ATTORNEY FOR APPELLANT
Michael J. Murphy, Legal Intern
Ann M. Skinner
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
SUPREME COURT OF INDIANA
DAMON SMITH, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0103-CR-170
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A02-0005-CR-300
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9903-CF-036941
ON PETITION FOR TRANSFER
March 27, 2001
We grant transfer in this criminal appeal to decide whether retaining a defendants
DNA profile from a prior unrelated case and using it in a subsequent
case violates the right to be secure from unreasonable searches and seizures under
the Fourth Amendment of the United States Constitution and Article I, Section 11
of the Indiana Constitution. We also address whether retention of the DNA
profile violated Indiana Code section 10-1-9-8. We affirm the trial courts denial
of the defendants motion to suppress this evidence.
Factual and Procedural Background
On March 26, 1997, V.O. was attacked, raped, and robbed in her home.
The attacker covered her head with a cloth and she did not
see his face. Police created a DNA profile from samples collected from
V.O., but were initially unable to identify a suspect.
In September 1997, Damon Smith was arrested and charged with rape in an
unrelated case (Case 1). He was ordered by the trial court to
provide hair, blood, and saliva samples. These were used by the Indianapolis-Marion
County Forensic Services Agency (Crime Lab) to create a DNA profile. On
July 28, 1998, Smith was tried in Case 1. The DNA evidence
identified Smith as the donor, but the jury acquitted Smith based on his
defense that the intercourse was consensual.
In July 1998, according to the Crime Labs routine procedures, Smiths profile from
Case 1 was compared to those from unsolved cases and showed a tentative
match to V.O.s assailant. The Crime Lab notified investigators on V.O.s case.
According to the probable cause affidavit, further testing concluded that the DNA
results showed that Damon Lamont Smith . . . is . . .
without a doubt the subject who raped V.O. Smith was charged with
rape, robbery, and burglary.
Smith moved to suppress the DNA evidence on the grounds that its admission
violated the Fourth Amendment, Article I, Section 11 of the Indiana Constitution, and
Indiana Code section 10-1-9-8. The trial court denied Smiths motion and the
order was certified for interlocutory appeal pursuant to Indiana Appellate Rule 4(B)(6).
The Court of Appeals affirmed,
Smith v. State, 734 N.E.2d 706 (Ind. Ct.
App. 2000), and we grant transfer.
I. The Fourth Amendment
The sample in question was in the hands of the Crime Lab, but
was derived from Smith pursuant to a court order in an unrelated case.
The State contends that under these circumstances there was no seizure within
the meaning of either the federal or state constitution and, in any event,
Smith has no standing to raise the issue. Under Fourth Amendment law,
the standing and search and seizure inquiries merge into one: whether governmental
officials violated any legitimate expectation of privacy held by petitioner.
Kentucky, 448 U.S. 98, 106 (1980). Fourth Amendment rights are personal and
may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34
(1978). A legitimate expectation of privacy involves two components: (1) did
the person exhibit an actual expectation of privacy; and (2) does society recognize
that expectation as reasonable? Moran v. State, 644 N.E.2d 536, 540 (Ind.
1994) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
Smith had a legitimate expectation of privacy in his body and blood samples
at the time they were taken in the investigation of Case 1.
See Schmerber v. California, 384 U.S. 757, 770 (1966). We agree that
this includes the DNA residing in the cells of these samples. However,
he does not challenge the original court order that authorized the seizure of
these items. There has been no seizure or invasion of Smiths privacy
since the initial samples taken in Case 1. His claim thus reduces
to the contention that the information must be destroyed after the investigation that
analyzed it is concluded, or at least cannot be used in a subsequent
investigation. We agree with several courts that have held that, once DNA
is used to create a profile, the profile becomes the property of the
Crime Lab. Thus, Smith had no possessory or ownership interest in it.
Nor does society recognize an expectation of privacy in records made for
public purposes from legitimately obtained samples. As the Court of Appeals pointed
out, courts from other jurisdictions have held that the comparison of a DNA
profile with other DNA evidence from a database does not violate the Fourth
Amendment. Bickley v. State, 489 S.E.2d 167, 170 (Ga. Ct. App. 1997);
Wilson v. State, 752 A.2d 1250, 1272 (Md. Ct. Spec. App. 2000); People
v. King, 663 N.Y.S.2d 610, 614-15 (N.Y. App. Div. 1997). We agree.
II. Article I, Section 11
Smith also challenges the seizure of DNA records under Article I, Section 11
of the Indiana Constitution. Although this section and the Fourth Amendment are
worded identically, as the Court of Appeals noted, the state constitutional standard has
evolved differently from the Fourth Amendment analysis:
To argue that a search or seizure is unreasonable, Smith must establish ownership,
control, possession, or interest in either the premises searched or the property seized.
