State v. Blea , 425 P.3d 385 ( 2018 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: June 21, 2018
4 NO. A-1-CA-34986
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 JOSEPH BLEA,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Judith K. Nakamura, District Judge
12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 M. Victoria Wilson, Assistant Attorney General
15 Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender
18 Nina Lalevic, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
1 OPINION
2 VIGIL, Judge.
3 {1} Defendant Joseph Blea was convicted of multiple counts of first degree
4 criminal sexual penetration and first degree kidnapping involving four separate
5 victims in two separate district court cases, and appeals. In both appeals, cause no.
6 A-1-CA-34986 and A-1-CA-35085, Defendant contends that New Mexico’s DNA
7 Identification Act (the Act) NMSA 1978, §§ 29-16-1 to -13 (1997, as amended
8 through 2013) is unconstitutional on its face, and on our own motion we consolidated
9 the appeals. We hold that the Act is not unconstitutional on its face, and summarily
10 reject Defendant’s remaining contentions. We therefore affirm the judgment and
11 sentence in both cases.
12 I. BACKGROUND
13 A. Cause No. A-1-CA-34986
14 {2} On November 2, 1988, A.W. (Victim 1), who was 13 years old, went to her
15 home after school where an unknown man wearing a ski mask was lying in wait,
16 armed with a knife. The man vaginally penetrated Victim 1, and then forced her into
17 the bathroom. After securing the bathroom door so Victim 1 could not escape, the
18 unknown man fled. Victim 1 was taken to the hospital, where a rape kit was obtained
19 and evidence was collected from her. The rape kit and evidence were subsequently
1 analyzed by the Albuquerque, New Mexico Police Department (APD) crime lab, and
2 a DNA profile was obtained which was not Victim 1’s. The foreign DNA profile was
3 entered into the Combined DNA Index System (CODIS) database, but no matches
4 were found. After this initial investigation, the case was closed pending further leads
5 because no person was identified as the perpetrator.
6 {3} Almost twenty years later, on August 13, 2008, Bernalillo County Sheriff’s
7 Department (BCSD) deputies were dispatched to Defendant’s home to investigate a
8 violent domestic dispute, and arrested Defendant for aggravated assault against a
9 household member and aggravated battery against a household member. Pursuant to
10 the Act, a buccal cell swab was administered to Defendant at the Bernalillo County
11 Metropolitan Detention Center to obtain a DNA sample. The resulting DNA profile
12 was then entered into the CODIS computer database system. Prosecutors
13 subsequently dismissed the domestic violence charges.
14 {4} On January 13, 2009, APD Detective Sally Dyer was informed of a CODIS
15 database match involving Victim 1’s 1988 criminal sexual penetration and foreign
16 DNA collected from a known prostitute who was murdered in Albuquerque in 1985.
17 Defendant was identified as the individual whose DNA matched the foreign DNA in
18 the two cases. However, no arrest was made because APD detectives continued
19 investigating Defendant for almost another year, as a suspect in the disappearance and
2
1 death of eleven women and a fetus between 2003 and 2006—crimes colloquially
2 referred to as the “West Mesa” killings.
3 {5} On December 4, 2010, Detective Dyer obtained a search warrant for a buccal
4 cell swab from Defendant to be analyzed and compared to the foreign DNA profile
5 collected in Victim 1’s criminal sexual penetration case as well as other evidence
6 APD detectives had obtained in connection with the West Mesa killings. Based on
7 the DNA profile obtained as a result of the search warrant, APD forensic scientist,
8 Donna Manogue, determined that Defendant could not be excluded as the source of
9 the foreign DNA taken from Victim 1 in 1988. Defendant was charged with one count
10 of criminal sexual penetration in the first degree, contrary to NMSA 1978, Section
11 30-9-11(D) (2009), and one count of kidnapping, contrary to NMSA 1978, Section
12 30-4-1 (2003).
13 {6} On the day of jury selection, Defendant said that he wanted to waive his
14 appearance at trial because he felt he had no defense, other than those raised by
15 pretrial motions which had already been denied. There was discussion about possible
16 alternatives on how to proceed, and ultimately, it was agreed that the case would be
17 tried to the jury on stipulated facts in Defendant’s absence. Defendant signed a waiver
18 of appearance, waiving his right to appear at “all proceedings in this case” and “trial”
19 which the district court approved. A jury was selected, and opening instructions were
3
1 given to the jury.
2 {7} The following morning, the district court was advised that the parties had
3 agreed to a set of stipulations, and that Defendant still did not want to be present at
4 trial. It was agreed that the court would read the stipulation of facts to the jury, and
5 by doing so, Defendant would not waive his right to appeal. The stipulation of facts
6 was formally agreed upon, and signed by counsel. Defendant also signed the
7 stipulation of facts stating that:
8 I have read and understand the above [stipulation of facts]. I have
9 discussed this case and my constitutional rights with my lawyers. I
10 understand that by agreeing to these stipulated facts above, I am
11 agreeing [that] these facts will be presented to the jury as if they came
12 in through the testimony of the state’s witnesses. I voluntarily,
13 knowingly and intelligently agree to this stipulation of facts without
14 waiving any prior legal objections I have made in this case. I understand
15 that a stipulation is an agreement that a certain fact is true.
16 The parties gave opening statements; the stipulation of facts was read to the jury;
17 exhibits were admitted into evidence by stipulation; the court gave instructions to the
18 jury; the parties gave closing statements; the jury retired to deliberate; and the jury
19 then returned its guilty verdicts in open court. Defendant appeals.
