Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1
ANGEL M. ANDERSON
v. Record No. 062051 OPINION BY JUSTICE DONALD W. LEMONS
September 14, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether pursuant to Code
§ 19.2-310.2:1, the taking of a person's DNA upon arrest for
certain crimes constitutes an unconstitutional seizure. We
also consider whether the presentation of DNA evidence in this
case violated the defendant's right of confrontation under the
Sixth Amendment.
I. Facts and Proceedings Below
On July 23, 1991, Laura M. Berry ("Berry") was raped,
sodomized, and robbed while walking to the school where she
worked. After the attack, Berry walked to the school and
notified police. Berry was taken to the hospital where
Detective Steven G. Milefsky ("Milefsky") took her statement.
Dr. Val Chapman ("Dr. Chapman") examined Berry and used a
physical evidence recovery kit ("PERK") to collect specimens
for evidence. Dr. Chapman then gave the PERK to Milefsky.
1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
Milefsky took the PERK he received from Dr. Chapman to
the Virginia Forensic Laboratory in Fairfax County (the
"laboratory") and gave the PERK to a clerk at the laboratory.
On July 25, 1991, Karen C. Ambrozy ("Ambrozy"), a forensic
scientist employed by the Commonwealth of Virginia's Division
of Forensic Science obtained the PERK. Ambrozy received the
PERK from another person working in the laboratory's forensic
biology section. Ambrozy analyzed and conducted DNA analysis
on vaginal swabs contained in the PERK. On January 9, 1992,
Milefsky picked the PERK up from a clerk at the laboratory and
returned it to the Fairfax County police property room (the
"police property room").
In 2001, Milefsky took the PERK to the laboratory and
again left it with one of the laboratory clerks. During the
time the PERK was at the laboratory in 2001, Ambrozy conducted
more DNA analysis. As part of the process, Kari Yoshida
("Yoshida"), a laboratory technician, prepared the product gel
as part of the process for Ambrozy to determine if she had
obtained any amplified DNA. Then, on September 4, 2001,
Milefsky picked the PERK up from the laboratory and returned
it to the police property room.
From 1991 to 2003, Berry's case was not investigated. In
early 2003, Angel M. Anderson ("Anderson") was arrested in
Stafford County on unrelated charges of rape and sodomy.
2
Pursuant to Code § 19.2-310.2:1, a sample of Anderson's DNA
was taken upon his arrest and entered into a DNA databank.
Upon entry into the DNA databank, a routine analysis resulted
in a “cold hit” that appeared to match Angel’s DNA to that
found in Berry’s PERK.
In December of 2003, Milefsky received a certificate of
analysis from the laboratory preliminarily identifying
Anderson as a possible suspect in Berry's attack. As a result
of the investigative lead provided by the certificate of
analysis, on January 6, 2004, Milefsky went to Stafford County
to serve Anderson with a search warrant. The search warrant
permitted a sample of Anderson's DNA to be obtained "by means
of buccal (cheek) swabs in sufficient quantity to obtain
laboratory results."
Pursuant to the search warrant, Milefsky obtained two
buccal swabs from Anderson and took them to the laboratory
along with Berry's PERK. Ambrozy compared the buccal swabs
taken from Anderson with the DNA found in the PERK. Milefsky
then received a certificate of analysis prepared by Ambrozy
which stated that the sperm fraction from the vaginal swabs
taken from Berry were "consistent with the DNA profile of
Angel M. Anderson."
On March 15, 2004, the case was presented to the grand
jury which indicted Anderson for the rape, robbery, and sodomy
3
of Berry. At trial, a jury found Anderson guilty on all
counts, and the trial court imposed the recommended two life
terms plus ten years. Anderson appealed to the Court of
Appeals, where his convictions were affirmed. Anderson v.
Commonwealth, 48 Va. App. 704, 718, 634 S.E.2d 372, 379
(2006). Anderson appeals to this Court upon two assignments
of error:
1. The Court of Appeals erred when [it] held that it is
not a Constitutional violation to seize Mr. Anderson's DNA,
pursuant to Va. Code § 19.2-310.2:1, upon arrest for an
unrelated felony.
2. The Court of Appeals erred by holding that the
presenting of DNA evidence did not violate Mr. Anderson's
Constitutional right of confrontation.
