FOR PUBLICATION

ATTORNEY FOR APPELLANT :            ATTORNEYS FOR APPELLEE:

DONALD W. PAGOS                KAREN M. FREEMAN-WILSON
Michigan City, Indiana                Attorney General of Indiana

                             ROSEMARY L. BOREK
                            Deputy Attorney General
                            Indianapolis, Indiana

SAMUEL PATTERSON,                )
                                     )
Appellant-Defendant,                 )
                                     )
vs.                                  )    No. 46A03-0003-CR-109
                                     )
STATE OF INDIANA,                    )
                                     )
Appellee-Plaintiff.                  )

2.    Whether the trial court erred in admitting testimony about match probabilities derived from deoxyribonucleic acid ("DNA") tests.

3.    Whether the trial court erred when it allowed the jury to take certain exhibits into the jury room during deliberations.

4.    Whether the jury conducted an improper experiment during deliberations.

Moore v. State, 723 N.E.2d 442, 448 (Ind. Ct. App. 2000) (quoting Willsey v. State, 698 N.E.2d 784, 789 (Ind. 1998) (citations omitted)).
    We first consider whether the analysis of DNA is a search within the meaning of the Fourth Amendment. The Fourth Amendment, applicable to the states through the Fourteenth 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 . . . ." U.S. Const. amend. IV; Shepherd v. State, 690 N.E.2d 318 (Ind. Ct. App. 1997). The Supreme Court has held that the analyses of biological samples are searches within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); Veronia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).
    In Schmerber, the defendant was in a hospital receiving treatment for injuries sustained in an automobile accident. Believing that Schmerber was driving under the influence of alcohol, the police directed a physician to withdraw a blood sample for chemical analysis. Schmerber did not consent to the procedure. The subsequent analysis revealed that he was intoxicated. After Schmerber's conviction, he argued on appeal that the withdrawal of his blood was a violation of his Fourth Amendment right to be free from unreasonable searches and seizures.
    The Court found that Schmerber's Fourth Amendment rights had not been violated because there were exigent circumstances created by the dissipation of the alcohol from his body. Schmerber, 384 U.S. 757. Further, the testing procedures were reasonable and performed incident to Schmerber's lawful arrest. Although the Court held that the testing in this case exempt from Fourth Amendment protections, it held that "testing procedures plainly constitute searches of 'persons,' and depend antecedently upon seizures of 'persons,' within the meaning of [the Fourth Amendment]." Id. at 1834.
    In Skinner, the Federal Railroad Administration promulgated regulations requiring railroads to conduct blood and urine screens after train accidents involving death, injury, the release of hazardous material, or major damage to railroad property. Certain labor organizations brought suit seeking to enjoin the regulations. The labor organizations argued that the collection of blood and urine samples without particularized suspicion was unreasonable under the Fourth Amendment.
    The Supreme Court held that the government had a compelling interest in regulating the conduct of railroad workers to ensure safety, and that the government's compelling interest outweighed the privacy interests of the workers. Skinner, 489 U.S. 602. However, the Court again made it clear "that the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches, . . . ." Id. at 1413 (emphasis added). Additionally, Von Raab and Veronia have recognized this holding.
    Likewise, since Skinner, we have recognized that the taking of biological samples is a search under the Fourth Amendment. Cutter v. State, 646 N.E.2d 704 (Ind. Ct. App. 1995); King v. State, 642 N.E.2d 1389 (Ind. Ct. App. 1994). Most recently, we have also recognized the Court's holding that the testing of biological samples is a search under the Fourth Amendment. Linke v. Northwestern School Corp., 734 N.E.2d 252 (Ind. Ct. App. 2000) (state compelled collection and testing of urine constitutes Fourth Amendment search). Therefore, it is clear that DNA tests are searches under the Fourth Amendment.
We now turn to whether a warrant was required to conduct the second DNA tests using Patterson's blood sample. The Fourth Amendment protects "people from unreasonable government intrusions into those areas of an individual's life in which he has a legitimate expectation of privacy." State v. Overmyer, 712 N.E.2d 506, 507 (Ind. Ct. App. 1999) (emphasis added). To determine whether the government's action was unreasonable, we ask whether the action taken was an unlawful search and seizure under common law at the time the Fourth Amendment was enacted. Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999); State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999). If "that inquiry yields no answer, we must evaluate the search and seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon the individual's privacy and, on the promotion of legitimate governmental interests." Wyoming, 526 U.S. at 299-300.