20 B. Cause No. A-1-CA-35085
21 {8} In 2010 and 2011 APD Detectives asked APD forensic scientists to analyze and
22 compare the DNA sample taken from Defendant pursuant to the December 4, 2010
23 search warrant to foreign DNA samples retrieved from three other victims of criminal
4
1 sexual penetration which occurred in 1990 and 1993. The APD forensic scientists
2 determined that Defendant could not be excluded as the source of the foreign DNA
3 sample taken from the anal swab from K.H. (Victim 2), and vaginal swabs from A.M.
4 (Victim 3) and L.O. (Victim 4). As a result, Defendant was charged in a subsequent
5 indictment with six counts of criminal sexual penetration in the first degree, contrary
6 to Section 30-9-11(D), and kidnapping of Victim 2, contrary to Section 30-4-1; three
7 counts of criminal sexual penetration in the first degree, contrary to Section 30-9-
8 11(D), and one count of kidnapping of Victim 3, contrary to Section 30-4-1; and two
9 counts of criminal sexual penetration in the first degree, contrary to Section 30-9-
10 11(D), and one count of kidnapping of Victim 4, contrary to Section 30-4-1.
11 {9} Defendant then entered into a conditional plea and disposition agreement
12 approved by the district court in which Defendant agreed to plead no contest to two
13 counts of criminal sexual penetration in the first degree of Victim 2; two counts of
14 criminal sexual penetration in the first degree of Victim 3; and one count of criminal
15 sexual penetration in the first degree and one count of kidnapping of Victim 4. The
16 plea was conditioned on Defendant reserving his right to appeal: (1) whether the Act
17 is constitutional under the Fourth Amendment and the New Mexico Constitution; (2)
18 whether the statute of limitations was improperly applied to his case; and (3) whether
19 the December 4, 2010 search warrant was defective, as not being issued by an
5
1 impartial magistrate. With regard to these issues, the parties also agreed that all
2 pertinent pleadings, arguments and rulings made in cause no. D-202-CR-2010-04089
3 (cause no. 4089) were deemed to be incorporated and binding in cause no. D-202-CR-
4 2013-01243 (cause no. 1243), and the parties entered into a stipulation of facts (SOF)
5 which Defendant agreed would constitute the uncontested facts on appeal. Defendant
6 appeals.
7 II. Constitutionality of the DNA Identification Act
8 {10} In 1994, Congress enacted legislation authorizing the Federal Bureau of
9 Investigation (FBI) to establish an index of DNA samples. Violent Crime Control and
10 Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2065 (codified,
11 as amended at 34 U.S.C. §§ 12101 to 12643 (2012)). Under this authority, the FBI
12 created CODIS, which “allows State and local forensics laboratories to exchange and
13 compare DNA profiles electronically in an attempt to link evidence from crime scenes
14 for which there are no suspects to DNA samples of convicted offenders on file in the
15 system.” H.R. Rep. No. 106-900, pt. 1 at 8 (2000), reprinted in 2000 U.S.C.C.A.N.
16 2323, 2424.
17 {11} New Mexico elected to participate in CODIS with the adoption of the Act in
18 1997. 1997 N.M. Laws, ch. 105. The Act provides for the “collection, storage, DNA
19 testing, maintenance and comparison of samples and DNA records for forensic
6
1 purposes” and it specifies that procedures “shall meet or exceed the provisions of the
2 federal DNA Identification Act of 1994 regarding minimum standards for state
3 participation in CODIS, including minimum standards for the acceptance, security
4 and dissemination of DNA records[.]” 1997 N.M. Laws, ch. 105, § 4(B)(1).
5 {12} The Act originally only required convicted felons to provide DNA samples for
6 inclusion in the DNA identification system. 1997 N.M. Laws, ch. 105, § 2(A) (stating
7 that a purpose of the Act is to “establish a DNA identification system for covered
8 offenders”); 1997 N.M. Laws, ch. 105, § 3(D) (defining a “covered offender” to mean
9 “any person convicted of a felony offense as an adult under the Criminal Code, the
10 Motor Vehicle Code or the constitution of New Mexico or convicted as an adult
11 pursuant to youthful offender or serious youthful offender proceedings under the
12 Children’s Code[.]”); 1997 N.M. Laws, ch. 105, § 6 (requiring “covered offenders”
13 to provide DNA samples).
14 {13} In 2006 the Act was expanded to require persons eighteen years of age or older
15 who were arrested for the commission of specified felony offenses to provide a DNA
16 sample to jail or detention facility personnel “upon booking.” 2006 N.M. Laws, ch.
17 104, § 1(A). The felonies specified were sex offenses defined as felonies and all other
18 felonies involving death, great bodily harm, aggravated assault, kidnapping, burglary,
19 larceny, robbery, aggravated stalking, use of a firearm or an explosive, or a violation
7
1 of the Antiterrorism Act. 2006 N.M. Laws, ch. 104, 1(D)(3)(b). The DNA of these
2 arrestees was included in the DNA identification system. See id. § 2(A) (stating that
3 an additional purpose of the Act is to establish a DNA identification system for
4 individuals arrested for the specified felonies).
5 {14} In 2011, the Legislature further expanded the Act to require any person
6 eighteen years of age or older “who is arrested for the commission of a felony” to
7 “provide a DNA sample to jail or detention facility personnel upon booking.” 2011
8 N.M. Laws, ch. 84, § 1(A). However, the DNA sample may only be included in the
9 DNA identification system if “the arrest was made upon an arrest warrant for a
10 felony;” or the defendant had “appeared before a judge or magistrate who made a
11 finding that there was probable cause for the arrest;” or “the defendant posted bond
12 or was released prior to appearing before a judge or magistrate and then failed to
13 appear for a scheduled hearing.” 2011 N.M. Laws, ch. 84, § 1(B)(1)-(3). In all other
14 cases, the DNA sample collected from a person arrested “shall not be analyzed and
15 shall be destroyed.” 2011 N.M. Laws, ch. 84, § 1 (B).
