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In re Grand Jury Witness G.B.

Court of Appeals of Columbia District

May 26, 2016

UNITED STATES, Appellee. G.B., Appellant,

          Argued December 16, 2015.

         On Appeal from the Superior Court of the District of Columbia Criminal Division CRW-102-16, Hon. Melvin R. Wright, Motions Judge.

          Murad Hussain, with whom Mary C. Kennedy, John St. Leger, and Joanna G. Persio were on the brief, for appellant.

          Karen P. Seifert, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christine Macey, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Thompson and Easterly, Associate Judges; and Nebeker, Senior Judge.


         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment of the Superior Court is affirmed.


          Thompson, Associate Judge.

         In this appeal, appellant G.B., the victim of and witness to a stabbing, asks us to hold that "no valid investigative warrant may issue to forcibly take the DNA of a witness who is not suspected of the crime for which the DNA is sought." We hold instead that, pursuant to Superior Court Rule of Criminal Procedure 41 and consistent with the Fourth Amendment, a search warrant may issue authorizing the government's proposed buccal swab search (and incidental seizure) of G.B. for the purpose of collecting his DNA.

         I. Factual Background

         According to the Gerstein affidavit and a search warrant application filed in United States v. Kelly Hughes, No. 2014-CF3-014232, on August 2, 2014, G.B., suffering from two apparent stab wounds in his arm, went to a fire station to seek medical attention. Police officers responding to the fire station, and later to the hospital to which G.B. was transported, interviewed G.B. G.B. gave them the address of the apartment where the stabbing occurred and told them that his assailant was "Margaret Jones." Jones, G.B. told the officers, was an occasional sexual partner who had cut him with a butcher's knife after discovering that he had slept with another woman. [1] G.B. also told the police officers that he did not "want to do anything about being stabbed." The police went to the apartment building, where they found blood droplets on the "entrance floor molding" and in the hallway between apartments #1 and #2. They also found a bloody doormat in a nearby trash can. They spoke to an individual at the scene ("W1"), who told them that he was inside G.B.'s apartment when he saw a woman named Kelly Hughes, who had been arguing with G.B., slash at G.B. with a kitchen knife and, before leaving the apartment, attempt to clean up G.B.'s blood. On August 11, 2014, officers searched Hughes's rental vehicle pursuant to a search warrant and found blood on the side of the driver's seat.

         The government convened a grand jury and sought an indictment against Hughes.[2] In conjunction with the government's efforts to prosecute Hughes, the government asked G.B. to voluntarily give a saliva sample (from which could be extracted a sample of his DNA). After G.B. declined to do so, the government applied for a search warrant to take a sample by the buccal swab method.[3] The affidavit in support of the search warrant application averred that the swab would "be submitted for DNA analysis to determine whether the source of the blood" in Hughes's rental vehicle is G.B. The Honorable Henry F. Greene issued the search warrant after determining that probable cause existed to believe that "on the person of [G.B.] . . . there is now being concealed evidence, namely the victim's cheek cells/saliva (buccal swab)[.]"

         G.B. filed a motion to quash the warrant, emphasizing his status as a victim and arguing that a search warrant authorizing the government to forcibly take a buccal swab sample to extract DNA from a crime victim is invalid. On January 22, 2015, the Honorable Melvin Wright denied G.B.'s (first) motion to quash. By that time, the warrant had actually expired by its own terms because more than ten days had passed since its issuance. The government indicated, however, that it would seek another warrant.[4] On March 3, 2015, G.B. filed a motion to quash any search warrant authorizing the government to take a buccal swab and to preclude the government from applying for any future warrant for his DNA. After a hearing on April 21, 2015, Judge Wright found that there was probable cause to issue the search warrant for G.B.'s DNA and denied G.B.'s renewed motion, but restricted the use of any DNA extracted pursuant to warrant to the case against Hughes.[5]

         G.B. noticed this appeal from Judge Wright's ruling, and the government agreed not to seek a new warrant pending the outcome of appellate review. Accordingly, the current posture of this case is that the government still intends to apply for a warrant to obtain G.B.'s DNA. G.B. asks this court to rule that the Superior Court erroneously denied his motion to quash and that "no warrant . . . may issue for the suspicionless, forcible extraction of DNA from the non-party victim of a crime."

         G.B.'s briefs on appeal advance three primary arguments: (1) that Superior Court Rule of Criminal Procedure 41 (b), which describes the limited circumstances in which the Superior Court may issue a warrant, provides no authority for a warrant - or for the seizure of the person that is necessary to execute the warrant - to obtain the DNA of a victim who is not suspected of a crime[6]; (2) that the seizure of his person that would be entailed in taking a buccal swab would be an arrest, which would be invalid because there has been no finding of "probable cause" to believe he is guilty of a criminal offense; and (3) that under a test balancing his interest in privacy against the government's law enforcement needs, forcibly taking a sample of his saliva would be an unreasonable intrusion in violation of his Fourth Amendment rights. For the reasons discussed below, we disagree. Accordingly, given the specific facts of this case, we affirm the judgment of the Superior Court.