    Because DNA testing was clearly not on the minds of the framers of the Federal Constitution, we utilize the traditional standards of reasonableness in addressing the subsequent testing of Patterson's DNA. Patterson argues that the tests intrude upon his privacy. However, the State, citing case law from New York and Georgia, argues that the tests did not intrude upon Patterson's privacy interest because the tests were as unintrusive as fingerprint examinations.
We first examine the degree to which the DNA tests performed intruded upon Patterson's privacy. The record reveals that the DNA tests conducted were the Restriction Fragment Length Polymorphism (RFLP) and the Polymerase Chain Reaction (PCR) tests. Both tests were conducted under laboratory conditions. The tests use electrophoresis See footnote and chemical analysis to analyze the DNA in Patterson's blood sample. Lisa Grossweiler ("Grossweiler") of Cellmark testified that the portion of DNA extracted for testing was incapable of determining Patterson's physical traits such as "hair color, eye color," or whether he had "cystic fibrosis". (R. 292). After the tests were conducted, a statistical calculation using a random sample of approximately 200 DNA profiles is conducted to calculate the frequency one would expect to find his genetic characteristics in the population. Neither test involved the invasion of Patterson's body nor the release of information unrelated to the performance of the RFLP and PCR tests.See footnote
We now examine the government's interest in promoting the use of DNA tests in criminal investigations. In his brief, Patterson does not address any governmental interest in DNA testing. The State implies that the government has an interest in investigating criminal cases, and that Indiana has chosen to pursue that interest by establishing a DNA Databank of convicted felons.
"The State may exercise its police power to promote the health, safety, comfort, morals, and welfare of the public." Price v. State, 622 N.E.2d 954 (Ind. 1993). To this end, states recognize that the use of DNA has become a powerful investigative tool that links suspects to crimes. National Research Council, The Evaluation of Forensic DNA Evidence, (1996). There has also been an increasing recognition of the ability of DNA testing to exonerate the innocent. U.S. Department of Justice, Convicted By Juries, Exonerated By Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (1996). This recognition was evidenced by Congress' passage of the DNA Identification Act of 1994. This law provided funding for the Federal Bureau of Investigation's Combined DNA Indexing System ("CODIS"). This program "enables federal, state, and local laboratories to store and compare DNA profiles electronically and thereby link serial crimes to each other and identify suspects by matching DNA from crime scenes to convicted offenders." DNA Analysis Backlog Elimination Act of 2000: Hearing on H.R. 2810, H.R. 3087, and H.R. 3375 Before the Subcommittee on Crime of the House Judiciary Committee, 106th Cong. (2000) (statement of Dr. Dwight E. Adams, F.B.I.) (emphasis added).
On February 29, 1996, Indiana joined CODIS when our General Assembly established the Indiana DNA Database by enacting P.L. 100-1996, now codified at Ind. Code § 10-1-9. The statute requires individuals convicted of certain felonies, including burglary, to provide a DNA sample for testing and inclusion in a database so long as it does not pose an unreasonable risk to their health. Ind. Code § 10-1-9-10. The purpose of the testing is to analyze and type the genetic markers in the DNA sample, to assist law enforcement identification purposes, and for research and administrative purposes. Ind. Code § 10-1-9-13. Every other state has enacted similar legislation. H.R. Rep. No. 106-900, pt. 1, at 27 (2000).
As a result, we find that Indiana has a substantial interest under the Fourth Amendment in promoting the use of DNA testing, not only in creating a database, but also in conducting criminal investigations and exonerating the innocent. Although the State intruded upon Patterson's privacy by analyzing his blood for DNA evidence, his privacy was outweighed by State's interest in protecting the citizens of Indiana by promoting DNA analysis in criminal investigations. Under the facts of this case, the subsequent testing of Patterson's DNA was reasonable under the Fourth Amendment. See footnote
We now are left to consider whether Patterson has a reasonable expectation of privacy in a blood sample lawfully obtained but being used in an unrelated criminal investigation. To determine whether a person has a reasonable expectation of privacy, we employ a two-part test: (1) "we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy;" and (2) "we inquire whether the individual's expectation of privacy is 'one that society is prepared to recognize as reasonable.'" Bond v. U.S., 120 S.Ct. 1462, 1465, 146 L.Ed.2d 365 (2000) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).
