P. v. Lowe
Filed 11/15/13 P. v. Lowe CA4/1
Opinion following transfer from Supreme Court
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN SAMUEL LOWE,
Defendant and Appellant.
D059007
(Super. Ct.
No. RIF132717)
APPEAL from
a judgment of the Superior Court
of
County, Harry A. Staley, Judge. Affirmed as modified, with directions.
Mark Alan
Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Enid A. Camps and Lise S.
Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
This case
arises out of a series of burglaries, forcible sex crimes, and robberies that
Justin Samuel Lowe committed in the City of Riverside
between November 2003 and October 2006.
Lowe's identity was established by fingerprint
evidence; witness identification; and, of particular importance in this
appeal, his unique DNA profile. That
profile was derived from a buccal (inner cheek) swab sample taken from him without
a warrant in October 2006, while he was under lawful arrest for one of the sex
crimes charged in this case, as authorized
by the provisions of Penal Code
sections 296, subdivision (a)(2)(C) (hereafter section 296(a)(2)(C)) and 296.1,
subdivision (a)(1)(A) (hereafter section 296.1(a)(1)(A)), as amended effective
November 3, 2004, by the passage of Proposition 69 (also known as the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act & hereafter
referred to as the 2004 Amendment).
Denial of Lowe's
Motion In Limine To Suppress DNA Evidence
Lowe
brought an opposed motion in limine to
exclude "all DNA evidence" the police obtained from him while he was
under arrest, claiming the evidence was obtained in violation of the Fourth
Amendment to the United States Constitution. The court denied Lowe's suppression motion, finding
that he was under lawful arrest when the DNA sample was taken and that the
statutory provisions authorizing the buccal swab were constitutional.
Verdicts
In July 2010, following the trial
in this matter, a Riverside County jury found Lowe guilty of all 13 offenses charged
in the third amended information: three
counts of forcible oral copulation (§ 288a, subd. (c)(2); counts 1, 5, 13)
(victims: C.D., Jennifer & Amanda,
respectively); one count of attempted rape (§§ 664, 261, subd. (a)(2); count
2) (victim: Victoria);
two counts of first degree residential burglary "with intent to commit
theft and a felony" (§ 459; counts 3, 7); three counts of robbery
(§ 211; counts 4, 8, 12) (victims: Jennifer,
Fran Whitton & Amanda, respectively); one count of rape (§ 261, subd.
(a)(2); count 6) (victim: Jennifer); one
count of attempted robbery (§§ 664, 211; count 9) (victim: Johanna Grosso); one count of misdemeanor
child annoyance (§ 647.6, subd. (a); count 10) (victim: Whitton's granddaughter); and one count of
kidnapping for rape or robbery (§ 209, subd. (b)(1); count 11) (victim: Amanda).
With
respect to counts 1, 5, and 6, the jury found true allegations that Lowe entered
an inhabited dwelling to commit a violent sex offense, committed the offenses
during a burglary, and used a deadly or dangerous weapon (a handgun) within the
meaning of section 667.61, subdivisions (d)(4), (e)(2), and (e)(4),
respectively.
As to
counts 8, 9, 11, and 12, the jury found true allegations that Lowe personally
used a deadly or dangerous weapon (a knife) within the meaning of section
12022, subdivision (b).
With regard
to count 13, the jury found true allegations that Lowe was armed with a deadly
weapon (a knife) within the meaning of section 12022.3, subdivision (b); he kidnapped
the victim and his movement of her increased the risk of harm within the
meaning of section 667.61, subdivisions (d)(2), (e)(1); and he personally used
a dangerous or deadly weapon (a knife) within the meaning of section 667.61,
subdivision (e)(4).
Finally,
the jury found true the special allegation that Lowe committed or attempted to
commit rape or oral copulation against multiple victims within the meaning of
section 667.61, subdivision (e)(5).
Sentence
The court
sentenced Lowe to a determinate term of 15 years eight months plus a
consecutive indeterminate prison term of 107 years to life, calculated as
follows: count 1: 25 years to life; count
2: one year; count 3: one year four
months; count 4: one year four
months; count 5: 25 years to life;
use of the knife; count 9: eight
months plus four months for the use of the knife; count 10: 180 days, concurrent; count
11: seven years to life plus one year for the use of the knife;
months for the use of the knife; and count
13: 25 years to life.
Contentions
Challenging
the court's denial of his motion to suppress the swab DNA evidence, Lowe contends
that "section 296, as applied in this case to compel [him] to provide a
DNA sample as an investigative tool, violates the Fourth Amendment protection
against unreasonable searches and seizures."
his two first degree burglary convictions (counts 3 and 7) and for his
conviction of kidnapping Amanda for rape or robbery (count 11) must be stayed
under section 654 because the sentences "constitute improper multiple
punishment."
In our
unpublished opinion in this matter, we held the 2004 Amendment does not violate
the Fourth Amendment, and, thus, the court properly denied Lowe's suppression
motion. We also concluded the judgment
must be modified to stay under section 654 the execution of the prison sentence
of one year four months the court imposed for Lowe's count 3 conviction of
first degree burglary. We affirmed the
judgment as modified.
The
California Supreme Court granted review (S207634) and subsequently transferred
the matter back with directions that we vacate our decision and reconsider the
matter in light of the United States Supreme Court's decision in
1] (King).
In this
opinion, we conclude our prior decision is consistent with King. Accordingly, we restate
our analysis and conclusions that (1) the 2004 Amendment authorizing the
mandatory and warrantless collection and analysis of buccal swab DNA samples
from felony arrestees does not violate the Fourth Amendment, and, thus, the
court properly denied Lowe's suppression motion; and (2) the judgment must be
modified to stay under section 654 the execution of the prison sentence of one
year four months the court imposed for Lowe's count 3 conviction of first
degree burglary. As modified, the judgment
is affirmed.
FACTUAL
BACKGROUND
A.
1.
In the
morning on November 11, 2003,
shortly after she went to sleep. C.D. awoke to a loud noise followed by the
sound of breaking glass. A tall Black
man dressed in black clothing and wearing a black mask, later identified as
Lowe through DNA and fingerprint evidence (discussed, post), entered her room and pointed a gun in her face. Lowe asked for money and laughed when she showed
him a jar containing some change. Lowe
told C.D. he was not "leaving without getting anything," cursed at
her, put the gun to her head, threatened to "blow [her] brains out,"
and told her to take off her shirt. When
C.D. refused and said she was a virgin and a Christian, Lowe told her she was
going to give him a "blow job."
