Full opinion text
MEMORANDUM OPINION ROGER W. TITUS, District Judge. On June 3, 2009, a jury convicted the Defendant, Earl Whittley Davis, on six counts related to the robbery and murder of Jason Schwindler on August 4, 2004. At trial, a large portion of the Government’s case against Davis consisted of demonstrating that he was, to a reasonable degree of scientific certainty, the source of DNA deposited on three pieces of evidence recovered from the crime scene. Davis is currently awaiting sentencing. Prior to trial, Davis moved to suppress DNA evidence obtained in violation of the Fourth Amendment [Paper No. 29], arguing that his DNA profile had been obtained by police and entered into a local law enforcement database unconstitutionally. The Court conducted a hearing on the motion to suppress on September 15, 2008. At the conclusion of the hearing, the Court indicated that it would not make an immediate disposition of Defendant’s motion, and that the parties should continue preparing for trial. The Court now issues this memorandum opinion and accompanying order denying the Defendant’s motion. I. FACTUAL BACKGROUND A. The Acquisition of Davis’ DNA Profile Jason Schwindler was murdered on August 4, 2004, but the series of events serving as the basis for the Defendant’s motion to suppress actually began nearly four years earlier. On August 29, 2000, Davis was admitted to Howard County General Hospital with a gunshot wound to his right leg. Davis told hospital staff that he was a victim who had been shot during the course of a robbery. As required by law, the hospital notified the Howard County Police Department that it was treating a gunshot victim. See Md.Code Ann. Health-Gen. § 20-703. Detective Joseph King of the Howard County Police Department, then a uniformed patrol officer, was the first to respond to the hospital and speak with Davis concerning the circumstances of the shooting. Detective King testified that when he arrived at the hospital, he located Davis in the emergency room laying on a bed or gurney. Detective King observed Davis’ gunshot wound and secured Davis’ pants and boxer shorts, which had been removed by hospital personnel, placed in a bag, and stored on a shelf beneath the bed. Detective King considered the clothing to be evidence of the crime reported, ie., Davis’ shooting. A short time later, Lieutenant Steven Lampe also responded to the hospital. Lieutenant Lampe retrieved the seized clothing from Detective King and submitted it to the property room to be held as evidence. Because Detective King and Lieutenant Lampe believed that Davis was being uncooperative with their investigation , officers located the vehicle in which Davis’ friend had driven him to the hospital, and requested a K-9 officer to do a scan of the car. The dog positively alerted to the presence of a controlled dangerous substance (“CDS”, ie., illegal drugs), and the car was subsequently searched. A small amount of marijuana was found in the vehicle, and Davis was consequently arrested upon his release from the hospital. The marijuana charges were later dropped. The investigation into Davis’ shooting concluded -without an arrest, and the case was considered closed as of November 7, 2000. To that point, no forensic testing had been conducted on the bloody clothing seized from Davis at the hospital. Davis was not contacted or otherwise advised that the shooting investigation was being terminated. The following year, in June 2001, an individual named Michael Neal was murdered in Prince George’s County. In April 2004, Lieutenant Lampe was contacted by members of the Prince George’s County Police Department (“PGCPD”), who asked him questions about the arrest of Earl Davis in 2000. The PGCPD officers specifically asked whether any property had been seized from Davis that might have his DNA on it. Lieutenant Lampe understood from this inquiry that Davis was now a suspect in an unrelated homicide. Later that month, Sergeant Jeff Reichert and Detective K. Jernigan of the PGCPD homicide unit, who were familiar with the facts of the Neal murder, went to the Howard County Police Department to recover Davis’ clothing for potential DNA testing.. Lieutenant Lampe released the clothing to Detective Jernigan, who signed the property form for the items on April 29, 2004. On the property form for the clothing, Davis was clearly identified as a “victim.” Shortly thereafter, in or around June 2004, Davis’ DNA profile was extracted from the blood stains on his clothing and compared to an unknown sample recovered from the scene of the Neal homicide. The samples did not match, and Davis was therefore excluded as the source of evidentiary sample from the Neal murder. Subsequently, Davis’ DNA profile was placed in the local Prince George’s County DNA database. B. The Jason Schwindler Murder On August 6, 2004, shortly before 1:00 p.m., Jason Schwindler, an armored car employee, picked up a bank deposit from a local business and took it to a nearby BB & T bank in Hyattsville, Maryland. As Schwindler walked up to the bank entrance, two gunman exited a Jeep Cherokee and began shooting at Schwindler, killing him. When their escape in the Jeep was thwarted by the armored truck driver, the assailants carjacked a bank customer and fled in her vehicle. The carjacked vehicle was later recovered. After the murder, officers from the Prince George’s County Police Department responded to the crime scene and collected evidence. Numerous items were recovered, including a baseball cap worn by one of the shooters, two firearms, and steering wheel covers from a Jeep Cherokee and a Pontiac Grand Am that were used by the suspects in the commission of the offense. These items were swabbed and analyzed for DNA. The DNA profiles of the major contributor to the DNA found in the ball-cap and on the trigger and grip of the recovered firearms were entered into the local CODIS database. As a result of a search of the local database, on or about August 14, 2004, there was a “hit” between the DNA found on the baseball cap recovered at the scene and the DNA of the Defendant. Law enforcement officers were notified of the match and advised to obtain a known sample from the Defendant. Pursuant to a search warrant, a DNA sample was taken from him and compared to the items recovered from the crime scene. The DNA analyst concluded that, to a reasonable degree of scientific certainty, Davis was the source of the DNA recovered from three pieces of evidence related to the Schwindler murder: (1) the steering wheel of the stolen Jeep Cherokee the assailants drove to the bank, (2) a baseball cap dropped by one of the assailants during the course of the robbery, and (3) the steering wheel of the Pontiac Grand Am in which the assailants fled the scene. After a number of pretrial proceedings, Davis’ trial began on May 5, 2008. The trial lasted five weeks, at the conclusion of which he was convicted on all counts. He is currently awaiting sentencing. II. ANALYSIS Defendant moves the Court to suppress DNA evidence arising from prior interactions with Prince George’s County and Howard County police. He argues that there were at least three separate Fourth Amendment violations leading to the “cold hit” match that implicated him in the Schwindler murder. First, he alleges that the initial seizure of his clothing without a warrant was unlawful, rendering all further uses of evidence derived therefrom inadmissible as fruit of the poisonous tree. Second, he claims that the extraction of his DNA profile from his clothing without a warrant was a separate violation of the Fourth Amendment, Finally, he argues that the retention of his DNA profile in the local CODIS database constituted yet another Fourth Amendment violation. The Government bears the burden of proving, by a preponderance, the legality of the search and seizure of evidence which it intends to introduce at trial. