Corbin v. State

GREENE, J.,

dissenting, in which BELL, C.J., joins.

Initially, police officers investigating the death of Jacqueline Tilghman, in 1995, were unable to identify the source of the DNA found in and on her body. Through their investigation, however, the lead investigator, Sergeant Jack McCauley of the *526Maryland State Police Cold Case Homicide Unit, “developed a list of [13] male associates of Ms. Tilghman” and sought to obtain samples of their DNA. Tonto Corbin was included in that list; however, he refused to voluntarily furnish a sample of his DNA. Through further investigation, the police learned that Corbin was on probation for a DWI offense and was required “to submit to breath tests for alcohol consumption^]” Sgt. McCauley arranged for Corbin’s probation officer to administer to Corbin a “deep lung test” in March 2001. This test, unlike the passive breath test that is ordinarily administered to probationers, requires the person taking the test to use a straw to give a breath sample. The person taking the test places his or her “lips around the end of the straw and [is asked to] exhale[ ] as deep a breath as possible from the lung capacity.” At the investigator’s request, the probation officer prearranged, without Corbin’s knowledge or consent, to “retain custody of the straw so that the saliva on it could be tested for DNA.”

Corbin’s DNA from the straw was collected and tested and determined to be a match to that found on swabs taken from the victim. On the basis of this information, the police obtained a search warrant for another DNA sample from Corbin. After losing on his motion to suppress the DNA evidence collected and tested, Corbin proceeded to trial in the Circuit Court for Somerset County, on an agreed statement of facts. The trial judge found Corbin guilty of involuntary manslaughter in the death of Ms. Tilghman and sentenced him to ten years’ incarceration, with all but eight years suspended, and two years of supervised probation. Following the appeal of his conviction to the Court of Special Appeals, Corbin requested certiorari in this Court, and we granted his petition. In this Court, as in the proceedings in the Circuit Court and in the Court of Special Appeals, Corbin maintains that his Constitutional right to be free from unreasonable searches and seizures under the Fourth Amendment has been violated. Specifically, in this Court, Corbin asserts that the Court of Special Appeals erred in concluding that he had no reasonable expectation of privacy in the breath test straw or in the saliva *527thereon. In addition, he argues that this Court should “reject the seriously flawed analogy between a DNA profile and a fingerprint” that was drawn by this Court in Williamson v. State, 418 Md. 521, 993 A.2d 626 (2010).

Primarily for the reasons expressed in Chief Judge Bell’s well-written and comprehensive dissenting opinion in Williamson — namely, the principle that DNA testing and analysis is a separate search subject to Fourth Amendment scrutiny — I would reverse Corbin’s conviction and remand the case to the Circuit Court for Somerset County for a new trial. The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .... ” U.S. Const. amend. IV. The United States Supreme Court has explained that “the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 591, 151 L.Ed.2d 497, 505 (2001) (internal quotation omitted). Even though the breathalyzer test administered to Corbin was reasonable, the DNA testing and analysis performed on Cor-bin’s saliva, left on the straw, was a separate search that also needed to satisfy the requirements of the Fourth Amendment. Thus, so long as Corbin possessed a reasonable expectation of privacy in his DNA, the DNA evidence gathered, analyzed, and used for investigative purposes, without a warrant and without Corbin’s consent, was obtained in violation of his Constitutional rights.

It is well settled that probationers “do not enjoy the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.” Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709, 718 (1987) (internal quotation omitted). Courts have also recognized, however, that a probationer’s expectation of privacy is not extinguished by his probationary status. See Griffin, 483 U.S. *528at 875, 107 S.Ct. at 3169, 97 L.Ed.2d at 718 (noting that probationary status “permit[s] a degree of impingement upon privacy that would not be constitutional if applied to the public at large. That permissible degree is not unlimited, however ... ”); United States v. Amerson, 483 F.3d 73, 84 (2d Cir.2007) (declaring that “[probationers ... have diminished — but far from extinguished — reasonable expectations of privacy”). Instead, probation is “one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.” Griffin, 483 U.S. at 874, 107 S.Ct. at 3169, 97 L.Ed.2d at 718.