Lowe pulled his pants down and exposed his penis. When C.D. said she had never done this before,
Lowe told her, "Oh, then this is the biggest dick you've ever seen"
and warned he would shoot her if he felt her teeth.
C.D. orally
copulated Lowe for 15 to 20 minutes, which she testified "seemed like
forever." After Lowe ejaculated
into her mouth, C.D. spat his semen into the waste basket. Before he left, Lowe threatened to return if
he saw any police in the area.
C.D. called
the police, who recovered the waste basket.
Liquid from the waste basket tested positive for saliva and semen. DNA analysis in 2004 did not match the semen
to any source.
In 2006
when the police collected the buccal swab from Lowe, they found his DNA matched
the DNA from the waste basket. Lowe's
finger and palm prints matched prints taken from both the sliding glass door
that was broken during the incident and from C.D.'s table.
2.
On November
21, 2003, sometime between 10 p.m. and midnight and 10 days after he forced C.D.
to orally copulate him, Lowe entered a house rented by Victoria, who at that
time was a student at the University of California at Riverside (UCR). He was again dressed in black, wearing a
black ski mask and holding a gun. Lowe
grabbed Victoria, who was screaming, by the arms as they struggled, and then
told her to "[s]hut the fuck up and sit down on the bed." Lowe sat next to her on the bed and touched
her right breast over her clothing.
Victoria stood up, screaming, and when Lowe started pulling her
drawstring shorts down, she held on to her shorts and crouched down. Victoria told Lowe, "I'll give you
money. Just take whatever you want and
leave."
As Victoria continued to scream,
Lowe said, "Okay. Give me your fucking money." Victoria gave him $13, which was all the
money she had in her wallet. Lowe, who
became very angry, responded, "What the fuck am I going to do with $13?" Lowe took the money and left.
3.
Counts 3 Through 6 (
and Rape of Jennifer)
In the
evening on March 24, 2004─about four months after he attempted to rape
Victoria─Lowe, wearing dark jeans, a dark sweater, and a dark mask, returned
to Victoria's house and found a student named Jennifer alone in the kitchen. Lowe popped up from behind the kitchen counter
and pointed a gun at Jennifer and told her he would kill her if she
screamed. Jennifer and Lowe went to her
bedroom and she gave him $12. When he
asked whether that was all the money she had, Jennifer told him she was a
college student and did not have any money.
Lowe
ordered Jennifer to take off her clothes, and she began to cry. Lowe told her he would shoot her if she did
not undress right away. When Jennifer
complied, Lowe fondled and put his mouth on her breasts, pulled down his pants,
and told her to give him oral sex.
Jennifer testified that she complied because she "just wanted to
survive."
About five
minutes later, Lowe directed Jennifer to get on the bed on her hands and knees
so he could enter her from behind and told her, "You know you want it." Jennifer complied because she was afraid Lowe
would hurt or kill her. Lowe set down
his gun, put his penis in Jennifer's vagina from behind and asked her, "Have
you ever been with a gangster before?"
Lowe later told her to roll over on her back, she complied, and he
continued to have intercourse with her.
A couple of
minutes later, Lowe asked Jennifer whether she wanted him to ejaculate inside
of her or on her. Out of
self-preservation, and wanting to preserve evidence so that Lowe would be
caught, Jennifer told him to ejaculate inside her and he did. Lowe got off of Jennifer and wiped himself
with her sweater. He then left after
telling her he would return in a couple of months.
DNA
extracted from a sample of sperm taken from Jennifer at the hospital matched
Lowe's DNA profile. Fingerprints and a
palm print obtained at the scene of the crime matched Lowe's left thumb and
palm prints.
4. Counts
7 Through 10 (Burglary, Robbery,
Attempted Robbery, and Annoying a Child)
In the
afternoon on October 3, 2006, a Black man later identified as Lowe knocked on
the front door and rang the doorbell for several minutes at Johanna Grosso's
home. Grosso's then-12- or 13-year-old
granddaughter, who was inside the home, did not answer the door. Instead, she called her mother (Grosso's
daughter) on her cell phone and said she was scared because a Black man she did
not know was at the door and was not leaving.
Lowe was
still near the front door when Grosso came home with her friend, Fran Whitton, and
Whitton's granddaughter, who was about 15 years of age at the time of this
incident. Lowe told Grosso he was
selling alarm systems. When Grosso told
him she already owned a security system, Lowe asked if he could use the
bathroom inside the house. Grosso
allowed him to do so, and Grosso's daughter arrived while Lowe was using the
bathroom. Grosso's daughter testified
she saw a "bluish" PT Cruiser parked in an odd spot on a hill, on a
neighbor's property, above the street.
When she went inside the house, Grosso told her she was uncomfortable
because a man (Lowe) was in the bathroom.
Grosso's daughter grabbed a knife, but Lowe left without incident.
Lowe
returned, however, at around 7:30 p.m. that evening, and entered the house with
a knife, which he held to Whitton's granddaughter's neck as she led him to the
room where the other women were. Lowe
told Whitton's granddaughter, "Don't be scared. I'm not going to hurt anybody. I just need money." Whitton's granddaughter repeated that warning
to the other women. Whitton gave Lowe maybe
$30 or $50 from her wallet because she was afraid. Grosso dumped the contents of her purse on the
table and Lowe took the change.
At some
point Whitton's granddaughter fell to the floor. Lowe pulled her up and said she was
faking.
Lowe told
Grosso and Whitton to get into the bathroom and close the door, and send the
girl to him. Lowe, holding the knife,
told Grosso's granddaughter to get into the closet and she complied. Lowe then told Whitton's granddaughter, "[L]et's
make out," and put his hand on her shoulder and waist. She rebuffed Lowe and he eventually
left.