16 {15} This case concerns the Act as it existed following the 2006 legislation, and is
17 codified as NMSA 1978, §§ 29-16-1 to -13 (2007). The current Act includes the
18 changes made in 2011 and is codified as Section 29-16-1 to -13 (2013).
8
1 A. Defendant’s Motions To Suppress
2 {16} Defendant filed motions to suppress the DNA evidence collected from him in
3 connection with his arrest for domestic violence in 2008, arguing that the seizure of
4 his DNA pursuant to the Act violated the Fourth Amendment to the United States
5 Constitution and Article II, Section 10 of the New Mexico Constitution. After a
6 hearing at which only legal arguments were presented, the district court denied
7 Defendant’s motions.
8 B. Standard of Review
9 {17} Defendant does not contend that the Act is unconstitutional as applied in any
10 particular respect. His argument is that the Act, which requires all persons arrested
11 for certain crimes to provide a DNA sample, is unconstitutional on its face. As such,
12 Defendant has the burden to demonstrate that there is no potential set of facts to
13 which the Act can be constitutionally applied. See State v. Murillo, 2015-NMCA-046,
14 ¶ 4, 347 P.3d 284. In other words, Defendant must demonstrate that in all of its
15 applications, the Act is unconstitutional. Moreover, because we presume the Act is
16 valid, we will uphold it against the constitutional challenge “unless we are satisfied
17 beyond all reasonable doubt that the Legislature went outside the bounds fixed by the
18 Constitution” in its enactment. Id. (internal quotation marks and citation omitted).
9
1 C. Fourth Amendment Arguments
2 {18} Defendant contends that the seizure of his DNA upon his arrest in 2008
3 violated the Fourth Amendment to the United States Constitution. Defendant’s
4 argument was rejected by the United States Supreme Court in Maryland v. King, 569
5 U.S. 435 (2013).
6 {19} In King, in 2003 a man concealing his face broke into a woman’s home in
7 Maryland, armed with a gun, and raped her. Id. at 439-40. Although the police were
8 unable to identify or apprehend the perpetrator, DNA of the perpetrator was collected
9 from the victim. Id. at 440. In 2009 the defendant was arrested and charged with
10 “first- and second-degree assault for menacing a group of people with a shotgun.” Id.
11 The defendant’s DNA was collected via buccal swab in the course of the routine
12 booking procedures in Maryland for “serious offenses[.]” Id. The defendant’s DNA
13 matched the DNA taken from the victim in 2003. Id. at 441. Although additional
14 DNA samples were taken from the defendant and used against him at the rape trial,
15 “there seems to be no doubt that it was the DNA from the cheek sample taken at the
16 time he was booked in 2009 that led to his first having been linked to the rape and
17 charged with its commission.” Id. at 440. The Court of Appeals of Maryland reversed
18 the defendant’s conviction, determining that the 2009 DNA sample taken from the
19 defendant was an unlawful search and seizure under the Fourth Amendment as “an
10
1 unreasonable search of the person.” Id. The U.S. Supreme Court reversed, holding
2 that:
3 DNA identification of arrestees is a reasonable search that can be
4 considered part of a routine booking procedure. When officers make an
5 arrest supported by probable cause to hold for a serious offense and they
6 bring the suspect to the station to be detained in custody, taking and
7 analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and
8 photographing, a legitimate police booking procedure that is reasonable
9 under the Fourth Amendment.
10 Id. at 465-66.
11 {20} The Court first determined that the administration of a buccal swab, which
12 “involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip
13 against the inside cheek of an individual’s mouth to collect some skin cells[,]” is a
14 search for purposes of the Fourth Amendment. Id. at 444-446 (internal quotation
15 marks and citation omitted). “It can be agreed that using a buccal swab on the inner
16 tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any
17 intrusion into the human body, will work an invasion of cherished personal security
18 that is subject to constitutional scrutiny[.]” Id. at 446 (alteration, internal quotation
19 marks, and citations omitted); see Schmerber v. California, 384 U.S. 757, 767 (1966);
20 see also Missouri v. McNeely, 569 U.S. 141, 148 (2013) (holding that the taking of
21 blood to determine alcohol content in connection with arrest for driving under the
22 influence of liquor is a search under the Fourth Amendment); Skinner v. Ry. Labor
11
1 Execs’ Ass’n, 489 U.S. 602, 616-18 (1989) (holding that administration of a
2 “breathalyzer test, which generally requires the production of alveolar or ‘deep lung’
3 breath for chemical analysis” is a search under the Fourth Amendment); Cupp v.
4 Murphy, 412 U.S. 291, 295 (1973) (holding that scraping of an arrestee’s fingernails
5 to obtain trace evidence is a search under the Fourth Amendment).
6 {21} However, “[t]o say that the Fourth Amendment applies here is the beginning
7 point, not the end of the analysis.” King, 569 U.S. at 446. “Reasonableness is always
8 the touchstone of Fourth Amendment analysis, and reasonableness is generally
9 assessed by carefully weighing the nature and quality of the intrusion on the
10 individual’s Fourth Amendment interests against the importance of the governmental
11 interests alleged to justify the intrusion.” Cty. of Los Angeles v. Mendez, 137 S. Ct.