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). A. Initial Seizure of Defendant’s Clothing at Howard County General Hospital The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. A warrantless seizure is “per se unreasonable ... subject to only a few specifically established and well-delineated exceptions” to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The government bears the burden of establishing that the circumstances of a warrantless search or seizure bring it within an exception to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is undisputed that Davis’ clothing was seized from his hospital room without a warrant. Therefore, the seizure was unreasonable unless justified by an established warrant exception. As the Supreme Court explained in United States v. Jacobsen, the Fourth Amendment protects two types of expectations, one involving “searches,” the other “seizures.” A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A “seizure” of property occurs when there is some meaningful interference with an individual’s possessory interests in that property. United States v. Jacobsen, 466 U.S. 109, 112, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Therefore, to challenge a search, a defendant must demonstrate that he had a reasonable expectation of privacy in the premises or property searched. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). However, to challenge a seizure, a defendant need only establish that the seizure interfered with his constitutionally protected possessory interests. The infringement of privacy rights, while often a precursor to a seizure of property, is not necessary to such challenge. See United States v. Padilla, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993). Defendant argues that the warrantless seizure of his clothing was illegal because he retained a possessory interest in his clothing while in his hospital room. The Government counters that the seizure was justified under either the “plain view” or “inevitable discovery” exceptions to the warrant requirement. 1. Defendant Retained A Possessory Interest In His Clothing While Hospitalized Courts consistently recognize that a hospital patient retains a possessory interest in his or her clothing, even if the clothing has been taken by hospital personnel and stored elsewhere for safekeeping. See, e.g., United States v. Neely, 345 F.3d 366, 369 (5th Cir.2003); Jones v. State, 648 So.2d 669, 675 (Fla.1994) (“even if we were to find that Jones’ privacy interests were in no way compromised, there clearly was a meaningful interference with his constitutionally protected possessory rights when his effects were seized without a warrant”). Therefore, even if Davis no longer had a privacy interest in the outer appearance of his bloodied pants and boxers once he presented himself for medical treatment, there is no evidence in the record that Davis ever relinquished his possessory interest in the clothing that was bagged and placed underneath his bed for him. See Neely, 345 F.3d at 368-69 (finding that district court erred in focusing on whether shooting victim had privacy interest in clothing at time police seized them from hospital because privacy interest is pertinent to constitutionality of searches, not seizures); accord People v. Jordan, 187 Mich.App. 582, 468 N.W.2d 294 (Mich. 1991); People v. Hayes, 154 Misc.2d 429, 584 N.Y.S.2d 1001 (N.Y.Sup.Ct.1992); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978); Morris v. Commonwealth, 208 Va. 331, 157 S.E.2d 191 (1967). Warrantless seizures of personal property are generally considered unreasonable under the Fourth Amendment unless there is probable cause to believe the property is or contains contraband or evidence of a crime and the seizure falls within an established exception to the warrant requirement. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The Government has argued that the seizure of Davis’ clothing is justified under the plain view exception, or in the alternative, the inevitable discovery doctrine. The Court will address these arguments sequentially, along with one other potential exception that the Court raised sua sponte during the evidentiary hearing. 2. Plain View Doctrine The “plain view” doctrine is an exception to the warrant requirement that permits law enforcement to seize objects if (1) the officer is lawfully present in the location where the observation is made, (2) the officer has lawful access to the item, and (3) the object’s incriminating nature is immediately apparent. United States v. Wells, 98 F.3d 808, 809-10 (4th Cir.1996). The Government contends that Detective King was lawfully present in Davis’ hospital room to investigate the nature of his shooting, and that he had lawful access to the clothing in plain view on the shelf below Davis’ bed. Thus, the Government argues that the clothes were properly subject to seizure as evidence of Davis’ shooting — i.e., the crime of which Davis was a victim. The Defendant argues that the plain view doctrine does not apply because the bloody clothing was not “incriminating evidence,” since Davis was a victim of a crime, and not himself suspected of any criminal activity. In this case, the first two requirements of the plain view doctrine are clearly met. Although a hospital patient retains some level of privacy in a hospital emergency room, it is much less than that enjoyed in one’s home. Detective King did not need a warrant to enter the hospital’s emergency room, and in fact was there on official business, investigating a shooting. Thus, he was lawfully present. In addition, Detective King had direct, lawful access to the storage area beneath Davis’ bed where the bag of clothing had been placed. Cf. Neely, 345 F.3d at 371 (plain view doctrine did not apply because officer did not have lawful right of access to hospital property storage room, and patient/suspect’s clothing could only be seized by asking medical personnel to retrieve it); State v. Lopez, 197 W.Va. 556, 476 S.E.2d 227, 230 (1996) (plain view doctrine did not apply to patient’s clothing stored out of view at nurses’ station, turned over to police upon request). The more difficult prong of the plain view analysis, as applied to the facts of this case, is whether it was “imminently apparent” that the bag beneath Davis’ hospital bed contained something of an incriminating nature. In general, plain view doctrine may support the warrantless seizure of a container believed to contain evidence or contraband, but any subsequent search of the concealed contents of the container must be done pursuant to a warrant or another warrant exception. See United States v. Williams, 41 