Criminal Law Update

The October Amicus contains a Court of Appeals and two Court of Special Appeals decisions which may be of interest to practitioners.

 Raynor v. State, No. 69, September Term 2012, filed August 27, 2014 (opinion by Barbera, C.J.). An unknown assailant broke into a victim’s home and raped her repeatedly. Because she had been blindfolded, the victim could not identify the attacker. She called the police and investigators collected DNA evidence from her home. Over a two year period, the victim contacted investigators with the names of about twenty potential suspects. Consensual DNA samples were taken from each of them, but there were no matches to DNA found at the crime scene. Eventually, the victim contacted police to express suspicions about Raynor. Raynor agreed to speak with officers.

 Police interviewed Raynor for about thirty minutes, during which time he sat in an armchair and often rubbed his arms against the armrests. He refused a consensual DNA swab of his mouth. After Raynor left the station, an officer took swabs of the armrests where Raynor had been sitting. DNA analysis showed that DNA from the armrests matched that found at the crime scene. This result was used by officers to obtain warrants for Raynor’s arrest, a second DNA sample, and a search of Raynor’s house. The second DNA sample also matched the DNA found at the crime scene as well as that taken from the rape examination. Raynor was charged.

 Before trial, Raynor sought to suppress the DNA evidence obtained from the armrests. He argued that police violated his Fourth Amendment rights by taking the DNA material to connect him to the crime. The court denied his suppression motion, deciding that the Fourth Amendment did not apply because Raynor had no expectation of privacy in what he left on a chair. The Court of Special Appeals affirmed, holding that the Fourth Amendment did not apply because the DNA was used for identification purposes only and Raynor had “no objectively reasonable expectation of privacy in the identifying characteristics that could be gleaned from the normal biological residue he left behind.”

The Court of Appeals affirmed. It held that particular conduct qualifies as a search under the Fourth Amendment only if the defendant demonstrates an actual, subjective expectation of privacy in the item or place searched and the expectation is one that society is prepared to recognize as subjectively reasonable. The DNA information from the chair was used for identification purposes only, and did not reveal any intimate information about Raynor. An individual does not have a reasonable expectation of privacy with regard to his or her identifying characteristics and so, the DNA analysis in the Raynor case did not fall under Fourth Amendment protections.

 Morales v. State, No. 2262, September Term 2012, filed August 29, 2014 (opinion by Raker, J.). Morales robbed two individuals at gunpoint before escaping. A third individual witnessed the incident. All three met with police to give a statement and look through a book of photos of potential suspects. A detective put two of the witnesses in the same room to look at the book. He told them not to communicate with one another and to look through the photos individually to see if anyone looked like the assailant. The detective did not see or hear the witnesses communicate. They chose two individuals, including Morales, with similar features to the perpetrator. They did not claim that either individual was, in fact, the person who robbed them. Later, the witnesses identified Morales as the assailant in a separate photo array. A jury convicted Morales of robbery with a deadly weapon and other charges.

 Morales appealed to the Court of Special Appeals which affirmed his conviction. COSA cited Public Safety Article subsection 3-506 requiring police agencies to implement policies that comply with the United States Department of Justices standards on obtaining accurate eyewitness identification. Those standards require police to instruct witnesses separately as to procedures for viewing a photo book. COSA decided that the joint procedure used in the Morales case was improper, that it was not impermissibly suggestive because the witnesses did not communicate during the procedure, were not influenced by law enforcement to identify a particular suspect, and failed to make a positive identification.

 Scribner v. State, No. 1265, September Term 2013, filed September 2, 2014 (opinion by Eyler, Deborah S., J.). Scribner’s home was under police surveillance for suspected drug activity and the police obtained a warrant to search it. There also was an open arrest warrant for Scribner for a second degree assault. Police saw Scribner and a woman get into the woman’s car, with the woman at the wheel, and drive to a local grocery store. When the couple returned to the car, police arrested Scribner on the open assault warrant. A search of his person incident to arrest revealed a baggie of cocaine. Police removed the car and later searched it. That search revealed a handgun where Scribner had been sitting. He was charged with drug and firearm offenses. Prior to trial, he was moved to suppress the handgun from evidence on the ground that the warrantless search of the car was not a permissible search incident to arrest under Arizona v. Gant. He motion was denied and he was convicted of a number of offenses.

 Scribner appealed to the Court of Special Appeals. COSA held that the motion was properly denied. In Arizona v. Gant, the Supreme Court decided that when the occupant of a vehicle is arrested, the vehicle may be searched incident to that arrest, without a warrant, “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at 351. Scribner was not within reaching distance of the passenger compartment of the car at the time of the arrest. His argument that he was arrested only for second degree assault, pursuant to the open warrant, and it was, thus, not reasonable for police to believe that the car contained evidence of the “offense of arrest” was rejected. Scribner was arrested for second degree assault and, when the search incident to that arrest revealed cocaine, he was also arrested for possession of cocaine. It was reasonable for the police to believe that the car would contain evidence of that “offense of arrest.” Under Arizona v. Gant, the warrantless search of the car incident to Scribner’s arrest did not violate his Fourth Amendment rights.