United States v. Earl Davis

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 09-4890

EARL WHITTLEY DAVIS, a/k/a Baby

Earl, a/k/a E,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Roger W. Titus, District Judge.

(8:07-cr-00199-RWT-1)

Argued: December 9, 2011

Decided: August 16, 2012

Before AGEE, DAVIS, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the major-

ity opinion, in which Judge Keenan joined. Judge Davis wrote

a dissenting opinion.

COUNSEL

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

Deborah A. Johnston, OFFICE OF THE UNITED STATES

2 UNITED STATES v. DAVIS

ATTORNEY, Greenbelt, Maryland, for Appellee. ON

BRIEF: James Wyda, Federal Public Defender, Baltimore,

Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Baltimore, Maryland, Emily N. Glatfelter, Assistant

United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Greenbelt, Maryland, for Appellee.

OPINION

AGEE, Circuit Judge:

A jury convicted Earl Whittley Davis of various federal

offenses arising from a course of conduct that included the

armed robbery and murder during that robbery of an armored

car employee, Jason Schwindler, as well as a subsequent car-

jacking.1 On appeal, Davis challenges the use of DNA evi-

dence against him at trial, and also argues that the district

court erred in excluding expert testimony proffered by Davis

in an attempt to undermine an eyewitness identification of

him. For the reasons set forth below, we affirm the judgment

of the district court.

I.

All of Davis’ convictions arose from the same brief course

of events occurring in Prince George’s County, Maryland.

The district court accurately summarized the facts as follows:

On August 6, 2004, shortly before 1:00 p.m., Jason

Schwindler, an armored car employee, picked up a

1

Specifically, Davis was convicted of Hobbs Act robbery, in violation

of 18 U.S.C. § 1951, two counts of possession and discharge of a firearm

in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c),

one count of possession and discharge of a firearm in furtherance of a

crime of violence resulting in death, in violation of 18 U.S.C. § 924(j), and

one count of carjacking, in violation of 18 U.S.C. § 2119.

UNITED STATES v. DAVIS 3

bank deposit from a local business and took it to a

nearby BB&T bank in Hyattsville, Maryland. As

Schwindler walked up to the bank entrance, two

[gunmen] exited a Jeep Cherokee and began shoot-

ing at Schwindler, killing him. When their escape in

the Jeep was thwarted by the armored truck driver,

the assailants carjacked a bank customer and fled in

her vehicle[, a Pontiac Grand Am, which] was later

recovered.

United States v. Davis, 657 F. Supp. 2d 630, 635 (D. Md.

2009).

After the murder, officers from the Prince George’s County

Police Department ("PGCPD") responded to the scene and

collected numerous items of evidence, including a baseball

cap worn by one of the shooters, two firearms, ammunition,

and the steering wheel covers from the Jeep Cherokee and the

Grand Am. After swabbing and analyzing the items for DNA,

the profiles of the major contributors to the DNA found in the

ball cap and on the triggers and grips of the recovered fire-

arms were entered into the local Combined DNA Index Sys-

tem ("CODIS") database.2 A search of the local database led

to a "cold hit" between the DNA recovered at the Schwindler

murder scene and Davis’ DNA profile, which was already

present in the local database.

Based on the "cold hit," officers obtained a search warrant

to obtain a sample of Davis’ DNA directly from him, which

again matched the evidence from the Schwindler murder

scene. Evidence of this second match was introduced at trial

in this case.

2

CODIS is a linked system that allows local, state, and federal forensics

laboratories the ability to exchange, share and compare DNA profiles elec-

tronically. See United States v. Mitchell, 652 F.3d 387, 399 (3d Cir. 2011)

(en banc).

4 UNITED STATES v. DAVIS

Prior to trial, Davis filed a motion to suppress the use of all

DNA evidence against him, arguing that his DNA profile had

been obtained by police and entered into the local PGCPD

DNA database in violation of his Fourth Amendment rights.

The district court held an evidentiary hearing, but declined to

rule on the motion to suppress immediately, instructing the

parties to continue preparing for trial. After a jury found

Davis guilty of the charges, the district court issued a lengthy

written order denying the motion to suppress. Davis, 657 F.

Supp. 2d 630-67. Davis was sentenced by the district court on

September 18, 2009 to a term of life imprisonment plus 420

months.3

Davis noted a timely appeal, and we have jurisdiction pur-

suant to 28 U.S.C. § 1291.

II.

Background and Proceedings Below

On August 29, 2000, almost four years before the Sch-

windler murder, Davis arrived at Howard County General

Hospital with a gunshot wound to his leg. He claimed to be

a robbery victim and reported that he had been shot by the

purported robber. Hospital personnel called the police, as

Maryland law required, and Patrol Officer Joseph King of the

Howard County, Maryland, Police Department ("HCPD")

responded to the call.4 Officer King found Davis lying on a

bed in the emergency room. He was conscious, sitting up, and

able to converse with Officer King at the time. Davis’ pants

3

The death penalty was originally sought in this case, but the district

court held that Davis was ineligible for the death penalty because he meets

the legal definition for mental retardation. That ruling is not challenged on

appeal.

4

Although the parties and the district court sometimes referred to the

two HCPD officers using their titles at the time of the suppression hearing,

we use their titles in 2000, as described by them.

UNITED STATES v. DAVIS 5

and boxer shorts had been removed by hospital personnel and

placed in a plastic hospital bag, which was stored on a shelf

beneath the bed. Officer King observed Davis’ gunshot

wound and secured Davis’ pants and boxer shorts as evidence

of the reported shooting. He did so without express permis-

sion from Davis (although Davis saw him take the clothing)

and without a warrant. He then gave those items to his col-

league, Detective Steven Lampe, who placed them in the

HCPD "property room," to be held as evidence in the prose-

cution of Davis’ assailant.

At the suppression hearing, Officer King testified that he

could not recall exactly what the bag looked like containing

Davis’ clothes, and neither could Detective Lampe, except

that the bag was "plastic." (J.A. 166.) Officer King testified,

however, that he had "responded to the hospital on numerous

calls," that he knew it was the hospital’s "practice to secure

any property" taken from a patient and that the hospital placed

that "[c]lothing from a victim . . . under [the patient’s] bed."

(J.A. 147.) He also testified that he did not need "permission

from anyone in the hospital to access" the bag. (J.A. 150.)

No one was ever charged in the August 2000 shooting of

Davis, and neither his clothing nor the blood on it were ever

tested in connection with that shooting. Davis was not con-

tacted or advised that the shooting investigation was no longer

being pursued by the HCPD, nor was he offered the opportu-

nity to retrieve his clothing. Instead, Davis’ clothes, contain-

ing his DNA material,5 were simply retained by the HCPD.

In order to give a more complete picture of later events, we

note certain additional facts concerning Davis’ hospital stay.

5

We use the term "DNA material" to refer to any physical body sample

that contains deoxyribonucleic acid (DNA) identification information. See

42 U.S.C. § 14135a(c)(2) (defining DNA analysis for purposes of includ-

ing DNA profiles in CODIS as the "analysis of [DNA] identification infor-

mation in a bodily sample").

6 UNITED STATES v. DAVIS

First, although Davis had given a false name and false driv-

er’s license upon his admission to the hospital, police later

learned his true identity through fingerprinting analysis. Addi-

tionally, from the beginning of their questioning of Davis,

Officer King and Detective Lampe believed Davis was being

uncooperative so they conducted further investigation. That

investigation led to the discovery of marijuana in the vehicle

in which Davis had arrived at the hospital, as well as several

other potentially incriminating items, such as a t-shirt and a

ball cap that said "FBI," a handheld radio, leg shackles,

gloves, and a mask. As a result, Davis was arrested on drug

charges upon his release from the hospital, but those charges

were later dropped.

The government does not dispute that Davis’ clothing was

seized initially because it was evidence of a crime in which

he was a victim. The clothing was logged into the HCPD

property room, however, on the same sheet with the mari-

juana found in the car and the false ID card Davis had pre-

sented. It also was Davis’ arrest record on the drug offense

that later led the PGCPD to inquire and learn about the exis-

tence of the seized clothing. Davis, 657 F. Supp. 2d at 634-35

(noting that in April 2004, Lampe "was contacted by mem-

bers of [PGCPD], who asked him questions about the arrest

of Earl Davis in 2000."). When the clothing was later checked

out to the PGCPD for testing in a subsequent murder investi-

gation, however, the form indicated that the clothes and blood

were from the victim of a shooting. In effect, then, Davis had

a "dual status" throughout the events in this case—he was

both victim and arrestee—a fact which becomes important

when analyzing his Fourth Amendment claims.

In June 2001, an individual named Michael Neal was mur-

dered in Prince George’s County. In April 2004, a PGCPD

homicide detective investigating the Neal murder, Detective

K. Jernigan, learned that Davis had previously been arrested

in Howard County and that the HCPD had Davis’ clothes.

UNITED STATES v. DAVIS 7

The PGCPD suspected Davis was involved in the Neal murder.6

As a result, they requested and obtained Davis’ clothing,

without a warrant, from the HCPD.

In June 2004, the PGCPD extracted Davis’ DNA from the

blood stains on Davis’ pants, again without a warrant, and

created a DNA profile from the test results. That DNA was

compared to an unknown DNA sample recovered from the

scene of the Neal homicide, but there was no match. Despite

the fact that Davis’ DNA profile excluded him as the source

of the evidentiary sample from the Neal murder, the PGCPD

nonetheless retained his DNA profile, and approximately one

week later, included it in their local DNA database.

At a hearing before a Maryland state court in its Schwindler

murder prosecution,7 which is part of the record before us, the

DNA analyst for the PGCPD, Julie Kempton, testified con-

cerning the extraction of Davis’ profile and its entry into the

local database. She testified that she was told by a detective

that the boxer shorts were taken "from a suspect, from a hos-

pital emergency room where he had been brought in [she]

believe[d] for a shooting[.]" (Supp. J.A. 93.) She further testi-

fied that her testing ultimately excluded Davis’ profile as a

match in the Neal homicide. (Supp. J.A. 93-94.) She also tes-

tified that she knew that, at the state level of the CODIS data-

base, a suspect’s profile should be deleted if the court ordered

6

The parties are not clear in their briefs and do not point to any record

evidence concerning what supported the PGCPD’s suspicion that Davis

was involved in the Neal murder. Nonetheless, we presume for purposes

of this appeal that, whatever level of suspicion it was, it was insufficient

to establish probable cause.

7

Davis was initially charged in Prince George’s County Circuit Court

and prosecution began there by the Prince George’s County State’s Attor-

ney’s Office. That office later dismissed the case against Davis in coordi-

nation with the U.S. Attorney’s Office in favor of a federal prosecution.

The testimony of the analyst before the Maryland court was attached as

Exhibit H to the Government’s Consolidated Response to Motions filed

before the district court below.

8 UNITED STATES v. DAVIS

expungement based on a vacated conviction. The record does

not disclose any other information as to why the profile was

retained, whether that was a common policy or practice, or

whether it violated any local rule, regulation, policy, or prac-

tice to do so.8

As noted earlier, in the course of the investigation of the

robbery and murder of Mr. Schwindler, when the DNA pro-

file recovered from the Schwindler crime scene was entered

into the PGCPD DNA database, a "cold hit" resulted with the

DNA sample that had been lifted from Davis’ clothing. The

PGCPD then secured a search warrant to obtain a DNA sam-

ple directly from Davis. That subsequent DNA profile of

Davis also matched the DNA samples from the Schwindler

crime scene.

Evidence of the match between the known sample obtained

via the search warrant and the crime scene evidence was

introduced at Davis’ trial. Specifically, DNA analyst Sarah

Chenoweth testified that Davis’ DNA matched DNA profiles

from the baseball cap and both cars’ steering wheel covers,

and testified as to the infinitesimally small probabilities that

the DNA on those items came from any person other than Davis.9

Davis moved to suppress the DNA evidence against him,

arguing that it was obtained in violation of the Fourth Amend-

ment. In a lengthy order denying suppression, the district

court addressed each of Davis’ challenges. The court con-

cluded that Davis’ Fourth Amendment rights were violated

only when his DNA profile was retained in the local DNA

database, after Davis’ profile did not match the DNA sample

from the Neal murder, but found no other violations. As to the

retention of Davis’ profile, the court concluded that the "good

8

Although not in evidence, there was a limited discussion at oral argu-

ment regarding what the common policy or practice was at that time. See

infra at 48-49.

9

The accuracy of the DNA match is uncontested on appeal.

UNITED STATES v. DAVIS 9

faith" exception should be applied and thus the application of

the exclusionary rule was not warranted.

III.

Davis’ Challenge to the DNA Evidence

Davis alleges three separate Fourth Amendment violations

regarding the collection and retention of his DNA. Specifi-

cally, Davis asserts that each of the following actions by

police constituted a Fourth Amendment violation: (1) the sei-

zure of his clothing from the hospital room and its subsequent

search; (2) the extraction of his DNA profile and testing in

connection with the Neal murder investigation; and (3) the

retention of his DNA profile in the local DNA database.10

For the reasons discussed below, we agree with the district

court that no Fourth Amendment violation occurred in the sei-

zure of the bag containing Davis’ clothing at the hospital. We

also agree that any subsequent "search" of the bag was not

unlawful because its contents were a foregone conclusion,

based in part on Officer King’s uncontradicted testimony that

he saw "a bag underneath of [Davis’] hospital bed that con-

tained clothing."11 We further determine that there was a

10

Before the district court, Davis’ counsel argued six different points in

which the Fourth Amendment could be implicated. On appeal, he limits

his Fourth Amendment challenges to the three recited.

11

Relying on United States v. Jackson, 131 F.3d 1105, 1108 (4th Cir.

1997), the dissent criticizes the majority opinion for its alleged failure to

recognize that the plain view doctrine can justify a seizure, but not a war-

rantless search. See generally post at 70-72.

We recognize and acknowledge, as explained in Jackson, that the plain

view doctrine is not an exception to the warrant requirement for a Fourth

Amendment search. 131 F.3d at 1108. Rather, the proper analysis is that

there was a "non-search" here—for Fourth Amendment pur-

poses—because no privacy interests were implicated. That is so because

the police were justified in "searching" the bag of Davis’ clothing because

it was a foregone conclusion that the bag contained evidence of a crime;

10 UNITED STATES v. DAVIS

Fourth Amendment violation when the PGCPD extracted

Davis’ DNA profile from his clothing and tested it as part of

the Neal murder investigation. We assume, without deciding,

that there was a separate Fourth Amendment violation in

retaining Davis’ DNA profile in the local CODIS database.

Finally, we conclude that the "good faith exception" to the

exclusionary rule applies here to both violations and thus the

DNA evidence was not required to be excluded.

We review the factual findings underlying a motion to sup-

press for clear error and the district court’s legal determina-

tions de novo. Ornelas v. United States, 517 U.S. 690, 699

(1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir.

1992). When a suppression motion has been denied, this

Court reviews the evidence in the light most favorable to the

government. United States v. Seidman, 156 F.3d 542, 547 (4th

Cir. 1998).

A.

The Seizure of Davis’ Clothing in His Hospital Room

Davis first argues that the seizure of his clothing from his

hospital room constituted a warrantless seizure that was not

justified by any exception to the warrant requirement. The

government contends that both the seizure and the subsequent

just as in United States v. Williams, upon which we rely, the police law-

fully searched a seized container because it was a foregone conclusion it

contained evidence of a crime. 41 F.3d 192, 198 (4th Cir. 1994). We

describe the action of the police in either looking in the bag or cataloguing

its contents as a "search," as that term is used in the non-technical sense,

since that is the framework utilized by the parties, by the dissent, and by

the court in Williams. See id. ("When a container has been legally seized,

and its contents are a foregone conclusion, we hold that a subsequent

search of the container is lawful under the plain view container doctrine.").

To the extent there is an issue, it is more of labeling than of substance.

UNITED STATES v. DAVIS 11

search of the bag containing the clothing were justified by the

"plain view" exception, as the district court concluded.12

For the plain view exception to the warrant rule to apply,

the government must show that: (1) the officer was lawfully

in a place from which the object could be viewed; (2) the offi-

cer had a "lawful right of access" to the seized items; and (3)

the incriminating character of the items was immediately

apparent. See United States v. Jackson, 131 F.3d 1105, 1109

(4th Cir. 1997). Davis concedes that Officer King was law-

fully in the hospital room and thus that the government has

satisfied the first requirement, but argues that the government

failed to satisfy the latter two requirements. We disagree.

As to the second requirement, Davis contends that, even

though Officer King was in the room lawfully, he did not

have lawful access to the bag of clothing. The case most heav-

ily relied upon by Davis, United States v. Neely, 345 F.3d 366

(5th Cir. 2003), is inapposite. In Neely, the Fifth Circuit held

the plain view doctrine did not allow the seizure of the

patient’s clothing, because the clothing at issue was not in

open view but in the hospital property storage room, and

required permission from hospital personnel to retrieve it. Id.

at 368, 371. Notably, the hospital patient in Neely was the sus-

pect in a criminal investigation, not the victim of a crime like

Davis. Id. at 367-68.

