Smith v. State

ATTORNEY FOR APPELLANT

Michael J. Murphy, Legal Intern
Ann M. Skinner
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Priscilla J. Fossum
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

DAMON SMITH, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0103-CR-170
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A02-0005-CR-300
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9903-CF-036941
__________________________________________________________________

ON PETITION FOR TRANSFER

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March 27, 2001

BOEHM, Justice.
We grant transfer in this criminal appeal to decide whether retaining
a defendant’s DNA profile from a prior unrelated case and using it in a
subsequent case violates the right to be secure from unreasonable searches
and seizures under the Fourth Amendment of the United States Constitution
and Article I, Section 11 of the Indiana Constitution. We also address
whether retention of the DNA profile violated Indiana Code section 10-1-9-
8. We affirm the trial court’s denial of the defendant’s motion to
suppress this evidence.

Factual and Procedural Background

On March 26, 1997, V.O. was attacked, raped, and robbed in her home.
The attacker covered her head with a cloth and she did not see his face.
Police created a DNA profile from samples collected from V.O., but were
initially unable to identify a suspect.
In September 1997, Damon Smith was arrested and charged with rape in
an unrelated case (“Case 1”). He was ordered by the trial court to provide
hair, blood, and saliva samples. These were used by the Indianapolis-
Marion County Forensic Services Agency (“Crime Lab”) to create a DNA
profile. On July 28, 1998, Smith was tried in Case 1. The DNA evidence
identified Smith as the donor, but the jury acquitted Smith based on his
defense that the intercourse was consensual.
In July 1998, according to the Crime Lab’s routine procedures, Smith’s
profile from Case 1 was compared to those from unsolved cases and showed a
tentative match to V.O.’s assailant. The Crime Lab notified investigators
on V.O.’s case. According to the probable cause affidavit, further testing
“concluded that the DNA results showed that Damon Lamont Smith . . . is . .
. without a doubt the subject who raped V.O.” Smith was charged with rape,
robbery, and burglary.
Smith moved to suppress the DNA evidence on the grounds that its
admission violated the Fourth Amendment, Article I, Section 11 of the
Indiana Constitution, and Indiana Code section 10-1-9-8. The trial court
denied Smith’s motion and the order was certified for interlocutory appeal
pursuant to Indiana Appellate Rule 4(B)(6). The Court of Appeals affirmed,
Smith v. State, 734 N.E.2d 706 (Ind. Ct. App. 2000), and we grant transfer.

I. The Fourth Amendment

The sample in question was in the hands of the Crime Lab, but was
derived from Smith pursuant to a court order in an unrelated case. The
State contends that under these circumstances there was no “seizure” within
the meaning of either the federal or state constitution and, in any event,
Smith has no standing to raise the issue. Under Fourth Amendment law, the
standing and search and seizure inquiries “merge into one: whether
governmental officials violated any legitimate expectation of privacy held
by petitioner.” Rawlings v. Kentucky, 448 U.S. 98, 106 (1980). Fourth
Amendment rights are personal and may not be vicariously asserted. Rakas
v. Illinois, 439 U.S. 128, 133-34 (1978). A legitimate expectation of
privacy involves two components: “(1) did the person exhibit an actual
expectation of privacy; and (2) does society recognize that expectation as
reasonable?” Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994) (citing Katz
v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
Smith had a legitimate expectation of privacy in his body and blood
samples at the time they were taken in the investigation of Case 1. See
Schmerber v. California, 384 U.S. 757, 770 (1966). We agree that this
includes the DNA residing in the cells of these samples. However, he does
not challenge the original court order that authorized the seizure of these
items. There has been no seizure or invasion of Smith’s privacy since the
initial samples taken in Case 1. His claim thus reduces to the contention
that the information must be destroyed after the investigation that
analyzed it is concluded, or at least cannot be used in a subsequent
investigation. We agree with several courts that have held that, once DNA
is used to create a profile, the profile becomes the property of the Crime
Lab. Thus, Smith had no possessory or ownership interest in it. Nor does
society recognize an expectation of privacy in records made for public
purposes from legitimately obtained samples. As the Court of Appeals
pointed out, courts from other jurisdictions have held that the comparison
of a DNA profile with other DNA evidence from a database does not violate
the Fourth Amendment. Bickley v. State, 489 S.E.2d 167, 170 (Ga. Ct. App.
1997); Wilson v. State, 752 A.2d 1250, 1272 (Md. Ct. Spec. App. 2000);
People v. King, 663 N.Y.S.2d 610, 614-15 (N.Y. App. Div. 1997). We agree.
II. Article I, Section 11
Smith also challenges the “seizure” of DNA records under Article I,
Section 11 of the Indiana Constitution. Although this section and the
Fourth Amendment are worded identically, as the Court of Appeals noted, the
state constitutional standard has evolved differently from the Fourth
Amendment analysis:
To argue that a search or seizure is unreasonable, Smith “must
establish ownership, control, possession, or interest in either the
premises searched or the property seized.” Peterson v. State, 674
N.E.2d 528, 534 (Ind. 1996). The property at issue in the instant
case is a DNA profile record compiled by the Crime Lab. Smith has
failed to show that he has any possessory interest or any other
interest in the records kept by the Crime Lab. Inasmuch as Smith has
no possessory interest in the profile record, Smith lacks standing to
challenge the Crime Lab’s use of its own record.