12 1539, 1546 (2017) (alteration, internal quotation marks, and citations omitted). Thus,
13 King proceeded by weighing “the promotion of legitimate governmental interests
14 against the degree to which the search intrudes upon an individual’s privacy.” 569
15 U.S. at 436, 448 (alteration, internal quotation marks, and citation omitted).
16 {22} The U.S. Supreme Court recognized that various governmental interests are
17 legitimately served by collecting the DNA of an arrestee for a “serious offense” under
18 Maryland’s statute during a routine booking procedure. Id. at 448. “The legitimate
19 government interest served by the Maryland DNA Collection Act is one that is well
12
1 established: the need for law enforcement officers in a safe and accurate way to
2 process and identify the persons and possessions they must take into custody.” Id. at
3 449. This interest is best understood as having its origin in the lineage of cases
4 pertaining to the “ ‘routine administrative procedures at a police station house
5 incident to booking and jailing the suspect’ ” in which “ ‘the law is in the act of
6 subjecting the body of the accused to its physical dominion.’ ” Id. at 449-50
7 (alteration omitted) (quoting Illinois v. Lafayette, 462 U.S. 640, 643 (1983), and
8 quoting People v. Chiagles, 237 N.Y. 193, 197 (1923) (Cardozo, J.)).
9 {23} First, this means that “ ‘[i]n every criminal case, it is known and must be
10 known who has been arrested and who is being tried.’ ” King, 569 U.S. at 450
11 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177,
12 191 (2004). DNA testing identifies with “near certainty” the identity of a person by
13 analyzing “noncoding” regions of DNA material in chromosomes. King, 569 U.S. at
14 442-43. “[F]orensic analysis focuses on ‘repeated DNA sequences scattered
15 throughout the human genome,’ known as ‘short tandem repeats’ (STRs). The
16 alternative possibilities for the size and frequency of these STRs at any given point
17 along a strand of DNA are known as ‘alleles,’ and multiple alleles are analyzed in
18 order to ensure that a DNA profile matches only one individual.” Id. at 443 (quoting
19 J. Butler, Fundamentals of Forensic DNA Typing 25, 147-148 (2009) (hereinafter
13
1 Butler)). The “noncoding” regions of the DNA that are tested are not known to have
2 any association with a genetic disease, genetic traits, or any other genetic
3 predisposition, and the results are therefore only useful for testing human identity.
4 King, 569 U.S. at 445 (quoting Butler 279).
5 {24} Thus, obtaining an arrestee’s DNA furthers the government’s interest in
6 correctly identifying the person arrested. According to the United States Supreme
7 Court, the use of DNA for identification purposes “represents an important advance
8 in the techniques used by law enforcement to serve legitimate police concerns for as
9 long as there have been arrests[.]” King, 569 U.S. at 456. The most direct “historical
10 analogue” to DNA identification technology is fingerprinting technology, which
11 federal precedent has long held to be “a natural part of ‘the administrative steps
12 incident to arrest.’ ” Id. at 437 (quoting Cty. Of Riverside v. McLaughlin, 500 U.S. 44,
13 58 (1991)); see also United States v. Kelly, 55 F.2d 67, 69-70 (2d Cir. 1932) (holding
14 that routine fingerprinting during booking of an arrestee did not violate the Fourth
15 Amendment: “[w]e find no ground in reason or authority for interfering with a
16 method of identifying persons charged with crime which has now become widely
17 known and frequently practiced”); Smith v. United States, 324 F.2d 879, 882 (D.C.
18 Cir. 1963) (stating that it is “elementary that a person in lawful custody may be
19 required to submit to photographing, and fingerprinting, as part of routine
14
1 identification processes” (citations omitted)).
2 {25} The U.S. Supreme Court added that “[a] suspect’s criminal history is a critical
3 part of his identity that officers should know when processing him for detention.”
4 King, 569 U.S. at 450. For example, “[i]t is a well recognized aspect of criminal
5 conduct that the perpetrator will take unusual steps to conceal not only his conduct,
6 but also his identity[,]” including but not limited to name changes and changes to
7 physical features. Id. (internal quotation marks and citation omitted). “In this respect
8 the use of DNA for identification is no different than matching an arrestee’s face to
9 a wanted poster of a previously unidentified suspect; or matching tattoos to known
10 gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints
11 to those recovered from a crime scene.” Id. at 451. Or in other words, “DNA is
12 [merely] another metric of identification used to connect [an] arrestee with his or her
13 public persona, as reflected in records of his or her actions that are available to the
14 police.” Id.
15 {26} Second, “law enforcement officers bear a responsibility for ensuring that the
16 custody of an arrestee does not create inordinate risks for facility staff, for the
17 existing detainee population, and for a new detainee.” Id. at 452 (internal quotation
18 marks and citation omitted). Specifically, DNA identification can provide “untainted
19 information” concerning whether, for example, an arrestee or detainee has a history
15
1 of violence or mental disorder. Id. at 452.
2 {27} Third, “looking forward to future stages of criminal prosecution, the
3 Government has a substantial interest in ensuring that persons accused of crimes are
4 available for trials.” Id. (internal quotation marks and citation omitted). Specifically,
5 “[a] person who is arrested for one offense but knows that he has yet to answer for
6 some past crime may be more inclined to flee the instant charges, lest continued
7 contact with the criminal justice system expose one or more other serious offenses.”
8 Id. at 453. Similarly, “an arrestee’s past conduct is essential to an assessment of the
9 danger he poses to the public,” which will inform the determination of whether the
10 individual should be released on bail. Id.