Peterson v. State, 674 N.E.2d 528, 534 (Ind. 1996). The property
at issue in the instant case is a DNA profile record compiled by
the Crime Lab. Smith has failed to show that he has any
possessory interest or any other interest in the records kept by the Crime
Lab. Inasmuch as Smith has no possessory interest in the profile record,
Smith lacks standing to challenge the Crime Labs use of its own record.
Smith, 734 N.E.2d at 710-11.
Furthermore, the purpose of Article 1, Section 11 is to protect from unreasonable
police activity, those areas of life that Hoosiers regard as private.
v. State, 644 N.E.2d 536, 540 (Ind. 1994). The police action in
obtaining DNA samples from a rape suspect, and then comparing that profile to
those created in other cases, was reasonable police conduct and not an unreasonable
invasion of any private area of life.
The Court of Appeals, in addressing the Fourth Amendment claim, observed that:
The closest analogue to retention of DNA samples is the fingerprint databank.
Our supreme court has held that police are not required to destroy an
individuals fingerprint records after acquittal.
Mavity v. Tyndall, 224 Ind. 364, 66
N.E.2d 755 (1946). Balancing the public interest against the individuals right to
privacy, the court observed that fingerprint records were available and valuable only to
the expert searching for criminals. Id. at 760. Our supreme
court has also found that the States interest in making records of arrested
parties outweighed the right to privacy a defendant may have in his arrest
records. Voelker v. Tyndall, 226 Ind. 43, 47-48, 75 N.E.2d 548, 551
(1947). In Kleiman v. State, this court upheld the constitutionality of the
statute limiting expungement of arrest records despite a defendants acquittal. 590 N.E.2d 660,
662 (Ind. Ct. App. 1992).
Smith, 734 N.E.2d at 709 (footnote omitted). We think this point is
equally persuasive as to Article I, Section 11 of the Indiana Constitution.
III. Indiana Code section 10-1-9-8
As the Court of Appeals noted under the Indiana Constitution, this Court has
recognized that law enforcement agencies are permitted to retain and reuse fingerprint records
as well as other records of arrested parties.
Smith, 734 N.E.2d at
711 (citing Voelker v. Tyndall, 226 Ind. 43, 47-48, 75 N.E.2d 548, 551
(1947); State ex rel. Mavity v. Tyndall, 224 Ind. 364, 378, 66 N.E.2d
755, 760-61 (1946)). We agree that this is equally true for DNA
In sum, Smith has no standing to contest the comparison of his DNA
profile to the evidence gathered from V.O.s crime, and that comparison does not
constitute a search or seizure under the Indiana Constitution. Accordingly, Smith raises
no issue under Article I, Section 11.
Finally, Smith claims that inclusion of his DNA profile in the Crime Lab
database violated Indiana Code section 10-1-9-8. In 1996, that section authorized the
Superintendent of the State Police to create an Indiana DNA database consisting of
records for convicted criminals, crime scene specimens, unidentified missing persons, and close biological
relatives of missing persons. Ind.Code § 10-1-9-8(a) (1998).
Smith argues that Indiana Code section 10-1-9-8 authorizes retention of DNA samples only
in the four limited categories. Because he is not a convicted criminal,
his DNA profile falls in none of the four. He contends that
the statutory categories are exhaustive. As he puts it, the section is
restrictive legislation that under
State ex rel. Mavity v. Tyndall, 224 Ind. 364,
66 N.E.2d 755 (1946), requires DNA to be destroyed unlike fingerprints or arrest
Section 10 of the same chapter provides that a person convicted of an
offense against the person, burglary, or child solicitation is required to provide a
DNA sample for the database. Section 20 provides that a person whose
DNA has been included in the database may request its removal if the
conviction on which the authority for inclusion in the Indiana DNA database has
It is clear that this statute was drafted with concern for widespread dissemination
of the records. Section 22 refers to the privacy standards in the
statute. Access to the database is limited to law enforcement agencies by
section 21. Section 16 provides that unauthorized use of information in
the database is a Class A misdemeanor. The statute provides for expungement
of records on a showing of reversal of the conviction that authorized the
inclusion of a profile. Ind.Code § 10-1-9-20 (1998). Use of the term
authorized rather than required in describing the effect of a conviction suggests that
the databank is to include only profiles of samples that fit within one
of the four categories of (1) convicted criminals, (2) crime scene samples, (3)
unidentified missing persons, or (4) close biological relatives of missing persons.
The statute also includes some provisions that apply to any laboratory conducting forensic
DNA analysis in Indiana. Id. § 10-1-9-14. Under section 14(c) they
are required to forward relevant DNA database records to the state police laboratory.