Neely aside, we have no difficulty finding that there was

lawful access to the clothing here. As suggested in Horton v.

California, 496 U.S. 128 (1990), the lawful access require-

ment is intended to clarify that police may not enter a prem-

12

The government also contends that, even if the plain view exception

did not apply, the clothing and DNA on it are not subject to exclusion

because those items would have been discovered and seized upon Davis’

arrest for narcotics violations as he left the hospital. The district court

rejected this argument. Davis, 657 F. Supp. 2d at 641. In light of our rul-

ing that the plain view exception applies, we do not address the alternative

argument of the government.

12 UNITED STATES v. DAVIS

ises to make a warrantless seizure, even if they could

otherwise see (from a lawful vantage point) that there was

contraband in plain sight. Id. at 137 & n.7 (describing the sec-

ond requirement and explaining that even if

"[i]ncontrovertable testimony of the senses" establishes that

an object in plain view is contraband, "the police may not

enter and make a warrantless seizure"); see also Boone v.

Spurgess, 385 F.3d 923, 928 (6th Cir. 2004) (the "lawful right

of access" requirement "is meant to guard against warrantless

entry onto premises whenever contraband is viewed from off

the premises in the absence of exigent circumstances"; thus,

while "lawfully positioned" "refers to where the officer stands

when she sees the item," "lawful right of access" refers "to

where she must be to retrieve the item"). The example given

by the government in this case is apt, i.e., the analysis of the

first and second prongs might be different if "the officer were

lawfully present outside a building, peering through a window

into a room in which he would not be lawfully present."

(Appellee’s Br. 32 n.8.) Here, however, there is no dispute

that Officer King was lawfully present in the hospital room,

and he thus had lawful access in the ordinary course of his

investigation to the bag of clothing which could be evidence

against Davis’ assailant.13 See Washington v. Chrisman, 455

U.S. 1, 8 (1982) ("when a police officer, for unrelated but

entirely legitimate reasons, obtains lawful access to an indi-

vidual’s area of privacy . . . [,] the Fourth Amendment does

not prohibit seizure of evidence of criminal conduct found in

these circumstances."); see also infra at 17-18 (discussing

13

The dissent devotes considerable ink to disputing the lawful access

prong, complete with hypotheticals unrelated to the situation in the case

at bar. See post at 65-70 and corresponding notes. Context matters, how-

ever, and the context of this case is that of a police officer who was law-

fully fulfilling his duty to investigate a reported shooting. In doing so, he

lawfully entered the emergency room of a hospital to interview the victim

of the shooting, and observed both the victim, unclothed from the waist

down, lying on a gurney with a visible gunshot wound to his upper thigh,

and a plastic bag of clothing underneath the victim’s gurney. That context

informs our conclusion that the officer had lawful access to the bag.

UNITED STATES v. DAVIS 13

cases permitting seizure of blood-stained clothing in plain

view).

The third prong of the plain view doctrine is less readily

resolved. Nonetheless, having carefully reviewed the district

court’s ruling on this point, we find no clear error in its fac-

tual findings, nor any error in its legal conclusions.

Davis’ primary argument is that while the bag may have

been in plain view, the clothes were not. Thus, he contends

that both the seizure and any subsequent search of the bag

violated his constitutional rights. The seizure implicated

Davis’ possessory interest in his clothing, and any subsequent

search implicated his privacy interest. See Texas v. Brown,

460 U.S. 730, 747 (1983) (Stevens, J., concurring in the judg-

ment). As Davis’ arguments on this issue acknowledge, under

the facts here, the two concepts overlap. Specifically, the sei-

zure of the bag was warranted under the plain view exception

only if it was immediately apparent that it contained incrimi-

nating evidence. Here, that would require it be immediately

apparent that the bag contained evidence of a crime, i.e.,

Davis’ clothing possessing blood, trace evidence, and/or a

bullet hole. Similarly, the subsequent search of the bag

(whether to identify or examine its contents), was warranted

if it was a foregone conclusion that the bag contained the

clothing, which was evidence of a crime.

As to both the seizure of the bag and any subsequent search

of the bag, the district court’s reliance on United States v. Wil-

liams, 41 F.3d 192 (4th Cir. 1994) was appropriate. In Wil-

liams, officers had properly seized five packages, which

consisted of a brown, opaque material wrapped in heavy cel-

lophane. Id. at 197-98. The defendant challenged the subse-

quent warrantless search, in which a police officer removed

the cellophane wrapping from one of the packages, poked a

hole in the opaque material surrounding its contents, removed

a small quantity of white powder and field tested the powder,

which tested positive for cocaine. Id. at 194.

14 UNITED STATES v. DAVIS

The Williams Court explained that a search of such a con-

tainer is permissible under the plain view doctrine when "the

contents of a seized container are a foregone conclusion." Id.

at 197. That is, "when a container is not closed, or transparent,

or when its distinctive configuration proclaims its contents,

the container supports no reasonable expectation of privacy

and the contents can be said to be in plain view." Id. (citations

omitted). Williams clearly stated that, "[i]n determining

whether the contents of a container are a foregone conclusion,

the circumstances under which an officer finds the container

may add to the apparent nature of its contents." Id. (citing

Blair v. United States, 665 F.2d 500, 507 (4th Cir. 1981)).

Williams also quite plainly allows the experience of the

officer to be taken into account when determining whether a

container’s contents are a "foregone conclusion." Id. at 198.

There, the Court relied on the testimony of the police officer

that, based on his ten years of experience, packages wrapped

in this manner contained narcotics, to support the Court’s

holding that the contents of the container were a "foregone

conclusion." Id. at 194, 198. The Court also noted that the

other items found in the suitcase with the wrapped packages

(towels, dirty blankets, and a shirt with a cigarette burn) were

unusual for a traveler, in that they did not contain clothing or

other items a person normally carries when traveling across

the country. Id. Thus, in conducting this inquiry, we consider

both the circumstances under which the container here was

found and Officer King’s knowledge about this particular hos-

pital’s practices and procedures and his experience in

responding to the hospital bedsides of gunshot victims in this

particular hospital.14

14

While the dissent appears to disagree with the holding of Williams in

some respects, see post at 74-75 n.13, 83, we are bound to follow our own

Circuit’s precedent "absent contrary law from an en banc decision of this

Court or a Supreme Court decision." United States v. Jeffery, 631 F.3d

669, 677 (4th Cir. 2011).

UNITED STATES v. DAVIS 15

Here, Officer King testified, without contradiction or chal-

lenge, that when he entered the curtained-off area where he

was told Davis would be, he saw Davis on a hospital bed and

observed "a bag underneath of the hospital bed that contained

clothing." (J.A. 140.) He did not testify that he walked into

the area and saw what he thought might be a bag of clothing

under the bed. Drawing the inferences from the facts in the

government’s favor, as we must, see Seidman, 156 F.3d at

547, that testimony fairly supports an inference that Officer

King could see the clothing through the bag or that the bag

was partially open, revealing clothing. Nothing in the record

contradicts such a conclusion. Because the officers were not

asked whether the bag was open or closed and could not recall

precisely what the bag looked like, however, we do not know

for certain "whether the bag was open or closed, or whether

it was transparent, opaque or somewhere in-between," Davis,

657 F. Supp. 2d at 638.15 What is clear from this record is that

Officer King expressed no doubt he observed "a bag . . . that

contained clothing." (J.A. 140.) Thus, we disagree with the

dissent’s contention that Officer King’s testimony was equiv-

ocal, or that his testimony fails to rise to the level of certainty

required in Williams. See post at 82-83.16

Officer King also testified that it was the practice and pro-

cedure of the hospital to place a patient’s clothing in a bag on

15

It is unsurprising that neither officer could remember, at the time of

their testimony at the suppression hearing in September 2008, precisely

what the plastic bag looked like given that they had seen it briefly more

than eight years earlier, in August 2000.

16

Contrary to the dissent’s unfounded claim that we are engaging in "ex-

traordinary appellate fact-finding," post at 74 n.12, we are simply quoting

from the undisputed testimony of Officer King in the record. While the

government bears the burden of proof to show that the warrantless seizure

was justified, the district court ruled in the government’s favor and thus

any inferences to be drawn from the testimony are to be viewed in the

light most favorable to the government. Seidman, 156 F.3d at 547. More-

over, nowhere in its brief does the government "concede" that King did

not know it was clothing in the bag. Cf. post at 73 n.12.

16 UNITED STATES v. DAVIS

the shelf under his bed. He further could visibly see that Davis

had been shot in his upper right thigh, and that Davis was no

longer wearing pants or underwear. Instead, while Davis was

wearing clothing on his upper body, his lower body was

exposed, except for his genital area, which was covered by a

sheet. (See Supp. J.A. 73 (picture of Davis in hospital bed);

J.A. 141 (testimony of Officer King that picture accurately

depicted what Davis was wearing)).

We agree with the district court that "the totality of the cir-

cumstances, taking into account [Officer] King’s experience

with the hospital’s practices regarding patients’ property, the

appearance of the Defendant at the time [Officer] King spoke

with him, and the obvious fact that the Defendant had been

shot in an area of the body usually covered by clothing" sup-

port the determination that it was a foregone conclusion the

bag under Davis’ hospital bed contained the clothing he wore

when he was shot.

Davis alternatively contends that even if it had been a vir-

tual certainty that the bag contained Davis’ clothing, the

incriminating nature of those clothes was not "immediately

apparent." We have little trouble, however, in concluding that

Davis’ pants almost certainly would contain both blood and

a bullet hole,17 and would thus be incriminating evidence in

17

The dissent’s lengthy discussion of United States v. Jamison, 509 F.3d

623 (4th Cir. 2007), see post at 78-80 & n.15, to suggest that a bullet hole

might not have been present in Davis’ pants, is unavailing. Jamison did

not involve any challenge to the search or seizure of evidence; the issue

there was whether the defendant was in custody for Miranda purposes at

the time police questioned him. Moreover, the fact that it was theoretically

possible, at the time that Officer King seized the clothing, that Davis was:

a) lying about being shot by someone else and had instead shot himself;

and b) done so in a manner that somehow avoided putting a hole in his

own pants, does not alter our conclusion. As the Tenth Circuit has

explained, the knowledge required to establish a "foregone conclusion" is

not absolute certainty, but "knowledge approaching certainty." United

States v. Jackson, 381 F.3d 984, 989 n.2 (10th Cir. 2004) (emphasis in

original). That standard is met here.

UNITED STATES v. DAVIS 17

the prosecution of the shooter. Such a conclusion is based on

the circumstances, Davis’ appearance, and the location of his

bullet wound. As noted by the district court, moreover, Davis

has provided no authority to support imposing a requirement

that the evidence be incriminating against the person from

whom it is seized. Davis, 657 F. Supp. 2d at 640. As the dis-

trict court reasoned:

[The defendant’s failure to provide any authority]

may be due to the unique situation presented by the

facts of this case; very rarely will a victim from

whom evidence is seized later become a criminal

defendant with standing and reason to challenge the

previous seizure. As a matter of first impression,

however, it would seem unwise and overly restric-

tive to require police to know who will be incrimi-

nated by an item in plain view before they are able

to seize it and investigate further.

Id.

Indeed, Supreme Court cases and authority from other cir-

cuits explain that an item need not itself be contraband before

it has an "incriminating nature," but instead, an item need

only be evidence of a crime. Texas v. Brown, 460 U.S. 730,

742 (1983) (Rehnquist, J., plurality opinion) (discussing plain

view doctrine and whether items may be "contraband or

stolen property or useful as evidence of a crime") (emphasis

added); United States v. Smith, 459 F.3d 1276, 1293 (11th

Cir. 2006) ("the scope of the ‘plain view’ doctrine extends to

the seizure of items that, while not contraband themselves,

may be used as evidence against a defendant"); United States

v. Rodriguez, 601 F.3d 402, 407 (5th Cir. 2010) ("The incrim-

inating nature of an item is ‘immediately apparent’ if the offi-

cers have ‘probable cause’ to believe that the item is either

evidence of a crime or contraband.") (emphasis added and

citation omitted); United States v. Chipps, 410 F.3d 438, 443

(8th Cir. 2005) (warrantless seizure of a sweatshirt on the

18 UNITED STATES v. DAVIS

ground outside a house where there had been a reported

assault was justified by the plain view doctrine, since "the

incriminating nature of a bloody sweatshirt at the site of a

potential assault was obvious" and the officer "had a legal

right to access the shirt—it was right in front of him on the

ground"); Chavis v. Wainwright, 488 F.2d 1077, 1078 (5th

Cir. 1973) (clothing in plastic hospital bag was properly

seized from stabbing victim in hospital without a warrant as

evidence of an assault, despite fact that victim told police he

did not want to prosecute his assailant girlfriend).18 Here, like

the bloody clothing in Chipps and in Chavis, the pants with

a bullet hole, which would be clear evidence a shooting

occurred and might reasonably provide scientific evidence

related to the gun caliber, distance, etc., is evidence of a crime

and hence, has an immediately apparent "incriminating

nature."19

18

The Fifth Circuit reasoned in Chavis that "[c]learly, the officer . . .

would have been derelict in his duty had he not taken custody of Chavis’

clothing as evidence of a possible homicide that he was investigating."

488 F.2d at 1078; see also Jamison, 509 F.3d at 631-32 (in context of

addressing interrogation and gun-powder residue testing of a hospital

patient who was admitted with a gunshot wound, noting that a reasonable

person who is admitted to a hospital with a gunshot wound and reports

that he was shot by someone else would expect to be interviewed and

"might complain of police malfeasance had [the police] not immediately

investigated the shooting[,] [since a] reasonable person would tolerate

nothing less than a thorough investigation into such a shooting").

19

The dissent cites Clay v. State, 725 S.E.2d 260 (Ga. 2012), as a case

in which a court concluded the plain view exception did not warrant the

search of a bag of clothing. See post at 81 n.16. Contrary to the dissent’s

description of Clay as having "nearly identical" facts, however, the defen-

dant in Clay was an unconscious murder suspect at the time the police

reported to the hospital and conducted a search of the bag containing his

personal effects. See 725 S.E.2d at 264-65. Significantly, there was no evi-

dence in that case that the police knew there would be blood on his cloth-

ing or other evidence of any crime. Unlike Davis, the suspect had not been

shot or assaulted and was not being treated for any wounds, nor were any

wounds visible, that would indicate there would be blood on his clothing.

Id. Under these circumstances, the court concluded that it was not a "’fore-

UNITED STATES v. DAVIS 19

For all of the foregoing reasons, we conclude that the plain

view doctrine justified both the warrantless seizure and the

subsequent search of the bag containing the clothing under

Davis’ hospital bed.

gone conclusion’ that the bag contained [the suspect’s] bloody clothes."

Id. at 269. Here, by contrast, there was ample evidence in plain sight

(including most notably the gunshot wound on Davis’ upper thigh) from

which Officer King could conclude it was a foregone conclusion that the

bag contained Davis’ clothing, and that the clothing contained evidence of

a crime.

Moreover, while Davis and the dissent cite to decisions of other courts

for the "unremarkable proposition" that hospital patients retain a reason-

able expectation of privacy in their clothing, see post at 81 n.16, that prop-

osition is far from universally accepted. Indeed, other courts have found

that a reasonable expectation of privacy was lacking under facts similar to

those here and thus upheld the warrantless seizure and search of clothing

belonging to a hospital patient. See, e.g., Mitchell v. State, 906 S.W.2d

307, 309 (Ark. 1995) (affirming warrantless seizure of clothing from hos-

pital and subsequent inventory search, explaining that "[t]he totality of the

circumstances herein includes the fact that the appellant was thought to be

a victim [and] [t]he clothing of a gunshot victim is evidence of the com-

mission of a crime"); Holt v. United States, 675 A.2d 474, 477, 480 (D.C.

1996) (Fourth Amendment was not violated by the search or the subse-

quent seizure of defendant’s clothing from a "visible, unsealed plastic bag

under [defendant’s] gurney in which hospital personnel had stored [his]

clothing before treating him" after defendant had admitted himself with a

gunshot wound, particularly where he had "voluntarily walked into [the

hospital] emergency room wearing—for everyone to see—the clothing the

police later inspected" and he never expressed "a desire to remove [the

clothing] from public view"); People v. Sutherland, 415 N.E.2d 1267,

1271 (Ill. App. Ct. 1980) (gunshot victim whose clothes were removed at

the hospital had no reasonable expectation of privacy in those clothes and

thus they could be obtained and inspected without a warrant); State v.