About a week
later, on October 11, 2006, police showed two photographic lineups─one
with black and white photographs and the other with color photographs, each of
which contained a photograph of Lowe─to four of the women (Grosso, Grosso's
daughter, Grosso's granddaughter, and Whitton's granddaughter) who were present
during the October 3 incident. When the
lineup of black and white photographs─in which Lowe's photograph was
photograph No. 1─ was shown to Grosso, Grosso's daughter, and Grosso's
granddaughter, Grosso identified the man in photograph No. 1 (Lowe) as the
suspect with a 99 percent degree of certainty; but Grosso's daughter was unable
to make an identification, and Grosso's granddaughter said the men in
photographs Nos. 1 and 2 looked like the suspect but she was less than 50
percent sure about the man in photograph No. 1.
When the color lineup─in which Lowe's photograph was photograph
No. 5─ was shown to Whitton's granddaughter, she identified the man in
that photograph (Lowe) with 100 percent certainty.
5. Counts
11 Through 13 (Kidnapping for Rape or
Robbery, Robbery, and Forcible Oral Copulation of Amanda)
At around
noon on October 3, 2006─on the same day as the incident at Grosso's
house─Amanda, who was then 18 years of age, was on her way to her class
at UCR when a tall Black man in his 20's, whom she later identified in person
at the police station as Lowe, approached her and tried to talk to her. Amanda testified she did not talk to
him. Lowe followed her to the elevator,
again tried to talk to her, followed her off the elevator, and walked next to
her down a hallway.
As they walked,
Lowe, who had a knife in his hand, suddenly grabbed Amanda by the neck,
covering her mouth, and pulled her about 20 feet into a handicapped stall in
the women's bathroom. Holding the knife
to Amanda's neck, Lowe told her he would not hurt her if she did what he told
her to do. He told her that he had a "thing"
for Asians and that his name was "Justin." Lowe later told her that was not his real
name; he had changed it to "Marcus."
Amanda testified that Lowe had a black and white tattoo on his arm that
looked something like a cross and that he was wearing tan Nike shoes.
Amanda also testified that Lowe,
who was standing in the stall with her, put her on the toilet and told her he
wanted to have sex with her. When she said,
"No," Lowe told her he was in charge and to do as he said. When another person entered the bathroom, Lowe
pressed the knife against Amanda's face and told her he would hurt her if she
made any noise.
After the
person left the bathroom, Lowe undressed, pressed his penis against Amanda's
face, and told her to lick it. He then
put his penis in her mouth. Amanda had
never seen a penis, and she felt like she was going to vomit when Lowe put his
penis into her mouth. She stopped giving
Lowe oral sex, backed away, and cried.
Lowe pulled her back toward him by pulling her hair. This happened many times with Lowe reminding
her he had the knife in his hand. Lowe
removed Amanda's clothes, grabbed her breasts and bit her nipples, causing
pain.
Amanda
testified this lasted a "very, very long time." Lowe then grabbed Amanda's hand and made her
masturbate him until he ejaculated on her arm and hand. Lowe tried to clean up, asked for money, and
then tried to grab Amanda's purse, but she took it before he could do so. She gave him $60 of the $80 she had for books
and living expenses for the week. Lowe
also tried to take her watch but she resisted, telling Lowe the watch was a
gift from her grandmother. Lowe left
after telling Amanda not to call the police and to wait in the bathroom because
he was going to come back. Eventually,
she washed herself and left the bathroom, and a friend took her to the
police.
6.
DNA Sample
Six days
later, on October 9, 2006, a police officer saw a blue PT Cruiser illegally
parked on the UCR campus. As the officer
was speaking to the driver, Lowe approached the car. The officer arrested Lowe, who matched the
description of the assailant on campus, on a misdemeanor traffic warrant. Lowe, who acknowledged the PT Cruiser belonged
to his mother, consented to a search of the car. The police found a knife in the car that Lowe
intimated was his and that, according to Amanda at trial, resembled the one
used during the sexual assault on her.
The police also found in the car a
laptop computer with Lowe's name in the user profile. Investigators determined that the computer
found in the PT Cruiser had been used earlier in the year to visit Internet
sites with the titles "All Rape," "Brutal Rapes," and "Free
Rapes On Line."
The police
took a buccal swab DNA sample from inside Lowe's cheek after his arrest. Lowe's DNA profile matched the profile of the
samples of saliva taken from Amanda's neck and semen taken from her arms and
pants.
7.
Another
student testified that at about 1:00 p.m. on August 10, 2006, she was jogging
from the recreation center at UCR to her apartment complex. As she was running between two dorms, a Black
man running towards her made eye contact with her and said, "Hey, how you
doing?" He grabbed her breast and
ran off.
The student
identified Lowe's photograph in a photographic lineup the police showed
her. She told the police she was not 100
percent sure of her identification because she thought the suspect who grabbed
her during the jogging incident was lighter skinned.
B. The
Defense Case
The defense presented evidence that
other tall African-American men who matched or partially resembled the
description of the suspect were seen in the areas where the crimes against C.D.,
Victoria, and Jennifer were committed, at around the time of those crimes.
A defense investigator who
researched guns on the Internet testified that the description of the gun used
in some of the crimes indicated the gun was a Daisy BB pistol, not a firearm.
DISCUSSION
I
DENIAL OF LOWE'S
SUPPRESSION MOTION;
CONSTITUTIONALITY
OF THE DNA ACT
Lowe
challenges the court's denial of his motion to suppress the buccal swab DNA
evidence obtained from him under the 2004 Amendment without a warrant while he
was under arrest, contending that "section 296, as applied in this case to
compel [him] to provide a DNA sample as an investigative tool, violates the
Fourth Amendment protection against unreasonable searches and seizures." We hold that the 2004 Amendment authorizing
the mandatory and warrantless collection and analysis of buccal swab DNA
samples from felony arrestees does not violate the Fourth Amendment, and, thus,
the court properly denied Lowe's suppression motion.
A.
Limine To Suppress DNA Evidence
Lowe
brought an in limine motion under section 1538.5, subdivision (a) to exclude "all
DNA evidence" obtained from him while he was under arrest, asserting "there
[was] no warrant or exigent circumstance," and, thus, the evidence was "obtained
in violation of the search and seizure clause of the [Fourth] Amendment to the
[United States] Constitution."