Their disclosure of DNA analysis is restricted by section 17 to law
enforcement, defense counsel, and certain other limited circumstances.
Smith contends that because he was acquitted in Case 1, the sample taken
in that case falls into none of the four categories for which the
database was created. From this, he reasons that the admission of his
DNA profile would violate the database statute. We agree that he meets
none of the criteria for inclusion in the database, but disagree that exclusion
of the evidence of the DNA match is a consequence of that circumstance.
As a preliminary matter, it is not clear whether the database statute is
relevant at all. The DNA profile in question was initially created by
the Crime Lab, a Marion County Agency. Apparently the Crime Lab was
also the agency that performed the initial analysis that tentatively identified Smith as
a match to V.O.s assailant. At this point we can only
speculate as to the application of the statute. None of the provisions
applicable to any laboratory in this state appear to be implicated by Smiths
motion, and we cannot divine the relationship between the Crime Lab and the
database, either in general or in relation to this case. It is
not clear from the record in this case whether the Indiana DNA Database
authorized by the statute played any role in the identification of Smiths profile,
whether the Crime Lab acted independently of the database, or whether the nature
of the Crime Lab is such that its records should be deemed part
of the database authorized by the statute.
In any event, assuming the database is implicated, we agree with Smith that
the statute seems to limit inclusion of profiles to the statutory categories.
As noted, it refers to expungement of records authorized to be included by
reason of a conviction. The implication seems strong that without the conviction,
the inclusion is not authorized. And the inclusion of the statutory list
of eligible profiles seems meaningless without construing it, as Smith urges, to limit
the profiles that may be maintained in the database. Moreover,
if profiles from arrest recordsas opposed to profiles of convicted criminalswere to be
maintained, as they are with respect to fingerprints, it would have been easy
enough for the statute to say so. We conclude that the statute
was hammered out to balance concerns for potential misuse of a mass of
profiling of the citizenry against the obvious and very significant contribution to law
enforcement that the database can make. Accordingly, Smiths motion raises the question
whether the exclusionary rule applicable to searches and seizures that violate the state
or federal constitution should apply to profiles that are included in the database
from sources not authorized by the statute.
The rule excluding evidence seized in violation of the state constitution was adopted
in Indiana in
Callender v. State, 193 Ind. 91, 96, 138 N.E. 817,
818 (1922), long before Mapp v. Ohio, 367 U.S. 643, 655-57 (1961), held
that the exclusionary rule was a requirement of the federal constitution in state
proceedings as to evidence seized in violation of Fourth Amendment standards. The
rule is entirely a creation of judicial precedent. Nothing in the state
or federal constitution explicitly requires it. Similarly, there is no statutory direction
as to the admissibility of DNA profiles included or retained in the database
without statutory authorization. Unlike the two constitutions, however, the database statute does
include a number of explicit prohibitions and sanctions. As already noted, some
misuse of the information is subject to criminal penalties. The Superintendent is
given explicit direction to promulgate rules for the implementation of the statute.
Section 22 provides that a laboratorys failure to meet quality and privacy standards
described in this Chapter may result in denial of the privilege of exchanging
records with other criminal justice agencies. Because of this range of other
sanctions, we are not faced with the total absence of incentive to comply
with the law that led both state and federal courts to adopt the
exclusionary rule as to constitutional violations. Mapp, 367 U.S. at 643; Weeks v.
United States, 232 U.S. 383 (1914); Callender, 193 Ind. at 91, 138 N.E.
Exclusion of extremely valuable evidence in crimes that often leave little other trace
is a major social cost. In the absence of a clear directive
from the legislature on the need to exclude this evidence and in view
of the very substantial law enforcement benefits from the database, we conclude that
the potential for abuse in the future is not sufficiently clear to warrant
adopting a rule excluding evidence from the database on the ground that it
was obtained or retained beyond the authorized classifications. The statute is relatively
recent. An exclusionary rule would prioritize the need for compliance by the
authorities with the statute over the cost of exclusion of obviously critical evidence
as to a serious crime. If experience with the database statute suggests
that denial of admissibility of DNA profiles obtained in violation of the statute
is the only practical means of securing compliance with the privacy standards described
in [the database statute] we can revisit this issue. The General Assembly
is free to reconsider it at any time.
The trial courts denial of the motion to suppress is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
The Mavity Court stated, [W]e can see no valid reason for the
surrender or destruction [of fingerprint records] by the police. At least none
so compelling as to justify our substituting a judicial discretion for the executive
discretion permitted by the absence of restrictive legislation. 224 Ind. at 378,
66 N.E. at 760 (emphasis added).