Adams, 541 A.2d 262, 265 (N.J. Super. Ct. App. Div. 1988) (exigent cir-

cumstances permitted the search and inspection of clothing taken from an

unconscious hospital patient in the emergency room, who was believed to

be the victim of a shooting); Wagner v. Hedrick, 383 S.E.2d 286, 291 (W.

Va. 1989) (motorcycle accident victim had no "reasonable expectation of

privacy in his personal effects" under the control of emergency room

staff).

20 UNITED STATES v. DAVIS

Before turning to the issues surrounding the extraction and

testing of Davis’ DNA, we respond briefly to two points

raised by the dissent regarding the seizure and search of the

clothing and our application of Williams. First, the dissent

argues Williams is distinguishable on the grounds that the dis-

trict court here considered only extrinsic evidence, while the

Williams court considered such extrinsic evidence in addition

to the physical appearance and character of the container.

Relatedly, the dissent further states, without citation to author-

ity, that "[n]arcotics packaging is so readily recognizable as

to rise to the level of the archetypal kit of burglar tools or a

gun case," while the bag here was not "distinctive in any

way." Post at 82, 83. We disagree.

The dissent’s assertions that drug packaging is "readily rec-

ognizable" as such while a bag containing a hospital patient’s

clothing is not, is true only if the contextual evidence present

in Williams is being taken into account, i.e., the fact that the

packaging was in a suitcase with very few other items one

would suspect to find in a traveler’s luggage, and the contex-

tual evidence here is ignored, i.e., that the bag was underneath

a gunshot victim’s hospital bed. But Williams expressly per-

mits us to consider the context and circumstances of the spe-

cific case, as well as the experience of the officer. Here, those

factors compel the conclusion that the bag under Davis’ bed

contained his clothing.20

Second, the dissent suggests an inconsistency between our

20

Indeed, in gauging what is "readily recognizable," we think it likely

that the vast majority of people who have spent time in a hospital (either

as a patient or with a friend or family member) know that hospitals com-

monly place a patient’s clothing in a plastic bag that either stays in his

room or travels with him on his bed or gurney. On the other hand, most

lay people do not have personal experience with the types of packaging

used by drug traffickers. Regardless of which container hypothetically is

more recognizable in the absence of context and personal experience, we

readily conclude that the bag here was readily identifiable as containing

Davis’ clothing.

UNITED STATES v. DAVIS 21

upholding the seizure of Davis’ clothing at the hospital

(which obviously contained his DNA), but concluding that he

had a reasonable expectation of privacy in his DNA such that

its later use violated his Fourth Amendment rights. See post

at 84-85 (it is "curious, to say the least, to reason as does the

majority that Davis retained, for several years after the bag

was seized at the hospital, a reasonable expectation of privacy

in the character of his DNA molecules, but that he lacked any

reasonable expectation of privacy in the presence of those

molecules in his blood while they were embedded in his

clothing" while at the hospital). This perceived inconsistency

is based on a misunderstanding of our holding.

We do not hold that Davis had no expectation of privacy

in his DNA while it was on his clothing at the hospital. What

we conclude is that the seizure and search of the bag contain-

ing Davis’ clothing were permitted under the plain view doc-

trine because his clothing was evidence of a crime and was in

plain view, as applied in Williams. See infra at 29 ("while

Davis may not have had any expectation of privacy in the out-

ward appearance of the clothing once it was in police custody,

we nevertheless must consider . . . whether Davis retained a

reasonable expectation of privacy in his DNA on the clothing

or in the DNA profile obtained from it.")

Davis always had an expectation of privacy in his DNA,

but that expectation of privacy was not implicated merely by

an effort to identify, describe and catalogue his clothing as

evidence of a reported crime, rather than testing anything

found on it. It was not until the police sought to obtain a DNA

profile from his blood that his privacy interest in his DNA

was implicated. As we explain, the search of his DNA did not

occur until the police extracted and tested his DNA in con-

junction with the Neal murder. See infra at Section III.B.2.

The dissent’s perceived "inconsistency" in our holdings does

not exist.21

21

Because DNA is found in many bodily substances, see Kaemmerling

v. Lappin, 553 F.3d 669, 682 (D.C. Cir. 2008) ("DNA exists in numerous

22 UNITED STATES v. DAVIS

B.

The Extraction and Testing of Davis’ DNA Profile for Use

in the Neal Murder Investigation, and the Retention of

Davis’ DNA Profile

Having concluded that the HCPD lawfully obtained the

clothing that contained Davis’ DNA material, we now turn to

Davis’ contention that the PGCPD violated the Fourth

Amendment by extracting his DNA from the blood on that

clothing and testing it for use in the Neal murder investiga-

tion, as well as in retaining his profile in their local DNA

database.

1.

General Fourth Amendment Principles

The general issue of a person’s reasonable expectation of

privacy in his DNA is a developing and unsettled area of the

law, one that has not yet been addressed by the Supreme

Court. The relative recency of the technology, especially

when coupled with its potential power, is no doubt part of the

reason why there is uncertainty over the degree of privacy

persons can reasonably expect to have in their DNA. Cf. Dist.

Attorney’s Office for the Third Judicial Dist. v. Osborne, 557

U.S. 52, 129 S. Ct. 2308, 2316 (2009) ("Modern DNA testing

can provide powerful new evidence unlike anything known

parts of the body that even nonviolent criminals leave behind, including

hair, saliva, and skin cells . . . .") (citation omitted), the mere fact that

DNA material is present on a physical item of seized evidence cannot

automatically infringe upon a person’s privacy interest in his or her DNA.

It is not until the DNA is tested and extracted and a DNA profile created

that the privacy interest in DNA might be implicated. Put differently, it

cannot be the rule that an otherwise lawful seizure of physical evidence

becomes illegal merely because a non-perpetrator’s DNA may be on that

evidence.

UNITED STATES v. DAVIS 23

before . . . DNA testing has exonerated wrongly convicted

people, and has confirmed the convictions of many others.");

Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 1992) (describ-

ing DNA as a "dramatic new tool for the law enforcement

effort to match suspects and criminal conduct").22

22

In Jones, in the context of obtaining DNA profiles from incarcerated

felons, we analogized DNA profiling to fingerprinting, i.e., a more sophis-

ticated or refined means of identification. 962 F.2d at 306-07; see also

Mitchell, 652 F.3d at 413 ("at present DNA profiling is simply a more pre-

cise method of ascertaining identity and is thus akin to fingerprinting,

which has long been accepted as part of routine booking procedures"); see

also United States v. Amerson, 483 F.3d 73, 85-86 (2d Cir. 2007) ("at least

in the current state of scientific knowledge, the DNA profile derived from

the offender’s blood sample establishes only a record of the offender’s

identity" and "a probationer’s expectation of privacy in his or her identity

is severely diminished."); Boroian v. Mueller, 616 F.3d 60, 66-67 (1st Cir.

2010) ("Given the [federal] DNA Act’s stringent limitations on the cre-

ation and use of DNA profiles, CODIS currently functions much like a tra-

ditional fingerprint database" and citing to cases from the Second, Tenth,

and District of Columbia Circuits so stating). However, courts also have

recognized the limitations of this analogy, which stem from the fact that

a DNA profile, unlike a fingerprint, is drawn from DNA that stores a

wealth of personal information. See Johnson v. Quander, 440 F.3d 489,

499 (D.C. Cir. 2006) ("genetic fingerprints differ somewhat from their

metacarpal brethren"); United States v. Kincade, 379 F.3d 813, 841-42 &

n.3 (9th Cir. 2004) (en banc) (Gould, J., concurring) ("Like DNA, a fin-

gerprint identifies a person, but unlike DNA, a fingerprint says nothing

about the person’s health, propensity for particular disease, race and gen-

der characteristics, and perhaps even propensity for certain conduct.").

In any event, both a thorough examination of the science of DNA pro-

filing, as well as the operation and interplay of local, state, and federal

DNA law enforcement databases, are far beyond the scope of this opinion.

Other courts have examined these issues in detail and we will not do so

here. See, e.g., Mitchell, 652 F.3d at 398-402 (discussing the process of

creating a DNA profile for CODIS and the use of "junk" DNA, the federal

DNA act and the levels of database that contribute to CODIS); Boroian,

616 F.3d at 63-64, 65-67 (explaining how DNA samples are obtained,

summarizing the provisions of the federal DNA act, and describing how

CODIS works and how the database has grown and expanded since its ini-

tial development).

24 UNITED STATES v. DAVIS

The Fourth Amendment provides that "[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things

to be seized." U.S. Const. amend. IV. However, the protec-

tions of the Fourth Amendment are activated only when the

state conducts a search or seizure in an area in which there is

a "constitutionally protected reasonable expectation of pri-

vacy." New York v. Class, 475 U.S. 106, 112 (1986) (citation

omitted). When there is no reasonable expectation of privacy,

the Fourth Amendment is not implicated.23 See, e.g., United

States v. Dionisio, 410 U.S. 1, 14 (1973) (no reasonable

expectation of privacy in one’s voice); United States v. Mara,

410 U.S. 19, 21 (1973) (no reasonable expectation of privacy

in one’s handwriting); California v. Greenwood, 486 U.S. 35,

37 (1988) (same as to trash left by the curb). A search or sei-

23

The Supreme Court’s recent decision in United States v. Jones, 132

S. Ct. 945 (Jan. 23, 2012) does not change our analysis in this case. In

Jones, the Court held that the Fourth Amendment was violated when law

enforcement officers, without a valid warrant, installed a GPS tracking

device on the undercarriage of the defendant’s Jeep while it was parked

in a public parking lot. In determining whether this action constituted a

"search," the majority did not reach the issue of whether the Defendant

had a "reasonable expectation of privacy" in the underbody of the Jeep. Id.

at 950. Instead, its conclusion rested entirely on the fact that the "Govern-

ment physically occupied private property for the purpose of obtaining

information," id. at 949, and that constituted a violation of the Fourth

Amendment right "to be secure against unreasonable searches and seizures

in their persons, houses, papers and effects." Id. In so holding, the Court

emphasized that Katz simply established that "property rights are not the

sole measure of Fourth Amendment violations," but that Katz did not

extinguish the "previously recognized protection for property." Id. at 951;

see also id. at 954-55 (Sotomayor, J., concurring). In the case at bar, once

the police had lawful possession of Davis’ clothing, there was no further

intrusion of, or trespass upon, his property rights. Thus, the only basis on

which the later testing of the clothing could constitute a search is if Davis

retained a reasonable expectation of privacy in his clothing or the blood

on it.

UNITED STATES v. DAVIS 25

zure for Fourth Amendment purposes does not occur, there-

fore, when a person lacks a reasonable expectation of privacy

in the material examined. United States v. Breza, 308 F.3d

430, 433 (4th Cir. 2002) (citing Illinois v. Andreas, 463 U.S.

765, 771 (1983)).

Even if a search has occurred without a warrant and with-

out individualized suspicion, a Fourth Amendment violation

does not necessarily occur. The Fourth Amendment does not

prohibit all searches, only those that are unreasonable. Skinner

v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989) ("the

Fourth Amendment does not proscribe all searches and sei-

zures, but only those that are unreasonable"); Terry v. Ohio,

392 U.S. 1, 9 (1968) ("[W]hat the Constitution forbids is not

all searches and seizures, but unreasonable searches and sei-

zures.") (quoting Elkins v. United States, 364 U.S. 206, 222

(1960)). And "[a]lthough as a general matter, warrantless

searches ‘are per se unreasonable under the Fourth Amend-

ment,’ there are ‘a few specifically established and well-

delineated exceptions’ to that general rule." City of Ontario,

Ca. v. Quon, 130 S. Ct. 2619, 2630 (2010) (quoting Katz v.

United States, 389 U.S. 347, 357 (1967)); Nat’l Treasury

Employees Union v. Von Raab, 489 U.S. 656, 665 (1989)

("neither a warrant nor probable cause, nor, indeed, any mea-

sure of individualized suspicion, is an indispensable compo-

nent of reasonableness in every circumstance").

2.

Whether Extraction and Testing of Davis’ DNA Profile for

Use in the Neal Murder Investigation, or its Later

Retention, Constituted Searches?

We first consider the threshold question whether a search

occurred when the PGCPD extracted and tested Davis’ DNA

for use in the Neal murder investigation, or when the PGCPD

retained Davis’ DNA profile in CODIS. Our analysis turns on

the question whether Davis had a reasonable expectation of

26 UNITED STATES v. DAVIS

privacy in his clothing and the blood and DNA it contained,

once it was in the lawful custody of the HCPD.

The government argues that there was no search or seizure

here, relying primarily on United States v. Edwards, 415 U.S.

800 (1974), for the proposition that Davis lacked any reason-

able expectation of privacy in his clothes or DNA after they

were lawfully seized by police.24 In Edwards, the defendant

was arrested and charged with an attempted break-in at

approximately 11:00 p.m., taken to the local jail and placed

in a cell. 415 U.S. at 801. Investigation at the scene revealed

that the attempted entry had been made through a wooden

window and that paint chips had been left on the window sill

and wire mesh. Id. at 801-02. The next morning (approxi-

mately ten hours after his arrest), Edwards was given a

change of clothing and his clothing was then taken from him

and held as evidence. Id. at 802. Examination of the clothing

revealed paint chips matching the samples taken from the

window. Id. The evidence of the matching paint chips was

later introduced at trial, over Edwards’ objection. Id. The

Sixth Circuit reversed, finding the seizure of the clothing, car-

ried out after "the mechanics of [Edwards’] arrest" had been

completed, violated the Fourth Amendment. Id.

24

The government also relies on United States v. Gargotto, 476 F.2d

1009 (6th Cir. 1973) and Wallace v. State, 816 A.2d 883 (Md. 2003). In

Gargotto, the Sixth Circuit held that a defendant’s records seized in a state

investigation could be given to federal authorities without a separate

search warrant, and used as evidence in an unrelated federal case. 476

F.2d at 1014. Similarly, Wallace affirmed the warrantless search and

visual inspection of the defendant’s clothing in conjunction with a murder

charge, where the clothing had been initially seized during an inventory

search upon his arrest for drug charges, because the defendant had no rea-

sonable expectation of privacy in that clothing. 816 A.2d at 897, 901. The

district court considered Wallace and other similar cases, but found them

all distinguishable on the grounds that the evidence in the other cases law-

fully entered police custody pursuant to a defendant’s arrest or was seized

pursuant to a warrant supported by probable cause. Davis, 657 F. Supp.

2d at 646. By contrast, Davis’ pants with the bloodstain were in lawful

police custody as evidence of a crime in which he was the reported victim.

Id. at 647.

UNITED STATES v. DAVIS 27

The Supreme Court reversed the Sixth Circuit, holding that

the warrantless seizure of the clothing was constitutional. The

Supreme Court first noted that warrantless searches are per-

mitted incident to custodial arrests, and that they can legally

be conducted later when the accused arrives at the place of

detention. Id. at 802-03. "Nor is there any doubt that clothing

or other belongings may be seized upon arrival of the accused

at the place of detention and later subjected to laboratory anal-

ysis or that the test results are admissible at trial." Id. at 803-

04.

The government reads Edwards to stand for the proposition

that once the police have lawful custody of evidence, like

Davis’ clothing here, further scientific examination conducted

on it by that particular police department or by any other law

enforcement body does not first require that a search warrant

be obtained. (See Appellee’s Br. 46.) As a result, the govern-

ment argues, Davis did not have a reasonable expectation of

privacy in the DNA contained in his clothing because it had

been lawfully seized by the HCPD. The government accord-

ingly contends that the PGCPD did not violate the Fourth

Amendment when the PGCPD later obtained Davis’ clothing

and extracted the DNA at issue.

The Court in Edwards, however, did not adopt the categori-

cal rule advanced by the government:

In upholding this search and seizure, we do not con-

clude that the Warrant Clause of the Fourth Amend-

ment is never applicable to postarrest seizures of the

effects of an arrestee. But we do think that the Court

of Appeals for the First Circuit captured the essence

of situations like this when it said in United States

v. DeLeo, 422 F.2d 487, 493 (1970) (footnote omit-

ted): "While the legal arrest of a person should not

destroy the privacy of his premises, it does—for at

least a reasonable time and to a reasonable

extent—take his own privacy out of the realm of

28 UNITED STATES v. DAVIS

protection from police interest in weapons, means of

escape, and evidence."

415 U.S. at 808-09 (footnote omitted and emphasis added); id.

at 808 n.9 ("Holding the Warrant Clause inapplicable in the

circumstances present here does not leave law enforcement

officials subject to no restraints. This type of police conduct

must still be tested by the Fourth Amendment’s general pro-

scription against unreasonable searches and seizures.") (inter-

nal quotation marks and alteration omitted).