The prosecution opposed the motion,
arguing the police lawfully obtained the DNA sample pursuant to the mandatory
provisions of section 296 (a)(2)(C) by swabbing Lowe's mouth after he waived
his Miranda
admitted he sexually assaulted Amanda, and was lawfully arrested.
At the hearing on the motion, a campus
police officer with the UCR Police Department testified for the prosecution that
on October 9, 2006, Amanda identified Lowe at an in-field lineup as the man who
forced her to orally copulate him a few days earlier on October 3 and that her
identification of Lowe provided the officer with probable cause to arrest him. The officer stated that when Amanda identified
Lowe, she also identified his tattoo and the shoes he was wearing.
The officer also testified that
Lowe thereafter waived his Miranda
rights and agreed to speak with him. During
the interview, Lowe made incriminating statements about his involvement in a
sexual assault on Amanda. The officer
stated he arrested Lowe and then made arrangements with a detective to take a
buccal swab DNA sample from Lowe. The
detective came to the police station and properly collected the sample.
The parties stipulated that the sample
was collected without a warrant and that the court could consider the
transcript of Lowe's police interview.
The transcript showed the officer informed Lowe early in the interview
that he was under arrest for sexual assault.
The officer advised Lowe of his Miranda
rights, and Lowe waived those rights and agreed to speak with the officer. Lowe initially told the officer, "I'm
being accused of something I didn't do."
The officer told Lowe that semen containing DNA had been collected from
the victim's pants, and Lowe's DNA would be taken later that day. He also told Lowe that the victim had
identified him as her assailant, his knife was found in his mother's car, and
fingerprints had been collected from the crime scene. The transcript shows that, shortly
thereafter, Lowe made numerous incriminating statements showing he sexually
assaulted and robbed Amanda.
Following oral arguments, the court
denied Lowe's suppression motion, finding that Lowe was under lawful arrest
when the DNA sample was taken, and that the statute authorizing the warrantless
taking of the sample is constitutional.
B.
Since 1984,
California law enforcement officials have been authorized to collect forensic
identification blood, saliva or buccal swab samples from persons
ch. 700, § 1.)
In 1998, the Legislature enacted
the DNA and Forensic Identification Database and Data Bank Act of 1998 (§ 295
et seq.; Stats. 1998, ch. 696, § 2) (the DNA Act), which required "DNA and
forensic identification data bank samples" from all persons convicted of
specified offenses. (§ 295, subd.
(b)(2).)
legislation "is to assist federal, state, and local criminal justice and
law enforcement agencies within and outside California in the expeditious and
accurate detection and prosecution of individuals responsible for sex offenses
and other crimes, the exclusion of suspects who are being investigated for
these crimes, and the identification of missing and unidentified persons, particularly
abducted children." (§ 295,
subd. (c).)
At the November 2004 general election,
California voters amended and added various provisions to the DNA Act by
enacting Proposition 69 (the 2004 Amendment).
(Voter Information Guide, Gen. Elec. (Nov. 2, 2004), text of Prop. 69,
sec., p. 135 & sec. III, pp. 135-144; Haskell
v. Harris (2012) 669 F.3d 1049, 1051 (Harris).) Proposition 69 significantly enlarged the
scope of persons subject to warrantless DNA seizures by, among other things,
providing that beginning January 1, 2009, warrantless seizure of DNA would be
required of any adult arrested for or
charged with any felony. (§
296(a)(2)(C);
title="">[5]
Harris, at p. 1051; Voter Information
Guide, supra, text of Prop. 69, sec.
3 adding § 296(a)(2)(C), p. 137.)
As amended by the 2004 Amendment, the
DNA Act provides that such collection of DNA from felony arrestees must take
place "immediately following arrest, or during the
booking . . . process or as soon as administratively
practicable after arrest, but, in any case, prior to release on bail or pending
trial or any physical release from confinement or custody." (§ 296.1(a)(1)(A).)
enforcement officials lack discretion to suspend this requirement. (§ 296, subd. (d); People v. King (2000) 82 Cal.App.4th 1363, 1373.) Furthermore, collection of DNA samples for
analysis is ordinarily "limited to collection of inner cheek cells of the
mouth (buccal swab samples)." (§
295, subd. (e).)
After the DNA
sample is taken, it is sent to the DNA Laboratory of the California Department
of Justice (DOJ), which is responsible for the management and administration of
the state's DNA and Forensic Identification Database and Data Bank Program and
which stores, correlates and compares forensic identification samples for use
in criminal investigations. (§§ 295,
subds. (f), (g), (i)(1)(C); 295.1, subd. (c); People v. King, supra, 82
Cal.App.4th at pp. 1368-1370.) The DOJ
is required to perform the DNA analysis "only for identification purposes." (§ 295.1, subd. (a).) A genetic profile is created from the sample
based on 13 genetic markers known as "junk DNA," which are referred
to as junk because they are not linked to any known genetic traits. (Harris,
supra, 669 F.3d at p. 1051; see also
is intended to indicate that this particular noncoding region [of the DNA
material in chromosomes], while useful and even dispositive for purposes like
identity, does not show more far-reaching and complex characteristics like
genetic traits."].) The resulting genetic
profiles are so highly individuated that the chance of two randomly selected
individuals sharing the same profile are "infinitesimal." (United
States v. Kincade (9th Cir. 2004) 379 F.3d 813, 819 (Kincade), cert. den. sub nom. Kincade
v. United States (2005) 544 U.S. 924.)
The laboratory uploads each DNA
profile into California's DNA data bank, which is part of the Combined DNA
Index System (CODIS), a nationwide collection of federal, state, and local DNA
profiles that can be accessed by local, state and federal law enforcement
agencies and officials. (
v. Brown (2009) 677 F.Supp.2d 1187, 1190.)
"CODIS collects DNA profiles provided by local laboratories taken
from arrestees, convicted offenders, and forensic evidence found at crime
scenes." (King, supra, 133 S.Ct. at
p. 1968.)