There is no evidence in the record showing that Patterson exhibited an actual expectation of privacy in the blood sample taken by police on December 6, 1997. Likewise, we find that based upon the specific facts of this case society is not prepared to recognize as reasonable Patterson's continued expectation of privacy in blood samples lawfully collected by police. Further, when Patterson was convicted of the December 6, 1997 attempted burglary, he became a convicted felon required to provide a DNA sample for inclusion in Indiana's DNA Database. Ind. Code § 10-1-9-10. The tests performed in this case (Kirkland) were submitted to Indiana State Police and Cellmark on November 18, 1997 and August 16, 1998, respectively. Because Patterson had been lawfully required to provide a DNA sample for the Database at the time of the State Police and Cellmark tests, See footnote he cannot now claim he had a reasonable expectation of privacy in his DNA. See State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App. 1987) ("a reasonable expectation of privacy means an expectation at the time of the search, not after police have completed the search.") Because Patterson did not have a reasonable expectation of privacy in his blood sample, the reuse of his validly obtained DNA sample in a subsequent unrelated criminal investigation did not trigger Fourth Amendment protections. Smith v. State, 734 N.E.2d 706 (Ind. Ct. App. 2000). Therefore, there was ample evidence of probative value to support the trial court's denial of Patterson's motion to suppress. See footnote
2. Expert Testimony
At trial, the State called Lisa Black ("Black") of the Indiana State Police Laboratory and Grosswiler of Cellmark to testify about the DNA tests that were performed. When asked what their findings were, Patterson's counsel objected, arguing that the scientific principles behind the calculation of match probabilities were unreliable. The trial court overruled his objection, and the expert witnesses were allowed to testify.
Black testified that the DNA profile obtained from the evidence was consistent with the DNA profile in the sample obtained from Patterson, an Afro-American. She also testified that the frequency with which the DNA profile from the evidence would occur in the Caucasian population was 1 in 2,600,000,000 and 1 in 55,000,000 in the Afro-American population. Grosswiler testified that the match probabilities were 1 in 17,000,000,000 in the Caucasian population, 1 in 7,000,000,000 in the Afro-American population, and 1 in 8,100,000,000 in the Western Hispanic population.
On appeal, Patterson argues that the trial court erred in admitting evidence of match probabilities. Specifically, Patterson argues that the science behind match probabilities is unreliable, and that he was prejudiced because the jury was allowed to hear numbers of this magnitude from experts who were not trained in the techniques of population statistics. The State argued that the trial court did not abuse its discretion by admitting this evidence. Specifically, the State argued that the experts testified about how their statistical analyses were approved by experts in population statistics and that their methods were generally accepted within the scientific community.
We review a trial court's admission of scientific evidence and the determination of its reliability for an abuse of discretion. Ingram v. State, 699 N.E.2d 261 (Ind. 1998); Patterson, 729 N.E.2d 1035. Indiana Rule of Evidence 702(b) provides that "[e]xpert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable." Our supreme court has held that DNA evidence is not admissible per se, but that the trial court must employ the following three-part test to determine admissibility: "(1) [that] the scientific principles upon which the expert testimony rests are reliable; (2) the witness is qualified; and (3) the testimony's probative value is not substantially outweighed by the dangers of unfair prejudice." Id. at 262.
We recognize that the topic of match probabilities has been controversial. This was particularly true in 1992, when the National Research Council ("NRC") issued a report recommending the use of the "ceiling-principle." National Research Council, DNA Technology in Forensic Science, 1992. The "ceiling-principle" is a statistical method of reducing the risk of error when calculating match probabilities across ethnic groups. Id. It was recommended because "not enough was known about DNA sequences to make an accurate calculation of the frequency with which particular sequences appear in various ethnic groups." Karyn Hede George, DNA Fingerprinting Gets a Reprieve, Technology Review, Nov/Dec. 1996, at 15-16. However, in 1996, the NRC issued a second report that quieted the debate. Eliot Marshall, Academy's About-Face on Forensic DNA, Science, May 10, 1996, at 803. The NRC concluded that the "technology for DNA profiling and the methods for estimating frequencies and related statistics have progressed to the point where the reliability and validity of properly collected and analyzed DNA data should not be in doubt." National Research Council, supra. In that report, the NRC issued recommendations regarding the estimation of random match probabilities. Recommendation 4.1 is particularly relevant to this case. It states, "[I]f the race of the person who left the evidence-sample DNA is known, the database for the person's race should be used; if the race is not known, calculations for all the racial groups to which possible suspects belong should be made." Id. Therefore, because the calculation of match probabilities is now based on empirical scientific research, and not unsubstantiated estimates, its presentation and admission into evidence need not constitute error. Patterson, 729 N.E.2d 1035.