In Edwards, the class of person whose item was seized, an

arrestee, and the type of item seized, evidence, were material

considerations in the Court’s analysis. Further, Edwards rec-

ognized that even an arrestee, who has a diminished expecta-

tion of privacy, does not forfeit forever all privacy interests in

his effects. Therefore, the Edwards decision itself does not

support the government’s broad categorical assertion that any

item in the lawful custody of law enforcement can be sub-

jected to laboratory analysis at any later time and for any pur-

pose related to law enforcement.

Moreover, because the analysis of biological samples, such

as those derived from blood, urine, or other bodily fluids, can

reveal "physiological data" and a "host of private medical

facts," such analyses may "intrude[ ] upon expectations of pri-

vacy that society has long recognized as reasonable." Skinner,

489 U.S. at 616-17. Therefore, such analyses often qualify as

a search under the Fourth Amendment. Id. at 618 (concluding

that "the collection and subsequent analysis of the requisite

biological [blood and urine] samples must be deemed Fourth

Amendment searches"). Similarly, an analysis required to

obtain a DNA profile, like the chemical analysis of blood and

urine at issue in Skinner, generally qualifies as a search,

because an individual retains a legitimate expectation of pri-

vacy in the information obtained from the testing. See, e.g.,

United States v. Mitchell, 652 F.3d 387, 407 (3d Cir. 2011)

(en banc) (after discussing the Fourth Amendment search that

UNITED STATES v. DAVIS 29

occurs when a DNA sample is collected directly from a per-

son’s body, discussing separately "[t]he second ‘search’ at

issue," which was, "of course, the processing of the DNA

sample and creation of the DNA profile for CODIS. This

search also has the potential to infringe upon privacy inter-

ests.").

By contrast, in Edwards, the analysis at issue examined

paint chips found in the defendant’s clothing, which did not

implicate the privacy concerns inherent in the use of physio-

logical and medical information obtained from DNA analysis

that was addressed in Skinner. See Edwards, 415 U.S. at 801-

02. Thus, in the present case, while Davis may not have had

any expectation of privacy in the outward appearance of the

clothing once it was in police custody, we nevertheless must

consider the type of analysis conducted on that clothing to

determine whether Davis retained a reasonable expectation of

privacy in his DNA on the clothing, or in the DNA profile

obtained from it.

The district court concluded that Edwards is inapplicable

here because, unlike the defendant’s clothing in Edwards,

Davis’ clothing was not seized pursuant to his arrest on the

drug charges, but was seized before his arrest when his status

was that of a reported crime victim. As noted by the district

court, to allow the testing and retention of DNA profiles from

any evidence lawfully obtained by police could expose a vic-

tim of a crime whose blood, or other material from which

DNA could be obtained, to having his or her DNA extracted

and retained indefinitely in a law enforcement database. The

district court reasoned:

Taken to its logical extreme, the application of

Edwards and its progeny to the instant case would

mean that any citizen whose blood finds its way into

lawful police custody as a result of victimization

(e.g., child abuse, sexual assault and domestic vio-

lence victims, etc.), would then lose any expectation

30 UNITED STATES v. DAVIS

of privacy in the DNA markers in that blood, which

could be used against him or her at a later date with-

out the constitutional safeguard that a warrant sup-

ported by probable cause first be issued.

Id. at 647. It was on this basis, the distinction between the

DNA of a victim and an arrestee, that the district court found

Edwards inapplicable.

Although we are not faced here with the full range of

potential problems identified by the district court, we agree

with the district court that a person who is solely a crime vic-

tim does not lose all reasonable expectation of privacy in his

or her DNA material simply because it has come into the law-

ful possession of the police. And, although Davis later was

arrested, because the police seized his clothing when he was

solely a crime victim, we conclude that his later arrest does

not eradicate his expectation of privacy in his DNA material.

Our conclusion that Davis’ status as a victim materially dis-

tinguishes the present case from Edwards is supported by our

precedent and by decisions of our sister circuits. These deci-

sions, in addressing whether, and under what circumstances,

the Constitution allows the collection of DNA samples, uni-

formly recognize that persons who have not been arrested

have a greater privacy interest in their DNA than would per-

sons who have been arrested, such as the arrestee in Edwards.

First, our decision in Jones v. Murray, 962 F.2d 302 (4th

Cir. 1992), is instructive. There, we rejected a Fourth Amend-

ment challenge to a Virginia law that required convicted fel-

ons in custody to submit blood samples for DNA analysis. We

concluded that the identification of a person arrested upon

probable cause "becomes a matter of legitimate state interest

and he can hardly claim privacy in it." Id. at 306. Addition-

ally, we recognized that "we do not accept even [a] small

level of intrusion, [such as fingerprinting] for free persons

without Fourth Amendment constraint." Id. at 306-07 (citing

UNITED STATES v. DAVIS 31

Davis v. Mississippi, 394 U.S. 721, 727 (1969)). Thus, we

emphasized that a court’s constitutional analysis may differ

depending on whether the person is an arrestee or a "free per-

son."

Our sister circuits, in upholding DNA collection statutes

against Fourth Amendment challenges, likewise have recog-

nized that the status of an individual whose DNA is sought is

material to the issue whether he had a reasonable expectation

of privacy in that DNA. In Mitchell, for example, the Third

Circuit sitting en banc upheld the suspicionless collection of

DNA samples from arrestees principally on the basis that the

fingerprinting of arrestees did not violate the Fourth Amend-

ment. 652 F.3d at 411 (citing Hayes v. Florida, 470 U.S. 811,

813-18 (1985) and Davis, 394 U.S. at 727); see also Mitchell,

652 F.3d at 402 & n.13 (collecting authority and noting that

"[e]very federal circuit court to have considered [the federal

DNA Act and its state law analogues] as applied to an indi-

vidual who has been convicted and is either incarcerated or on

probation, parole, or supervised release has upheld the consti-

tutionality of the challenged statute"). Additionally, in United

States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc), a

plurality of the Ninth Circuit held that the federal DNA act

requiring the collection of DNA samples from convicted fel-

ons was constitutional. See 379 F.3d at 835-36 (O’Scannlain,

J., plurality opinion) (noting "the obvious and significant dis-

tinction between the DNA profiling of law-abiding citizens

who are passing through some transient status (e.g., new-

borns, students, passengers in a car or on a plane) and law-

fully adjudicated criminals whose proven conduct

substantially heightens the government’s interest in monitor-

ing them and quite properly carries lasting consequences that

simply do not attach from the simple fact of having been born,

or going to public school, or riding in a car"); see also Green

v. Berge, 354 F.3d 675, 678-79 (7th Cir. 2004) (rejecting

Fourth Amendment challenge to law requiring DNA samples

from felons and contrasting felons from persons not otherwise

in custody); id. at 679-81 (Easterbrook, J., concurring) (con-

32 UNITED STATES v. DAVIS

stitutional challenges to DNA–collection statutes differ

depending on the status of the person whose DNA is being

collected, and noting that "[t]his appeal does not present the

question whether DNA could be collected forcibly from the

general population").

Unlike the cases cited immediately above, however, which

concerned parolees, persons on supervised release, convicted

felons, or arrestees, the HCPD had possession of Davis’ DNA

because he was the victim of a crime. Thus, the above cases

inferentially provide support for Davis’ position, because they

all distinguish an arrestee or one convicted of a crime from

members of the general public at large.

These cases, however, do not directly answer the question

before us, because they involved challenges to the collection

of DNA samples, and not, as here, a challenge to the extrac-

tion of DNA or retention of a DNA profile when the police

already had lawful possession of the DNA sample. And, for

the same reason, these cases do not eliminate any consider-

ation of Edwards in circumstances like these. But see United

States v. Weikert, 504 F.3d 1, 16-17 (1st Cir. 2007) (suggest-

ing that "it may be time to reexamine the proposition that an

individual no longer has any expectation of privacy in infor-

mation seized by the government so long as the government

has obtained that information lawfully. . . . In short, there may

be a persuasive argument on different facts that an individual

retains an expectation of privacy in the future uses of her

DNA profile").

Nevertheless, we are persuaded by the Supreme Court’s

analysis in Skinner, as applied in Mitchell and other cases in

the context of DNA, that the extraction of DNA and the cre-

ation of a DNA profile result in a sufficiently separate inva-

sion of privacy that such acts must be considered a separate

search under the Fourth Amendment even when there is no

issue concerning the collection of the DNA sample. See

Mitchell, 652 F.3d at 407 (citing United States v. Sczubelek,

UNITED STATES v. DAVIS 33

402 F.3d 175, 182 (3d Cir. 2005) (citing Skinner, 489 U.S. at

616)).

Based on the foregoing, we conclude that the holding in

Edwards does not give a law enforcement agency carte

blanche to perform DNA extraction and analysis derived from

clothing lawfully obtained from the victim of a crime in rela-

tion to the investigation of other crimes. Instead, a victim

retains a privacy interest in his or her DNA material, even if

it is lawfully in police custody. Therefore, we conclude that

the extraction of Davis’ DNA sample from his clothing and

the creation of his DNA profile constituted a search for Fourth

Amendment purposes.

We turn to consider whether a separate search occurred

when the PGCPD retained Davis’ DNA profile in the local

CODIS database after the profile did not implicate him in the

Neal murder. Our sister circuits do not appear to be uniformly

settled on the question whether such entry of a DNA profile

into this type of database is a search entitled to Fourth

Amendment protection. Compare, e.g., Boroian v. Mueller,

616 F.3d 60, 67-68 (1st Cir. 2010) (concluding that the reten-

tion and later matching of a lawfully obtained DNA profile is

not a search for Fourth Amendment purposes and collecting

authority for the same) with United States v. Amerson, 483

F.3d 73, 85 (2d Cir. 2007) (in addition to the collection of the

DNA sample from a probationer, determining that "[t]here is

. . . a second and potentially much more serious invasion of

privacy occasioned by the DNA Act" because the "analysis

and maintenance of [offenders’] information in CODIS . . . is,

in itself, a significant intrusion") (citation omitted) and Kin-

cade, 379 F.3d at 841-42 (en banc) (Gould, J., concurring)

(suggesting the retention of a lawfully obtained DNA profile

once a person has "fully paid his or her debt to society" and

"left the penal system" would implicate the person’s privacy

interest).

34 UNITED STATES v. DAVIS

These differing conclusions illustrate the fact that at least

some courts have concluded that once a DNA profile has been

lawfully obtained and entered into CODIS, the retention of

that profile and "periodic matching of the profile against other

profiles in CODIS for the purpose of identification[,]" is not

a search because it does not intrude upon an offender’s legiti-

mate expectation of privacy. Boroian, 616 F.3d at 67-68 (so

holding and citing other authority for the same).25 Other

courts, at least in principle, have left open the possibility that

an unrelated examination after DNA retention could be a sep-

arate search for Fourth Amendment purposes. See, e.g., Amer-

son, 483 F.3d at 85 n.12.

We need not choose among these competing principles in

this case because, as discussed in the next section, we con-

clude that the extraction and initial testing of Davis’ profile

was an unreasonable Fourth Amendment search. Accordingly,

for purposes of this opinion, we will assume, without decid-

ing, that Davis had a continuing right of privacy in his DNA

profile, and that a search occurred in the retention of that pro-

file. We now turn to consider the issue whether the two

searches were reasonable.

25

The Boroian court relies on Amerson as a case supporting this princi-

ple. 616 F.3d at 68. However, a careful reading of Amerson reflects that

the Second Circuit found a reasonable expectation of privacy in the reten-

tion of a DNA profile in CODIS, and periodic matching of the profile, see

483 F.3d at 85 n.12, 86, but ultimately concluded that the search was justi-

fied under the special needs test. Id. at 86-87 (upholding the federal DNA

Act against Fourth Amendment challenges and "acknowledg[ing] that the

DNA profile of appellants will be stored in CODIS, and potentially used

to identify them, long after their status as probationers—and the reduced

expectation of privacy that such a status involves—has ended," but con-

cluding that fact did not "change[ ] the ultimate analysis.")

UNITED STATES v. DAVIS 35

3.

Whether the Searches Were Reasonable Under the Fourth

Amendment?

As noted above, not every warrantless search violates the

Fourth Amendment. Instead, a Fourth Amendment violation

occurs when a warrantless search is unreasonable. See Skin-

ner, 489 U.S. at 619. Courts have employed several different

approaches in assessing reasonableness.26 With regard to

searches in which there is an absence of individualized suspi-

cion, the "general Fourth Amendment approach" is to "exam-

ine the totality of the circumstances" to determine whether a

search is reasonable. Samson v. California, 547 U.S. 843, 848

(2006). Under this approach, 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." Id. (citation and internal

quotation marks omitted).

26

Even in cases where a person is subject to some type of criminal

charge or restraint, there are varying viewpoints regarding the proper

approach and its application. In the Ninth Circuit’s Kincade case, which

was heard en banc, a five-member plurality voted to uphold the federal

DNA Act against a Fourth Amendment challenge and employed a totality

of the circumstances test. 379 F.3d at 832 (en banc) (O’Scannlain, J., plu-

rality opinion). Judge Gould, concurring in the result, voted to uphold the

Act, but would have applied the "special needs" analysis. Id. at 840

(Gould, J., concurring). Five dissenting judges would have found a Fourth

Amendment violation, but would have employed different approaches. See

id. at 842-76 (dissenting opinions); see also id. at 830-31 (O’Scannlain, J.,

plurality opinion) (collecting authority and comparing cases which have

applied a special needs test in the context of DNA profile collection and

cases which have applied a "totality of the circumstances" balancing test);

Mitchell, 652 F.3d at 403 n.15 (noting that only the Second and Seventh

Circuits have consistently held that the special needs test should apply in

addressing the constitutionality of a DNA indexing statute and concluding

that the totality of the circumstances is the proper test).

36 UNITED STATES v. DAVIS

For example, in United States v. Knights, 534 U.S. 112

(2001), the Supreme Court applied the totality of the circum-

stances approach in upholding the search of a probationer’s

apartment based on the presence of "reasonable suspicion,"

but in the absence of probable cause. Id. at 118, 121. Simi-

larly, in Samson, the Court upheld a suspicionless search of

a parolee applying the same approach. 547 U.S. at 846.

Courts also have applied a "special needs" analysis in cer-

tain circumstances to uphold contested searches. See Griffin

v. Wisconsin, 483 U.S. 868 (1987); Kincade, 379 F.3d at 823-

832 (en banc) (O’Scannlain, J., plurality opinion) (describing

development of the special needs doctrine and various

Supreme Court cases utilizing it). The special needs doctrine

allows warrantless searches "where a Fourth Amendment

intrusion serves special governmental needs, beyond the nor-

mal need for law enforcement" and "when balancing the indi-

vidual’s privacy expectations against the government’s

interests leads to the determination that it is ‘impractical to

require a warrant or some level of individualized suspicion in

the particular context.’" United States v. Rendon, 607 F.3d

982, 989 (4th Cir. 2010) (quoting Von Raab, 489 U.S. at 665-

66) (emphasis in Rendon)).

The district court found here that the special needs doctrine

was inapplicable, because "the governmental interest in this

case cannot be characterized as anything other than an ordi-

nary interest in law enforcement." Davis, 657 F. Supp. 2d at

651. Thus, the district court employed the totality of the cir-

cumstances test. Applying that test, the district court found

the extraction of Davis’ DNA in conjunction with the Neal

murder investigation was "reasonable." Id. at 654.

On appeal, Davis argues that the totality of the circum-

stances test is not applicable, because it applies only when a

person being searched has "substantially diminished privacy

rights." (Appellant’s Br. 53.) Instead, Davis argues that noth-

ing less than a warrant and probable cause would have

UNITED STATES v. DAVIS 37

allowed the testing and retention of his DNA profile. Davis

further argues that, even if the totality of the circumstances

test were applicable, the district court applied the test incor-

rectly. The government also argues that the district court erred

in applying the totality of the circumstances test because, in

the government’s view, Edwards resolves the issue against

Davis.27

We begin this part of our analysis by restating our conclu-

sion that the holding in Edwards is not dispositive of the mat-

ter under the unique facts before us, and that Davis retained

a reasonable expectation of privacy in his DNA profile. We

also consider as part of our analysis the fact that Davis’

expectation of privacy may have been diminished to some

degree because Davis knew that the police had retained his

clothing, yet had taken no action to retrieve his personal

effects following his release. Thus, we analyze the reason-

ableness of the searches here under the "totality of the circum-

stances test."28 Our employment of this test is consistent with

the decisions of most of our sister circuits, which have applied

the test in cases where there was a diminished expectation of

privacy. See Mitchell, 652 F.3d at 403 n.15 (noting that only

the Second and Seventh Circuits have consistently held that

the "special needs" test should apply instead of the totality of

the circumstances test in addressing the constitutionality of a

DNA indexing statute).

27

In an alternative argument as to why the retention of Davis’ DNA pro-

file does not constitute a separate search, the government contends that

once the district court had determined there was no Fourth Amendment

violation in the extraction and testing of Davis’ DNA from his clothing as

part of the Neal investigation, Davis no longer had any expectation of pri-

vacy in the DNA profile. (Appellee’s Br. at 50-51 (citing Johnson v.