In the present case, Corbin’s status as a probationer, coupled with the condition that he submit to periodic alcohol testing, clearly diminished his expectation of privacy; however, his probationary status and his conditions of probation did not eliminate his reasonable expectation of privacy in his own DNA. See Knights, 534 U.S. at 119-20, 120 n. 6, 122 S.Ct. at 591-92, 592 n. 6, 151 L.Ed.2d at 505-06, 505 n. 6. Rather, not unlike the petitioner in Williamson, Corbin possessed a reasonable expectation of privacy in the information contained in his DNA, which triggered Fourth Amendment protection. Therefore, the detectives investigating the murder were required to comply with the requirements of the Fourth Amendment before gathering and analyzing Corbin’s DNA.

Importantly, in my view, a probationer’s diminished expectation of privacy is not limitless in its scope. See State v. Raines, 383 Md. 1, 65, 857 A.2d 19, 57-58 (2004) (Bell, C.J., dissenting) (expressing concern that there were no limitations placed on the respondent’s diminished expectation of privacy as a result of his status as a convicted felon). I disagree with the majority’s assertion that a search performed while an individual is on probation need not relate to the conditions of probation or the underlying offense(s). See Corbin v. State, 428 Md. 488, 501-02, 52 A.3d 946, 954, 2012 WL 3588705 (2012). The majority discusses the various problems associated with the serious offense of drunken driving. See Corbin, 428 Md. at 509-10, 52 A.3d at 958. Accordingly, the conditions *529of probation imposed upon an individual convicted of an alcohol-related offense, and police action in connection therewith, should be aimed at decreasing or deterring problems associated with the underlying offense. The breathalyzer testing that Corbin agreed to submit to periodically was reasonably related to the offense for which he was convicted and placed on probation. DNA testing and analysis of saliva left on an alcohol monitoring instrument, to be used in connection with an unrelated homicide investigation, however, has no relation to decreasing or deterring the occurrence of alcohol-related offenses.

In general, restrictions placed on a probationer during the probation period “are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.” Griffin, 483 U.S. at 875, 107 S.Ct. at 3169, 97 L.Ed.2d at 718; see Knights, 534 U.S. at 119, 122 S.Ct. at 591, 151 L.Ed.2d at 505 (noting that “the two primary goals of probation [are] rehabilitation and protecting society from future criminal violations”). In addition, the State has an interest in “reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees[.]” Samson v. California, 547 U.S. 843, 853, 126 S.Ct. 2193, 2200, 165 L.Ed.2d 250, 260 (2006). DNA testing of Corbin’s saliva, obtained from the instrument used to conduct the deep lung breath test, did not directly serve any of the enumerated purposes of probation. Reducing recidivism rates is geared toward combating the occurrence of future, not past, crimes. The murder allegedly committed by Corbin had occurred years prior to his conviction for the DWI offense; the collection and testing of Corbin’s DNA, obtained to aid in finding and convicting the perpetrator of the murder, therefore, had nothing to do with deterring Corbin from re-offending. In addition, to the extent that the periodic breath tests were aimed at rehabilitating Corbin or protecting society from the possibility of Corbin committing DWI offenses in the future, DNA testing of Corbin’s saliva in relation to an ongoing murder investigation did not serve those purposes. There*530fore, if Corbin had a diminished expectation of privacy, stemming from his probationary status, that diminished expectation should not have extended to searches that had no relation to the underlying crime, to the conditions of probation, or to the purposes of probation in general.

The majority employs a totality of the circumstances analysis in determining whether the officers’ actions violated the unreasonable search prohibition of the Fourth Amendment. Corbin, 428 Md. at 502-03, 52 A.3d at 954-55. Relying on United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the majority concludes that the search was reasonable, in light of Corbin’s diminished expectation of privacy as a probationer. Corbin, 428 Md. at 510, 52 A.3d at 958. I agree with the majority that the breathalyzer test was reasonable, considering Corbin’s probation status and the inclusion of alcohol monitoring in his probation order, which Corbin apparently agreed to comply with as a condition of probation. The subsequent DNA testing and analysis performed on Corbin’s saliva, however, was a separate and distinct search, and the record does not support the conclusion that Corbin consented to or agreed to the search as one of the conditions of his probation. Therefore, the case sub judice is distinguishable from the facts and analysis in Knights.