In this case, we find that the trial court did not err by admitting the experts' testimony about match probabilities. Both Black and Grosswiler testified that the principles upon which the statistical calculations were made are reliable. Black testified that random DNA samples were collected from blood banks in the Midwest, and that they were separated into groups of 200 Caucasian and 200 Afro-American samples. A statistical projection then estimated the frequency with which the different DNA characteristics would occur in the general population. Grosswiler also testified that Cellmark's samples were collected randomly, and they were placed into groups of approximately 100 to 200 samples representing Caucasians, Afro-Americans, and Western Hispanics. Both experts testified that their respective laboratories hired population geneticists to validate the methodology used and the randomness of their samples. Black testified that the procedures used by the Indiana State Police are used throughout Indiana and are similar to those used by the F.B.I. and other labs around the country. The record also shows that Patterson's race was not known at the time of the tests, and that the match probabilities were calculated across multiple racial groups.
Concerning Black and Grosswiler's qualifications, Patterson did not object, and we find that Black's and Grosswiler's knowledge, training, education, and experience qualified each as an expert in the field of DNA analysis. See Patterson, 729 N.E.2d 1035. Black testified that she has a Bachelor's degree in biochemistry and has been employed with the Indiana State Police laboratory since 1985. Black has been assigned to the DNA Unit since 1995 and has completed DNA analysis training. She has also received additional training from the F.B.I. and Promega Corporation. Black testified that she has given her opinion as a DNA analyst in court on approximately 92 occasions, and has performed thousands of tests on various DNA samples. Black is also a member of the Midwest Association of Forensic Scientists and is a provisional member of the American Academy of Forensic Sciences. She also stated that the Association of Crime Laboratory Directors accredits the State Police Laboratory.
Grosswiler testified that she also has a Bachelor's degree in biochemistry, and that she has been employed with Cellmark since 1987. She has begun work on her Master's degree in forensic sciences and stated that she has given her opinion as a DNA analyst in court on approximately 36 occasions. Grosswiler stated that she also receives routine training in DNA analysis and has performed over 400 RFLP and PCR tests. She also testified that the American Association of Blood Banks and the American Society of Crime Laboratory Directors accredit Cellmark. See footnote
We also find that the probative value of the expert testimony outweighed the danger of unfair prejudice to Patterson. As noted above, the technology involved in DNA analysis has advanced beyond the point where the reliability of match probabilities is called into question. It is based on empirical scientific research and not on unsubstantiated estimates. The fact that the probabilities are extremely high demonstrates the strength of DNA analysis and does not prejudice Patterson. Therefore, the trial court did not abuse its discretion in admitting expert testimony concerning match probabilities.
3. Exhibits in the Jury Room
During the trial, the State admitted a pair of tennis shoes, photographs of shoe prints, and a plaster cast of a shoe impression into evidence. Detective Larry Biggs ("Detective Biggs") collected the evidence. When asked whether the soles of the shoe were consistent with the impressions at the scene, Detective Biggs responded, "Yes they are." (R. 203). Patterson's counsel objected and examined the detective to determine whether he was qualified to make that determination. The detective testified that he did not have any training in comparing shoe prints. When the State attempted to ask the detective whether he could make a reasonable opinion based on everyday knowledge, the trial court stated, "Then if that's the case, the jury is going to make that determination. The jury will disregard any opinion this witness had about the comparison about those shoes and the cast and the photographs." (R. 207).
At the close of evidence, the trial court allowed the exhibits to go with the jury into the jury room. After judgment of conviction was entered, Patterson filed the sworn affidavit of Clinton Powell ("Powell"), a juror. In the affidavit, Powell states that some of the jurors attempted to match the pattern on the sole of the shoes to the pattern in the photograph by laying the shoes on the photograph. Powell states that the "measurements and the comparison results were considered by myself and my fellow jurors in rendering our verdict." (R. 86).
Patterson argues that the trial court erred by allowing the exhibits to go into the jury room. Specifically, he argues that because the detective was not qualified to give his opinion, the submission of the exhibits could not aid the jury in its deliberations. Patterson also argues that the jury conducted improper experiments that allowed it to consider evidence not introduced at trial.
We note that the submission of materials to the jury room is governed by statute and case law. Ind. Code § 34-36-1-6; Robinson v. State, 699 N.E.2d 1146 (Ind. 1998). However, our supreme court has held that the statute only applies to cases where the jury expresses an explicit disagreement concerning testimony at trial. Id. In this case, the trial court submitted the exhibits to the jury prior to deliberations, and there is no evidence of disagreement. Therefore, we apply case law.
We apply the following standard when determining whether materials can properly be submitted to the jury room.
(a)    The court in its discretion may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against the defendant and exhibits and writings which have been received in evidence, except depositions.