Quander, 440 F.3d 489, 498-99 (D.C. Cir. 2006) and state court opin-

ions).)

28

Neither party argues for the application of the "special needs" test

here. We also conclude it should not apply here because it applies in con-

texts "beyond the normal need for law enforcement," Rendon, 607 F.3d at

989, and only normal law enforcement interests are involved here.

38 UNITED STATES v. DAVIS

Applying the totality of the circumstances test here requires

us to "assess[ ], on the one hand, the degree to which [the

search] intrudes upon [Davis’] privacy, and, on the other, the

degree to which it is needed for the promotion of legitimate

governmental interests." Knights, 534 U.S. at 119. When con-

sidering the magnitude of the intrusion upon Davis’ privacy,

we think it very significant that these DNA searches were

conducted in 2004, at a time when Davis was a free citizen

and had never been convicted of a felony. The PGCPD

extracted Davis’ DNA from his clothing, created Davis’ DNA

profile, and checked that profile against evidence on the

CODIS database, all while Davis was a free citizen who

retained a reasonable privacy interest in his DNA sample and

DNA profile, as we have discussed. However, his privacy

interest was diminished to a degree by the fact that he knew

that the police had retained his bloody clothing, and yet did

nothing to retrieve the clothing or otherwise claim ownership

in it.

In contrast to many DNA privacy cases, the privacy interest

in Davis’ bodily integrity was not implicated when police

obtained the DNA sample, because it was taken from his

clothing, rather than from his person. This too is a factor that

we must consider under the totality of the circumstances. See

e.g., Mitchell, 652 F.3d at 404 (weighing the "minimal" intru-

sion of privacy caused by DNA sample collection by blood

test); Jones, 962 F.2d at 307 (weighing "minor intrusion"

caused by DNA sample collection by blood test).

We next turn to consider the government’s interest in con-

ducting the search. The police, of course, have a strong and

important interest in apprehending and prosecuting those who

have committed violent crimes, like the Neal murder and the

murder of Schwindler in this case. The government also has

a legitimate interest in entering and maintaining information

in CODIS and in increasing the number of entries in CODIS

to improve its efficacy as a crime-solving tool. See Haskell v.

Harris, 669 F.3d 1049, 1062 (9th Cir. 2012), reh’g en banc

UNITED STATES v. DAVIS 39

granted, 2012 WL 3038593 (July 25, 2012) (upholding Cali-

fornia law requiring police to collect DNA samples from all

adult felony arrestees and citing the government’s four "key

interests": "identifying arrestees, solving past crimes, prevent-

ing future crimes, and exonerating the innocent").

In balancing these competing interests to determine the rea-

sonableness of the searches at issue, we are guided by the

weighty reasons underlying the warrant requirement: to allow

a detached judicial officer to decide "[w]hen the right of pri-

vacy must reasonably yield to the right of search," and not "a

policeman or Government enforcement agent." Johnson v.

United States, 333 U.S. 10, 13-14 (1948) (quoted in Davis,

657 F. Supp. 2d at 653.) The right protected is "a right of per-

sonal security against arbitrary intrusions by official power."

Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). The

importance of the judge or magistrate in the process is why

the exceptions to the warrant requirement are "jealously and

carefully drawn." Id.

The potential for arbitrary intrusions of one’s privacy from

warrantless searches in cases involving felons, parolees, or

arrestees is mitigated by the fact that officials are required to

collect from everyone in that certain group of persons. They

cannot selectively choose which persons within a particular

group must submit a DNA sample. See, e.g., Mitchell, 652

F.3d at 415 (the search is further rendered reasonable because

"there is no room for law enforcement officials to exercise (or

abuse) discretion by deciding whether or not to collect a DNA

sample"); Amerson, 483 F.3d at 82 ("[T]he programmatic

nature of the 2004 DNA Act—all felons are required to sub-

mit DNA samples, and the uses of those samples are strictly

circumscribed—leaves no discretion for law enforcement per-

sonnel to decide whether to force an individual to submit to

a taking of a DNA sample or how to use the information col-

lected. This lack of discretion removes a significant reason for

warrants—to provide a check on the arbitrary use of govern-

ment power. See Skinner, 489 U.S. at 621-22.").

40 UNITED STATES v. DAVIS

In this case, by contrast, Davis’ DNA was specifically

sought as a result of police suspicions that he was involved in

the Neal murder, and based on some quantum of proof

amounting to less than probable cause. Indeed, the parties’

briefs and the record before us are devoid of any factual basis

for concluding that Davis was involved in the Neal murder.

Thus, the precise concern that the warrant requirement was

designed to alleviate is plainly before us here. That fact alone

severely diminishes the reasonableness of the search. Thus,

our comparison of the respective interests leads us to con-

clude that the government’s extraction of Davis’ DNA sample

from his clothing and creation of his DNA profile for testing

in the Neal murder investigation constituted unreasonable

searches under the Fourth Amendment.

Lastly, we assume, without deciding, that the entry and

retention of Davis’ profile into the CODIS database under

these circumstances was also unreasonable under the Fourth

Amendment, because the police only had Davis’ DNA profile

as a result of a Fourth Amendment violation resulting from

the extraction and testing of his DNA profile against the DNA

in the Neal investigation.

The conclusion that Fourth Amendment violations occurred

does not end our inquiry, however. Instead, as we discuss

next, we conclude that the exclusionary rule should not be

applied to remedy these violations.29

29

Subsequent to briefing and argument in this case, the Maryland Court

of Appeals upheld an as-applied constitutional challenge to a portion of

the Maryland DNA Collection Act (enacted several years after the events

in the case at bar) that authorizes the warrantless collection and uploading

of certain arrestees’ DNA into the Maryland DNA database. See King v.

State, 42 A.3d 549 (Md. 2012). (The mandate in King, however, has been

stayed pending the Supreme Court’s ruling on the state’s petition for cer-

tiorari. See, Maryland v. King, ___ S. Ct. ___, 2012 WL 3064878 (July

20, 2012)). The King court, as we have, utilized a "totality of the circum-

stances" test to determine whether the search at issue was reasonable.

UNITED STATES v. DAVIS 41

IV.

The "Good Faith" Exception to the Remedy of Suppression

Having determined that there was a Fourth Amendment

violation in the extraction and testing of Davis’ DNA profile,

and having assumed, but not decided, there was a second vio-

lation in the retention of his profile, we address whether sup-

pression is the proper remedy. Leon, 468 U.S. at 906

("Whether the exclusionary sanction is appropriately imposed

in a particular case . . . is an issue separate from the question

whether the Fourth Amendment rights of the party seeking to

invoke the rule were violated by police conduct.") (citation

and internal quotation marks omitted). As noted, the district

court concluded that suppression was not warranted because

the "good faith" exception to the exclusionary rule was appli-

cable. For the reasons discussed below, we agree.

The Supreme Court articulated the "good faith" exception

to the exclusionary rule in Leon, 468 U.S. at 920. In that case,

the Court refused to apply the exclusionary rule where police

We note, however, that the ultimate conclusion of the King Court does

not alter our analysis. First, the case is factually distinguishable. Not only

did it involve a portion of Maryland’s DNA statute not in effect at the time

of events in the case at bar, but it involved the taking of a DNA swab from

an arrestee, rather than the creation of a DNA profile from a victim’s DNA

sample already lawfully in police possession. Second—and significant-

ly—the King Court did not address at all the application of the good faith

exception, nor is there any indication in the opinion that it was asked to

do so.

Since the question is not before us, we express no opinion on the King

Court’s conclusion, although we note that it is contrary to decisions by the

Third and Ninth Circuits. See, e.g, supra at 31-32, 38-39 (citing Haskell

v. Harris, 669 F.3d 1049, 1062 (9th Cir. 2012), reh’g en banc granted,

2012 WL 3038593 (July 25, 2012) and United States v. Mitchell, 652 F.3d

387, 407 (3d Cir. 2011) (en banc), both of which upheld statutes requiring

the collection of DNA from arrestees).

42 UNITED STATES v. DAVIS

properly executed a search warrant, but it was later deter-

mined the issuing magistrate had erred as the warrant lacked

probable cause. Id. at 922. The Supreme Court has also

applied the "good faith" exception to warrantless administra-

tive searches performed in good-faith reliance on a statute

later declared unconstitutional, Illinois v. Krull, 480 U.S. 340

(1987), and to an arrest by police who reasonably relied on

erroneous information, entered by a court employee into a

court database, that an arrest warrant was outstanding, Ari-

zona v. Evans, 514 U.S. 1, 14 (1995).

The Supreme Court’s recent decisions applying the excep-

tion have broadened its application, and lead us to conclude

that the Fourth Amendment violations here should not result

in the application of the exclusionary rule. See Herring, 555

U.S. at 135; Davis v. United States, ___ U.S. ___, 131 S. Ct.

2419 (2011).

In both Herring, and Davis, the Supreme Court emphasized

the crucial role that deterrence plays in determining whether

to apply the exclusionary rule. Specifically, "the benefits of

deterrence must outweigh the costs." Herring, 555 U.S. at 141

(citing Leon, 468 U.S. at 910 (1984)). That is, courts must

weigh the deterrent effect of applying the rule against the cost

to society. The "principal cost of applying the rule is, of

course, letting guilty and possibly dangerous defendants go

free—something that ‘offends basic concepts of the criminal

justice system.’" Id. at 141 (quoting Leon, 468 U.S. at 908).

In determining the deterrent effect of applying the rule, the

Herring Court explained that the deterrent effect is higher

where law enforcement conduct is more culpable. Thus, "‘an

assessment of the flagrancy of the police misconduct consti-

tutes an important step in the calculus’ of applying the exclu-

sionary rule." Id. at 143 (quoting Leon, 468 U.S. at 911).

The Herring Court explained that the rule should not be

applied where excluding the evidence would have little deter-

UNITED STATES v. DAVIS 43

rent effect on future constitutional violations by law enforce-

ment officers, and the cost to society of such a rule is high.

Id. at 147-148 (concluding that "when police mistakes are the

result of negligence such as that described here, rather than

systemic error or reckless disregard of constitutional require-

ments, any marginal deterrence does not ‘pay its way’" and

the exclusionary rule should not be applied).

In Herring, the mistake made by police was that a police

department in Dale County, Alabama told the neighboring

Coffee County police that the defendant had an outstanding

arrest warrant in Dale County. Id. at 137-38. In fact, the Dale

County arrest warrant had been recalled five months earlier,

but had never been deleted from the electronic database. Id.

at 138. After being given the incorrect information that the

warrant was outstanding, a Coffee County police officer

detained Herring, and found drugs and a gun on his person.

Id. Herring sought to exclude the evidence seized from his

person. Id. at 137.

The majority distinguished the negligent conduct involved

in Herring from earlier cases where the good faith exception

did not apply, calling the error before it the "result of isolated

negligence attenuated from the arrest." Id. at 137.

More recently, the Supreme Court followed the Herring

analysis in Davis, 131 S. Ct. 2419, where the Court consid-

ered "whether to apply [the exclusionary rule] when the police

conduct a search in compliance with binding precedent that is

later overruled." Id. at 2423. The Court ruled that the exclu-

sionary rule should not be applied in those circumstances,

"[b]ecause suppression would do nothing to deter police mis-

conduct . . . and because it would come at a high cost to both

the truth and the public safety." Id. In so ruling, the Court

again expounded on the balancing test that courts must apply

after finding a Fourth Amendment violation: "For exclusion

to be appropriate, the deterrence benefits of suppression must

outweigh its heavy costs." Id. at 2427 (citing Herring, 555

44 UNITED STATES v. DAVIS

U.S. at 141, and Leon, 468 U.S. at 910). Justice Alito, writing

for the Court, elaborated:

The basic insight of the Leon line of cases is that the

deterrence benefits of exclusion vary with the culpa-

bility of the law enforcement conduct at issue. When

the police exhibit deliberate, reckless, or grossly

negligent disregard for Fourth Amendment rights,

the deterrent value of exclusion is strong and tends

to outweigh the resulting costs. But when the police

act with an objectively reasonable good-faith belief

that their conduct is lawful, or when their conduct

involves only simple, isolated negligence, the deter-

rence rationale loses much of its force and exclusion

cannot pay its way.

Davis, 131 S. Ct. at 2427-28 (internal citations, quotation

marks and brackets omitted).

The Davis Court also reviewed the line of "good faith

exception" cases, starting with Leon, concluding that "in 27

years of practice under Leon’s good-faith exception, we have

‘never applied’ the exclusionary rule to suppress evidence

obtained as a result of nonculpable, innocent police conduct."

Id. at 2429 (quoting Herring, 555 U.S. at 144.)

Indeed, the Davis Court focused on the issue of culpability

as the decisive factor in the case before it:

Under our exclusionary-rule precedents, this

acknowledged absence of police culpability dooms

Davis’ claim. Police practices trigger the harsh sanc-

tion of exclusion only when they are deliberate

enough to yield "meaningfu[l]" deterrence, and cul-

pable enough to be "worth the price paid by the jus-

tice system." Herring, 555 U.S. at 144. The conduct

of the officers here was neither of these things. The

officers who conducted the search did not violate

UNITED STATES v. DAVIS 45

Davis’s Fourth Amendment rights deliberately, reck-

lessly, or with gross negligence. See ibid. Nor does

this case involve any "recurring or systemic negli-

gence" on the part of law enforcement. Ibid.

Davis, 131 S. Ct. at 2428.

In order to properly apply Leon, Herring, and Davis here,

we must focus on the culpability of the actors who committed

the violations. The government mistakenly argues that we

should focus on the conduct and "good faith" of PGCPD

Detective Blazer, who, based on the cold hit, obtained the

warrant for Davis’ known DNA. It is true that nothing in the

record suggests that Detective Blazer engaged in any culpa-

ble, or even negligent, conduct. He relied in good faith on the

cold hit obtained and followed proper procedures in getting a

search warrant based on it. There is nothing to suggest that his

conduct was improper or that he had any obligation to look

behind the cold hit match to see if there was some earlier con-

stitutional violation.

But the deterrent effect of the exclusionary rule must be

judged at the point of the constitutional violation, and the cul-

pability of the actors involved then. The pertinent inquiry is

whether we apply the exclusionary rule to keep similar viola-

tions from happening again; here, to prevent and deter the

warrantless extraction of a victim’s DNA from materials law-

fully in police custody when he later becomes a suspect and

then to deter that DNA profile from being retained. Thus, we

look at the culpability of the police officers involved in those

decisions, not at Detective Blazer.

As to the first violation, the extraction and testing of Davis’

DNA in connection with the Neal murder, we find nothing in

the conduct of the PGCPD officers that would warrant exclu-

sion. As an initial matter, the PGCPD officers had no reason

to question that Davis’ blood was lawfully within HCPD cus-

46 UNITED STATES v. DAVIS

tody and indeed, we have concluded that the clothing was

properly in police custody.

Although we do not have detailed testimony before us as to

the subjective motivations of the PGCPD officers who

obtained the clothing and requested it be tested, the unique

facts of this case reflect, at most, isolated negligence. What

the officers did here was to obtain clothing that was lawfully

in police custody and to test it for evidence. Significantly, the

only reason they knew of the clothing’s existence was

because of Davis’ arrest on drug charges when he left the

hospital in Howard County. Had the clothing been obtained

initially because of his arrest (like the other items on the prop-

erty form), Edwards and Wallace v. State, 816 A.2d 883 (Md.

2003), a Maryland Court of Appeals decision applying

Edwards, likely would have permitted the testing. Thus, attri-

buting culpability to the officers at this stage would be based

on either: (1) their failure to learn, or recognize, that the cloth-

ing was in police custody because Davis was a victim, rather

than an arrestee; or (2) assuming they did know the clothing

had been seized from a crime victim, their failure to recognize

that Davis’ dual status as victim and arrestee might change the

legal analysis set forth in Edwards and Wallace. This is sim-

ply not the type of "flagrant," or "intentional . . . patently

unconstitutional" conduct that warrants the application of the

exclusionary rule. See Herring, 555 U.S. at 143-44. The con-

duct of PGCPD officers, in testing the blood contained on

otherwise lawfully-seized clothing, does not constitute the

type of "deliberate, reckless or grossly negligent" conduct that

warrants exclusion. See id. at 144. As the Herring Court

explained, "[a]n error that arises from nonrecurring and atten-

uated negligence is thus far removed from the core concerns

that led us to adopt the rule in the first place." Id.

The dissent’s mantra of "deliberate and intentional" police

conduct at each step in the factual scenarios here, see post at

93, does not alter the facts as we have set them forth or the

proper analysis to be applied to them. To be sure, the police

UNITED STATES v. DAVIS 47

took the steps that they did deliberately and intentionally in

the sense that their actions were not accidental. But for the

reasons we explain, one could insert "innocently" or "without

knowledge of any constitutional violation," before each of

those actions.