11 {28} Finally, the U.S. Supreme Court said, “in the interests of justice, the
12 identification of an arrestee as the perpetrator of some heinous crime may have the
13 salutary effect of freeing a person wrongfully imprisoned for the same offense.” Id.
14 at 455.
15 {29} In considering an arrestee’s privacy interests, the Court reasoned that “the
16 intrusion of a cheek swab to obtain a DNA sample is a minimal one.” Id. at 461. A
17 buccal swab, which consists of a “gentle rub along the inside of the cheek [that] does
18 not break the skin, and it involves virtually no risk, trauma, or pain” is a “minimal”
19 and “brief” intrusion of an arrestee’s person as compared to “invasive surgery” or “a
16
1 search of the arrestee’s home,” and “does not increase the indignity already attendant
2 to normal incidents of arrest.” Id. at 463-64 (internal quotation marks and citation
3 omitted). Additionally, “[t]he expectations of privacy of an individual taken into
4 police custody ‘necessarily are of a diminished scope[,]’ ” id. at 462 (alteration
5 omitted) (quoting Bell v. Wolfish, 441 U.S. 520, 557 (1979)), and searches of a
6 “detainee’s person when he is booked into custody may ‘involve a relatively
7 extensive exploration[.]’ ” King, 569 U.S. at 462 (quoting United States v. Robinson,
8 414 U.S. 218, 227 (1973), superseded by statute on other grounds as recognized by
9 Commonwealth v. Pierre, 72 Mass. App. Ct. 580, 893 N.E.2d 378 (2008)); see also
10 Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 334
11 (2012) (stating that booking or intake procedures, including requiring some detainees
12 to “lift their genitals or cough in a squatting position” have been held constitutional).
13 {30} Balancing the respective interests, the Court concluded that “[i]n light of the
14 context of a valid arrest supported by probable cause [the defendant’s] expectations
15 of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By
16 contrast, that same context of arrest gives rise to significant state interests in
17 identifying [the defendant] not only so that the proper name can be attached to his
18 charges but also so that the criminal justice system can make informed decisions
19 concerning pretrial custody.” King, 569 U.S. at 465.
17
1 {31} Defendant points out that under the Maryland statute construed in King, the
2 DNA sample may not be tested or placed in a database until after a judicial officer
3 makes a probable cause determination at arraignment to detain an arrestee on a
4 qualifying “serious offense” (i.e., a crime of violence or an attempt to commit a crime
5 of violence or burglary or an attempt to commit burglary); and the Maryland statute
6 provides for automatic expungement if all the qualifying charges are deemed to be
7 unsupported by probable cause, the criminal action does not result in a criminal
8 conviction, the conviction is finally reversed or vacated, or “the individual is granted
9 an unconditional pardon.” King, 569 U.S. at 443-44 (internal quotation marks and
10 citation omitted). On the other hand, under the 2006 expansion and current version
11 of the Act, a DNA sample is tested and placed in CODIS upon arrest, and the burden
12 of seeking expungement is placed on the arrestee. Defendant asserts, without
13 explaining why or citing to supporting authorities, that as a result, New Mexico’s
14 statutory scheme violates the Fourth Amendment. We do not consider these
15 distinctions as requiring us to conclude that the seizure of Defendant’s DNA upon his
16 arrest in 2008 violated the Fourth Amendment to the United States Constitution. See
17 State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (explaining that the appellate
18 courts are under no obligation to review unclear or undeveloped arguments).
19 {32} Anticipating this result, Defendant states, “If this Court does not find that the
18
1 differences support an opposite result under King, however, [Defendant] asks that this
2 Court decide the matter under Article II, Section 10 [of the New Mexico
3 Constitution.]” We therefore turn to Defendant’s argument that the seizure of his
4 DNA was in violation of the New Mexico Constitution.
5 D. New Mexico Constitution Arguments
6 {33} Defendant contends that we should diverge from federal precedent and hold the
7 seizure of his DNA was unconstitutional under Article II, Section 10 of the New
8 Mexico Constitution. The parties do not dispute that Defendant has properly
9 preserved this issue to be argued on appeal. See State v. Ketelson, 2011-NMSC-023,
10 ¶¶ 10-11, 150 N.M. 137, 257 P.3d 957 (stating that “a defendant must properly
11 preserve his argument under the state constitution” and setting forth the requirements
12 for preservation).
13 {34} Article II, Section 10 of the New Mexico Constitution is similar to the Fourth
14 Amendment. It provides: “The people shall be secure in their persons, papers, homes
15 and effects, from unreasonable searches and seizures, and no warrant to search any
16 place, or seize any person or thing, shall issue without describing the place to be
17 searched, or the persons or things to be seized, nor without a written showing of
18 probable cause, supported by oath or affirmation.”
19 {35} We apply the interstitial approach to determine if our state provision provides
19
1 broader protection than the Fourth Amendment because both provisions provide
2 overlapping protections against unreasonable searches and seizures. See Ketelson,
3 2011-NMSC-023, ¶ 10. Under the interstitial approach, “we first consider whether the
4 right being asserted is protected under the federal constitution.” Id. (internal quotation
5 marks and citation omitted). “If the right is protected by the federal constitution, then
6 the state constitutional claim is not reached.” Id. If the right is not protected by the
7 federal constitution, “[the appellate courts] next consider whether the New Mexico
8 Constitution provides broader protection, and [the appellate courts] may diverge from
9 federal precedent for three reasons: a flawed federal analysis, structural differences
10 between state and federal government, or distinctive state characteristics.” Id.