In that case, Knights was on probation for a drug offense. Knights, 534 U.S. at 114, 122 S.Ct. at 589, 151 L.Ed.2d at 502. His probation order included the following condition: “that Knights would ‘[sjubmit his ... person, property, place of residence, vehicle, personal effects, to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.’ ” Id. Knights signed the probation order, indicating he had read and understood its terms. Id. During the period of Knights’s probation, police conducted a warrantless search of his home that produced contraband. Knights, 534 U.S. at 115, 122 S.Ct. at 589, 151 L.Ed.2d at 503. Knights moved to suppress the evidence at trial, and the trial judge granted the motion on the ground that the search was for investigatory, rather than *531probationary, purposes. Knights, 534 U.S. at 116, 122 S.Ct. at 590, 151 L.Ed.2d at 503.

On review, the Supreme Court addressed whether the search had violated Knights’s Fourth Amendment rights. Knights, 534 U.S. at 116, 122 S.Ct. at 590, 151 L.Ed.2d at 503. The Supreme Court examined the reasonableness of the search at issue by conducting a totality of the circumstances analysis. Knights, 534 U.S. at 118, 122 S.Ct. at 591, 151 L.Ed.2d at 505. Highlighting the conditions present in the probation order and the fact that Knights was unambiguously informed of them, the Supreme Court stated that “[t]he probation condition thus significantly diminished Knights’[s] reasonable expectation of privacy.” Knights, 534 U.S. at 119-20, 122 S.Ct. at 591-92, 151 L.Ed.2d at 505. The Supreme Court balanced Knights’s diminished expectation of privacy against the State’s interests and concluded, “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Knights, 534 U.S. at 121, 122 S.Ct. at 592-93, 151 L.Ed.2d at 506-07.

In Samson v. California, 547 U.S. 843, 847, 126 S.Ct. 2193, 2196, 165 L.Ed.2d 250, 256 (2006), the United States Supreme Court relied on its opinion in Knights in confronting the issue of “whether a condition of release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.” In reviewing its analysis in Knights, the Supreme Court commented that it had found Knights’s probation status and the conditions set out in the probation order, as well as the fact that Knights was unambiguously aware of the conditions, important factors in its totality of the circumstances analysis. Samson, 547 U.S. at 848-49, 126 S.Ct. at 2197, 165 L.Ed.2d at 257. The Supreme Court emphasized in Samson that “the search at issue in Knights was predicated on both the probation search condition and *532reasonable suspicion[.]” Samson, 547 U.S. at 850, 126 S.Ct. at 2198, 165 L.Ed.2d at 258 (emphasis added).

Unlike the respondent in Knights, the challenged search in the instant case was not included as a condition in Corbin’s probation order.1 While alcohol monitoring, in the form of periodic breath tests, was listed as a condition of probation, to which Corbin apparently agreed, the record does not support the conclusion that the DNA testing and analysis stemming from the breath tests were included in the order. The Supreme Court made clear in Knights, and later affirmed in Samson, that Knights’s expectation of privacy was diminished by his status as a probationer as well as the specific probation condition that informed him of the warrantless searches to which he could be subjected. The Supreme Court considered the probation search condition a “salient circumstance.” Knights, 534 U.S. at 118, 122 S.Ct. at 591, 151 L.Ed.2d at 505. Corbin was never made aware of, nor did he agree to, a diminished expectation of privacy with regard to the personal information contained in his DNA. Corbin’s agreement to submit to periodic alcohol testing did not logically include consent to test any DNA material that may have been left on the breath test instrument. The absence of a probation condition relating to the search of Corbin’s DNA that was performed distinguishes the facts of the instant case from those in Knights.