Likewise, as to any violation that occurred when the analyst

entered Davis’ DNA profile into the database after he was not

a match in the Neal murder investigation, the record simply

does not disclose anything that suggests that this action was

anything other than an isolated, negligent incident at best.

There is nothing, first of all, to show that the analyst here

knew or should have known entering the data would violate

the Fourth Amendment. Indeed, the many court decisions

(including this Court’s decision in Jones), that have consid-

ered challenges to the use of DNA evidence have uniformly

upheld statutes and other laws allowing the collection and

testing of DNA evidence.

Additionally, while the paperwork accompanying Davis’

clothing indicated that it came from a victim’s clothing (J.A.

164, Supp. J.A. 76), it is not at all clear that the analyst actu-

ally knew anything other than that the evidence came from a

"suspect in a shooting." (Supp. J.A. 93.) Similar to Leon and

Herring, where officers relied on records from others in law

enforcement, the PGCPD officers were relying on the fact that

the HCPD had lawfully obtained the evidence. Indeed, while

we rejected the government’s broad construction of Edwards

based on the fact that Davis was a victim when police seized

his clothing, courts have repeatedly held, in broad terms, that

evidence lawfully seized by one police agency may be given

to another, even for a different purpose and even for addi-

tional testing.30

30

See, e.g., Wallace, 816 A.2d at 896-97 (collecting cases); Williams v.

Commonwealth, 527 S.E.2d 131, 136 (Va. 2000) (holding that defendant

had no expectation of privacy in boots that were seized incident to his

arrest and thus that "later examination of the property by another law

48 UNITED STATES v. DAVIS

So, while we have determined for purposes of this opinion

that Edwards did not allow the testing because Davis, as a

victim, retained an objectively reasonable expectation of pri-

vacy in his DNA, that does not mean that the PGCPD officers

and DNA analyst were not acting in a good faith belief that

they had authority to do that testing under Edwards and simi-

lar cases.

Additionally, there is no evidence before this Court that the

retention of a DNA profile in circumstances like that of

Davis, is a systemic or recurring problem. The dissent dis-

agrees, relying heavily on what it describes as an "admission"

of the government at oral argument that the constitutionally

violative conduct here was "clearly systemic." See post at 90.

In our view, that reliance is misplaced. At oral argument, in

response to questioning, counsel for the government briefly

set forth the basic PGCPD policy or practice that the analyst

was following.31 Specifically, counsel explained that if a piece

enforcement official [with a different department] does not violate the

Fourth Amendment", even if being examined for a different charge than

the charge for which he was arrested); United States v. Turner, 28 F.3d

981, 983 (9th Cir. 1994) (removal of defendant’s cap from jail by postal

inspector without a warrant was proper since it remained in the possession

of the police); United States v. Thompson, 837 F.2d 673, 674 (5th Cir.

1988) ("A person lawfully arrested has no reasonable expectation of pri-

vacy with respect to property properly taken from his person for inventory

by the police. Later examination of that property by another law-

enforcement officer is, therefore, not an unreasonable search within the

meaning of the Fourth Amendment."); United States v. Johnson, 820 F.2d

1065, 1072 (9th Cir. 1987) (money seized by state authorities upon defen-

dant’s arrest for driving under the influence could be later reviewed by a

federal agent to obtain serial numbers in a robbery investigation without

a warrant); United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974) (relying

on Edwards to conclude there was no Fourth Amendment violation where

a federal agent took "second look" and seized without a warrant money

that had been taken from the defendant following his arrest on unrelated

state charges and maintained in the jail safe).

31

Counsel prefaced her comments by referencing the policy at the time

Davis’ profile was uploaded. The record does not disclose whether that

policy has changed in light of subsequent developments in the Maryland

or federal DNA laws, or as a result of decisions like the district court’s

decision in the instant case, issued in 2009.

UNITED STATES v. DAVIS 49

of evidence was analyzed for DNA evidence and a DNA pro-

file was obtained from it, or if a DNA profile was obtained

from a "known sample," then those DNA profiles were

uploaded into the local CODIS database.

From this, our dissenting colleague assumes that evidence

tainted by antecedent constitutional violations would also be

uploaded to the database. But while it is possible to imagine,

given the policy as articulated, that DNA evidence obtained

by an illegal search or pursuant to an illegal arrest might end

up in CODIS, there is no testimony before us as to whether

that actually happened in any other instance. Indeed, defense

counsel conceded at oral argument that the evidentiary record

before this Court does not contain a single other example of

a person’s DNA being placed into the PGCPD local CODIS

database without a proper constitutional basis. Any conclu-

sion to that effect is purely speculative.

Moreover, as we have repeatedly made clear, our finding of

a constitutional violation in this case was based on the spe-

cific and unusual facts of this case. Here, the police properly

seized a piece of evidence from a victim in one crime, but

then unconstitutionally used DNA evidence extracted from

that evidence in investigating an unrelated crime in which the

original victim was a suspect. They did so without consent

from the victim and without obtaining a warrant, and thus we

have found a violation. But a change in any one of those facts

might have rendered the inclusion of Davis’ DNA in CODIS

constitutionally permissible. For example, had the clothing

been taken from Davis as part of an inventory search at the

time of his arrest for the present crime, as was the clothing in

Edwards, rather than seized from him when he was a victim

of a different crime, the result likely would have been differ-

ent. Similarly, had the police obtained a search warrant to

extract Davis’ DNA from his pants and test it in conjunction

with the Neal murder, the result likely would have been differ-

ent.32 So, the mere fact that other victims’ DNA might be

32

Because those are not the facts before us, we need not resolve the con-

stitutionality of the DNA searches in those hypothetical cases. But those

50 UNITED STATES v. DAVIS

present in the database does not mean there were other consti-

tutional violations.

Likewise, there is no evidence before us that the analyst

acted with knowledge that she should not retain the profile.33

Like the conduct at issue in Herring and in Davis, then, the

conduct here stands in stark contrast to the cases in which the

exclusionary rule has been applied, described by the Herring

Court as "patently unconstitutional" conduct. See Herring,

555 U.S. at 143. Moreover, given the evolving and unsettled

law governing DNA searches and seizures (as amplified by

the district court’s lengthy decision in this case, the briefs on

appeal, and the lack of controlling Fourth Circuit or Supreme

Court precedent), the conduct of the officers entering and

retaining Davis’ DNA profile can hardly be characterized as

brazen or reckless.

We also note that Congress and the Maryland legislature,

through their imposition of fines and criminal penalties for

failures to comply with their respective DNA statutes, already

provide a deterrent effect against similar and future potential

misuses of DNA information. Md. Code Ann. Pub. Safety

§ 2-512 (providing penalties for persons who misuse, dis-

close, or fail to destroy certain DNA records as required by

the Maryland Act); 42 U.S.C. §§ 14135e(c), 14132(c) (same

as to federal DNA act). This factor, too, militates in favor of

judicial restraint in exercising the remedy of suppression,

slight differences in fact might well alter our conclusions regarding the

constitutionality of the police actions and the uploading of DNA profiles.

Thus, the mere existence of the policy stated by counsel does not necessar-

ily mean that the violation here was anything other than isolated.

33

While the analyst testified that she knew the state level database

required deletion of a profile once a court had exonerated a person previ-

ously convicted, there is nothing in the record to support that she knew the

profile of either a victim or a suspect was required to be destroyed in the

circumstances here, nor has Davis pointed to any statute with such a

requirement.

UNITED STATES v. DAVIS 51

which exacts a "costly toll upon truth-seeking and law

enforcement objectives." Cf. Herring, 555 U.S. at 141 (cita-

tion omitted); see also Osborne, 557 U.S. 52, 129 S. Ct. at

2312 (describing the response of the federal government and

the states in regulating DNA testing as "prompt and consid-

ered").

In short, the obtaining and testing of Davis’ DNA from his

bloody clothing, and the subsequent inclusion of his DNA

profile in the database were, at best, "isolated negligence

attenuated from the arrest" [for the Schwindler murder]. See

Herring, 555 U.S. at 137. We have no proof before us show-

ing that victims’ DNA profiles or individuals cleared of suspi-

cion in an investigation are routinely entered into the local

database by PGCPD, or have been entered into the database

in any other instance. There is nothing in the record to suggest

that the acts here are likely to reoccur. Moreover, the particu-

larly unusual facts of this case—where a victim, with a dual

status as an arrestee, later becomes a suspect in an unrelated

crime, and there is DNA evidence available as a result of the

crime in which the person was a victim—diminish further the

likelihood of reoccurrence. The price to society of application

of the exclusionary rule here, especially since the DNA evi-

dence against Davis was compelling, would be to allow a per-

son convicted of a deliberate murder to go free. The deterrent

effect, if any, would be minimal, especially considering the

lack of culpable conduct on the part of the police. Exclusion,

therefore, would not "pay its way." See Davis, 131 S. Ct. at

2428.34

34

Contrary to the dissent’s contention, we are not creating a "new, free-

standing exception" to the exclusionary rule. Post at 88. Rather, we have

faithfully applied the Supreme Court’s precedent, including its recent

application of Leon in Herring and Davis. While the dissent refers to the

"narrow holding[s]" in those cases, and deems inapplicable the "broad

cost-benefit analysis" that underlies those holdings, post at 88, 92, the

Supreme Court’s analysis in those cases is not dicta, but is the rationale

supporting the Court’s application of the good-faith exclusion.

52 UNITED STATES v. DAVIS

For the foregoing reasons, the good faith exception to the

exclusionary rule applies and we affirm the district court’s

denial of Davis’ motion to suppress.

V.

Davis’ second and final contention is that the district court

erred in excluding the testimony of his proffered expert, Dr.

Jeffrey Neuschatz. We review a district court’s evidentiary

rulings, including rulings on the admissibility of expert testi-

mony, for abuse of discretion. Gen. Elec. Co. v. Joiner, 522

U.S. 136, 141-42 (1997); United States v. Barsanti, 943 F.2d

428, 432 (4th Cir. 1991) (decision whether to admit expert

testimony "will not be reversed absent a clear abuse of discre-

tion"). We have reviewed the pertinent portions of the record

on this issue and find no abuse of discretion with regard to

this evidentiary ruling.

At trial, in addition to the DNA evidence and other evi-

dence concerning the offenses, there was one witness,

Laverda Jessamy, who identified Davis as being one of the

robbers at the scene of the bank robbery and Schwindler

shooting. She had done so both from a photographic array and

in person at trial. In response to this identification, Davis

sought to introduce the testimony of Dr. Jeffrey Neuschatz as

an expert in eyewitness identifications. According to his

expert witness report, Dr. Neuschatz intended to testify that

the lineup procedure used with Ms. Jessamy did not meet the

good practices guidelines of the American Psychology-Law

Society and to testify concerning a number of factors which

might result in a misidentification.

The government moved to exclude this evidence, contend-

ing that much of the proffered testimony consisted of com-

mon sense factors within the jury’s understanding and not

requiring expert testimony. After a hearing, the district court

granted the government’s motion to exclude Dr. Neuschatz’s

testimony on the grounds that it would not assist the jury. The

UNITED STATES v. DAVIS 53

court also explained that the testimony was not admissible

under Fed. R. Evid. 403. In particular, the district court con-

cluded that the probative value of the testimony was low

because there was significant other evidence of guilt other

than the eyewitness testimony and it was not a case where the

government was relying, either exclusively or primarily, on

eyewitness testimony. Thus, the danger of unfair prejudice,

confusing of the issues or misleading the jury heavily out-

weighed the probative value of the testimony.

We have reviewed Dr. Neuschatz’s report and his testi-

mony at the Daubert hearing, and find that the district court

did not abuse its discretion in concluding that the proffered

evidence was not "scientific knowledge" that would be of

benefit to the jury. This is consistent with our prior decision

in United States v. Harris, 995 F.2d 532 (4th Cir. 1993). In

Harris, we recognized the "trend in recent years to allow such

testimony under [narrow] circumstances," but nonetheless

concluded that "jurors using common sense and their faculties

of observation can judge the credibility of an eyewitness iden-

tification, especially since deficiencies or inconsistencies in

an eyewitness’s testimony can be brought out with skillful

cross-examination." Id. at 534-35.

The district court also did not abuse its discretion when

concluding that, even if it qualified as a proper subject of

expert testimony, the probative value of the testimony, which

was low, was outweighed by the danger of prejudice or con-

fusing the jury. Accordingly, it was not an abuse of discretion

to exclude the evidence on Rule 403 grounds.

Finally, we also agree with the government that, even if the

testimony was wrongfully excluded, it was at most, harmless

error. Most of the points that would have been made by Dr.

Neuschatz were made by Davis’ counsel on cross-

examination. The compelling DNA evidence against Davis, as

well as the evidence of unexplained cash purchases by him

and his girlfriend in the days following the robbery were over-

54 UNITED STATES v. DAVIS

whelming evidence of guilt. The detailed jury instruction

given by the court, moreover, further recognized and correctly

advised the jury as to the legal issues concerning eyewitness

identifications. In light of all these factors, we find no abuse

of discretion by the district court in excluding the witness.

VI.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

DAVIS, Circuit Judge, dissenting:

There is much in the majority’s thoughtful and thorough

opinion with which I agree. Alas, however, "I feel constrained

by a sense of duty to express my nonconcurrence in the action

of the court in this present case." Twining v. New Jersey, 211

U.S. 78, 114 (1908) (Harlan, J., dissenting). I part company

from the majority on two issues: (1) its application of the

plain view exception to justify the seizure of the bag contain-

ing Davis’s clothing from the hospital and the subsequent

search of that bag and (2) its refusal to apply the exclusionary

rule.1 I conclude for the reasons explained herein that the sei-

1

The majority "assume[s], without deciding, that there was a separate

Fourth Amendment violation in retaining Davis’ DNA profile in the local

CODIS database." Maj. Op. at 9-10. While it is not critical to my analysis

in this case, I would likely hold that under circumstances such as those

presented here, the state action involved in (1) extracting Davis’s DNA

from the biological material recovered from his clothing, (2) chemically

analyzing that material to create a DNA profile, and (3) uploading the pro-

file into the local DNA database essentially constitutes a single continuous

course of constitutionally implicated endeavors subject to Fourth Amend-

ment scrutiny. Governments undertake to engage in this full course of con-

duct inasmuch as the purpose of this extraordinary forensic science is to

enable law enforcement to identify persons, and that cannot be achieved

through less than the full protocol we have come to know. For present pur-

poses, however, I join in the majority’s assumption.

UNITED STATES v. DAVIS 55

zure of the bag was unlawful and, even assuming the seizure

could somehow be justified, the subsequent search of the bag

effected a distinct violation of Davis’s constitutionally pro-

tected privacy interests. Furthermore, I conclude that the

majority’s creation of a free-standing, ad hoc exception to the

exclusionary rule is unwise and unsupported by the facts of

this case, extant Supreme Court precedents, or our own prece-

dents. Thus, I would vacate the judgment, reverse the denial

of Davis’s motion to suppress, and remand this case for fur-

ther proceedings, as appropriate.2

I.

A.

On August 29, 2000, Davis was treated at Howard County

(Maryland) General Hospital for a gunshot wound to his right

thigh. Davis told hospital staff that he had been shot in the

course of a robbery. As required by state law, hospital person-

nel notified the Howard County Police Department ("HCPD")

that it was treating a gunshot victim. See Md. Code Ann.,

Health-Gen. § 20-703. Detective Joseph King of the HCPD,

then a uniformed patrol officer, was the first to respond to the

hospital; King spoke with Davis concerning the circumstances

of the shooting. Detective King testified at the suppression

hearing that the hospital had been on his beat for approxi-

2

I would not reach the question whether the district court properly

excluded the testimony of Dr. Jeffrey Neuschatz, Davis’s proposed expert

on eyewitness identifications. The district court excluded Dr. Neuschatz’s

testimony in significant part because it had previously decided to admit

the DNA evidence, which meant that "the significance of eyewitness iden-

tification" in the case was "[not] high." J.A. 2323. Because I would reverse

the district court’s denial of Davis’s motion to suppress the DNA evi-

dence, that premise of the district court’s decision would no longer apply,

and in a retrial without that evidence the court might very well come to

a different conclusion. Thus, I find it unnecessary to address the district

court’s grant of the government’s motion to exclude Dr. Neuschatz’s testi-

mony.

56 UNITED STATES v. DAVIS

mately two years, and that he had responded on previous

occasions to individuals with gunshot wounds. When he

arrived at the hospital, he located Davis in the emergency

room on a bed or gurney. According to Detective King, Davis

presented him with a District of Columbia driver’s license

that showed his photograph and the name "Gary Edmonds."