When the arrestee's DNA profile is uploaded
into CODIS, it is compared to DNA samples collected from crime scenes. (Harris,
supra, 669 F.3d at p. 1052.) In CODIS, the DNA profile does not include
the name of the person from whom the DNA was collected or any case-related
information. It includes a specimen
identification number, an identifier for the agency that provided the sample,
and the name of the personnel associated with the analysis. (Haskell
v. Brown, supra, 677 F.Supp.2d at p. 1190; Kincade, supra, 379 F.3d
at p. 819, fn. 8.) If a "hit"
is made, matching the DNA profile of the convicted offender or felony arrestee to
a crime scene DNA sample, the arrestee's DNA sample is tested again for
confirmation and, if the match is confirmed, CODIS notifies the submitting
laboratory of the identity of the matching DNA profile, and the laboratory
sends that information to the appropriate law enforcement agency. (Harris,
supra, 669 F.3d at p. 1052.)
The 2004
Amendment specifically provides that DNA samples and profiles may be released
only to law enforcement personnel and contains penalties for unauthorized use of
the arrestee's "specimen, sample, or DNA profile" or unauthorized disclosure
of DNA information. (§ 299.5, subds.
(f), (i).)
A person whose DNA profile has been
included in the DNA data bank may have his or her DNA sample destroyed and the
searchable database profile expunged from the data bank program if he or she "has
no past or present offense or pending charge which qualifies that person for
inclusion within the . . . Data Bank Program and there
otherwise is no legal basis for retaining the specimen or sample or searchable
profile." (§ 299, subd. (a).) An arrestee ordinarily must wait until the
statute of limitations has run before requesting the expungement, and the court
must then wait 180 days before it can grant the request. The court's order is not reviewable by appeal
or by writ petition, and the prosecutor can prevent expungement by objecting to
the request. (§ 299, subds. (b)(1),
(c)(1), (c)(2)(D).) In the alternative, a person may seek expungement after
being found factually innocent or not guilty of the underlying offense. (§ 299,
subds. (b)(3), (b)(4).)
However, an individual may initiate
expedited expungement proceedings by filing a request and supporting
documentation with the DOJ DNA Database Program. (See the DOJ's website:
individual submits a three-page form and provides "sufficient
documentation" of his or her identity, legal status, and criminal history
to meet the requirements of section 299. (State of Cal. form DLE 244,
required documentation may be a letter in support of expungement from a
district attorney or prosecutor or a certified or file-stamped copy of a court
order, opinion, docket, or minute order.
If DOJ denies the request, the individual may initiate a court
proceeding. (Expungement Request
Instructions:
[as of Nov. 6, 2013].) To do so, the
individual must file a petition for expungement with proof of service of the
petition on the DOJ's DNA Laboratory, as well as the trial court and
prosecuting attorney of the county where the petitioner was arrested, the
conviction was entered, or the disposition was rendered. (§ 299, subd. (c)(1);
Judicial Council Forms, form CR–185
2013].)
C.
"The
Fourth Amendment of the United States Constitution, which is enforceable
against the states as a component of the Fourteenth Amendment's guaranty of due
process of law[, protects] '[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures.'" (People v. Williams (1999) 20 Cal.4th 119, 125, quoting U.S. Const.,
4th Amend.)
As the text
of the Fourth Amendment indicates, "reasonableness" is the ultimate
measure of the constitutionality of a governmental search, and whether a
particular search meets the reasonableness standard is judged by examining "the
totality of the circumstances" and balancing the intrusion on the
individual's Fourth Amendment privacy interests against its "promotion of
legitimate governmental interests."
(Samson v. California (2006) 547
U.S. 843, 848; People v. Robinson
(2010) 47 Cal.4th 1104, 1120.)
Subject only to a few well-delineated
exceptions, warrantless searches are per se unreasonable under the
burden of showing the search at issue is reasonable and therefore
constitutional. (See
p. 127.)
D.
Applying
the "totality of the circumstances" test, balancing the intrusion of the
challenged search on privacy interests against its promotion of legitimate
governmental interests (Samson v.
California, supra, 547 U.S. at p.
848), we conclude the compulsory and warrantless collection of buccal swab DNA samples from all adult felony
arrestees for DNA testing and analysis, as authorized by the 2004 Amendment to
the DNA Act, does not violate the Fourth Amendment to the federal Constitution.
1.
Nonconsensual extractions of biological
samples that may be used for DNA profiling are "searches" entitled to
the protection of the Fourth Amendment.
(Schmerber v. California
(1966) 384 U.S. 757, 767–771 (blood); People
v. Robinson, supra, 47 Cal.4th at pp. 1119, 1121, cert. den. sub nom.
[131 S.Ct. 72] (blood); Skinner v. Ry.
Labor Executives' Ass'n (1989) 489 U.S. 602, 616–617 (breathalyzer and
urine sample); Cupp v. Murphy (1973)
412 U.S. 291, 295 (finger nail scrapings).) In King,
the United States Supreme Court recently explained that "using a buccal
swab on the inner tissues of a person's cheek in order to obtain DNA samples is
a search" within the meaning of the Fourth Amendment. (King,
supra, 133 S.Ct. at p. 1969.)
Felony arrestees have a "significantly
diminished expectation of privacy." (Harris,
supra, 669 F.3d at p. 1058; see also
an individual taken into police custody 'necessarily [are] of a diminished
scope.'"].) They are often booked
and placed in a jail cell pending arraignment or bail, and they are typically
subjected at that point to various degrading physical and emotional intrusions. For example, they may be subjected to visual
body cavity searches (Bell v. Wolfish
(1979) 441 U.S. 520, 558 & fn. 39 [upholding searches where male inmates "must
lift [their] genitals and bend over to spread [their] buttocks for visual
inspection" and "[t]he vaginal and anal cavities of female inmates
also are visually inspected"]); they may be monitored by guards while they
shower and use the toilet (Johnson v.
Phelan (7th Cir. 1995) 69 F.3d 144, 145); and they may have their telephone
access restricted (Valdez v. Rosenbaum
(9th Cir. 2002) 302 F.3d 1039, 1048-1049).
Here, we evaluate Lowe's claim that
the buccal swab DNA search authorized by the 2004 Amendment is unreasonable against
the fact that, as discussed, felony arrestees have diminished privacy rights.
a.
We begin by noting that the typical
modern DNA collection procedure─the buccal swab to which Lowe was
subjected in this matter─is much less invasive than the blood test
approved in Schmerber v. California,
involves the brief insertion of a cotton swab into the person's mouth, whereas the
typical blood extraction involves the insertion of a needle into a blood vessel. (Harris,
supra, 669 F.3d at p. 1059.) "The procedure is quick and
painless." (King, supra, 133 S.Ct. at
p. 1968.) Thus, a buccal swab cannot seriously be
viewed as an unacceptable physical intrusion.