F.3d 192, 197 (4th Cir.1994). However, the Fourth Circuit has held that a seizure and search of a container is supported by the plain view doctrine when “the contents of a seized container are a foregone conclusion.” Id. The court reasoned that “when a container is not closed, or transparent, or when its distinctive configuration proclaims its contents, the container supports no reasonable expectation of privacy and the contents can be said to be in plain view.” Id. (quoting United States v. Corral, 970 F.2d 719, 725 (10th Cir.1992)). The circumstances under which an officer finds the container may add to the apparent nature of its contents. Id. (finding that it was a foregone conclusion that brick-shaped packages wrapped in cellophane and brown paper, found inside suitcase along with dirty blankets and towels, contained drugs); see also Blair v. United States, 665 F.2d 500, 507 (4th Cir.1981) (upholding warrantless search of closed bales of marijuana based on circumstances under which they were found, including another bale that had split open, and the presence of loose marijuana scattered on top of the bales). For example, “when a person opens a Hershey bar, it is a foregone conclusion that there is chocolate inside.” Williams, 41 F.3d at 198. See also United States v. Eschweiler, 745 F.2d 435, 440 (7th Cir.1984) (police could lawfully open envelope that clearly indicated it contained key); United States v. Morgan, 744 F.2d 1215, 1222 (6th Cir.1984) (police could open bottle where label on bottle made it apparent that bottle contained contraband). The “foregone conclusion” rationale cannot apply when the outward appearance of the container is ambiguous. For example, in United States v. Donnes, the Tenth Circuit found a warrantless search of an opaque, black leather camera lens case not justified under the plain view doctrine even though the case was discovered next to a syringe inside a glove. 947 F.2d 1430 (10th Cir.1991). Proximity to a suspicious item alone does not make it a foregone conclusion that a closed container also contains evidence or contraband. See also United States v. Bonitz, 826 F.2d 954, 956 (10th Cir.1987) (hard plastic case did not obviously reveal its contents to be a firearm even though found in proximity to soft-sided gun cases). The factual circumstances of the seizure of Davis’s clothing were explored at the evidentiary hearing. There was no testimony as to whether the bag was open or closed, or whether it was transparent, opaque, or somewhere in-between. However, the Court finds that Detective King was justified in believing that it was a foregone conclusion that the bag (of whatever sort) beneath Davis’ hospital bed would contain Davis’ clothing, and that his clothing would have blood on it. At the hearing, the Government introduced a photograph of Davis from approximately the shoulders down, lying on a hospital bed or gurney. (Gov’t Hr’g Ex. 2.) Detective King testified that this photo accurately depicted what Davis was wearing when Detective King observed him. In the photo, Davis is wearing a black tee shirt but no pants or underwear. His genital area is covered by a sheet, but the photo clearly shows that he has a gunshot wound high on his upper right thigh, an area that certainly would normally be covered by pants, and probably by boxer shorts as well. The sheet covering his lap area is bloody, as is the sheet under Davis’ right leg, presumably where the wound was still bleeding. Detective King testified that as of 2000, the Howard County hospital had been on his “beat” for about two years, and he had responded on prior occasions for individuals there with gunshot wounds. (Tr. of Motions Hr’g at 63, September 15, 2008) (hereinafter, “Hr’g Tr.”). He testified that he knew that the hospital’s practice was to secure any property taken from a victim, such as clothing, and place it under the patient’s bed, often in a bag. (Hr’g Tr. 71.) At the evidentiary hearing, Detective King was also shown a white plastic bag with the printed lettering “Patient’s Belonging Bag” and blank spaces for the patient’s name and room number. (Def.’s Hr’g Ex. 1.) He stated that while he could not recall the exact appearance of the bag that contained Davis’ clothing, he had seen bags similar to that one used at Howard County General Hospital on other occasions. (Hr’g Tr. 72.) Under the totality of the circumstances, taking into account Detective King’s experience with the hospital’s practices regarding patients’ property, the appearance of the Defendant at the time Detective King spoke with him, and the obvious fact that the Defendant had been shot in an area of the body usually covered by clothing, the Court concludes that it was a foregone conclusion that the bag underneath Davis’ bed would contain his clothing, and that the clothing would constitute evidence of the shooting (ie., blood stains and bullet holes). Therefore, the seizure was justified under the plain view exception, and reasonable under the Fourth Amendment. The holding of the Supreme Court of Florida in Jones v. State, 648 So.2d 669 (Fla.1994), is not to the contrary, though the facts of Jones are at least superficially similar to those presented here. In Jones, a police officer questioning Jones in his hospital room seized the bag of the defendant’s clothing that had been placed in the corner of the room. As in this case, Jones was conscious and alert, but had been uncooperative with the officer. Id. at 673. The Florida court held that the seizure of the bag was not justified under the plain view doctrine because the incriminating character of the clothing in the bag was not immediately apparent. However, there are a number of critical factual distinctions between Jones and the present case that illustrate why Davis’ clothing can be considered in plain view, whereas Jones’ clothing was not. In Jones, the defendant was hospitalized after an auto accident. The owner of the truck Jones had been driving at the time of the accident was missing, and police had reports that Jones and the missing man had been seen together the day before. At the time that officers questioned Jones in his hospital room, approximately a day after the accident, police had only a suspicion that a crime had occurred at all. Jones, 648 So.2d at 678. It could not, then, be “immediately apparent” that the defendant’s clothing was evidence of a crime when police had no substantial evidence that any foul play was involved. The officer stated that he seized the clothing “because, from his experience, he believed that evidence taken from Jones’ clothing might assist in the search for the missing man.” Id. at 674. In fact, when the missing man was later found dead in a local pond, it was only at that point that soil and pollen samples were taken from the clothing that had been seized from Jones’ hospital room. Id. at 672. Thus, “the probative value of the clothing did not become apparent until it was examined by an expert and the ‘mud’ was detected on Jones’ shoes and pants.” Id. at 678. The court concluded that the officer’s “suspicion clearly was insufficient to justify the type of seizure that occurred.” Id. In the present case, it was obvious from the Defendant’s appearance that a crime had occurred; the gunshot wound in his leg was clearly