Detective King observed Davis’s gunshot wound. He then

seized a bag containing Davis’s pants and boxer shorts, which

had been removed by hospital personnel, placed in the bag,

and stored on a shelf beneath the bed. Detective King testified

that he considered the clothing to be evidence of the crime

reported, i.e., Davis’s shooting. Detective King did not

receive assistance from hospital personnel in retrieving the

bag, which he testified was similar to other occasions on

which he had responded to the hospital to investigate shoot-

ings. Detective King did not seek or obtain Davis’s consent

to take the bag or otherwise discuss the matter with Davis. He

assumed Davis was aware that he was taking the bag because

Davis observed him take possession of it. Detective King

described Davis’s attitude towards questioning as "uncoopera-

tive." J.A. 143.

A short time later, Lieutenant Steven Lampe appeared at

the hospital. Lieutenant Lampe took the bag from Detective

King and later submitted it to the HCPD property room to be

held as evidence. Lieutenant Lampe testified that the clothing

was in a plastic bag when he took it from Detective King, but

he could not recall what the bag looked like. Lieutenant

Lampe did not inspect the clothing right away. Consistent

with Detective King’s testimony, he stated that Davis was not

forthcoming in response to questioning, gave only vague

information about the shooting, and was not interested in

reporting the crime. After speaking with Davis, the police

attempted to confirm his identity through various computer

inquiries and found no history of a "Gary Edmonds."

Because the officers believed that Davis was being untruth-

ful in his report of how he was shot, in part due to his lack

UNITED STATES v. DAVIS 57

of cooperation, the officers located the vehicle in which

Davis’s friend had driven him to the hospital, observed what

appeared to be blood on the front passenger seat, and

requested a K-9 officer to have his dog scan the car. The dog

positively alerted to the presence of a controlled dangerous

substance ("CDS"), and the car was searched. The police

recovered a small amount of marijuana in the vehicle and

accordingly arrested Davis and took him into custody upon

his release from the hospital later that day. Lieutenant Lampe

testified that the hospital staff had given Davis something to

wear, Davis’s clothing having been seized by Detective King.

The police subsequently identified Davis by his fingerprints

as "Earl Davis," and he admitted his true identity. Davis was

charged with possession of marijuana and possession of CDS

paraphernalia, but the charges were later dismissed.

The investigation into Davis’s shooting concluded without

an arrest, and the case was considered closed as of November

7, 2000. To that point, no forensic testing had been conducted

on the bloody clothing seized from Davis at the hospital.

Davis was not contacted or otherwise advised that the shoot-

ing investigation was closed.

Several months later, in June 2001, an individual named

Michael Neal was murdered in nearby Prince George’s

County, Maryland. At some point in the ensuing three years

detectives in the Prince George’s County Police Department

("PGCPD") came to suspect Davis of having committed the

murder. In the course of investigating the Neal murder, in

April 2004 members of the PGCPD contacted Lieutenant

Lampe to inquire about Davis’s arrest at Howard County

General Hospital in 2000. The PGCPD officers specifically

asked whether any property had been seized from Davis that

might contain his DNA. Lieutenant Lampe understood from

this inquiry that Davis was now a suspect in a homicide. Later

that month, two PGCPD homicide detectives who were famil-

iar with the facts of the Neal murder went to the HCPD to

pick up Davis’s clothing for the purpose of DNA testing.

58 UNITED STATES v. DAVIS

Lieutenant Lampe delivered the clothing to the PGCPD detec-

tives on April 29, 2004. On the property form for the clothing,

Davis was clearly identified as a "victim." J.A. 164. Davis

was not notified that the PGCPD had obtained his clothing.

The PGCPD detectives submitted Davis’s clothing to their

DNA lab in connection with their investigation of the Neal

murder.

Shortly thereafter, in or around June 2004, Davis’s DNA

was extracted from the blood stains on his boxer shorts, his

profile was created, and the profile was compared to an

unknown DNA profile derived from evidence obtained at the

scene of the Neal homicide. The profiles did not match, and

Davis was therefore excluded as the source of the evidentiary

sample from the Neal murder. Davis’s DNA profile was then

entered into the local Prince George’s County Combined

DNA Index System ("CODIS") database. His DNA profile

was never expunged or otherwise removed from the database.

B.

On August 6, 2004, shortly before 1:00 p.m., Jason Sch-

windler, an armored car employee, picked up a bank deposit

from a local business and took it to a nearby BB&T bank in

Hyattsville, Maryland, located in Prince George’s County. As

Schwindler walked up to the bank entrance, two gunmen

exited a Jeep Cherokee and shot Schwindler, killing him.

When their escape in the Jeep was thwarted by the armored

truck driver, the assailants carjacked a bank customer and fled

in her Pontiac Grand Am. The carjacked vehicle was later

recovered.

After Schwindler’s murder, officers from the PGCPD

responded to the crime scene and collected evidence. Numer-

ous items were recovered, including a baseball cap worn by

one of the shooters, two firearms, and steering wheel covers

from the Jeep Cherokee and the Pontiac Grand Am, the vehi-

cles the shooters had driven to and away from the crime

UNITED STATES v. DAVIS 59

scene, respectively. These items were swabbed and analyzed

for DNA. The DNA profiles of the major contributor to the

DNA found in the ballcap and on the trigger and grip of the

recovered firearms were entered into the Prince George’s

County CODIS database. As a result of a search of the local

database, on or about August 14, 2004, there was a "cold hit"

between the DNA profile derived from material found on the

baseball cap recovered at the crime scene and Davis’s DNA

profile in the database.

Law enforcement officers were notified of the match and,

based on the cold hit, they promptly sought, and a state judge

issued, warrants authorizing them to obtain DNA from Davis

and to search the home of his girlfriend, Dana Holmes. Pursu-

ant to the search warrant, a DNA sample was taken from

Davis and his DNA profile was compared to the profiles

derived from the DNA deposited on items recovered from the

crime scene. The DNA analyst concluded that, to a reasonable

degree of scientific certainty, Davis was the source of the

DNA recovered from three pieces of evidence related to the

Schwindler murder: (1) the steering wheel cover of the stolen

Jeep Cherokee the assailants drove to the bank; (2) a baseball

cap dropped by one of the assailants during the course of the

robbery; and (3) the steering wheel cover of the Pontiac

Grand Am in which the assailants fled the scene.

C.

On March 31, 2008, a federal grand jury returned a super-

seding indictment charging Davis with one count of Hobbs

Act robbery, in violation of 18 U.S.C. § 1959; two counts of

possession and discharge of a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c); one

count of possession and discharge of a firearm resulting in

death (murder), in violation of 18 U.S.C. § 924(j); one count

of carjacking, in violation of 18 U.S.C. § 2119; and one count

of felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g). Davis pleaded not guilty and proceeded to trial.

60 UNITED STATES v. DAVIS

Prior to trial, Davis moved to suppress all direct and deriva-

tive evidence obtained from the warrantless seizure of his

clothing at Howard County General Hospital, including his

DNA profile. The district court denied Davis’s motion to sup-

press after holding an evidentiary hearing and, following the

conclusion of trial, filed a thoughtful opinion accepting some

of Davis’s arguments and rejecting others, but ultimately reaf-

firming its earlier denial of the motion to suppress. United

States v. Davis, 657 F. Supp. 2d 630 (D. Md. 2009).

The DNA evidence presented at trial consisted of the

PGCPD analyst’s finding that Davis’s DNA profile matched

the DNA profile derived from the evidence recovered from

the scene of the Schwindler murder to a reasonable degree of

scientific certainty. Davis challenged the validity of the ana-

lyst’s findings. In particular, he questioned whether the

amount of DNA recovered from the crime scene was suffi-

cient to produce accurate results and whether the govern-

ment’s statistical probability calculations (i.e., the statistics

supporting the conclusion that Davis was the source of the

DNA on each of the three items recovered from the crime

scene) were reliable and accurate.

Davis’s trial began on May 5, 2009, and lasted approxi-

mately five weeks. At the conclusion of the trial on June 3,

2009, the jury returned a guilty verdict on all counts. The dis-

trict court sentenced Davis to a term of life imprisonment plus

420 months. Davis timely appealed the district court’s denial

of his motion to suppress and grant of the government’s

motion to exclude expert testimony.

II.

As the majority explains, Davis argues the district court

committed reversible error in denying his motion to suppress

DNA evidence. He contends that the following separate

Fourth Amendment violations led to the "cold hit" match that

UNITED STATES v. DAVIS 61

implicated him in the Schwindler murder.3 First, Davis argues

that the initial nonconsensual, warrantless seizure of the bag

of clothing from Howard County General Hospital by the

HCPD in 2000 violated his Fourth Amendment rights. Sec-

ond, he contends that the related, subsequent nonconsensual,

warrantless search of the bag was unlawful, rendering all fur-

ther uses of the evidence derived therefrom inadmissible as

"fruit of the poisonous tree." Third, he asserts that PGCPD

officials violated the Fourth Amendment when they extracted

and chemically analyzed a sample of his DNA from the cloth-

ing without consent or a warrant in 2004. Fourth, Davis con-

tends that the nonconsensual, warrantless uploading and

retention of his DNA profile in the local CODIS database

constituted yet a further Fourth Amendment violation. Of

these four alleged violations, the district court found that only

the retention of Davis’s DNA profile in the CODIS database

constituted a Fourth Amendment violation, although it ulti-

mately concluded that applying the exclusionary rule was not

appropriate on the basis of the good-faith exception.

The majority agrees with the district court’s analysis in sig-

nificant part. In particular, the majority agrees that the war-

rantless seizure of the bag containing Davis’s clothing, as well

as the subsequent, distinct search of the bag, and the subse-

quent seizure of the contents of that bag, resulting in the

3

Although the majority, following the lead of the parties, purports to

identify three alleged Fourth Amendment violations, as I explain within,

a proper analysis of this case must distinguish as separate constitutionally

cognizable invasions: (1) the seizure of the bag at the hospital followed by

(2) the search of the bag. Indeed, as the majority’s own analysis shows,

see Maj. Op. at 13 ("As to both the seizure of the bag and the subsequent

search of the bag, the district court’s reliance on United States v. Williams,

41 F.3d 192 (4th Cir. 1994) was appropriate."), the seizure and search of

the bag are indeed distinct undertakings. Moreover, although Davis com-

bined these two challenges in some ways, there is no question that he has

challenged each distinct invasion of his rights. See Appellant’s Br. at 17

("First, the police illegally seized and searched the white bag containing

Mr. Davis’ clothes beneath his hospital bed when he came in as a shooting

victim four years prior to the Schwindler robbery and shooting.").

62 UNITED STATES v. DAVIS

extraction of Davis’s biological material, all may be justified

on the basis of the plain view seizure exception to the warrant

clause of the Fourth Amendment. I respectfully dissent from

that extraordinary holding. The plain view exception does not

apply under the circumstances in this case. Furthermore, even

if it could be applied in some plausibly recognizable manner,

the plain view seizure doctrine could not possibly justify the

separate search of the bag containing Davis’s clothing.

Accordingly, the majority’s substantive Fourth Amendment

analysis is fatally flawed, quite apart from its unwarranted

refusal to apply the exclusionary rule.

A.

As the district court correctly observed, Davis, 657 F.

Supp. 2d at 636, the government bears the burden of proving,

by a preponderance, the legality of the search and seizure of

evidence obtained without a warrant (or evidence derived

therefrom) which it intends to introduce at trial. See Welsh v.

Wisconsin, 466 U.S. 740, 749-50 (1984) (exigent circum-

stances); United States v. Mendenhall, 446 U.S. 544, 557

(1980) (consent); United States v. Matlock, 415 U.S. 164, 177

n.14 (1974) (same); cf. Illinois v. McArthur, 531 U.S. 326,

338 (2001) (Souter, J., concurring) ("[M]ost states follow the

rule which is utilized in the federal courts: if the search or sei-

zure was pursuant to a warrant, the defendant has the burden

of proof; but if the police acted without a warrant the burden

of proof is on the prosecution.") (quoting 5 W. LaFave,

Search and Seizure § 11.2(b), p. 38 (3d ed. 1996)). In assess-

ing a trial court’s ruling on a motion to suppress, we review

factual findings for clear error and legal determinations,

including "determination[s] of whether the historical facts sat-

isfy a constitutional standard," de novo. United States v.

Gwinn, 219 F.3d 326, 331 (4th Cir. 2000); see also Ornelas

v. United States, 517 U.S. 690, 699 (1996); United States v.

Wilson, 484 F.3d 267, 280 (4th Cir. 2007). When a motion to

suppress has been denied in the court below, we review the

UNITED STATES v. DAVIS 63

evidence in the light most favorable to the government.

United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

B.

The HCPD’s original nonconsensual, warrantless procure-

ment of Davis’s bloody boxer shorts and pants in 2000

requires that we decide whether the district court erred in its

legal conclusion that Detective King was entitled to both seize

the bag containing the clothing and to search its contents

without consent and in the absence of a judicial warrant.

Echoing the district court’s analysis, the majority concludes

that Detective King was justified in seizing the bag because

he had "lawful access" to it and because it was "immediately

apparent" to him, and would have been so to any reasonable

officer in his position, that the bag contained Davis’s pants

and that the pants contained a bullet hole, i.e., evidence of a

crime. Maj. Op. at 15-16. The majority further elaborates its

unique reconception of the longstanding plain view seizure

doctrine by concluding that King was justified in searching

the bag’s contents, without obtaining Davis’s consent or a

warrant, because it was a "foregone conclusion" that the bag

contained evidence of a crime. Maj. Op. at 14, 16 (relying

upon Williams, 41 F.3d 192).

The majority’s analysis is deeply flawed. As I explain in

subsection II.B.1, application of rudimentary and long-

established Fourth Amendment principles demonstrates that

Detective King’s seizure of the bag from Davis’s possession

violated Davis’s Fourth Amendment right to be free of an

unreasonable seizure of his personal "effects" and cannot be

shoehorned into a plain view seizure analysis. Furthermore, as

I show more specifically in subsections II.B.2 and II.B.3,

long-settled understandings of the plain view seizure doctrine

demonstrate that under no reasonable interpretation of the

facts found by the district court can it be said that the noncon-

sensual, warrantless search of the bag was justified under that

doctrine. As I demonstrate, neither Williams, nor any other

64 UNITED STATES v. DAVIS

precedent cited to us by the government supports, let alone

compels, the remarkable application of the plain view seizure

doctrine engaged in by the majority.

1.

It is common ground among the panel that a well-

established exception to the Fourth Amendment’s warrant

requirement provides that a law enforcement officer may

seize evidence in "plain view" without a warrant where (1) the

officer is lawfully located in a place from which the item can

plainly be seen; (2) the officer has a lawful right of access to

the item itself; and (3) the incriminating nature of the seized

item is immediately apparent. See Horton v. California, 496

U.S. 128, 136-37 (1990). As this test makes clear, the intru-

sions implicated by the first two prongs of the test must be

lawful. In other words, in both viewing the item to be seized

and in actually taking physical possession of it, police must

not infringe constitutionally protected privacy or possessory

interests in the absence of a warrant or other well-recognized

exception to the warrant requirement. See Texas v. Brown,

460 U.S. 730, 738-39 (opining that "plain view" should not be

considered an independent exception to the warrant require-

ment, but rather an extension of a prior justification for an

officer’s "access to an object") (plurality opinion); see also

Horton, 496 U.S. at 137 n.7 (explaining that the lawful right

of access requirement is "simply a corollary of the familiar

principle . . . that no amount of probable cause can justify a

warrantless search or seizure absent ‘exigent circumstances’")

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 468

(1971) (plurality opinion)).

In addition, the item’s incriminating nature must be "imme-

diately apparent" at the time the police view it, meaning that

there is a "practical, nontechnical probability that incriminat-

ing evidence is involved." Brown, 460 U.S. at 742 (internal

quotation marks omitted); see also Minnesota v. Dickerson,

508 U.S. 366, 375 (1993) ("If . . . the police lack probable

UNITED STATES v. DAVIS 65

cause to believe that an object in plain view is contraband

without conducting some further search of the object — i.e.,

if its incriminating character is not immediately apparent,

Horton, 496 U.S. at 136 — the plain-view doctrine cannot

justify its seizure.") (internal quotation marks and brackets

omitted); Soldal v. Cook County, Illinois, 506 U.S. 56, 66

(1992) (explaining that "‘plain view’ seizures . . . can be justi-

fied only if they meet the probable-cause standard").

The government has failed to meet its burden here to estab-

lish that the seizure of the bag containing Davis’s clothing can

be justified by application of the plain view seizure doctrine,

and the subsequent search of the bag could never be justified

by the plain view seizure doctrine in any event, no matter how

much evidence the government could muster.