II. Analysis
A. The DNA Sample
Anderson first argues that the Court of Appeals erred
when it held that it was not a constitutional violation to
seize Anderson's DNA, pursuant to Code § 19.2-310.2:1, upon
arrest for an unrelated felony. Code § 19.2-310.2:1 states in
relevant part that:
Every person arrested for the commission or
attempted commission of a violent felony as
defined in § 19.2-297.1 or a violation or attempt
to commit a violation of § 18.2-31, 18.2-89,
18.2-90, 18.2-91, or 18.2-92, shall have a sample
of his saliva or tissue taken for DNA
(deoxyribonucleic acid) analysis to determine
identification characteristics specific to the
person.
4
This Court as well as the United States Court of Appeals for
the Fourth Circuit has held that Code § 19.2-310.2, requiring
a convicted felon to provide a blood, saliva, or tissue sample
for DNA analysis, does not violate the Fourth Amendment.
Jones v. Murray, 962 F.2d 302, 308 (4th Cir. 1992); Johnson v.
Commonwealth, 259 Va. 654, 672, 529 S.E.2d 769, 779 (2000).
While Code § 19.2-310.2:1 requires a DNA sample after an
arrest for specific offenses, as opposed to a conviction, like
Code § 19.2-310.2, it too does not violate the Fourth
Amendment.
Upon arrest, the accused is subjected to a routine
booking process, including the taking of fingerprints. A DNA
sample of the accused taken upon arrest, while more revealing,
is no different in character than acquiring fingerprints upon
arrest.
[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.
This becomes readily apparent when we consider
the universal approbation of "booking" procedures
that are followed for every suspect arrested for
a felony, whether or not the proof of a
particular suspect's crime will involve the use
of fingerprint identification.
5
Jones, 962 F.2d at 306. Like fingerprinting, the "Fourth
Amendment does not require an additional finding of
individualized suspicion" before a DNA sample can be taken.
Id. at 306-07.
The analogous treatment of the taking of DNA samples to
the taking of fingerprints has been widely accepted. In
addition to the Fourth Circuit in the Jones case, the Second
Circuit held “[t]he collection and maintenance of DNA
information, while effected through relatively more intrusive
procedures such as blood draws or buccal check swabs, in our
view plays the same role as fingerprinting.” Nicholas v.
Goord, 430 F.3d 652, 671 (2d Cir. 2005), cert. denied, 549
U.S. ___, 127 S.Ct. 384 (2006). The Third Circuit held that
“[t]he governmental justification for [DNA] identification
. . . relies on no argument different in kind from that
traditionally advanced for taking fingerprints and
photographs, but with additional force because of the
potentially greater precision of DNA sampling and matching
methods.” United States v. Sczubelek, 402 F.3d 175, 185-86
(3d Cir. 2005), cert. denied, 549 U.S. ___, 126 S.Ct. 2930
(2006). The Ninth Circuit said “[t]hat the gathering of DNA
information requires the drawing of blood rather than inking
and rolling a person’s fingertips does not elevate the
intrusion upon the plaintiffs’ Fourth Amendment interests to a
6
level beyond minimal.” Rise v. State, 59 F.3d 1556, 1560 (9th
Cir. 1995).
Some state appellate courts have also concluded that DNA
samples should be treated like fingerprints. See State v.
Raines, 857 A.2d 19, 33 (Md. 2004) (“The purpose [of the DNA
profile] is akin to that of a fingerprint. As such, appellee
and other incarcerated individuals have little, if any,
expectation of privacy in their identity.”); State v. O’Hagen,
914 A.2d 267, 280 (N.J. 2007) (“We harbor no doubt that the
taking of a buccal cheek swab is a very minor physical
intrusion upon the person . . . . [T]hat intrusion is no more
intrusive than the fingerprint procedure and the taking of
one’s photograph that a person must already undergo as part of
the normal arrest process.”); and State v. Brown, 157 P.3d
301, 303 (Or. Ct. App. 2007) (“Because [using a swab to take a
DNA sample from the mucous membrane of an arrestee’s cheek] is
akin to the fingerprinting of a person in custody, we conclude
that the seizure of defendant’s DNA did not constitute an
unreasonable seizure under [the Constitution.]”).
Fingerprinting an arrested suspect has long been
considered a part of the routine booking process. Similarly,
the taking of a DNA sample by minimally intrusive means “is
justified by the legitimate interest of the government in
knowing for an absolute certainty the identity of the person
7
arrested, in knowing whether he is wanted elsewhere, and in
ensuring his identification in the event he flees
prosecution.” 3 Wayne R. LaFave, Search and Seizure § 5.3(c),
at 168 (4th ed. 2004).