visible. Whereas Jones was only suspected of perhaps being involved in a man’s disappearance, Davis was positively the victim of a violent crime. Furthermore, in Jones, the evidentiary value of the clothing seized was only apparent after an expert forensic soil analysis. In this case, the blood on the pants and the bullet hole through them made their probative value immediately apparent. Defendant argued at the evidentiary hearing that it was “not clear” how a bullet hole and blood stains on his pants could be incriminating, as opposed to “forensic evidence which would perhaps incriminate a third party in the shooting and robbery. ...” (Hr’g Tr. 110.) He further argued that the pants would not add anything to a potential prosecution, because the fact of the shooting was not in dispute, and could be proven with medical records. (Hr’g Tr. 110-111.) The Court disagrees. The pants, complete with bullet hole and bloodstains, could certainly be introduced at trial if someone were charged with Davis’ shooting. Nor would they necessarily be overly cumulative evidence. As the Government argued: That evidence could have been used if they had found the location of the crime to prove where the crime occurred by associating the blood on the pants with any blood found at a potential homicide scene. And certainly with an uncooperative victim, they could be used to establish, along with the medical reports, the gunshot injury. (Hr’g Tr. 142-143.) In sum, the Court finds that bloody clothing displaying a bullet hole has sufficient evidentiary value, without the necessity of further forensic analysis, so as to bring it within the scope of the plain view doctrine. Defendant also argued that the Court should not hold that the plain view doctrine justified the seizure of Davis’ clothing because at the time of the seizure, Davis was a victim, not a suspect. He interprets the final prong of the plain view doctrine as requiring that the incriminating nature of the item must be not only immediately apparent, but also tend to incriminate the person from whom it is seized, rather than some third party. The Court has been unable to find any authority, and the Defendant has provided none, to support this additional requirement. This may be due to the unique situation presented by the facts of this case; very rarely will a victim from whom evidence is seized later become a criminal defendant with standing and reason to challenge the previous seizure. As a matter of first impression, however, it would seem unwise and overly restrictive to require police to know who will be incriminated by an item in plain view before they are able to seize it and investigate further. In conclusion, although there are some distinct factual differences between the instant case and a “typical” plain view seizure, the Court concludes that under the totality of the circumstances the seizure was reasonable, and not in violation of the Fourth Amendment. Under the Fourth Circuit’s interpretation of the “immediately apparent” prong of the test, it was reasonable for Detective King to believe it was a “foregone conclusion” that the bag underneath Davis’ hospital bed contained the clothing he was wearing when he was shot, and that the clothing would have evidentiary value. Therefore, the seizure was lawful. 3. Inevitable Discovery The Government also argues that even if the plain view doctrine does not apply, the seizure is also justified under the doctrine of inevitable discovery. This doctrine applies when the prosecution can establish “by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (emphasis added); United States v. Thomas, 955 F.2d 207 (4th Cir.1992). The Government argues that Davis’ clothing inevitably would have been seized as part of a search incident to his arrest for marijuana possession upon his release from the hospital. The Government contends that Davis would have had his pants and undershorts with him at the time of his arrest, and therefore they inevitably would have been seized at that time as evidence of the shooting. To uphold the seizure of the clothing on this basis, the Court must find, by a preponderance of the evidence, that Davis would have had the clothes on his person or in an area within his immediate control at the time of his arrest. See Chimel v. California, 895 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); c.f Neely, 345 F.3d at 371 (seizure of bloody clothing not justified as incident to arrest when clothing located in a different area of the hospital than where defendant was arrested). Lieutenant Lampe testified that Davis was released directly into his custody upon his discharge from the hospital in the early afternoon. (Hr’g Tr. 84.) Davis wore pants provided to him by hospital staff. (Hr’g Tr. 85.) Lieutenant Lampe stated that if Davis had been carrying his hospital bag with his pants and undershorts in it, his clothing would have been seized at the time of his booking, as evidence of the shooting and alleged robbery. (Hr’g Tr. 86.) The Government’s argument is highly speculative. Had they not already been seized, Davis may have had the bloody clothes with him when he left the hospital, but it is just as likely he would have thrown them away or sent them home with a family member or friend before he was discharged and arrested. Because the Government has failed to show that recovery of the clothing was inevitable, as opposed to merely probable, the Court will not rest its holding on this ground. 4. Implied Consent At the hearing on the motion, the Court and the parties made several inquiries of the witnesses regarding the possibility that Davis may have consented to the seizure of his clothing. Detective King testified that upon entering Davis’ hospital room, he immediately seized the bag of clothing from underneath Davis’ bed because “[t]hey were considered evidence of the crime that was reported, the shooting.” (Hr’g Tr. 66.) Although Detective King had a brief conversation with Davis concerning the circumstances of his shooting, Detective King stated he had no discussion with respect to the bag of clothing he had seized. (Hr’g Tr. 73.) While Detective King was in the room, Davis was conscious and sitting up in bed. Detective King testified that he “assumed” Davis was aware that he was taking the bag of clothing because Davis “was up. He was watching me. I was right next to him.” (Hr’g Tr. 75.) However, Detective King did not affirmatively tell Davis that he was taking the clothing as evidence; nor did Davis affirmatively object to Detective King taking the clothing. Lieutenant Steven Lampe, who arrived to speak with Davis after Detective King had already taken Davis’s clothing, testified that during his conversation with Davis in his hospital room, Davis never asked for his pants back. Nor did he complain about the seizure when he was forced to wear pants provided by the hospital upon his discharge, nor did Davis contact the police department at any time after the incident to request the return of his property. However, Lieutenant Lampe also admitted that Davis never gave express consent to the seizure of his clothes. (Hr’g Tr. 95.) Although the Government did not argue in its opposition to Defendant’s motion that the seizure could be justified by consent, the Court raised the possibility