(See King,
intrusion of a cheek swab to obtain a DNA sample is a minimal one."];
F.3d 73, 84, fn. 11 ["If . . . the DNA were to be
collected by cheek swab, there would be a lesser invasion of privacy [than a
blood draw] because a cheek swab can be taken in seconds without any
discomfort."].)
b. Governmental use
and retention of DNA information
Lowe challenges
as unconstitutionally intrusive the governmental use and retention of the
information contained in the DNA sample that was taken from him without a
warrant while he was under arrest, as authorized by the 2004 Amendment. However, as already discussed, a DNA profile derived
from a DNA sample taken from a felony arrestee under the amended DNA Act contains
only 13 junk DNA markers that are not linked to any genetic or physical trait.
They are used only to identify the individual. (See § 295.1, subd. (a), discussed,
at p. 837 ["[T]he DNA profile derived from the defendant's [DNA] sample
establishes only a record of the defendant's identity─otherwise personal
information in which the qualified offender can claim no right of privacy once
lawfully convicted of a qualifying offense (indeed, once lawfully arrested and
booked into state custody)."]); United
States v. Amerson, supra, 483
F.3d at p. 85 ["[A]t 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."].)
Given the
minimal amount of genetic information currently contained in a DNA profile, we
are persuaded that DNA collected, used, and retained under the amended DNA Act
is substantially indistinguishable from traditional fingerprinting as a means
of identifying arrestees and, incidentally, tying them to criminal
investigations. As the
the middle of the 20th century, it was considered 'elementary that a person in
lawful custody may be required to submit to photographing and fingerprinting as
part of routine identification processes.'" (King,
supra, 133 S.Ct. at p. 1976.) Thus, "[p]erhaps the most direct
historical analogue" to the buccal swab DNA technology "is the
familiar practice of fingerprinting arrestees." (Ibid.) The King
court also observed that "the only difference between DNA analysis and the
accepted use of fingerprint databases is the unparalleled accuracy DNA
provides." (Id. at p. 1972.)
We acknowledge that DNA
collected from felony arrestees is
amended by the 2004 Amendment, carefully and sharply limits the range of
permissible uses of the DNA information obtained and imposes significant
criminal penalties upon those who violate those limitations. (See §§ 295.1; subd. (a); 299.5, subd. (f);
299.5, subd. (i).) Thus, we conclude
that the collection, use, and retention of information from junk DNA markers as
authorized by the amended DNA Act does not significantly intrude upon a felony
arrestee's privacy.
2.
On the
other side of the Fourth Amendment balance, we weigh four principal and legitimate governmental interests: identifying arrestees, solving past crimes,
preventing and solving future crimes, and exonerating the innocent.
a.
The primary purpose of the amended
DNA Act is to identify arrestees. (See
§ 295.1, subd. (a) ["The Department of Justice shall perform DNA
analysis . . . pursuant to this chapter only for
identification purposes."].) This longstanding
governmental interest is legitimate. (
officers in a safe and accurate way to process and identify the persons and
possessions they must take into custody" is a "legitimate government
interest."]; Jones v. Murray
(4th Cir. 1992) 962 F.2d 302, 306 ["[W]hen a suspect is arrested upon
probable cause, his identification becomes a matter of legitimate state
interest."]; see also United States
v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947 ["[T]racking . . . identity
is the primary consequence of DNA collection."].)
b.
By accurately identifying felony arrestees,
the DNA database helps promote the legitimate and compelling governmental
interest in solving past crimes. When
California voters passed Proposition 69, enacting the 2004 Amendment to the DNA
Act, they expressly recognized the critical importance of expanding the DNA
data bank program to include collection and analysis of DNA samples from felony
arrestees in order to promote the expeditious solving of crimes: "The people of the State of California
do hereby find and declare that . . . [t]here is a critical
and urgent need to provide law enforcement officers and agencies with the
latest scientific technology available for accurately and expeditiously
identifying, apprehending, arresting, and convicting criminal
offenders . . . ."
(Voter Information Guide, supra,
text of Prop. 69, sec. II, subd. (b), p. 135.)
If a felony arrestee has committed
crimes other than the crime he or she is currently suspected of committing,
those past crimes must be prosecuted as soon as possible, while victims and
witnesses can be located and before memories fade. In this respect the collection and carefully
restricted use of identifying DNA information taken from felony arrestees
promotes the legitimate governmental interest in the accurate and expeditious
solving of past crimes.
In addition, "by contributing
to the solution of past crimes, DNA profiling of
qualified . . . offenders helps bring closure to countless
victims of crime who long have languished in the knowledge that perpetrators
remain at large." (
c.
"'The government's interest in
preventing crime by arrestees is both legitimate and compelling.'" (King,
supra, 133 S.Ct. at p. 1973.)
Implementing the 2004 Amendment
provides law enforcement agencies with a catalogue of arrestees' DNA, a tool
that potentially will help solve and prevent future crimes. The mere existence of the DNA database
creates a strong deterrent effect, and a felony arrestee from whom a DNA sample
has been collected pursuant to the 2004 Amendment will be less likely to commit
another crime in the future because he or she knows that the collected DNA is
catalogued in the DNA database. (See,
e.g., Kincade, supra, 379 F.3d at pp. 838-839 [mandatory DNA profiles of convicted
felons "fosters society's enormous interest in reducing recidivism"];
Jones v. Murray, supra, 962 F.2d at p. 311 ["[T]he Commonwealth's interest in
combatting and deterring felony recidivism justifies the involuntary taking of
the sample and the creation of the DNA data bank as reasonable in the context
of the Fourth Amendment."].)
d.