11 (internal quotation marks and citation omitted). Here, we have already concluded that
12 the right Defendant asserts is not protected under the Fourth Amendment. We
13 therefore proceed to consider whether Article II, Section 10 affords Defendant greater
14 rights than the Fourth Amendment.
15 {36} Defendant makes no argument that we should diverge from federal precedent
16 due to structural differences between state and federal government, or distinctive state
17 characteristics. Defendant does contend, that for the reasons stated in Justice Scalia’s
18 dissent in King, the analysis and conclusion reached by the majority in King is
19 flawed. Defendant also points to People v. Buza, 180 Cal. Rptr. 3d 753 (2014), which
20
1 agreed with the King dissent and held that California’s DNA collection violates the
2 California constitution. However, the California Supreme Court reversed the Court
3 of Appeals in People v. Buza, 413 P.3d 1132 (2018). Finally, Defendant asks us to
4 consider various law review articles, but fails to argue why they should lead us to
5 conclude that the search of Defendant’s DNA violates the New Mexico Constitution.
6 We therefore limit our analysis to whether the Scalia dissent in King demonstrates
7 that we should grant greater protection to Defendant under Article II, Section 10
8 because the majority’s analysis in King is flawed.
9 {37} To place Defendant’s argument in perspective, we first review how CODIS
10 operates. The CODIS database is composed of profiles of noncoding parts of the
11 DNA that do not reveal genetic traits, and do not, at present, reveal information
12 beyond identification. King, 569 U.S. at 445, 464. See Boroian v. Mueller, 616 F.3d
13 60, 66 (1st Cir. 2010) (stating that the resulting DNA profile provides a type of
14 “genetic fingerprint, which uniquely identifies an individual” but no basis “for
15 determining or inferring anything else about the person” (internal quotation marks
16 and citation omitted)); United States v. Kincade, 379 F.3d 813, 818 (9th Cir. 2004)
17 (stating that non-genic stretches of DNA are purposely selected for analysis “because
18 they are not associated with any known physical or medical characteristics” (internal
19 quotation marks and citation omitted)). The analysis only generates “a unique
21
1 identifying number against which future samples may be matched.” King, 569 U.S.
2 at 464.
3 {38} CODIS, according to King, connects laboratories at the local, and state level
4 of all “50 States and a number of federal agencies.” 569 U.S. at 444-45. The system
5 “collects DNA profiles provided by local laboratories taken from arrestees, convicted
6 offenders, and forensic evidence found at crime scenes.” Id. at 445. The CODIS
7 database consists of two distinct collections. Id. at 472. One consists of DNA samples
8 taken from known arrestees or convicts, and the second consists of DNA samples
9 from unsolved crime scenes. See id. at 473. The CODIS system works by checking
10 whether any of the samples from unsolved crime scenes match any of the samples
11 from known arrestees and convicts. See id.
12 {39} The central argument made by Justice Scalia’s dissent in King is that the
13 primary purpose of CODIS is to obtain known samples of DNA from arrestees so they
14 can then be compared to unknown samples of DNA obtained from unsolved crimes,
15 and thereby determine if a known arrestee was involved in the commission of an
16 unsolved crime. See id. at 472-75, 480. Thus, the dissent contends, the majority
17 opinion allows the searching of an arrestee’s DNA for evidence of a crime when there
18 is no basis for believing that the arrestee committed an unsolved crime. See id. at 466.
19 Because the Fourth Amendment’s prohibition against searching a person for evidence
22
1 of a crime when there is no basis for believing the person is guilty of the crime is
2 “categorical and without exception” the dissent concludes that the search of an
3 arrestee for a DNA sample is unconstitutional. Id. “[S]uspicionless searches are never
4 allowed if their principle end is ordinary crime-solving[,]” id. at 469, and CODIS is
5 being used for nothing more than investigating ordinary criminal wrongdoing. Id. at
6 468, 472-476.
7 {40} Justice Scalia’s dissent further argues that the DNA search of an arrestee “had
8 nothing to do” with establishing identity. King, 569 U.S. at 474. In King, the
9 defendant’s identity was known, as the docket for the original criminal charges listed
10 his full name, race, sex, height, date of birth, and address. Id. at 473-74. Moreover,
11 the defendant’s DNA was not sent to the laboratory for testing until nearly three
12 months after his arrest, and the lab tests were not available for several more weeks,
13 when the results were entered into Maryland’s DNA database. Id. at 472. Bail had
14 already been set, the defendant had engaged in discovery, and he requested a speedy
15 trial. Id. Four months after the defendant’s arrest, and after the defendant’s identity
16 was already known, CODIS returned the match of the defendant’s known DNA with
17 the DNA from the unsolved 2003 rape. See id. at 441.
18 {41} We now consider whether we should expand privacy rights of New Mexico
23
1 arrestees beyond those recognized under the Fourth Amendment in King. “The key
2 inquiry under Article II, Section 10 is reasonableness[,]” and “reasonableness
3 depends on the balance between the public interest and the individual’s interest in
4 freedom from police intrusion upon personal liberty.” Ketelson, 2011-NMSC-023,
5 ¶ 20. We therefore begin by examining the public interest as expressed in the stated
6 purposes of the Act. Section 29-16-2, as was in effect in 2007, without being further
7 amended states:
8 The purpose of the Act is to:
9 A. establish a DNA identification system for covered offenders and
10 persons required to provide a DNA sample pursuant to the
11 provisions of Section 1 . . . of this 2006 act [NMSA 1978, § 29-3-
12 10 (2007)];
13 B. facilitate the use of DNA records by local, state and federal law
14 enforcement agencies in the:
15 (1) identification, detection or exclusion of persons in
16 connection with criminal investigations; and
17 (2) registration of sex offenders required to register pursuant
18 to the provisions of the Sex Offender Registration and
19 Notification Act . . . ;
20 C. establish a missing persons DNA identification system consisting
21 of the following DNA indexes:
22 (1) unidentified persons;
23 (2) unidentified human remains; and
24
1 (3) relatives of, or known reference samples from, missing
2 persons; and
3 D. facilitate the use of DNA records by local, state and federal law
4 enforcement agencies and the state medical investigator in the
5 identification and location of missing and unidentified persons or
6 human remains.