at the evidentiary hearing: How about under the totality of the circumstances one can imply consent? ... Most victims want the crime to be prosecuted successfully. Most victims are going to want to make certain that the police have at their disposal the evidence necessary to find the person who committed the crime; and most victims, when they have something that’s their own and that obviously has evidentiary value, don’t say a word when the police take it. How do you differentiate that from this case? (Hr’g Tr. 164.) Defense counsel responded, in part No matter how meritorious or salutary the reasons for taking that clothing are, the government still has the burden to obtain consent or make sure that it falls within one of the exceptions to the warrant requirement. (Hr’g Tr. 165.) Defense counsel argued strenuously that it would be improper to place the burden on Davis to demonstrate that he did not consent by affirmatively objecting, and whether he passively acquiesced to the seizure of his clothing should not be dis-positive of the legality of the police conduct. (See, e.g. Hr’g Tr. 115.) Further, the defense argued that “[fit’s pure speculation about whether Mr. Davis saw the clothes being seized and whether he ever had an opportunity to protest. I think this highlights why it’s impermissible to put the burden on Mr. Davis.” (Hr’g Tr. 158.) Defendant appears to be correct on this point. In Bumper v. North Carolina, the Supreme Court held that when the government seeks to justify a search by consent, it bears the burden of proving that the consent was freely and voluntarily given. 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The Court elaborated that this “burden cannot be discharged by showing no more than acquiesce to a claim of lawful authority.” Id. The validity of consent is determined by an analysis of the totality of the circumstances. Since Bumper, numerous other courts have agreed that “if the police simply proceed to make the search without first asking for permission, it cannot be said that ‘implied consent’ arises from the lack of objection; ‘for constitutional purposes nonresistance may not be equated with consent.’ ” Wayne R. LaFave, 4 Search and Seizure: A Treatise On the Fourth Amendment § 8.2(b), at 61 (4th ed.2004) (quoting United States v. Most, 876 F.2d 191, 199 (D.C.Cir.1989) (store employees’ cooperation did not amount to implied consent to search defendant’s bag when there was no evidence that officers requested permission before search)); see also United States v. Jaras, 86 F.3d 383 (5th Cir.1996); United States v. Gonzalez, 71 F.3d 819 (11th Cir.1996); Patzner v. Burkett, 779 F.2d 1363, 1369 (8th Cir.1985) (“consent cannot be presumed from the absence of proof that a person resisted police authority or proof that the person merely acquiesced”); State v. Kudron, 816 P.2d 567, 571 (Okla.Crim.App.1991) (rejecting claim “that silence in the face of a request to search or a defendant’s failure to expressly object to a search is evidence of consent” and noting that the “trier of fact should be slow in finding intentional and voluntary relinquishment of immunity from search without a warrant when from the evidence the matter is somewhat in doubt”). In Jaras, the defendant was the passenger in a car stopped by police. The officer asked the driver’s permission to search the vehicle, including the trunk. The trunk contained a garment bag and two suitcases. The driver stated that the suitcases belonged to Jaras, not him. At the officer’s instruction, Jaras walked to the rear of the vehicle and watched as the officer searched the garment bag, and then the suitcases, which contained a large amount of marijuana. The officer did not ask Jar-as whether he could search the luggage, and Jaras was not present when the driver gave his consent to the search, nor was there any evidence in the record that Jaras heard the officer ask for permission at all. 86 F.3d at 390. The court then concluded that “[w]e do not think that consent may reasonably be implied from Jaras’s silence or failure to object because Officer Mitchell did not expressly or impliedly ask for his consent to search.” Id. On this record, therefore, the Court cannot conclude that Davis consented to the seizure of his clothing. Although it seems logical that if he had objected, he would have said something to the officers, the Fourth Amendment requires something more than that. It is undisputed that Detective King was in uniform when he entered Davis’ hospital room, and that he did not ask permission to remove the bag of clothing. Even assuming arguendo that Davis was aware of Detective King’s actions, his silence during the seizure and later as he was transported from the hospital to jail wearing borrowed pants is not sufficient to imply consent. 5. Conclusion As To the Initial Seizure For all of the above reasons, the Court concludes that the seizure of Davis’ clothing while he was a patient at the Howard County General Hospital was lawful pursuant to the plain view exception to the warrant requirement. The Court rejects, however, the Government’s alternative reliance on the inevitable discovery exception, and also finds that the seizure could not be justified by either express or implied consent. B. Extraction and Chemical Analysis of DNA from Davis’ Clothing By Prince George’s County Police Department Having concluded that the initial seizure of Davis’ pants and boxer shorts was lawful, however, does not end the inquiry. The Court must proceed to determine whether the warrantless extraction of Davis’ blood from the clothing and its subsequent DNA analysis violated the Fourth Amendment. “[I]t is clear that the Fourth Amendment law pertaining to the collection of DNA from private persons, neither convicted nor arrested for a crime, is unsettled.” Laura A. Matejik, DNA Sampling: Privacy and Police Investigation In A Suspect Society, 61 Ark. L.Rev. 53, 77 (2008). Presumptively, the extraction of blood from Davis’ clothing and the subsequent chemical analysis of his DNA profile are both searches subject to scrutiny under the Fourth Amendment. The Supreme Court has held that the government’s use of scientific technology to reveal information that is not visible to the naked eye or routinely exposed to the public constitutes a search. See Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (use of a thermal imager, a device not in general public use, to detect details of the interior of a home that otherwise would have remained unknowable without a physical intrusion constituted a search that is presumptively unreasonable without a warrant); Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (chemical analysis of blood for presence of drugs is a search); Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (scraping dried blood from underneath suspect’s fingernails is search because it goes “beyond mere physical characteristics ... constantly exposed to the public ... [and] constitutes the type of severe, though brief, intrusion upon cherished personal security that is subject to constitutional scrutiny”). The more difficult question is whether Davis retained a sufficiently expectation of privacy in the chemical composition of his blood such that the warrantless searches were consequently unreasonable. To determine whether Davis retained a reasonable expectation of privacy in the identifying DNA characteristics in his blood, the Court must determine whether Davis’ situation is more akin to that of an arrestee or convicted felon, or an ordinary citizen. Police authority to test for DNA is controlled by the degree to which its source retains a privacy interest in its identifying characteristics. 