Last, by helping identify the
actual perpetrators of crimes, the DNA database allows law enforcement officers
to eliminate innocent persons from suspect lists. (See King,
supra, 133 S.Ct. at p. 1974
["[I]n the interests of justice, the identification of an arrestee as the
perpetrator of some heinous crime may have the salutary effect of freeing a
person wrongfully imprisoned for the same offense."]; United States v. Sczubelek
(3d Cir. 2005) 402 F.3d 175, 185 ["[T]he DNA samples will help to
exculpate individuals who are serving sentences of imprisonment for crimes they
did not commit and will help to eliminate individuals from suspect lists when
crimes occur."].) The privacy
intrusion caused by a buccal swab of a felony arrestee must be viewed as minor
compared to society's compelling goal of ensuring that innocent people are
exonerated.
3.
In
that "[t]he 2004 Amendment does not provide the Government carte blanche
to take buccal swabs from anyone and everyone. It applies only to persons arrested on
suspicion of having committed a felony. Before
individuals can be required to give a buccal swab DNA sample under the 2004
Amendment, a law enforcement officer must determine that there is probable
cause to suspect that person of having committed a felony." (Italics omitted.)
We conclude that the legitimate
governmental interests promoted by the warrantless collection of buccal swab DNA
samples from felony arrestees who are taken into custody upon probable cause,
far outweigh the arrestees' privacy concerns.
Our conclusion is based on the following five reasons: The felony arrestee's diminished privacy
interests; the de minimis nature of the physical intrusion involved in the
collection of a buccal swab DNA sample; the carefully limited scope of the DNA
information that is extracted; the strict limits on the range of permissible
uses of the DNA information obtained and the significant criminal penalties
imposed upon those who violate those limitations; and the strong law
enforcement interests in obtaining arrestees' identifying information, solving
past and future crimes, deterring future criminal acts, and exonerating the
innocent.
Accordingly, we hold that the 2004
Amendment authorizing the mandatory and warrantless collection and analysis of
buccal swab DNA samples from felony arrestees does not violate the Fourth
Amendment. Thus, we also conclude the
court properly denied Lowe's suppression motion.
a. King
Our decision is consistent with the
United States Supreme Court's recent majority decision in King, which upheld the constitutionality of the Maryland DNA
Collection Act (Maryland Act) that authorizes Maryland law enforcement
authorities to collect and analyze buccal swab DNA samples from persons
arrested and charged with qualifying "serious" offenses.
supra, 133 S.Ct. at pp. 1965-1966,
1967, 1980.) King concluded that "DNA
identification of arrestees is a reasonable search that can be considered part
of a routine booking procedure. When
officers make an arrest supported by probable cause to hold for a serious
offense and they bring the suspect to the station to be detained in custody,
taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that is reasonable
under the Fourth Amendment." (
In reaching this decision, the
majority in King explained that the
Maryland Act served legitimate and substantial governmental interests such as accurately
identifying and processing the persons and property law enforcement officers
must take into custody (King,
crimes (id. at pp. 1971-1972), and exonerating
the innocent (id. at p. 1974). Against the governmental interests served by
the Maryland Act the King majority weighed
the "minimal" intrusion of a cheek swab to obtain a DNA sample from
the arrestee. (Id. at pp. 1974, 1977-1978.)
Noting that "a detainee has a reduced expectation of privacy,"
the King majority explained that, "[i]n
light of statutory protections that guard against further invasion of
privacy,"
title="">[8]
the analysis of the DNA sample "did not amount to a significant invasion
of privacy that would render the DNA identification impermissible under the
Fourth Amendment." (
King is not
limited to the particular provisions of the Maryland Act. Citing an amicus curiae brief submitted by
the State of California, the King
majority observed that "[28] States and the Federal Government have
adopted laws similar to the Maryland Act authorizing the collection of DNA from
some or all arrestees. . . .
Although those statutes vary in their particulars, such as what charges require a DNA sample, their
similarity means that this case
implicates more than the specific Maryland law. At issue is a standard, expanding technology
already in widespread use throughout the Nation." (King,
supra, 133 S.Ct. at p. 1968, italics
added.)
Although the "particulars"
of the Reform Act and the Maryland Act─such as the qualifying offenses
that require the collection of buccal swab DNA samples from arrestees, and the
procedures for destroying DNA samples and expunging DNA database profiles─differ,
those differences do not render our decision inconsistent with the majority's
decision in King. Here, as in King, the minimal intrusion of the buccal swab into the arrestee's
diminished right to privacy is outweighed by the important governmental
interests served by the challenged statute.
Here, as in King, scientific
and statutory safeguards (discussed, ante)
are provided by the Reform Act such that the analysis of the collected DNA
sample "d[oes] not amount to a significant invasion of privacy that would
render the DNA identification impermissible under the Fourth
Amendment." (King, supra, 133 S.Ct. at
p. 1980.)
II
Lowe also contends the sentences
imposed for his two first degree burglary convictions (counts 3 and 7) and for
his conviction of kidnapping Amanda for rape or robbery (count 11) must be
stayed under section 654 because the sentences "constitute improper
multiple punishment." We conclude
the judgment must be modified to stay under section 654 the execution of the
prison sentence of one year four months the court imposed for Lowe's count 3
conviction of first degree burglary. As
modified, the judgment is affirmed.
A.
Section
654, subdivision (a) provides in part: "An
act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision."
Section 654
"precludes multiple punishment for a single act or omission, or an
indivisible course of conduct" (People
v. Deloza (1998) 18 Cal.4th 585, 591) and ensures the defendant's
punishment will be commensurate with his or her criminal culpability (
723). If a defendant suffers two
convictions and punishment for one is barred by section 654, that section
requires that the sentence for one conviction be imposed and the other be
v. Deloza, at pp. 591-592.)
Whether a course of conduct is
indivisible for purposes of section 654 depends on the intent and objective of
the defendant, not the temporal proximity of the offenses. (People
v. Hicks (1993) 6 Cal.4th 784, 789.)
Generally, if all the criminal acts were incident to one objective, then
punishment may be imposed only as to one of the offenses committed. (People
v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) The question of whether a defendant harbored
multiple criminal objectives is a question of fact for the trial court to
decide. (People v. Coleman (1989) 48 Cal.3d 112, 162.) A trial court's determination that a
defendant held multiple criminal objectives will be upheld on appeal if it is
supported by substantial evidence. (
730-731.)
