COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Fitzpatrick
Argued at Richmond, Virginia
DERRICK A. PHARR
OPINION BY
v. Record No. 1744-05-4 JUDGE JEAN HARRISON CLEMENTS
JUNE 26, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Vanessa Antoun for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Derrick A. Pharr (appellant) was convicted in a jury trial of rape, in violation of Code
§ 18.2-61, and breaking and entering with intent to commit rape, in violation of Code § 18.2-89.
On appeal, he contends the trial court erred in denying his motion to suppress the
Commonwealth’s evidence relating to a buccal swab he voluntarily provided in an unrelated
criminal investigation. Appellant argues the police’s use of the buccal swab in this case to obtain
his DNA profile for comparison with DNA evidence recovered from the victim violated his
rights under the Fourth Amendment. We disagree and affirm the judgment of the trial court.
I. BACKGROUND
The facts relevant to this appeal are not in dispute. During the early morning hours of
August 18, 1999, someone broke into the victim’s residence and raped her. The victim was
unable to identify her attacker. Samples of seminal fluid were collected from the victim using a
Physical Evidence Recovery Kit (PERK). Detective Joanne Studer investigated the crime, but
the case remained unsolved.
In June 2001, Detective Roger Siegal arrested appellant in connection with a different
breaking and entering with intent to commit rape offense. In that case, appellant was identified
by two teenage girls who had awakened to find him in their bedroom with his pants down. The
police retrieved a knife and a white rag from the floor of the bedroom and found fingerprints
above the window where entry to the home had been gained. Told by Detective Siegal about this
evidence, appellant admitted breaking into the residence and being near the victims’ beds, but
denied bringing the rag into the bedroom.
Believing the circumstances of the offense were indicative of a sexual intent on
appellant’s part, Detective Siegal, who normally investigated property crimes, requested
assistance from the major crimes section of the police department. Detective Robert Bond, who
regularly investigated sex crimes, responded to the station where appellant was being
interviewed.
Based on the description of the crime, Detective Bond believed that a sex crime might
have occurred and wanted to test the white rag for “biological products.” He and Detective
Siegal told appellant they would like to obtain a buccal swab from him so they could compare
his DNA to any DNA evidence found at the crime scene. When the detectives asked appellant
“if he would agree to do a buccal swab,” he said yes. Appellant then stood up and opened his
mouth to let Detective Bond swab the inside of his mouth. Appellant was not a suspect in the
unsolved August 18, 1999 rape case at the time.
Ultimately deciding they had other “sufficient evidence to convict [appellant] of the
[2001] crime,” the police did not obtain a DNA comparison between the white rag and the buccal
swab.1 Appellant’s buccal swab, however, did not go unanalyzed.
1
Appellant apparently pled guilty to statutory burglary in the 2001 case.
-2-
After obtaining the buccal swab from appellant, Detective Bond returned to his office.
There, while reflecting on the circumstances of the 2001 burglary, he recalled the unsolved
August 18, 1999 rape case that he had briefly helped Detective Studer investigate. Although it
had not occurred to him earlier that the two crimes might be related, based on their proximity and
the similar methods of operation used in each, he thought that appellant might also be connected
to the earlier offense. The next day, he discussed the 2001 burglary with Detective Studer.
Following their discussion, he gave appellant’s buccal swab to Detective Studer to compare
appellant’s DNA with the DNA evidence recovered in the 1999 case.
Shortly thereafter, Detective Studer submitted the PERK samples from the 1999 case and
appellant’s buccal swab to the state laboratory for a DNA comparison analysis. In October 2004,
she resubmitted those items to the state laboratory for a second DNA comparison analysis. Both
analyses showed that the DNA extracted from the sperm recovered from anorectal swabs taken
from the victim in the 1999 case matched the DNA profile obtained from appellant’s buccal
swab. Mary Green, the forensic scientist at the state laboratory who performed both DNA
comparison analyses, concluded that the “probability of randomly selecting an unrelated
individual with the same DNA profile obtained from the sperm fraction of the anorectal swabs
[was] one in greater than 6.0 billion, which is approximately the world population.”