1. Davis’ Expectation of Privacy In His DNA Present On the Seized Clothing Fourth Amendment protections extend only to those items in which the individual has both a subjective and objectively reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The Government argues that the Court need not apply a Fourth Amendment analysis to the extraction of Davis’ DNA profile from the bloodstains on his clothing because Davis never expressed any subjective expectation of privacy in his clothing after they were seized, nor did he retain an objectively reasonable expectation of privacy after that point. It contends that an individual does not retain an objectively reasonable expectation of privacy in evidentiary items that are lawfully in police custody and/or that have been abandoned. (a) Subjective Expectation of Privacy The Government first contends that Davis did not demonstrate a subjective expectation of privacy in his pants and boxers after their seizure because he never requested that they be returned to him. It points out that the marijuana charges against him were dismissed, and then insinuates that Davis has failed to reassert his expectation of privacy by requesting the return of his property at that time. But, since the clothing was seized as evidence of the shooting, and had nothing to do with the marijuana charges against Davis, this argument is questionable. It is uncontested that no one had been apprehended for the shooting at the time the charges against Davis were dropped (nor since), so Davis probably would not have been entitled to the return of his clothing, in any event. The Court is unconvinced that a person in Davis’ situation should be required to make a formal, but fruitless, request for the return of property that has been seized as evidence in order to maintain an ongoing privacy interest in that item. Testimony at the hearing established that Davis was not informed when the investigation into his shooting was closed, nor was he informed when detectives from Prince George’s County requested access to his items for DNA testing. Under these circumstances, the Court hesitates to rest the entire Fourth Amendment analysis of this chain of events on Davis’ failure to show interest in retrieving a bloody pair of pants with a bullet hole. Furthermore, the more important inquiry is not whether Davis had a subjective privacy interest in the outward appearance of the clothing, or even the fact that he had bled on the clothing, but specifically whether he had such an interest in the chemical composition of his DNA molecules. Courts addressing whether DNA analysis comports with the Fourth Amendment in other contexts seem to operate on the premise that individuals always have a subjective expectation of privacy in their DNA, unless and until a DNA sample is taken from them, with their knowledge, for law enforcement purposes. See discussion of DNA database cases, infra section II. C.l. These courts then proceed to determine whether such an expectation is objectively reasonable, given the status of the individual who is the source of the DNA, and the reason for which it is being tested. For these reasons, the Court will presume that Davis did have a subjective expectation of privacy in his DNA, and will instead focus its analysis on whether society would recognize this expectation as objectively reasonable. (b) Objective Expectation of Privacy The Government offers two potential reasons why the Court should find that Davis no longer had an objectively reasonable expectation of privacy in his DNA at the time it was tested in 2004. First, it argues that a defendant does not have any expectation of privacy in clothing that was previously lawfully seized, and that items already in police custody may be subjected to scientific examination and testing without a warrant. In the alternative, it contends that due to the passage of forty-four months between the seizure and the DNA analysis, Davis had effectively abandoned his property, thus extinguishing any objective privacy interest. (i) Scientific Testing of Items Lawfully Within Police Custody The Government relies on United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), for the proposition that a defendant does not have an expectation of privacy in clothing that was lawfully seized and held by authorities and that such clothing may be subjected to scientific testing and examination without a warrant. In Edwards, the defendant was arrested at around 11:00 p.m. for the attempted breaking and entering of a post office. The next morning (about ten hours later), police purchased a change of clothes for the defendant and seized, as potential evidence, the clothing he had been wearing at the time of his arrest. Later testing of the defendant’s clothes revealed the presence of paint chips matching the samples that had been taken from the window that had been tampered with at the post office. Id. at 801-02, 94 S.Ct. 1234. The defendant argued that because his clothing was not seized contemporaneously with his arrest, police were required to secure a warrant before they could be seized later and subjected to a search for evidence. The Court ruled that the search and seizure of Edwards’ clothing had not violated the Fourth Amendment. It reasoned that the confiscation of a defendant’s clothing is a normal incident of custodial arrest, and “Reasonable delay in effectuating [the seizure] does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention.” Id. at 805, 94 S.Ct. 1234. Further, the court stated that there was no question that “clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis [and] that the test results are admissible at trial.” Id. at 803-04, 94 S.Ct. 1234. Extrapolating from these two premises, the court held that “once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may be lawfully searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.” Id. at 807, 94 S.Ct. 1234. There is some support for the Government’s position, as a number of other courts have held that detainees have no reasonable or legitimate expectation of privacy in effects being lawfully held by the police. See, e.g., United States v. Lester, 647 F.2d 869, 874-75 (8th Cir.1981) (clothing seized pursuant to arrest for detoxification lawfully tested by different police agency when defendant became suspected of murder); Wallace v. State, 373 Md. 69, 816 A.2d 883, 897 (2003) (defendant whose visibly stained clothing was seized pursuant to arrest on unrelated drug charge had no reasonable expectation of privacy that would prevent police from moving clothing to different property room and examining it ten days later in furtherance of murder investigation); Wilson v. State, 132 Md.App. 510, 752 A.2d 1250 (Md.Ct.Spec.App.2000) (police not required to seek warrant to re-test rape suspect’s blood sample that had been seized seven years earlier pursuant to a warrant during