7 {42} The first stated purpose of the Act is to “establish a DNA identification” for
8 two classes of persons. 2006 N.M. Laws, ch. 104, § 2(A). “[C]overed offenders” are
9 persons convicted of felonies, and no argument is made here that a convicted felon
10 cannot be constitutionally required to provide a DNA sample for identification
11 purposes. See 2006 N.M. Laws, ch. 104, § 2(A). What is before us are the second
12 category of persons required to provide a DNA sample in the DNA identification
13 system. As we have pointed out above, the “persons required to provide a DNA
14 sample” are persons arrested for sex offenses defined as felonies, and all other
15 felonies involving “death, great bodily harm, aggravated assault, kidnapping,
16 burglary, larceny, robbery, aggravated stalking, use of a firearm or an explosive or a
17 violation pursuant to the Antiterrorism Act[.]” 2006 N.M. Laws, ch. 104,
18 § 1(D)(3)(a)-(b). We herein refer to such persons as arrestees.
19 {43} It is fundamental that the State has a right to identify all persons it has arrested
20 for committing a felony. See Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt Cty.,
21 542 U.S. at 191 (“In every criminal case, it is known and must be known who has
25
1 been arrested and who is being tried.”). Defendant makes no argument that a person
2 arrested for a felony has a greater privacy right to his or her identifying information
3 under the New Mexico Constitution than one does under the United States
4 Constitution, nor is any argument made that the method for obtaining Defendant’s
5 DNA violated the New Mexico Constitution. We agree with King that weighing the
6 law enforcement need against the minimally invasive means for securing the DNA
7 sample from Defendant’s cheek weighs in favor of concluding that the search is
8 reasonable under Article II, Section 10. In addition, no argument is made why the
9 State should be deprived, constitutionally, from using the most accurate method
10 available for identifying persons arrested on felony charges. As our discussion of
11 King illustrates, DNA testing identifies with “near certainty” a person’s identity, and
12 it does so by testing only the “noncoding” regions of the DNA strand that are not
13 known to be associated with any genetic disease or genetic traits. 569 U.S. at 442-43.
14 The tests are therefore only useful for human identification. Finally, no argument is
15 made that the New Mexico Constitution affords specific protection on how the
16 identifying DNA information may be stored.
17 {44} Rather, Defendant’s argument seems centered on the Acts’s second purpose,
18 which is to “facilitate the use” of the DNA records in the “identification, detection or
19 exclusion of persons in connection with criminal investigations[.]” Section 29-16-
26
1 2(B)(1). This stated purpose, Defendant contends, demonstrates that the purpose for
2 collecting DNA is to use the DNA collected from arrestees to investigate whether
3 they have committed other, unknown crimes when there is no reason to believe they
4 committed any other crimes. While this use does not violate the Fourth Amendment
5 under King, Defendant contends we should conclude it violates Article II, Section 10
6 of the New Mexico Constitution. We are not persuaded.
7 {45} The argument overlooks the fact that the State has obtained an arrestee’s DNA
8 in a manner that is both lawful and consistent with the New Mexico Constitution. The
9 real complaint is that other information, lawfully in the State’s possession—DNA
10 from unsolved crime scenes—can be compared to the arrestee’s known DNA. A
11 defendant has no constitutionally protected privacy interest in DNA he or she leaves
12 at a past or future crime scene, and a defendant has no constitutionally protected
13 interest in the DNA used for identification at booking upon arrest. Under these
14 circumstances, we do not perceive a constitutional violation. Obviously, the
15 comparison of known DNA, obtained at booking, with unknown DNA, seized from
16 unsolved crime scenes, is exactly the same use that has been made of fingerprints for
17 decades. Even Justice Scalia’s dissent in King recognizes that such use has not been
18 deemed to be an unconstitutional privacy violation. King, 569 U.S. at 477-79.
27
1 {46} For the foregoing reasons, we hold that the initial collection of a DNA sample
2 as part of a routine booking procedure, and its subsequent use under CODIS does not
3 violate Article II, Section 10 of the New Mexico Constitution.
4 III. Arguments Summarily Answered
5 A. Search Warrant Issued by Impartial Judge
6 {47} Pursuant to State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d
7 982 (stating that “appointed counsel should set forth contentions urged by a petitioner
8 whether or not counsel feels they have merit and whether such contentions are in fact
9 argued by counsel”); and State v. Boyer, 1985-NMCA-029, ¶¶ 17-24, 103 N.M. 655,
10 712 P.2d 1 (expressing same principle), Defendant contends that the December 4,
11 2010 search warrant for a DNA sample was invalid because it was not issued by a
12 neutral and detached judge. The issue was raised in Defendant’s motion to suppress
13 which the district court denied. Importantly, Defendant does not argue that the search
14 warrant is not supported by probable cause.