1. Multiple
victim exception
However, under the "multiple
victim" exception to section 654, the limitations of this section do not
apply to crimes of violence against multiple victims. (People
v. Oates (2004) 32 Cal.4th 1048, 1063; People
v. Garcia, supra, 32 Cal.App.4th
at p. 1781; People v. Deloza,
654 does not . . . preclude multiple punishment when the
defendant's violent act injures different victims."].) Under this exception, a defendant may be
convicted and punished for each crime of violence committed against a different
victim "even though a defendant entertains but a single principal
objective during an indivisible course of conduct." (People
v. Ramos (1982) 30 Cal.3d 553, 587, revd. on other grounds in
see also People v. Garcia,
stated, permits one unstayed sentence per victim of all the violent crimes the
defendant commits incidental to a single criminal intent." (People
v. Garcia, supra, at p. 1784.) Thus, section 654 does not apply where one
act has two results each of which is an act of violence against the person of a
separate individual. (
The multiple victim exception to
section 654 is based on the rationale that "when a defendant '"commits
an act of violence with the intent to harm more than one person or by means
likely to cause harm to several persons," his greater culpability
precludes application of section 654.'" (People
v. McFarland (1989) 47 Cal.3d 798, 803; see also People v. Centers (1999) 73 Cal.App.4th 84, 99;
"[W]hether a crime constitutes
an act of violence that qualifies for the multiple-victim exception to section
654 depends upon whether the crime (in conjunction with any allegations in
enhancement) is defined to proscribe an act of violence against the person." (People
v. Hall (2000) 83 Cal.App.4th 1084, 1092.)
The mere potential for violence is insufficient to qualify a crime as
violent for purposes of the multiple-victim exception to section 654. (People
v. Solis (2001) 90 Cal.App.4th 1002, 1024-1025, citing People v. Hall, supra, at
pp. 1091-1094.)
C.
1.
Lowe first
contends the prison sentence of one year four months the court imposed for his
count 3 conviction of first degree burglary must be stayed under section
654. We conclude the court erred by not
staying that sentence under section 654.
When a
defendant commits both burglary and the underlying intended felony against a
single victim, section 654 generally permits punishment for one of the crimes,
but not for both, because the burglary is merely incident to, and a means of
perpetrating, the intended felony. (See
119-120 [burglary and intended robbery]; see also People v. Centers, supra,
73 Cal.App.4th at p. 99.)
Here, Lowe
was accused in count 3 of unlawfully entering an inhabited dwelling house on
March 24, 2004, "with intent to commit theft and a felony." The evidence established that this house was
inhabited by Jennifer, one of the victims in this case. The jury found Lowe guilty of count 3 and three
other felony counts he committed against Jennifer in her home on that
date: robbery (count 4); forcible oral
copulation (count 5); and rape (count 6).
Jennifer was the sole victim of these
four crimes. The court punished Lowe for
these offenses by sentencing him to prison terms of one year four months for the
count 3 first degree burglary, one year four months for the count 4 robbery, 25
years to life for the count 5 forcible oral copulation, and 25 years to life
for the count 6 rape. As punishment for
all 13 of Lowe's convictions and the related true findings in this matter, the
court imposed a determinate term of 15 years eight months plus a consecutive
indeterminate prison term of 107 years to life.
Regardless
of which of the offenses charged in counts 4 through 6 Lowe intended to commit when
he unlawfully entered Jennifer's home, section 654 precluded separate
punishment for his count 3 burglary conviction because the court imposed
punishment for the underlying intended crime or crimes. (See People
v. James, supra, 19 Cal.3d at pp.
119-120; People v. Centers,
The
Attorney General disagrees, claiming that Lowe "entertained separated
intents and objectives" in committing the four offenses charged in counts
3 through 6 and, thus, the court properly imposed separate sentences for each
count. In support of this claim, the Attorney
General maintains that substantial evidence supports the court's "implied
finding" that Lowe entered Jennifer's home with the intent to commit a sex
crime against Victoria, the woman he was convicted of attempting to rape (as
charged in count 2) in that same house four months earlier. However, the Attorney General asserts, when
Lowe found Jennifer, not Victoria, in
the home, "he formed the intent to rob, rape and force [Jennifer] to
orally copulate him."
In essence, the Attorney General
claims the court properly imposed separate sentences for each of the four
crimes charged in counts 3 through 6─including the burglary─because,
although Lowe did commit burglary by entering Jennifer's home with the intent
to commit a robbery and a sex crime, he acted with a separate intent and
objective in that Jennifer was not the victim he intended to rob and sexually
assault when he unlawfully entered her home; that is, he intended to commit the
crimes against Victoria. This claim is
unavailing. In committing the robbery
and sex offenses charged in counts 4 through 6, Lowe acted with the same
intent─the intent to commit robbery and a sex crime─he harbored
when he unlawfully entered Jennifer's home and, thus, the section 654 prohibition
of multiple punishment applies. The
identity of the actual victim is immaterial, and the Attorney General has cited
no authority (and we are aware of none) in support of the claim that it is
relevant. Section 654 ensures the
defendant's punishment will be commensurate with his or her criminal
culpability. (People v. Kramer, supra,
29 Cal.4th at p. 723.) The Attorney
General does not expla
| Description | This case arises out of a series of burglaries, forcible sex crimes, and robberies that Justin Samuel Lowe committed in the City of Riverside between November 2003 and October 2006. Lowe's identity was established by fingerprint evidence; witness identification; and, of particular importance in this appeal, his unique DNA profile. That profile was derived from a buccal (inner cheek) swab sample taken from him without a warrant in October 2006, while he was under lawful arrest for one of the sex crimes charged in this case, as authorized by the provisions of Penal Code[1] sections 296, subdivision (a)(2)(C) (hereafter section 296(a)(2)(C)) and 296.1, subdivision (a)(1)(A) (hereafter section 296.1(a)(1)(A)), as amended effective November 3, 2004, by the passage of Proposition 69 (also known as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act & hereafter referred to as the 2004 Amendment). Denial of Lowe's Motion In Limine To Suppress DNA Evidence Lowe brought an opposed motion in limine to exclude "all DNA evidence" the police obtained from him while he was under arrest, claiming the evidence was obtained in violation of the Fourth Amendment to the United States Constitution. The court denied Lowe's suppression motion, finding that he was under lawful arrest when the DNA sample was taken and that the statutory provisions authorizing the buccal swab were constitutional. |
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