Eureka! Exclusionary rule does not apply in a cold case solved by DNA evidence obtained through an unconstitutional but “good faith” search by a prison employee.

Shepardson R. Blair v. United States, No. 12-CF-1351 (decided May 7, 2015)

Players: Associate Judges Blackburne-Rigsby and Thompson, Senior Judge Steadman. Opinion by Judge Thompson. PDS for Mr. Blair. Judges: Thomas J. Motley (motion judge), Ronna Lee Beck (trial judge)

Facts:

Based on DNA evidence that linked him to the sexual assault of C.H., Mr. Blair was convicted of first-degree sexual abuse and assault with significant bodily injury.

Issue 1:

While Mr. Blair was incarcerated at a federal prison in 2005 for a DC first-degree theft conviction, a Bureau of Prisons employee drew a sample of his blood so that his DNA profile could be uploaded to a database run by the FBI. Although the DNA Analysis Backlog Elimination Act (“DNA Act”) authorized BOP to collect DNA from inmates convicted of “qualifying” DC offenses, the DNA Act did not authorize it to collect Mr. Blair’s blood in 2005 because the DC government had not yet made first-degree theft a qualifying offense. The FBI discovered in 2009 that Mr. Blair’s DNA matched that of the man who assaulted C.H. in 2005. The FBI shared this information with MPD, and Mr. Blair was arrested for the 2005 assault. In 2011, the trial court issued a warrant compelling Mr. Blair to allow MPD to take another DNA sample. Probable cause to support that warrant depended on the DNA match obtained using the 2005 sample. At trial, the government introduced the DNA evidence derived from the 2011 sample, which, like the 2005 sample, linked Mr. Blair to the 2005 assault.

Assuming that BOP’s collection of the 2005 DNA sample violated the Fourth Amendment, did the trial court err by declining to apply the exclusionary rule and permitting MPD to collect a second sample based solely on information derived from the 2005 sample?

Holding 1:

No.  First, BOP likely acted in good faith when it took the 2005 DNA sample, mainly because: (a) defense counsel acknowledged that he “did not ‘know of any’ bad faith” on the part of BOP; and (b) although the DC government had not yet designated all DC Code felonies (including first-degree theft) as qualifying offenses for purposes of the DNA Act, Congress had already designated all federal felonies as qualifying offenses, suggesting that the unconstitutional search resulted from a negligent, but not bad faith, failure to recognize this difference.

Second, the trial court “reasonably concluded” that the deterrence-related benefits from suppressing the fruits of the 2005 DNA sample would not outweigh its costs, mainly because: (a) DC law was later revised to include “any felony” as a qualifying offense under the DNA Act, obviating any need to “deter BOP personnel from again making th[is] mistake”; (b) several years elapsed between the collection of the 2005 blood sample and the trial; and (c) BOP personnel were “not adjuncts to the law enforcement team.”

You should be able to distinguish this opinion by emphasizing that its holding depends on its peculiar facts, including that prison staff rather than police conducted the unlawful search.

Issue 2:

To be convicted of first-degree sexual abuse, the defendant must force the complainant to engage in a sexual act that involves (in relevant part) “penetration, however slight, of the . . . vulva of another by a penis.” Here, C.H. testified that the assailant pushed “into [her] vagina” with his “non-erect penis” and “tried several times to push himself further inside.” The doctor who treated C.H. after the assault found “a significant amount” of debris in C.H.’s vulva.

Was this evidence insufficient to establish that the assailant penetrated C.H.’s vulva?

Holding 2:

No. C.H.’s testimony that the assailant pushed “into [her] vagina” and tried to push “further inside,” together with the “violent nature of the attack,” permitted the jury to infer that he penetrated her “vulva, if not her vagina,” even though his penis was not erect.

Issue 3:

During the assault, C.H.’s head was repeatedly banged against the ground. The doctor who assessed her at the hospital testified that she had abrasions “all over [her] body,” evidence of “trauma” around her eyes, “a lot” of tenderness in her jaw, neck pain, and a “severe headache.” The doctor ordered CAT scans of C.H.’s head, face, and mandible because he was “concerned” that she might have a “significant head injury,” and he ordered an X-ray of her neck to “rule out bone injury.” These tests apparently found no sign of internal injuries.

Was this evidence insufficient to prove the significant-bodily-injury element of felony assault?

Holding 3:

No. The CAT scans and X-ray the doctor ordered for C.H.’s head and neck, together with the bruising “all over [her] body,” sufficed to show that her injuries were significant, though the issue was a close (“less than obvious”) one.

The Court’s emphasis on diagnostic tests is somewhat at odds with prior decisions holding that significant bodily injury includes only injuries that require medical treatment rather than diagnosis. The opinion should thus be read narrowly to avoid conflict with the Court’s past decisions. The opinion itself suggests several limits to its holding: (1) the tests here were aimed at detecting injury to particularly sensitive body parts, the head and neck; (2) there was medical testimony that the tests were needed to rule out internal injuries; (3) the Court relied not only on the tests, but also on evidence of bruising “all over” C.H.’s body; and (4) the Court recognized that the issue was close despite all these factors.  JM

Read full opinion here.