15 {48} Defendant fails to establish factually or legally that the judge who issued the
16 December 4, 2010 search warrant was legally disqualified from issuing the search
17 warrant. We therefore do not consider this issue further. See Guerra, 2012-NMSC-
18 014, ¶ 21 (explaining that the appellate courts are under no obligation to review
19 unclear or undeveloped arguments).
28
1 B. Statute of Limitations
2 {49} Defendant argues that the 1997 amendment to NMSA 1978, Section 30-1-8(I)
3 (2009) which eliminated the statute of limitations for all first degree felonies does not
4 apply to his case, and that he was entitled to the fifteen year statute of limitations for
5 first degree felonies under the 1979 version of Section 30-1-8(B). The issue was
6 preserved in Defendant’s motion to dismiss which the district court denied.
7 {50} “When facts relevant to a statute of limitations issue are not in dispute, the
8 standard of review is whether the district court correctly applied the law to the
9 undisputed facts.” State v. Kerby, 2007-NMSC-014, ¶ 11, 141 N.M. 413, 156 P.3d
10 704 (internal quotation marks and citation omitted). Interpretation of the statute of
11 limitations in this context is therefore a legal question subject to de novo review. See
12 id. Because the parties stipulated to the facts material to Defendant’s statute of
13 limitations claim, our review of Defendant’s statute of limitations argument is de
14 novo.
15 {51} Defendant’s argument is answered by State v. Morales, 2010-NMSC-026, 148
16 N.M. 305, 236 P.3d 24. In Morales, our Supreme Court considered whether the 1997
17 amendment to Section 30-1-8 applied to crimes committed before July 1, 1997, the
18 effective date of the amendment. Id. ¶ 1. The Court held:
19 Although the extension of a statute of limitations cannot revive a
20 previously time-barred prosecution, we conclude that it can extend an
21 unexpired limitation period because such extension does not impair
29
1 vested rights acquired under prior law, require new obligations, impose
2 new duties, or affix new disabilities to past transactions. Because capital
3 felonies and first-degree violent felonies committed after July 1, 1982,
4 were not time-barred as of the effective date of the 1997 amendment, we
5 hold that the Legislature intended the 1997 amendment to apply to these
6 crimes.
7 Id. (citation omitted). In other words, if the alleged crime was not time-barred under
8 the fifteen year statute of limitations when the 1979 amendment of Section 30-1-8
9 became effective, then the 1997 amendment, with no limitations period applied. In
10 cause no. 4089, the indictment alleged that the crimes were committed on November
11 2, 1988, meaning that the fifteen year statute of limitations would have expired in
12 2003, which was after the 1997 amendment became effective. Therefore, under
13 Morales, the 1997 version of Section 30-1-8 with no statute of limitations applied.
14 The same result is reached in cause no. 1243. The indictment alleges that the crimes
15 were committed on October 7, 1990, June 7, 1993, and November 25, 1993,
16 respectively. Fifteen years from each of these dates is 2005, 2008, and 2008, all of
17 which are after the effective date of the 1997 amendment to Section 30-1-8.
18 {52} Defendant’s attempts to distinguish Morales on the basis that application of the
19 1997 version of Section 30-1-8 is unconstitutional because “a right of action had
20 accrued upon discovery, which occurred at the time these crimes were reported” and
21 therefore the statute of limitations expired fifteen years after the crimes were reported
22 is not supported by any authorities, is not persuasive, and is rejected. Finally,
30
1 Defendant argues, pursuant to Franklin and Boyer, that because “the cause of action
2 accrued at the time of discovery, the application of the 1997 amendment to
3 [Defendant] is an ex post facto application of that law and is unconstitutional.” We
4 reject this argument as well. See Guerra, 2012-NMSC-014, ¶ 21 (rejecting the
5 defendant’s undeveloped and unprecedented construction that lacked “any principled
6 analysis”).
7 C. Speedy Trial
8 {53} Defendant’s final claim is that the delay in bringing his case to trial amounted
9 to a violation of his right to a speedy trial. The State responds that Defendant failed
10 to preserve his speedy trial claim for appeal. We agree.
11 {54} “It is well-settled law that in order to preserve a speedy trial argument, [the
12 d]efendant must properly raise it in the lower court and invoke a ruling.” State v.
13 Lopez, 2008-NMCA-002, ¶ 25, 143 N.M. 274, 175 P.3d 942; State v. Graham, 2003-
14 NMCA-127, ¶ 29, 134 N.M. 613, 81 P.3d 556 (stating that because the defendant’s
15 speedy trial “issue was not properly raised in district court, and [the d]efendant never
16 invoked a ruling, the defendant’s speedy trial argument was not preserved” on
17 appeal), rev’d on other grounds by 2005-NMSC-004, ¶ 1, 137 N.M. 197, 109 P.3d
18 285.
19 {55} Defendant asserted his right to a speedy trial when counsel entered his
31
1 appearance on April 6, 2011. Defendant also filed a motion to dismiss for a violation
2 of his right to a speedy trial on May 18, 2015. The district court, however, denied
3 Defendant’s motion without a hearing because the motion was untimely under the
4 August 28, 2014 scheduling order, which directed that all motions in the case be filed
5 by December 1, 2014. Accordingly, we conclude that Defendant failed to preserve his
6 speedy trial claim for appellate review.
7 IV. CONCLUSION
8 {56} The judgment and sentence in each of these cases is affirmed.
9 {57} IT IS SO ORDERED.
10 _______________________________
11 MICHAEL E. VIGIL, Judge
12 WE CONCUR:
13 ___________________________
14 M. MONICA ZAMORA, Judge
15 ___________________________
16 STEPHEN G. FRENCH, Judge
32