Following his indictment for the August 18, 1999 offenses, appellant moved to have the
buccal swab and all related DNA evidence suppressed on Fourth Amendment grounds. After
conducting a suppression hearing, the trial court denied the motion, finding that appellant’s
reasonable privacy interest in the buccal swab and related DNA evidence ended when he
voluntarily provided the buccal swab to the police for purposes of determining his DNA profile
for comparison with DNA evidence in a criminal investigation. Thus, the court concluded, the
-3-
testing of the buccal swab in the 1999 rape case did not implicate Fourth Amendment protections
because appellant “did not have a privacy interest preventing the testing in the 1999 case.”
Appellant was subsequently convicted of the August 18, 1999 crimes and sentenced.
This appeal followed.
II. ANALYSIS
On appeal, appellant concedes he voluntarily consented to the taking of the buccal swab
so the police could compare his DNA profile to any DNA evidence found at the scene of the
2001 breaking and entering with intent to commit rape offense, for which he had just been
arrested. He asserts, however, that, because his consent did not specifically extend to any other
criminal investigations and because the buccal swab went unused in connection with the
investigation of the 2001 offense, he retained a reasonable expectation of privacy in his DNA
sample even after the police lawfully obtained the swab. Thus, he argues, the police’s use of the
buccal swab to obtain his DNA profile for comparison to DNA evidence recovered from the
victim in this unrelated case constituted an illegal search in violation of the Fourth Amendment.
Accordingly, he concludes, all DNA evidence related to the buccal swab should have been
suppressed as “the fruits of an illegal search” and the trial court erred in denying his motion to
suppress that evidence.
The Commonwealth contends the trial court properly denied appellant’s motion to
suppress the DNA evidence obtained from the buccal swab because appellant relinquished his
reasonable expectation of privacy in that evidence when he voluntarily gave the swab to the
police knowing it would be tested to identify his DNA profile for comparison in a criminal
investigation. We agree with the Commonwealth.
Generally, evidence obtained as the result of a search that violates a defendant’s Fourth
Amendment rights is inadmissible at a criminal trial and must be suppressed. See, e.g., Johnson
-4-
v. Commonwealth, 26 Va. App. 674, 689, 496 S.E.2d 143, 150 (1998) (holding that all evidence
obtained by the police pursuant to an unlawful search in violation of the Fourth Amendment
“should have been excluded, and the trial court erred in denying the motion to suppress”). On
appeal from a trial court’s denial of a motion to suppress, the burden is on the appellant to show that
the denial of the motion constituted reversible error. See Fore v. Commonwealth, 220 Va. 1007,
1010, 265 S.E.2d 729, 731 (1980). In reviewing such a denial, we consider the evidence in the light
most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences
fairly deducible from the evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991). While “‘we are bound by the trial court’s findings of historical fact unless
“plainly wrong” or without evidence to support them,’” we “consider de novo whether those facts
implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an
area protected by the Fourth Amendment.” McNair v. Commonwealth, 31 Va. App. 76, 82, 521
S.E.2d 303, 306 (1999) (en banc) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc)).
Subject to certain established exceptions, the Fourth Amendment prohibits “warrantless
searches of any place or thing in which a person has a reasonable expectation of privacy.” Sheler v.
Commonwealth, 38 Va. App. 465, 476, 566 S.E.2d 203, 208 (2002) (emphasis added) (citing
Mincey v. Arizona, 437 U.S. 385, 390 (1978)). Accordingly, the Fourth Amendment “does not
protect the merely subjective expectation of privacy, but only those ‘[expectations of privacy] that
society is prepared to recognize as “reasonable.”’” Oliver v. United States, 466 U.S. 170, 177
(1984) (alteration in original) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring)).