Anderson argues that the saliva samples taken from him
upon his arrest in Stafford County led to the "cold hit"
implicating him in the offenses involved in this appeal. He
maintains that the taking of saliva was a "suspicionless"
seizure2 contrary to the Fourth Amendment and that all evidence
flowing from such a search must be suppressed as "fruit of the
poisonous tree." Wong Sun v. United States, 371 U.S. 471,
484-85 (1963). In support of his argument, Anderson cites
City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000),
wherein the Supreme Court of the United States held that
"[w]hen law enforcement authorities pursue primarily general
crime control purposes at checkpoints . . . stops can only be
justified by some quantum of individualized suspicion."
Further, Anderson relies upon Ferguson v. City of
Charleston, 532 U.S. 67 (2001), for the proposition that
searches conducted for general law enforcement purposes cannot
2
While Anderson refers to the taking of buccal swabs as a
"seizure," it is more appropriately referred to as a "search."
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-
17 (1989); Cupp v. Murphy, 412 U.S. 291, 295 (1973); Schmerber
v. California, 384 U.S. 757, 767-68 (1966). See also United
States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007).
8
be excepted from requirements of probable cause. Ferguson
involved a cooperative program between hospital authorities
and law enforcement officers to gather evidence of pregnant
women using illegal drugs. Id. at 69-73. The analysis used
by the Court focused upon a line of cases comprising the so-
called "special needs doctrine" justifying suspicionless
searches in narrowly defined circumstances.3 The Court, in
Ferguson, rejected the argument that the cooperative program
between hospital personnel and law enforcement officers met
the test of the "special needs doctrine." Id. at 84.
Anderson’s reliance upon Edmond and Ferguson is
misplaced. As previously established, the taking of a DNA
sample pursuant to § 19.2-310.2:1 is permissible as a part of
routine booking procedures. As such, no “additional finding
of individualized suspicion” much less probable cause, must be
established before the sample may be obtained. Jones, 962
F.2d at 306.
In Jones, the court held that pursuant to Code § 19.2-
310.2 "in the case of convicted felons who are in custody of
the Commonwealth, . . . the minor intrusion caused by the
3
Such circumstances include public schools, public
employment, and pervasively regulated industries. See, e.g.,
Board of Educ. v. Earls, 536 U.S. 822 (2002); National
Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989);
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602
(1989).
9
taking of a [DNA] sample is outweighed by Virginia's interest
. . . in determining inmates' 'identification characteristics
specific to the person' for improved law enforcement."4 962
F.2d at 307. We hold that the same rationale holds true for
persons "arrested for the commission or attempted commission
of a violent felony" under Code § 19.2-310.2:1. In
conclusion, we hold that the taking of Anderson's DNA sample
upon arrest in Stafford County pursuant to Code § 19.2-310.2:1
is analogous to the taking of a suspect's fingerprints upon
arrest and was not an unlawful search under the Fourth
Amendment.
B. Confrontation Clause
Anderson next argues that the "Court of Appeals erred by
holding that the presenting of DNA evidence did not violate
[his] [c]onstitutional right of confrontation." This
assignment of error is limited to the objection made at trial.
Rule 5:25. At trial, when the Commonwealth sought to
introduce the certificate of analysis that linked Anderson to
Berry's attack, Anderson’s counsel stated:
I still have an objection to the chain of
evidence because I believe that Crawford comes
into play now and we have a right to cross
4
Anderson does not assign error to the Court of Appeals'
holding that he "does not challenge the specific manner in
which his DNA sample was taken or the nominal degree of
physical invasiveness it may have involved." Anderson, 48 Va.
App. at 710, 634 S.E.2d at 375.
10
examine anyone who – under Crawford, Your Honor,
our contention of [Code § 19.2-]187[.01] becomes
unconstitutional because we don't have the right
– there shouldn't be a presumption afforded a
document that is testimonial in nature.
Based on this objection, Anderson argues that his
constitutional right of confrontation was violated upon
admission of the certificate of analysis linking Anderson to
Berry's attack and the statutory presumption contained in Code
§ 19.2-187.01 providing that the duly attested report of
analysis “shall be prima facie evidence in a criminal or civil
proceeding as to the custody of the material described therein
from the time such material is received by an authorized agent
of such laboratory until such material is released subsequent
to such analysis or examination.”
The Confrontation Clause guarantees an accused the right
"to be confronted with the witnesses against him." U.S. Const.
amend. VI. Recently, the Supreme Court of the United States
has held: "Where testimonial evidence is at issue, . . . the
Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination."
Crawford v. Washington, 541 U.S. 36, 68 (2004). Since
Crawford, a significant inquiry in Confrontation Clause cases
has been whether the hearsay evidence sought to be admitted
into evidence was testimonial in nature and consequently,
subject to Confrontation Clause requirements.