Smith, 734 N.E.2d at 710-11.
Furthermore, “the purpose of Article 1, Section 11 is to protect from
unreasonable police activity, those areas of life that Hoosiers regard as
private.” Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). The police
action in obtaining DNA samples from a rape suspect, and then comparing
that profile to those created in other cases, was reasonable police conduct
and not an unreasonable invasion of any private area of life.
The Court of Appeals, in addressing the Fourth Amendment claim,
observed that:
The closest analogue to retention of DNA samples is the fingerprint
databank. Our supreme court has held that police are not required to
destroy an individual’s fingerprint records after acquittal. Mavity
v. Tyndall, 224 Ind. 364, 66 N.E.2d 755 (1946). Balancing the public
interest against the individual’s right to privacy, the court observed
that fingerprint records were “available and valuable only to the
expert searching for criminals.” Id. at 760. Our supreme court has
also found that the State’s interest in making records of arrested
parties outweighed the right to privacy a defendant may have in his
arrest records. Voelker v. Tyndall, 226 Ind. 43, 47-48, 75 N.E.2d
548, 551 (1947). In Kleiman v. State, this court upheld the
constitutionality of the statute limiting expungement of arrest
records despite a defendant’s acquittal. 590 N.E.2d 660, 662 (Ind. Ct.
App. 1992).