(b)    Among the considerations which are appropriate in the exercise of this discretion are:
    
    (1)    whether the material will aid the jury in a proper consideration of the case;

(2)    whether any party will be unduly prejudiced by submission of the material; and

(3)    whether the material may be subjected to improper use by the jury.

Robinson, at 1149-1150.
    In this case, Patterson states that "all three of the consideration[s] warrantied [sic] against providing the jury with Patterson's shoes and the prints found at the scene of the crime." Patterson's Brief at 11. Patterson claims that the jury came to the improper conclusion that the pattern on the soles of the shoes matched the photograph. His argument is based upon the fact that Detective Biggs could not conclude it was a match. Further, Patterson argues that the exhibits were subject to improper use by the jury because they could make comparisons.
    We find no error in the trial court's decision to send the exhibits to the jury room. It is well settled that it is within the jury's province to determine facts from the evidence, and judge the credibility of those facts. Thornton v. State, 712 N.E.2d 960 (Ind. 1999). Because Patterson did not object to the admission of the shoes, photographs, or the plaster cast, the jury did nothing more than examine the evidence admitted at trial.
4. Improper Jury Experiment
Finally, we consider whether there was improper experimentation by the jury when it measured and compared the shoes and shoeprint in evidence. "[A]n experiment by the jury is improper where it amounts to additional evidence supplementary to that introduced during the trial." Bradford v. State, 675 N.E.2d 296, 304 (Ind. 1996). In Bradford, the defendant was convicted of arson and murder. During the trial, the jury was permitted to visit the scene of the crime. At trial, a detective gave testimony concerning experiments in which he timed how long it took him to walk to various spots and pour gasoline inside the house. During deliberations, the jury conducted experiments that involved walking through the motions of pouring gasoline and timing how long it took. After Bradford was convicted, several jurors signed an affidavit to this affect. On appeal, Bradford claimed this was in improper jury experiment, but we disagreed. We held that the jurors considered only the evidence admitted at trial, therefore, there was no error.
    Likewise, the jurors in this case only considered the evidence admitted at trial. Biggs testified that he surveyed the property and observed shoeprints on the inside and outside of the property. He testified that he took photographs, made a plaster cast of one of the impressions, and took custody of a pair of Patterson's shoes. All these items were admitted into evidence. The jury's measurement and comparison of the shoes with the photographs was not an improper experiment.
    We affirm.
FRIEDLANDER, J., and KIRSCH, J., concur.