-5-
Hence, a “search” within the meaning of the Fourth Amendment occurs only “when the
government violates a subjective expectation of privacy that society recognizes as reasonable.”2
Kyllo v. United States, 533 U.S. 27, 33 (2001). And conversely, “a Fourth Amendment search
does not occur” where society is unwilling to recognize the subjective expectation of privacy as
reasonable. Id.; cf. Anderson v. Commonwealth, 25 Va. App. 565, 572, 490 S.E.2d 274, 277
(1997) (“Absent a legitimate expectation of privacy, there can be no violation of the Fourth
Amendment.”), aff’d en banc, 26 Va. App. 535, 495 S.E.2d 547, aff’d, 256 Va. 580, 507 S.E.2d 339
(1998). Accordingly, while the warrantless “[o]btaining and examining [of human biological]
evidence may . . . be a [Fourth Amendment] search if doing so infringes an expectation of
privacy that society is prepared to recognize as reasonable,” Skinner v. Railway Labor
Executives’ Ass’n, 489 U.S. 602, 616 (1989) (citations omitted), the warrantless obtaining and
examining of such evidence does not constitute a Fourth Amendment search where the
subjective expectation of privacy infringed by the government is not one that society recognizes
as reasonable.
Here, there is no question that the DNA sample provided by appellant was validly
obtained by the police in connection with their investigation of the 2001 breaking and entering
with intent to commit rape offense. Indeed, as previously mentioned, appellant concedes he
voluntarily consented to the police’s obtaining his genetic material via the buccal swab for the
purpose of identifying his DNA profile for comparison in a criminal investigation. Moreover, it
is undisputed that appellant did not expressly limit his consent with regard to the police’s future
2
For purposes of this appeal, we assume, without deciding, that appellant retained a
subjective expectation of privacy in his DNA sample outside the context of the investigation of the
2001 offense.
-6-
use of the DNA sample in other criminal investigations when he voluntarily provided the buccal
swab.3
The question before us, then, is whether an individual who voluntarily provides, without
express limitation on its use, a DNA sample to the police during the investigation of a criminal
offense retains a reasonable expectation of privacy in that DNA sample sufficient to prevent the
police from using it in their investigation of an unrelated criminal offense. To resolve this
question, we must determine whether the subjective expectation of privacy infringed by the
police’s use of the DNA sample in the investigation of the unrelated offense is one that society
recognizes as reasonable. If not, the individual’s subjective expectation of privacy is not
reasonable and the police’s use of the DNA sample in the unrelated case is not a “search” within
the meaning of the Fourth Amendment.
Although the issue before us is one of first impression in Virginia, the overwhelming
weight of relevant authority from our sister states indicates that society is unwilling to recognize
as reasonable the subjective expectation of privacy infringed by the government when a DNA
sample validly obtained from a suspect in one criminal case is used to analyze and compare the
suspect’s DNA in an unrelated criminal case.
For instance, the court in People v. King, 663 N.Y.S.2d 610, 614 (N.Y. App. Div. 1997),
held that the defendant’s Fourth Amendment rights were not violated when a blood sample
lawfully obtained from the defendant in connection with the investigation of an alleged August
3
Likewise, the trial court found, as a matter of fact, that, although appellant “had the
understanding [that the DNA evidence obtained from the buccal swab] was going to be used for
the 2001 offense,” the scope of his consent was not implicitly limited to the investigation of that
offense. Because this finding is supported by the record and not plainly wrong, we are bound by
it. See Bynum v. Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996) (“Both the
presence of consent to search and any related limitations are factual issues for the trial court to
resolve after consideration of the attendant circumstances.”).
-7-
1991 rape was used by the government to compare the defendant’s DNA with DNA recovered
from the scene of a May 1991 rape. It is clear, the court stated in reaching that decision, that,
once a person’s blood sample has been lawfully obtained, he can
no longer assert either privacy claims or unreasonable search and
seizure arguments with respect to the use of that sample. Privacy
concerns are no longer relevant once the sample has already
lawfully been removed from the body, and the scientific analysis
of a sample does not involve any further search and seizure of a
defendant’s person. In this regard we note that the defendant could
not plausibly assert any expectation of privacy with respect to the
scientific analysis of a lawfully seized item of tangible property,
such as a gun or a controlled substance. Although human blood,
with its unique genetic properties, may initially be qualitatively
different from such evidence, once constitutional concerns have
been satisfied, a blood sample is not unlike other tangible property
which can be subject to a battery of scientific tests.
Id.
The courts of other states have reached a similar conclusion. See, e.g., Washington v.