There is no dispute that Detective King was lawfully pres-

ent in the emergency room where Davis was being treated,

and thus viewed the bag from a lawful vantage point. There

is a constitutionally cognizable distinction, however, between

the emergency room generally and the more narrowly delin-

eated area beneath Davis’s bed where the bag had been

stored. Thus, the majority fails (or simply refuses) to recog-

nize that although this case does not involve the paradigmatic

factual scenario in which police view an item through a win-

dow before entering a premises to retrieve it, see Maj. Op. at

11-12, the lawful vantage point and lawful access prongs do

not necessarily rise and fall together. Rather, there are distinct

possessory and privacy interests implicated by the facts before

us, namely the specific location of the bag and the fact that

it contained non-contraband personalty or, to use the constitu-

tional parlance, Davis’s constitutionally protected "effects."

As a matter of law, Davis never relinquished his possessory

rights in his effects prior to their seizure. See United States v.

Neely, 345 F.3d 366, 369 & n.4 (5th Cir. 2003) ("[A]n emer-

gency room patient does not forfeit his possessory rights to

clothing simply by walking (or in many cases being carried)

66 UNITED STATES v. DAVIS

through the hospital door.") (collecting cases). Howard

County General Hospital personnel ensured that Davis’s

clothing was in his immediate personal possession and con-

trol when they placed it in a bag on the shelf directly beneath

his bed. See People v. Yaniak, 738 N.Y.S.2d 492, 495-96 (Co.

Ct. 2001) ("[T]he placing of the garments in the green plastic

bag by hospital personnel evinced an objective belief that the

items were still the personal property of the defendant and

that, when he felt better, they would be returned to him.").

Of course, Davis would have retained his possessory inter-

est in the clothing (and thus the bag containing the clothing),

as well as his residual privacy interest in his clothing,4 even

if the hospital had safeguarded it in some other location. See

Neely, 345 F.3d at 370 (explaining that once clothing is taken

from the patient and secured by hospital employees, the hos-

pital becomes a bailee and employees have no authority to

permit police to retrieve the clothing without a warrant) (cita-

tion omitted). In addition, there is no evidence that Davis

abandoned his clothing or that he consented to the seizure.

Accordingly, under the circumstances, the police no more had

"lawful access" to the bag containing Davis’s clothing as he

lay in the hospital receiving treatment than they would have

had if the bag had been locked in a cabinet for patients’

belongings or, indeed, held in Davis’s hands while he was

being treated.5

4

Unlike the majority, it is difficult if not impossible for me to imagine

that a person, even a hospital patient undergoing treatment in an emer-

gency room as was Davis, lacks a reasonable expectation of privacy in his

underwear which is concealed by hospital personnel in a bag and left

within easy reach of the patient.

5

The very case relied on by the majority for its expansive application

of the "lawful access" element of the plain view doctrine in response to

this dissent makes clear that the typical plain view seizure case involves

concern for protection of a citizen’s spatial privacy, e.g., the lawfulness of

an entry, not with the distinct constitutional question of whether a seizure

of a constitutionally protected "effect" from the personal possession of its

owner is "lawful." See Maj. Op. at 12 (contending that the "lawful right

UNITED STATES v. DAVIS 67

Manifestly, an officer’s physical access to a citizen’s non-

contraband personalty in the possession of the citizen is not

equivalent to an officer’s "lawful access" to that personalty

under the plain view doctrine. In other words, the mere exis-

tence of probable cause to believe a container in the posses-

sion of a citizen holds evidence of criminal activity, where the

evidence is not contraband, is not alone sufficient to effect a

warrantless seizure of that container from the possession of

the citizen.6

of access" requirement "is meant to guard against warrantless entry onto

premises whenever contraband is viewed from off the premises in the

absence of exigent circumstances"; thus, while "lawfully positioned" "re-

fers to where the officer stands when she sees the item," "lawful right of

access" refers "to where she must be to retrieve the item") (quoting Boone

v. Spurgess, 385 F.3d 923, 928 (6th Cir. 2004) (holding that disputed issue

of fact precluded summary judgment for officers in plaintiff’s Fourth

Amendment claim under 42 U.S.C. § 1983 where plaintiff disputed offi-

cers’ assertion that they could see handgun in his car while they were

standing outside the vehicle, and thus permissibly entered vehicle to

retrieve the firearm and then arrested plaintiff)).

Nor does the majority’s invocation of Washington v. Chrisman, 455

U.S. 1 (1982), see Maj. Op. at 12, aid its cause. In that case, "the officer

noticed seeds and a small pipe lying on a desk 8 to 10 feet from where he

was standing [in the threshold of defendant’s college dormitory room after

having detained the defendant’s roommate for underage possession of an

alcoholic beverage]. From his training and experience, the officer believed

the seeds were marihuana and the pipe was of a type used to smoke mari-

huana. He entered the room and examined the pipe and seeds, confirming

that the seeds were marihuana and observing that the pipe smelled of mari-

huana." 455 U.S. at 4. Chrisman’s expectation of privacy in his room gave

way to the officer’s duty to keep in close contact with the roommate,

whom the officer had allowed to reenter the room to retrieve his identifica-

tion, and who had actually consented to the officer’s presence. Id. at 3. In

short, Chrisman has nothing whatsoever to do with plain view seizures of,

or "lawful access" to the contents of, containers.

6

Imagine, for instance, that a murder suspect’s father is sitting in a fast

food restaurant eating a salad and reading the morning paper. A homicide

detective working the case has been told by a reliable informant that the

suspect has admitted to the informant that he, the suspect, had written a

68 UNITED STATES v. DAVIS

As Davis correctly argues, and as the district court

acknowledged, "A warrantless seizure is ‘per se unreasonable

under the Fourth Amendment subject only to a few specifi-

cally established and well-delineated exceptions’ to the war-

rant requirement. Katz v. United States, 389 U.S. 347, 357

(1967) (footnotes omitted); Flippo v. West Virginia, 528 U.S.

11, 13-14 (1999) (same)." Appellant’s Br. at 21; see Davis,

657 F. Supp. 2d at 636. The plain view seizure doctrine does

not supplant the need for such an exception where an officer

intrudes upon constitutionally protected privacy or possessory

interests in physically retrieving the item to be seized from the

person of its owner. See Horton, 496 U.S. at 137 ("[N]ot only

full confession and mailed it to his father and that his father keeps the let-

ter with him at all times in a distinctive black briefcase that his father car-

ries wherever he goes. The black briefcase described by the informant is

resting on the floor of the fast food restaurant at the feet of the father when

the detective enters the restaurant. The detective seizes the briefcase and,

without consent or a warrant, immediately opens it. He observes instantly

the letter and, quite unexpectedly, wads of counterfeit U.S. currency. The

letter is used by the state to prosecute the son for homicide and the posses-

sion of counterfeit currency charge is prosecuted in federal court against

the father.

Does the majority truly believe that the detective, having what the

majority would call "lawful access" to the briefcase, and with probable

cause to believe that evidence of a murder would be found in the briefcase,

i.e., it was "immediately apparent" (based on the highly reliable informa-

tion possessed by the detective) that the container held evidence of a crim-

inal offense, could seize the briefcase and search it on the basis of the

plain view seizure exception?

Of course not.

Arguably, the briefcase could be seized on the basis of exigency, see

United States v. Chadwick, 433 U.S. 1 (1977), abrogated on other grounds

by California v. Acevedo, 500 U.S. 565 (1991), but surely even the major-

ity would agree that a warrant would be required to search the briefcase.

Even apart from a nice question of the son’s standing to challenge the

search of the father’s briefcase, there clearly is no standing issue as to the

father, and the plain view exception simply could not justify the search of

the briefcase, despite the "virtual certainty" that evidence of a criminal

offense was contained therein. So it is here.

UNITED STATES v. DAVIS 69

must the officer be lawfully located in a place from which the

object can be plainly seen, but he or she must also have a law-

ful right of access to the object itself."); Jones v. State, 648

So. 2d 669, 678 (Fla. 1994) (explaining that the lawful access

requirement "ensures that the scope of the intrusion into

Fourth Amendment rights is no greater than that already

authorized in connection with the lawful entry"); see also

infra pp. 83-84 (explaining why seizures of containers hold-

ing "mere evidence" are distinguishable from containers hold-

ing contraband). Accordingly, in the absence of a recognized

justification (e.g., exigent circumstances, which the district

court did not find applicable) for intrusion upon Davis’s pro-

tected interests, Detective King could not lawfully seize the

bag under the plain view seizure doctrine from Davis’s pos-

session without a warrant or consent, irrespective of whether

it was "immediately apparent" that the clothing suspected of

being contained therein constituted evidence of a crime.7 As

7

In my view, the nonconsensual, warrantless seizure of the bag in this

case could only be justified by exigent circumstances, rather than by the

plain view seizure doctrine. It appears, however, that the government did

not press such an argument before the district court, and with good reason.

Although the notion that police need clothes with bullet holes in them to

help prove someone got shot is beyond fanciful, there is some support for

the view that Detective King had probable cause to believe that the bag

beneath Davis’s bed contained evidence of his shooting. But see infra at

77-80 (explaining why the officers’ interaction with Davis demonstrated

conclusively that they did not believe his story and, accordingly, they

lacked probable cause to believe he had been the victim of a felonious

shooting). Therefore, particularly given Detective King’s testimony that

Davis was uncooperative in response to questioning about the crime, King

could reasonably have feared that the clothing would disappear due to a

deliberate act of Davis or an inadvertent act of hospital personnel. On the

other hand, a police officer might have been posted to safeguard the cloth-

ing until a warrant was obtained. Regardless, the government does not

raise this argument and, as discussed infra, the subsequent search of the

bag was unconstitutional in any event.

Indeed, as both the majority and district court opinions demonstrate,

application of an exigency exception to the warrant requirement would not

save the subsequent search of the bag in this case because no conceivable

exigency would apply once the bag was in the custody of law enforce-

ment.

70 UNITED STATES v. DAVIS

the government accurately describes the relevant circum-

stances, "the [bag containing the] clothing was readily acces-

sible to Detective King," Govt’s Br. at 33-34, but that most

assuredly does not mean that Detective King had "lawful

access" to the bag or the clothing contained therein under the

plain view seizure doctrine.

2.

Of course, even if Detective King could conceivably, on

some theory, lawfully seize the bag, that does not mean that

he could inspect its contents, i.e., search the bag, without

obtaining Davis’s consent or a judicial warrant.8 "Even when

government agents may lawfully seize such a package to pre-

vent loss or destruction of suspected contraband [or mere evi-

dence], the Fourth Amendment requires that they obtain a

warrant before examining the contents of such a package,"

United States v. Jacobsen, 466 U.S. 109, 114 (1984) (brackets

8

It is evident that the police removed Davis’s clothing from the bag at

some point, but the record does not indicate when the police first opened

the bag, so it is not clear when the warrantless container search actually

occurred. Lieutenant Lampe testified that the clothing was still in the bag

when he arrived at the hospital and retrieved it from Detective King. He

recalled that the bag was plastic, but could not recall what it looked like,

and he stated that he did not inspect the clothes right away.

To the extent the majority laments the officers’ failure of memory about

what the bag looked like and what precisely they did many years before

they were called to testify on behalf of the government in this case, see

Maj. Op. 15 n.15, the majority has done little more than highlight still

another reason for the imperative of the warrant—issuing function of the

state and federal courts. Had the officers properly conducted themselves

in searching the bag on the authority of a judicial warrant, there would be

no basis for the majority’s lament. "Ever since 1878 when Mr. Justice

Field’s opinion for the Court in Ex parte Jackson, 96 U.S. 727, established

that sealed packages in the mail cannot be opened without a warrant, it has

been settled that an officer’s authority to possess a package is distinct from

his authority to examine its contents." Walter v. United States, 447 U.S.

649, 654 (1980) (plurality opinion) (citing Arkansas v. Sanders, 442 U.S.

753, 758 (1979), and United States v. Chadwick, 433 U.S. 1, 10 (1977)).

UNITED STATES v. DAVIS 71

added), or otherwise satisfy one of the exceptions to the war-

rant requirement. Horton, 496 U.S. at 141 n.11. In other

words, as Judge Niemeyer (who, three years earlier, had been

a member of the panel in Williams) has cogently explained,

"The ‘plain-view’ doctrine provides an exception to the war-

rant requirement for the seizure of property, but it does not

provide an exception for a search." United States v. Jackson,

131 F.3d 1105, 1108 (4th Cir. 1997) (emphasis in original);

accord United States v. Rumley, 588 F.3d 202, 205 (4th Cir.

2009).

Only in a very limited subset of cases involving "closed,

opaque container[s]" may an officer open the container with-

out first obtaining a warrant or the owner’s consent, Robbins

v. California, 453 U.S. 420, 426 (1981) (plurality opinion), at

least where, as here, the container is not located in a vehicle.

One exception to the search warrant requirement in this con-

text is in cases involving exigency. See Chadwick, 433 U.S.

at 15 n.9 ("Of course, there may be other justifications for a

warrantless search of luggage taken from a suspect at the time

of his arrest; for example, if officers have reason to believe

that luggage contains some immediately dangerous instru-

mentality, such as explosives, it would be foolhardy to trans-

port it to the station house without opening the luggage and

disarming the weapon.").9 Another exception, the one the dis-

trict court and the majority erroneously rely on, is for "con-

9

The majority’s conclusory assertion that, "[T]he subsequent search of

the bag (whether to identify or examine its contents), was warranted if it

was a foregone conclusion that the bag contained the clothing, which was

evidence of a crime," Maj. Op. at 13, is confounding. As explained below,

King could only have opened the bag and inspected its contents if their

incriminating nature was so obvious that no "search" occurred — but the

majority agrees that a search did occur. Of course, having chosen to ignore

entirely this dissent’s reliance on Chadwick, Robbins, and Sanders, the

majority’s sole escape is to stand silent in the face of clearly applicable

Supreme Court precedents which cannot rationally be distinguished.

Those cases, among others, make clear that whether a search occurs is not

simply a matter of "labeling." Cf. Maj. Op. at 10 n.11.

72 UNITED STATES v. DAVIS

tainers (for example a kit of burglar tools or a gun case) [that]

by their very nature cannot support any reasonable expecta-

tion of privacy because their contents can be inferred from

their outward appearance." Sanders, 442 U.S. at 764 n.13. In

those cases, because "the distinctive configuration of [the]

container proclaims its contents," the owner of the container

has no reasonable expectation of privacy in those contents,

Robbins, 453 U.S. at 427 (plurality opinion) — and thus an

officer’s observation of those contents does not constitute a

separate "search" for Fourth Amendment purposes. See Illi-

nois v. Andreas, 463 U.S. 765, 771 (1983) ("If the inspection

by police does not intrude upon a legitimate expectation of

privacy, there is no ‘search’. . . ."). In such cases the shape

and/or character of the container, including where relevant its

labeling, even if closed and opaque, is constitutionally equiva-

lent to one that is open or transparent, because it "clearly

reveal[s] its contents." Id.; see also Arizona v. Hicks, 480 U.S.

321, 328 (1987) ("[A] truly cursory inspection — one that

involves merely looking at what is already exposed to view,

without disturbing it — is not a ‘search’ for Fourth Amend-

ment purposes, and therefore does not even require reasonable

suspicion."); United States v. Payne, 181 F.3d 781, 787 n.4

(6th Cir. 1999) ("There is no such thing as a ‘plain-view

search.’").10

We have carefully limited the scope of this "proclaims its

contents" exception to cases where the incriminating nature of

the contents is a "foregone conclusion." See Williams, 41 F.3d

at 192; see also Sanders, 442 U.S. at 764 n.13 (requiring that

the container’s owner not maintain "any reasonable expecta-

10

"As Robbins v. California . . . has established, it takes an open pack-

age, or one whose configuration is distinctive as to its contents (i.e., a kit

of burglary tools or a gun case) to bring into play the plain view exception

to the generally unyielding rule that a warrant must first be obtained."

Blair v. United States, 665 F.2d 500, 513 (4th Cir. 1981) (Murnaghan, J.,

dissenting); see id. at 510 (Murnaghan, J., dissenting) ("It is elementary

that probable cause alone does not permit a search. It only provides a sub-

stantiating basis for issuance of a warrant.").

UNITED STATES v. DAVIS 73

tion of privacy" in the contents) (emphasis added).11 Indeed in

United States v. Corral, 970 F.2d 719 (10th Cir. 1992), on

which Williams principally relied, the court found that no

search occurred only because there was a "virtual certainty"

that the package contained, in that case, cocaine. Id. at 726

(quoting Brown, 460 U.S. at 751 n.5 (Stevens, J., concurring

in the judgment)). The obviousness of a container’s contents

must be such that an officer’s view of the container is "equiv-

alent to the plain view" of the incriminating contents them-

selves. Id. (emphasis added).12 The analogy we used in

11

To the extent Sanders and the Robbins plurality required that officers

who have probable cause that a vehicle contained evidence of crime must

obtain a warrant to search closed containers in the vehicle, those cases

were overruled. See United Sta

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