blood sample of the appellant. The DNA analysis was to be done by the Cellmark Laboratories. The police applied for and obtained a warrant from Judge DeLawrence Beard authorizing them to take a sample of the appellant’s blood.

Before they executed that warrant, however, they learned that they were already in possession of a sample of the appellant’s blood that had been taken from him, pursuant to a warrant, in connection with a rape investigation that took place in 1991. In communications between the Montgomery County Police Department and Cellmark, Cell-mark indicated that the 1991 blood sample would be all that would be required for a valid DNA test and that no additional blood sample was required. Accordingly, the warrant issued by Judge Beard, authorizing the police to take a new sample of the appellant’s blood, was never executed. ⁵³² It is the fact that a sample of the appellant’s blood was taken in 1991 and was still available for testing in 1998 that is the unusual factual wrinkle in this case. On March 29, 1991, Laurie Denlinger was abducted and raped in Montgomery County.

At about the same time, Irene Cackitt and one other woman were also the victims of attempted abductions. All three incidents occurred within a close geographic radius. The appellant was under investigation for having committed all three offenses and he was actually arrested for the Den-linger abduction and rape. Pursuant to that investigation, the police obtained from Judge William C. Miller a search and seizure warrant authorizing them to take a sample of the appellant’s blood.

A blood sample was taken and remained in the custody of the police. The present record does not tell us the nature of the test that was to be performed in 1991. In any event, that test was not ultimately performed. At a police lineup in which the appellant was standing, the victim made a positive identification of someone other than the appellant.

Under the circumstances, the State chose not to pursue further the 1991 charges against the appellant. 4 • In his fourth contention, the appellant turns his focus on the 1991 warrant signed by Judge Miller and authorizing the police to take a sample of the appellant’s blood for purposes of DNA testing. Unfortunately, both the appellant’s argument and the State’s response blur the issue that is before us. It is not clear whether we are being called upon to review 1) an ordinary suppression hearing where the challenge is that the application for a search warrant does not adequately establish probable cause for the issuance of the warrant, 2) a request ⁵³³ for permission to conduct a hearing pursuant to Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978), to establish that the application for the warrant was tainted, or 3) an actual Franks hearing itself. In this case, it clearly is not the latter.

At times, however, what is before us appears to be a strange hybrid of the first two. A Suppression Issue Proper We hold that what is, or at least what should be, before us is a routine suppression hearing issue. Judge Miller issued the warrant on April 4, 1991 that authorized the taking of the appellant’s blood. Had the case against the appellant gone forward at that time, had that warrant been the subject of a suppression hearing in that case, and had it been ruled constitutional, it would not have been necessary for Judge Kavanaugh to have revisited that ruling in this case.

Because the case against the appellant in 1991 did not go forward, however, the April 4, 1991, warrant was never the subject of a suppression hearing. Under the circumstances, it was perfectly proper for it to be challenged for the first time at a pretrial suppression hearing in this case. When a challenge is made to the issuance of a search warrant on the ground that the application for the warrant did not establish probable cause, witnesses are not ordinarily called. All that is required is for the hearing judge to assess what is contained within the four corners of the application for the warrant.

In Valdez v. State, 300 Md. 160, 168-69 , 476 A.2d 1162 (1984), Judge Couch made very clear the limited compass of what was to be reviewed: The rule in Maryland is that consideration of the showing of probable cause should ordinarily be confined solely to the affidavit itself. Smith v. State, 191 Md. 329, 335-36 , 62 A.2d 287, 289-90 (1948). The rule, however, prevents consideration of evidence that seeks to supplement or controvert the truth of the grounds stated in the affidavit. Id.; Carter v. State, 274 Md. 411, 439 , 337 A.2d 415, 431 (1975).

The existence of grounds showing probable cause must ordinarily be shown within the four corners of the affidavit. See ⁵³⁴ also Collins v. State, 17 Md.App. 376, 381 , 302 A.2d 693, 696 (1973). See also Birchead v. State, 317 Md. 691, 700 , 566 A.2d 488 (1989)(‘Tn determining whether probable cause exists, the issuing judge is confined to the averments contained in the search warrant application.”); Smith v. State, 191 Md. 329, 335-36 , 62 A.2d 287 (1948). At the outset of the suppression hearing before Judge Kavanaugh on October 19, 1998, no special request was made by the appellant for a Franks v. Delaware “taint hearing” that would entail the possible calling of live witnesses.

Bizarrely, however, extensive testimony was taken from Detective Patricia Pikulski, who was the key investigator of the 1991 crime with which the appellant was originally charged and the affiant on the April 4, 1991, warrant. There was also testimony, significantly briefer, from Officer Patrick Word. The key defense effort was to persuade Judge Kavanaugh to disregard at least some of the averments of Detective Pikulski as having been made in reckless disregard of their truth. There was offered before Judge Kavanaugh what came in as State’s Exhibit No. 6, an authentic copy of the signed original warrant.

When the State finally argued as to the establishment of probable cause, it referred to the warrant application on a paragraph-by-paragraph basis. The testimony of Detective Pikulski essentially duplicated, however, what was in Detective Pikulski’s original affidavit/application. In the discussions between court and counsel before the final ruling, the references at times randomly wandered back and forth between what Detective Pikulski had put in the warrant application in 1991 and what she testified to in the hearing of 1998. Because there was no apparent difference, however, between Detective Pikulski’s two versions, this seemed to have been a distinction without a difference.

The issue in dispute was whether the descriptions of their assailants by Laurie Denlinger and others were sufficient to pinpoint the appellant as the probable culprit. The key ⁵³⁵ description had been given to Detective Pikulski by Ms. Denlinger herself: She [Ms. Denlinger] said he was a black male, 6’2 to 6’3, 22 years old, dark complected, 190 to 200 pounds, well built, muscular. He wasn’t fat, hair was very short on the sides, slightly long and fuller at the top, a slim thin mustache and a five o’clock shadow. He had a metal watch