Furthermore, as the majority notes, the defendants in Knights and Samson were on probation for felony offenses; in contrast, Corbin’s probation stemmed from his conviction for a misdemeanor. Corbin, 428 Md. at 508-09, 52 A.3d at 957-58. The majority attempts to distinguish Corbin’s DWI conviction from other misdemeanors by stating that “this misdemeanor *533offense, unlike many misdemeanors, carries the potential for significant jail time.” Corbin, 428 Md. at 509, 52 A.3d at 958. In addition, according to the majority, drunken driving is a serious offense with a high recidivism rate. Corbin, 428 Md. at 509, 52 A.3d at 958. Therefore, in the majority’s view, “a person on probation from a drunken driving offense has, like the probationer in Knights, a significantly diminished expectation of privacy.” Corbin, 428 Md. at 510, 52 A.3d at 958. The majority, however, gives no clear, principled reason for distinguishing DWI convictions from all other “lesser misdemean- or[s.]” See Corbin, 428 Md. at 510 n. 11, 52 A.3d at 958 n. 11. Surely, the fact that the defendants in Knights and Samson were convicted of felony offenses influenced the Supreme Court’s determination with regard to their respective diminished expectations of privacy. Corbin does not, as a result of his misdemeanor DWI conviction, pose a similar threat to society. To the extent that there was a concern that Corbin would commit another alcohol-related offense, the mandatory alcohol monitoring included in Corbin’s probation order was sufficient to alleviate that concern. To extend a diminished expectation of privacy to every aspect of Corbin’s life, specifically his privacy interest in the information contained in his DNA, was not reasonable in light of his probation status for a misdemeanor offense and the subsequent use of incriminating evidence in a completely unrelated homicide investigation.2

*534I also disagree with the notion, espoused by a majority of this Court, that DNA profiling is analogous to fingerprinting. As explained in Chief Judge Bell’s dissent in Williamson, “[a] fingerprint is an impression left by the depositing of oil upon contact between a surface and the friction ridges of fingers.” Williamson, 413 Md. at 551 n. 3, 993 A.2d at 644 n. 3 (Bell, C.J., dissenting) (internal quotation omitted). The collection of a person’s DNA, however, “requires production of evidence below the body surface which is not subject to public view[.]” United States v. Mitchell, 652 F.3d 387, 425 (3d Cir.2011) (Rendell, J., dissenting) (quotation omitted). DNA analysis is more technologically sophisticated than fingerprint analysis in that the DNA is broken down and analyzed “to create a DNA record, a profile, capable of, and for, comparison with other profiles.” Williamson, 413 Md. at 562, 993 A.2d at 650 (Bell, C.J., dissenting). Therefore, the nonconsensual testing and analysis of substances that may be used for DNA profiling are subject to scrutiny under the Fourth Amendment. See Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639, 659 (1989); Schmerber v. California, 384 U.S. 757, 766-72, 86 S.Ct. 1826, 1833-36, 16 L.Ed.2d 908, 917-20 (1966); Williamson, 413 Md. at 562-64, 993 A.2d at 651-52 (Bell, C.J., dissenting).

Although the taking of a DNA sample may not be unreasonably invasive, it is substantially intrusive in that the “samples the Government seeks to extract contain far more than the mere identifying information that can be gleaned from a suspect’s fingerprints____” Mitchell, 652 F.3d at 425 (Rendell, J., dissenting); Raines, 383 Md. at 73, 857 A.2d at 62 (concluding that “[although the intrusion of a buccal swab may be minimal in a physical sense, it certainly is great when the vast amount of personal and private information DNA contains is considered” (Bell, C.J., dissenting)); State v. Martin, 184 Vt. 23, 955 A.2d 1144, 1168-69 (2008) (noting that “DNA profiling involves a significantly greater intrusion of privacy than fingerprinting” because DNA samples must be analyzed and in the process “intimate details of one’s genetic make-up are revealed ...” (Johnson, J., dissenting)). Cer*535tainly, Corbin had a reasonable expectation of privacy in this sensitive information.

With regard to breath tests specifically, the Supreme Court has stated, “Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis implicates ... concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should ... be deemed a search.” Skinner, 489 U.S. at 616-17, 109 S.Ct. at 1413, 103 L.Ed.2d at 659 (citations omitted). Thus, although the deep lung test itself may not have been an invasive method of obtaining Corbin’s DNA, the information gleaned as a result of testing and analyzing the sensitive and private information contained in the DNA was certainly an invasion of Corbin’s privacy. The Supreme Court noted in Skinner that “breath tests reveal the level of alcohol in [an individual’s] bloodstream and nothing more.” Skinner, 489 U.S. at 625, 109 S.Ct. at 1418, 103 L.Ed.2d at 665. When, however, saliva left on a breath test instrument is subjected to DNA testing, as in the instant case, the nature and extent of the information revealed drastically changes. Thus, the search performed on Corbin’s DNA revealed different, and substantially more, information than Corbin could have expected based on the conditions of probation and the deep lung test he agreed to take.