         II. Jurisdiction

         We begin by addressing the issue of our jurisdiction to hear this appeal. As the government's brief points out, an order denying a motion to quash a search warrant generally is not a final decision for the purposes of appeal.[7] See In re Solomon, 465 F.3d 114, 122 (3rd Cir. 2006) (holding that the court was without jurisdiction to entertain a defendant's interlocutory appeal of the denial of a motion to quash a warrant for the defendant's blood and saliva).[8] However, where the denial of a motion to quash implicates a third party to the litigation, courts have recognized an exception to the rule precluding interlocutory appeal. See, e.g., In re Grand Jury Subpoenas, 926 F.2d 847, 854 (9th Cir. 1991) (explaining that an immediate appeal from an order denying a motion to quash may be allowed where that is "[t]he only way to assure [the movant] that his interests will be protected"); see also United States v. Hess, 982 F.2d 181, 184-85 (6th Cir. 1992) (court of appeals had jurisdiction over appeal from denial of motion for return of documents, where motion was brought by movants who were "strangers to the criminal case"; motion was properly treated as independent proceeding and order denying motion was reviewable as final order) (citing DiBella v. United States, 369 U.S. 121, 131-32 (1962) (motion for return of property is independent, permitting appellate review, "if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant")). In this case, G.B.'s motion was "completely collateral" to the case against Hughes because (1) Judge Wright's order fully disposed of G.B.'s challenge and (2) G.B.'s right to be free from search would be irretrievably lost if he were forced to submit to a search while awaiting resolution of Hughes's case. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Whether we analogize to cases examining the right to an immediate appeal from a denial of a motion to quash a subpoena and applying the collateral order doctrine, or, instead, analogize to cases holding that the denial of a third-party's motion for return of property is a final order that may be appealed immediately, the analysis weighs in favor of our exercising jurisdiction. And, while there is no live search warrant for G.B.'s DNA, the government has signaled its intent to apply for another. If the government obtains another warrant (with a ten-day life), G.B. would likely have to submit to the forcible taking of his DNA before being able to obtain appellate review. Thus, the circumstance occasioning his appeal is capable of repetition but evading review. See Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975) (explaining that the "capable of repetition, yet evading review" doctrine was first articulated in a case where "because of the short duration of the . . . order challenged, it was virtually impossible to litigate the validity of the order prior to its expiration" by its own terms, and where "the same party would in all probability be subject to the same kind of order in the future"); In re Johnson, 691 A.2d 628, 631 (D.C. 1997) (citing Weinstein). Given all these considerations, we conclude that we may exercise jurisdiction.

         III. Rule 41 (b)

         A. Evidence of the Commission of a Criminal Offense

         Citing the constitutional avoidance doctrine, G.B. argues that we need not reach the issue of whether issuance of the warrant to collect a sample of his DNA contravenes the Fourth Amendment. He urges us instead to resolve this appeal on the basis of his argument that there is no authority to issue a warrant for the proposed search under Super. Ct. Crim. R. 41 (b).[9] "As this is an issue of regulatory interpretation, our review is de novo." In re D.F., 70 A.3d 240, 243 n.5 (D.C. 2013).

         Rule 41 (b) provides in pertinent part that

A warrant may be issued . . . to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

Super. Ct. Crim. R. 41 (b)(1)-(4).[10] G.B. argues that his DNA is none of the items enumerated in the rule. For its part, the government does not contend that G.B.'s DNA is contraband, or the fruit of a crime, or something otherwise criminally possessed; or that it is or was the means of committing a criminal offense; or (leaving aside the government's allegation that G.B.'s DNA may support prosecuting him for perjury about the identity of his assailant) that G.B. is a person for whose arrest there is probable cause. Rather, the government's contention is that G.B.'s DNA is "evidence of the commission of a criminal offense" within the meaning of Rule 41. G.B. argues that rather than evidence of a crime, his DNA is simply evidence that might lead to other evidence (i.e., a DNA match to the blood found in Hughes's rental vehicle) that "might in turn bolster the credibility of the . . . purported witness to the assault[.]" G.B. argues that "[s]uch attenuated logic" does not bring the warrant sought by the government within the authority of Rule 41[11]

         We have little trouble concluding that the government has the better of the argument about what it means to "constitute[] evidence of the commission of a criminal offense" within the meaning of Rule 41 (b). Although G.B. is correct that, standing alone, his DNA is "not evidence of a crime's commission, " his approach is not one that courts have taken in construing the term "evidence of a crime." As described in note 9 supra, "[t]he purpose of Rule 41 is to carry out the mandate of the [F]ourth [A]mendment." Navarro, 400 F.2d at 318. Rule 41 (b) therefore is properly construed to reflect a recognition that under the Fourth Amendment, "[t]here must, of course, be a nexus - automatically provided in the case of fruits, instrumentalities or contraband - between the item to be seized and criminal behavior." Hayden, 387 U.S. at 307. "[I]n the case of 'mere evidence'" of a criminal offense, the relevant question is whether there is "cause to believe that the evidence sought will aid in a particular apprehension or conviction." Id.; see also Bill v. Brewer, 799 F.3d 1295, 1301, 1302 (9th Cir. 2015) (applying the rule established by Hayden to conclude that a warrant had properly issued for "DNA samples [to be seized by mouth swab] . . . from all public safety personnel who entered the crime scene to exclude them as depositors of the questioned DNA[, ]" where the DNA samples would aid in the conviction of an eventual criminal defendant by negating any contention that police had contaminated the relevant evidence). There is no reason to think that the drafters of Rule 41 had in mind the much more cramped notion of "evidence of a criminal offense" G.B. advocates. We conclude that Rule 41 (b)'s reference to "evidence of the commission of a criminal offense" includes within its scope "evidence that might lead to other evidence." Further, our case law establishes that if there is reason to believe that the evidence sought will aid in apprehending or convicting a criminal, a warrant to obtain it may properly issue, even if it is expected that the evidence will be corroborative of evidence law enforcement officials already have. See Rutledge v. United States, 283 A.2d 213, 215-16 (D.C. 1971) (holding that a warrant was properly issued to search for hashish in appellant's apartment because the presence of the drug would corroborate an informant's testimony that appellant was an "illegal transferor of that narcotic, " notwithstanding appellant's objection that "the presence of hashish in his apartment would not prove that he had transferred it in the past or that he was selling it when the warrant was executed").

         B. The Seizure of the Person ...

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