State, 653 So. 2d 362, 364 (Fla. Dist. Ct. App. 1994) (per curiam) (holding that, where the
defendant voluntarily provided biological samples to the police in one case, the police were not
constitutionally restrained from using those samples to prove defendant’s guilt in an unrelated
case); State v. Hauge, 79 P.3d 131, 141-42 (Haw. 2003) (holding that the defendant’s privacy
interest in the blood sample used for DNA analysis and comparison in the present burglary case
terminated when that sample was lawfully obtained from the defendant in an unrelated robbery
case); Patterson v. State, 744 N.E.2d 945, 947 (Ind. Ct. App. 2001) (holding that “society is not
prepared to recognize as reasonable an individual’s expectation of privacy in a blood sample
lawfully obtained by police” in an unrelated case); Wilson v. State, 752 A.2d 1250, 1272 (Md.
Ct. Spec. App. 2000) (holding that the subsequent DNA analysis of the defendant’s biological
sample did not violate his Fourth Amendment rights because any expectation of privacy the
defendant had in that sample “disappeared” when it was validly obtained in an earlier, unrelated
case); State v. Notti, 71 P.3d 1233, 1238 (Mont. 2003) (holding that the defendant “waived any
-8-
reasonable expectation of privacy” in his blood sample and DNA profile when he voluntarily
consented to the withdrawal of the blood for DNA testing in an unrelated criminal investigation);
Herman v. State, 128 P.3d 469, 473 (Nev. 2006) (holding that “a defendant extinguishes any
expectation of privacy by voluntarily providing a DNA sample without limiting the scope of his
consent”); State v. Barkley, 551 S.E.2d 131, 134-35, (N.C. Ct. App. 2001) (holding that, where
the defendant voluntarily “consented to have his blood drawn to exonerate himself” in a prior
case, his Fourth Amendment rights were not violated when the DNA analysis of that blood was
used in the present, unrelated case to implicate him); State v. McCord, 562 S.E.2d 689, 693 (S.C.
Ct. App. 2002) (holding that the use in the present case of a blood sample obtained from federal
authorities to identify and compare the defendant’s DNA did not constitute an improper search
under the Fourth Amendment because the defendant’s “expectation of privacy was extinguished
when he voluntarily gave the blood sample to federal authorities [in an unrelated case] without
any limitation on the scope of his consent”).
Appellant cites Ferguson v. City of Charleston, 308 F.3d 380 (4th Cir. 2002), cert denied,
539 U.S. 928 (2003), as support for his claim that, under the Fourth Amendment, the police
could not properly have his DNA sample tested in connection with the investigation of the 1999
offenses without first obtaining his additional, specific consent (or a search warrant authorizing
them) to do so. In Ferguson, the Fourth Circuit held that a hospital’s policy of turning over
obstetrical patients’ cocaine-positive urine screens to the police violated the Fourth Amendment
because the patients consented to having their urine tested only for medical, as opposed to law
enforcement, purposes. Id. at 398-404. Here, however, appellant specifically consented to
having his DNA taken, tested, and identified for purposes of criminal investigation, and it was
for those purposes that appellant’s DNA sample was used by the police in this case. Thus, the
principles enunciated in Ferguson are inapposite to the issue before us.
-9-
Guided by the foregoing relevant authorities, we conclude that appellant’s continued
subjective expectation of privacy in his DNA sample outside the context of the investigation of
the 2001 offense is not one that society recognizes as reasonable. His reasonable expectation of
privacy in that sample ended when he voluntarily provided it to the police for DNA testing and
comparison, without limiting its subsequent use for the same purpose in other investigations.
Because appellant did not have a reasonable expectation of privacy in the sample when the
police used it to obtain his DNA profile for comparison to DNA evidence recovered from the
victim in this case, that DNA analysis of the sample did not constitute a Fourth Amendment
search. See Kyllo, 533 U.S. at 33 (holding that “a Fourth Amendment search does not occur”
where society is unwilling to recognize the subjective expectation of privacy as reasonable).
Accordingly, the DNA analysis of the validly obtained sample did not trigger Fourth Amendment
protections, and the trial court properly denied appellant’s motion to suppress.
III. CONCLUSION
For these reasons, we affirm the judgment of the trial court and appellant’s convictions.
Affirmed.
- 10 -