11
In this case, the statement in question was the
certificate of analysis. However, Ambrozy was the author of
the certificate of analysis, appeared at trial in person,
testified as to its contents, and Anderson had the opportunity
to cross-examine her.
Code § 19.2-187.01 states in relevant part:
A report of analysis duly attested by the person
performing such analysis or examination in any
laboratory operated by . . . the Department of
Forensic Science or any of its regional
laboratories . . . shall be prima facie evidence
in a criminal or civil proceeding as to the
custody of the material described therein from
the time such material is received by an
authorized agent of such laboratory until such
material is released subsequent to such analysis
or examination. Any such certificate of analysis
purporting to be signed by any such person shall
be admissible as evidence in such hearing or
trial without any proof of the seal or signature
or of the official character of the person whose
name is signed to it. The signature of the person
who received the material for the laboratory on
the request for laboratory examination form shall
be deemed prima facie evidence that the person
receiving the material was an authorized agent
and that such receipt constitutes proper receipt
by the laboratory for purposes of this section.
(Emphasis added). Code § 19.2-187.01 contains a presumption
that the Department of Forensic Science maintained a proper
chain of custody at all times while the samples were in its
possession. Code § 19.2-187.01 states that a "duly attested"
"report of analysis" shall be "prima facie evidence" as to the
custody of the material while it is in the laboratory. The
12
effect of a prima facie showing under this statute is to
create a "presumption." See e.g., Martin v. Moore, 263 Va.
640, 645-46, 561 S.E.2d 672, 676 (2002) ("This presumption of
a grant or adverse right is prima facie only and may be
rebutted by evidence to the contrary."). Anderson challenges
the presumption in Code § 19.2-187.01 regarding the chain of
custody of the DNA evidence.
A challenge to the presumption afforded by Code § 19.2-
187.01 focuses upon the admissibility of the evidence. "[A]
chain of custody is properly established when the
Commonwealth's evidence affords reasonable assurance that the
exhibits at trial are the same and in the same condition as
they were when first obtained." Vinson v. Commonwealth, 258
Va. 459, 469, 522 S.E.2d 170, 177 (1999). Whether the
foundation is sufficient to properly establish the chain of
custody is a question within the sound discretion of the trial
court. Essex v. Commonwealth, 228 Va. 273, 285, 322 S.E.2d
216, 223 (1984).
What Anderson contests is the presumption of regularity
regarding the custody of the material described in the
certificate “from the time such material is received by an
authorized agent of such laboratory until such material is
released subsequent to such analysis or examination.” Code
13
§ 19.2-187.01. Such a challenge is to the admissibility of
the evidence, and not to the substance of the evidence itself.
In Crawford, the Supreme Court relied upon the text of an
1828 dictionary to define “witnesses” against the accused as
those who “bear testimony,” and “testimony” as “[a] solemn
declaration or affirmation made for the purpose of
establishing or proving some fact.” 541 U.S. at 51 (citing 2
N. Webster, An American Dictionary of the English Language
(1828)). To the extent that Anderson challenges the content
of the certificate, Anderson has suffered no Confrontation
Clause violation because it was the subject of testimony by
the author who was available for cross-examination. See
Crawford, 541 U.S. at 62, 68 and id. at 59 n.9 (citing
California v. Green, 399 U.S. 149, 162 (1970)). Furthermore,
Anderson has no Confrontation Clause violation regarding the
presumption afforded by Code § 19.2-187.01 because the
presumption is not testimonial in nature. Simply stated, the
evidentiary presumption regarding chain of custody is relevant
to the admissibility of the evidence. It is the substance of
the evidence, namely the content of the certificate, that is a
"solemn declaration or affirmation made for the purpose of
establishing or proving some fact” accusatory to Anderson.5
5
The Colorado Court of Appeals in a case involving proof
of prior conviction held, "the affidavits at issue here were
14
The presumption afforded by Code § 19.2-187.01 is not
testimonial in nature. The content of the certificate was the
subject of testimony by its author who was subject to cross-
examination. Anderson’s right of confrontation under the
Sixth Amendment was not violated.
III. Conclusion
For the reasons stated, we will affirm the judgment of
the Court of Appeals.
Affirmed.
provided solely to verify the chain of custody and
authenticity of the underlying documentary evidence. It is
the underlying documentary evidence, and not the
authenticating affidavits, that reference (and are thus used
to prove) the facts material to habitual criminal proceedings,
namely, a defendant's prior convictions." People v. Schreck,
107 P.3d 1048, 1060-61 (Colo. Ct. App. 2004).
15