investigation for unrelated rape); Oles v. State, 993 S.W.2d 103, 107-11 (Tex.Crim.1999) (after defendant arrested pursuant to arrest warrant on motion to revoke probation, no reasonable expectation of privacy in clothing seized at time of arrest, so testing eight days later for blood that was not visible to naked eye not a Fourth Amendment violation); Williams v. Commonwealth, 259 Va. 377, 527 S.E.2d 131, 135-36 (2000) (seizure and testing of defendant’s boots in murder case was proper as defendant had no expectation of privacy which society would recognize as reasonable in items that had been lawfully seized and inventoried at time of his arrest and incarceration on unrelated charge). To summarize, in the Government’s view, if an item is already within lawful police custody, that ends the inquiry. It argues that any such item may later be examined or tested, without a warrant, without violating the Fourth Amendment. Although this is true in many contexts, given typical facts, the analysis is overly simplistic. The crucial question is not only the legality of the initial seizure, but rather whether the owner or source of the item retains a reasonable privacy interest, even when the seizure was lawful. For that reason, it must be stressed that there is a crucial factual distinction between this case and the cases discussed above. In Edwards and like cases, the item being examined lawfully entered police custody in one of two ways: Either it was seized pursuant to the defendant’s lawful arrest and subsequent detention, or it was previously seized pursuant to a warrant supported by probable cause. However, when Davis’ clothing came into police custody, his status was that of a victim, with the same undiminished privacy rights as any other citizen, and his clothing was seized for its potential use as evidence against an unknown third party. It is without question that those arrested for and convicted of crimes have diminished privacy interests, and this understanding underlies the foundation of the holding in Edwards and like cases. While it is logical that an accused would no longer have a reasonable expectation of privacy in his own possessions that have been lawfully taken into police custody, it is far less clear that a victim also loses the expectation of privacy in his or her genetic material that may be present on evidentiary items. Taken to its logical extreme, the application of Edwards and its progeny to the instant case would mean that any citizen whose blood finds its way into lawful police custody as a result of victimization (e. g., child abuse, sexual assault and domestic violence victims, etc.), would then lose any expectation of privacy in the DNA markers in that blood, which could be used against him or her at a later date without the constitutional safeguard that a warrant supported by probable cause first be issued. For example, imagine a perfectly law-abiding individual whose car is struck by a drunk driver, resulting in a horrific accident. At the hospital, the victim’s clothing is removed and taken into police custody as evidence of the degree of the injuries caused by the drunk driver. It is unlikely that the innocent party in this scenario would be comfortable knowing that for the rest of his life, should the police ever wish to have access to his DNA, they are relieved of the obligation to seek a warrant, which would otherwise exist. Instead, it is much more probable that the average victims of car accidents, sexual assaults, child abuse, or other violent offenses would expect their clothing to be used in the investigation of that incident, but not that as a result of their misfortune the government will gain permanent, unfettered access to their genetic material. The Court is simply not prepared to declare that this is not an expectation of privacy that society is prepared to recognize as reasonable. At least one circuit has expressed hesitancy to blindly apply Edwards to every situation involving DNA analysis: “[I]t may be time to reexamine the proposition that an individual no longer has any expectation of privacy in information seized by the government so long as the government has obtained that information lawfully.... In short, there may be a persuasive argument on different facts that an individual retains an expectation of privacy in the future uses of his or her DNA profile.” United States v. Weikert, 504 F.3d 1, 16-17 (1st Cir.2007). The unique facts of this case present such an argument. Therefore, the Court is hesitant to find that Edwards controls here. This does not mean, of course, that the search was necessarily unreasonable (and therefore unlawful), but it does indicate the wisdom of extending Fourth Amendment protection to Davis and others who might someday find themselves in a similar position. (ii) Abandonment At the hearing on the motion, the Court explored the Government’s contention that Davis had demonstrated no interest in retrieving his clothing during the forty-four months between their seizure and subsequent analysis, raising the question of whether under these circumstances the clothing and/or blood could be considered abandoned property, akin to garbage. It is well established that the warrantless search of abandoned property is not unreasonable and therefore does not violate the Fourth Amendment. See, e.g., California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (no reasonable expectation of privacy in bagged garbage placed on curb outside curtilage of home for municipal collection); United States v. Hoey, 983 F.2d 890 (8th Cir.1993) (finding apartment abandoned where renter told landlord she was leaving, was behind in rent, and had conducted moving sale). The determination of whether property is abandoned is based on an objective analysis of act and intent. See Hoey, 983 F.2d at 892. “Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered.” Id. Furthermore, for Fourth Amendment purposes, abandonment is not to be evaluated in the strict property-right sense, but rather by determining whether an individual “has relinquished her reasonable expectation of privacy so that the search and seizure is valid.” Id. at 892-93; see also 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.6(c), at 691 (4th ed. 2004) (“A justified expectation of privacy may exist as to items which have been abandoned in the property law sense, just as it is true that no such expectation may exist on some occasions even through the property has not been abandoned. This is because under Katz the question is not whether there has been abandonment in the property law sense, ... but rather whether there has been abandonment of a reasonable expectation of privacy as to the area searched or the property seized.”) (internal quotation marks omitted). There are several problems with the argument that the extraction and analysis of Davis’ DNA in 2004 was justified because Davis had abandoned his clothing. First, this Court has been unable to find a single case holding that an item can take on the character of abandoned property after the item already has been seized and placed in police custody. Rather, it is the individual's words or actions demonstrating an intent to abandon that justifies the search or seizure in the first place. The Government has not