The purpose of the warrant requirement is “to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.” Skinner, 489 U.S. at 621-22, 109 S.Ct. at 1415-16, 103 L.Ed.2d at 663. Furthermore, “[a] warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope.” Skinner, 489 U.S. at 622, 109 S.Ct. at 1416, 103 L.Ed.2d at 663 (citations omitted). As the Supreme Court stated in Schmerber, “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919. Sensitive information contained in genetic material *536should be subject to the warrant requirement. DNA testing and analysis, particularly the analysis performed on Corbin’s DNA in the case at bar, are clearly used for investigatory purposes to be presented as evidence against the accused at trial. See Raines, 383 Md. at 50-51, 857 A.2d at 49 (opining that “[i]t is true, of course, that the DNA sample [collected] will be used to establish identity, but the principal purpose of establishing identity will be to provide evidence of criminality, evidence that will allow the police to establish probable cause to collect precisely the same evidence for use in court” (Wilner, J., concurring)).

The Supreme Court in Griffin posited that, in a situation involving a search of a probationer, “the delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct, and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create.” Griffin, 483 U.S. at 876, 107 S.Ct. at 3170, 97 L.Ed.2d at 719 (internal citations omitted). That rationale is not applicable to the circumstances surrounding collection and analysis of Corbin’s DNA. The crime for which Corbin’s DNA was obtained, for comparison purposes, was committed years prior to police efforts to obtain a DNA sample. Police had the ability, subject to the requirements of the Fourth Amendment, to gather this evidence at any time. There was no danger, as eluded to in Griffin, of Corbin destroying the evidence sought by police in connection with the murder. Similarly, there was no apparent need for police to act expeditiously, necessitating avoidance of the warrant requirement. The detectives investigating the case were capable of, and in fact required to, submit a statement of probable cause to a neutral and detached magistrate and obtain a search warrant for Corbin’s DNA. In addition, Cor-bin’s DNA was not subject to a search as one of the conditions of his probation. Thus, the police acted without any authorization to collect and analyze Corbin’s DNA. Moreover, the police conducted the search without any individualized suspicion that Corbin was involved in criminal activity occurring while he was on probation. See Raines, 383 Md. at 74, 857 *537A.2d at 63 (concluding that the search at issue violated the prisoner’s Fourth Amendment rights because “the State [did] not sufficiently establish[ ] that there [was] any individualized basis for the search, probable cause or some appropriate level of suspicion, that would justify any intrusion upon the [prisoner’s] constitutionally-protected privacy interest in his own body” (Bell, C.J., dissenting)).

The DNA evidence collected, analyzed, and used for investigative purposes, with regard to Corbin, constituted a search subject to Fourth Amendment scrutiny. Therefore, as a result of the search, the burden rested with the State to establish that a recognized exception to the warrant requirement applied in order to justify the intrusion. Having failed to establish an exception to the warrant requirement, the DNA evidence and the results flowing from the comparisons of that evidence should have been suppressed. Accordingly, I respectfully dissent.

Chief Judge Bell has authorized me to state that he joins in this dissenting opinion.

. While the probation order itself was not included in the record of the case at bar, neither party has contended, in this Court, that analysis of Corbin’s DNA or entry of his DNA profile into CODIS was part of the probation order. Therefore, I proceed on the assumption that DNA testing and analysis was not a condition of probation. In addition, as noted by the majority, the DNA testing and analysis performed on Corbin’s saliva was not covered by the DNA Collection Act.

. Similarly, in her analysis, Judge Battaglia highlights the flaws in the majority’s reasoning on this point. This Court recently issued an opinion in King v. State, 425 Md. 550, 597-98, 42 A.3d 549, 578 (2012), wherein we held that it was a violation of King's Fourth Amendment rights to collect his DNA without a warrant, pursuant to the DNA Collection Act, following his arrest for an offense enumerated under the Act. In the instant case, Judge Battaglia explains the absurd result reached by the majority's analysis, when read in conjunction with the rationale and holding in King: "[Tjhose on probation, even for petty offenses, have no expectation of privacy in the ‘treasure trove’ of their genetics, while arrestees for felonies, even with serious records, do in their identification.” Corbin, 428 Md. at 525, 52 A.3d at 967 (Battaglia, J., concurring). I agree that, in light of this Court’s opinions addressing Fourth Amendment protection in the context of DNA collection and analysis, such an outcome is illogical.