Smith, 734 N.E.2d at 709 (footnote omitted). We think this point is
equally persuasive as to Article I, Section 11 of the Indiana Constitution.
As the Court of Appeals noted under the Indiana Constitution, this
Court has “recognized that law enforcement agencies are permitted to retain
and reuse fingerprint records as well as other records of arrested
parties.” Smith, 734 N.E.2d at 711 (citing Voelker v. Tyndall, 226 Ind.
43, 47-48, 75 N.E.2d 548, 551 (1947); State ex rel. Mavity v. Tyndall, 224
Ind. 364, 378, 66 N.E.2d 755, 760-61 (1946)). We agree that this is
equally true for DNA profiles.
In sum, Smith has no standing to contest the comparison of his DNA
profile to the evidence gathered from V.O.’s crime, and that comparison
does not constitute a search or seizure under the Indiana Constitution.
Accordingly, Smith raises no issue under Article I, Section 11.
III. Indiana Code section 10-1-9-8
Finally, Smith claims that inclusion of his DNA profile in the Crime
Lab database violated Indiana Code section 10-1-9-8. In 1996, that section
authorized the Superintendent of the State Police to create an Indiana DNA
database consisting of “records for convicted criminals, crime scene
specimens, unidentified missing persons, and close biological relatives of
missing persons.” Ind.Code § 10-1-9-8(a) (1998).
Smith argues that Indiana Code section 10-1-9-8 authorizes retention
of DNA samples only in the four limited categories. Because he is not a
convicted criminal, his DNA profile falls in none of the four. He contends
that the statutory categories are exhaustive. As he puts it, the section
is “restrictive legislation” that under State ex rel. Mavity v. Tyndall,
224 Ind. 364, 66 N.E.2d 755 (1946), requires DNA to be destroyed unlike
fingerprints or arrest records.[1]
Section 10 of the same chapter provides that a person convicted of an
offense against the person, burglary, or child solicitation is required to
provide a DNA sample for the database. Section 20 provides that a person
whose DNA has been included in the database may request its removal if the
“conviction on which the authority for inclusion in the Indiana DNA
database has been reversed.”
It is clear that this statute was drafted with concern for widespread
dissemination of the records. Section 22 refers to the “privacy standards”
in the statute. Access to the database is limited to law enforcement
agencies by section 21. Section 16 provides that unauthorized use of
information in the database is a Class A misdemeanor. The statute provides
for “expungement” of records on a showing of reversal of the conviction
that “authorized” the inclusion of a profile. Ind.Code § 10-1-9-20 (1998).
Use of the term “authorized” rather than “required” in describing the
effect of a conviction suggests that the databank is to include only
profiles of samples that fit within one of the four categories of (1)
convicted criminals, (2) crime scene samples, (3) unidentified missing
persons, or (4) close biological relatives of missing persons.
The statute also includes some provisions that apply to any
“laboratory conducting forensic DNA analysis in Indiana.” Id. § 10-1-9-14.
Under section 14(c) they are required to “forward relevant DNA database
records to the state police laboratory.” Their disclosure of DNA analysis
is restricted by section 17 to law enforcement, defense counsel, and
certain other limited circumstances.
Smith contends that because he was acquitted in Case 1, the sample
taken in that case falls into none of the four categories for which the
database was created. From this, he reasons that the admission of his DNA
profile would violate the database statute. We agree that he meets none of
the criteria for inclusion in the database, but disagree that exclusion of
the evidence of the DNA match is a consequence of that circumstance.
As a preliminary matter, it is not clear whether the database statute
is relevant at all. The DNA profile in question was initially created by
the Crime Lab, a Marion County Agency. Apparently the Crime Lab was also
the agency that performed the initial analysis that “tentatively”
identified Smith as a match to V.O.’s assailant. At this point we can
only speculate as to the application of the statute. None of the
provisions applicable to any laboratory in this state appear to be
implicated by Smith’s motion, and we cannot divine the relationship between
the Crime Lab and the database, either in general or in relation to this
case. It is not clear from the record in this case whether the Indiana DNA
Database authorized by the statute played any role in the identification of
Smith’s profile, whether the Crime Lab acted independently of the database,
or whether the nature of the Crime Lab is such that its records should be
deemed part of the database authorized by the statute.
In any event, assuming the database is implicated, we agree with Smith
that the statute seems to limit inclusion of profiles to the statutory
categories. As noted, it refers to “expungement” of records “authorized”
to be included by reason of a conviction. The implication seems strong
that without the conviction, the inclusion is not “authorized.” And the
inclusion of the statutory list of eligible profiles seems meaningless
without construing it, as Smith urges, to limit the profiles that may be
maintained in the database. Moreover, if profiles from arrest records—as
opposed to profiles of convicted criminals—were to be maintained, as they
are with respect to fingerprints, it would have been easy enough for the
statute to say so. We conclude that the statute was hammered out to
balance concerns for potential misuse of a mass of profiling of the
citizenry against the obvious and very significant contribution to law
enforcement that the database can make. Accordingly, Smith’s motion raises
the question whether the exclusionary rule applicable to searches and
seizures that violate the state or federal constitution should apply to
profiles that are included in the database from sources not authorized by
the statute.
The rule excluding evidence seized in violation of the state
constitution was adopted in Indiana in Callender v. State, 193 Ind. 91, 96,
138 N.E. 817, 818 (1922), long before Mapp v. Ohio, 367 U.S. 643, 655-57
(1961), held that the exclusionary rule was a requirement of the federal
constitution in state proceedings as to evidence seized in violation of
Fourth Amendment standards. The rule is entirely a creation of judicial
precedent. Nothing in the state or federal constitution explicitly
requires it. Similarly, there is no statutory direction as to the
admissibility of DNA profiles included or retained in the database without
statutory authorization. Unlike the two constitutions, however, the
database statute does include a number of explicit prohibitions and
sanctions. As already noted, some misuse of the information is subject to
criminal penalties. The Superintendent is given explicit direction to
promulgate rules for the implementation of the statute. Section 22
provides that a laboratory’s failure to meet “quality and privacy standards
described in this Chapter” may result in denial of the privilege of
exchanging records with other criminal justice agencies. Because of this
range of other sanctions, we are not faced with the total absence of
incentive to comply with the law that led both state and federal courts to
adopt the exclusionary rule as to constitutional violations. Mapp, 367 U.S.
at 643; Weeks v. United States, 232 U.S. 383 (1914); Callender, 193 Ind. at
91, 138 N.E. at 818.
Exclusion of extremely valuable evidence in crimes that often leave
little other trace is a major social cost. In the absence of a clear
directive from the legislature on the need to exclude this evidence and in
view of the very substantial law enforcement benefits from the database, we
conclude that the potential for abuse in the future is not sufficiently
clear to warrant adopting a rule excluding evidence from the database on
the ground that it was obtained or retained beyond the authorized
classifications. The statute is relatively recent. An exclusionary rule
would prioritize the need for compliance by the authorities with the
statute over the cost of exclusion of obviously critical evidence as to a
serious crime. If experience with the database statute suggests that
denial of admissibility of DNA profiles obtained in violation of the
statute is the only practical means of securing compliance with the
“privacy standards described in [the database statute]” we can revisit this
issue. The General Assembly is free to reconsider it at any time.

Conclusion

The trial court’s denial of the motion to suppress is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
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[1] The Mavity Court stated, “[W]e can see no valid reason for the[]
surrender or destruction [of fingerprint records] by the police. At least
none so compelling as to justify our substituting a judicial discretion for
the executive discretion permitted by the absence of restrictive
legislation.” 224 Ind. at 378, 66 N.E. at 760 (emphasis added).