contended that Davis abandoned his clothing or his blood at the time that the clothing was seized at the hospital in 2000. Rather, it argues that when the blood stains were tested for DNA, over three years later, the Court should consider the clothing abandoned because Davis never affirmatively asked for it to be returned in the intervening time. This would indicate that any property that remains in police custody for a certain, unspecified amount of time, without objection, will ultimately be considered abandoned, such that the Fourth Amendment will no longer apply. The Court is reluctant to find that important constitutional rights are amenable to this type of passive waiver. Second, abandonment is a problematic concept when applied to DNA because it implies a volitional act of relinquishment that is absent in this case. As one recent commentator has framed the issue: “Do we intend to renounce our actual expectations of privacy with respect to genetic material when we shed our DNA? The volition that is implied in abandonment is simply unrealistic here.” Elizabeth E. Joh, Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy, 100 Nw. U.L.Rev. 857, 867 (2006) (emphasis added). Nonetheless, the abandonment analysis in Greenwood has been applied to uphold against Fourth Amendment challenge “covert involuntary DNA sampling,” a process in which police collect DNA — not from crime scenes — but from known persons who are suspected of crimes, for whom police do not have probable cause to seek a warrant to take a sample directly from them. Joh, Reclaiming “Abandoned” DNA, at 882 (coining new term for this investigative technique to eliminate the implication of volition when DNA is shed without one’s knowledge or consent). Thus, instead of taking a sample directly from the targeted individual’s body, which would clearly implicate the Fourth Amendment, police obtain discarded, or “abandoned” items that are likely to contain the target’s DNA, such as cigarette butts, coffee cups, or chewing gum. See, e.g., Commonwealth v. Bly, 448 Mass. 473, 862 N.E.2d 341, 356-57 (2007) (suspect connected to murder by DNA analysis of water bottle and cigarette butts he left behind after interview with police); State v. Wickline, 232 Neb. 329, 440 N.W.2d 249, 253 (1989) (police not required to obtain warrant to test cigarettes defendant left at police station because he “abandoned these items and sufficiently exposed them to the officer and the public to defeat his claim to fourth amendment protection”); State v. Athan, 160 Wash.2d 354, 158 P.3d 27 (2007) (no constitutional violation where police addressed phony class-action mailing to suspect in cold rape case and obtained suspect’s DNA from saliva on return envelope: “The analysis of DNA obtained without forcible compulsion and analyzed by the government for comparison to evidence found at a crime scene is not a search under the Fourth Amendment.”). However, some commentators have questioned whether DNA can usefully or appropriately be analogized to trash. “[DJepositing DNA in the ordinary course of life when drinking, sneezing, or shedding hair, dandruff, or other cells differs from placing papers in a container on the street to be collected as garbage. Depositing paper in the trash is generally a volitional act.... Leaving a trail of DNA, however, is not a conscious activity.” Edward J. Imwinkelried, DNA Typing: Emerging or Neglected Issues, 76 Wash. L.Rev. 413, 437 (2001). In this case, there is not even the nominal volitional act that is present in “covert involuntary DNA sampling” cases. In those situations, it could be argued that by spitting out gum, discarding a disposable coffee cup, or throwing away a used tissue, the individual has actively demonstrated an intent to abandon the item, and, necessarily, any DNA that may be contained thereon. Here, Davis never discarded or otherwise abandoned the clothing from which the police later extracted his DNA profile; they were seized by police as evidence of his shooting. Nor did he voluntarily expel the blood that stained the clothing — one can hardly argue that the bleeding that results from a gunshot wound is a volitional act. The Court does not believe that intent to abandon or volition can be inferred from passive inaction, particularly when Davis was never informed that the investigation into his shooting had been closed, which might have presented him with a logical opportunity to make a request for return of his property. Therefore, considering Davis’ blood and/or clothing to have been abandoned in order to justify the warrantless search of Davis’ DNA profile is not appropriate. Nor does the Court necessarily agree that conscious disposal of an item, or unconscious shedding of hair, saliva, or dermal cells, reasonably supports the conclusion that an individual has manifested an intent to abandon one’s privacy interest in the information that can be gleaned from that item or tissue by DNA analysis. [W]hile Fourth Amendment law may not appear to protect a privacy interest in the human tissue left behind as the detritus of our daily lives, it is far from obvious that people do not harbor a privacy expectation in genetic information that “society is prepared to recognize as reasonable.” While it may be difficult to sympathize with the offenders who are convicted as a result of their shed saliva, few of us would characterize our own genetic information as lacking any protection in these circumstances. Joh, Reclaiming “Abandoned” DNA, at 882-83 (emphasis added). A colorable argument could certainly be made that a reasonable societal expectation exists that law enforcement officials will not follow individuals around, waiting for an opportunity to collect and analyze their DNA without their knowledge or consent. “The public is extremely concerned with preserving genetic privacy.” Imwinkelried, DNA Typing, at 438. This finding would not, as the Government argues, require the police to seek a warrant in order to analyze any items recovered from a crime scene for DNA evidence. No one would argue, for example, that a rapist retains a reasonable expectation of privacy in the DNA contained in the semen that he leaves on his victim. Society considers it reasonable that if one has committed a crime, any evidence one leaves behind while doing so is fair game; the intentional, volitional act of committing the crime itself supports the theory that the criminal intends to abandon any privacy interest he has in his blood, fluid, cells, etc. that he may leave behind at the crime scene. Furthermore, the very fact that a given area is a crime scene changes the balance of interests relevant to a Fourth Amendment analysis of crime scene evidence. Davis’ situation is different. Police were in possession of clothing they had seized from a victim, and his status as such was clearly indicated on the property form. He simply cannot be considered to have voluntarily relinquished his privacy interest in his DNA in the same way that the perpetrator of a crime necessarily has. If the Fourth Amendment is held not to apply to so-called “abandoned” DNA, then courts will essentially be ignoring the difference between offenders and the general public. See Joh, Reclaiming “Abandoned” DNA at 880. It may be that we are already moving toward a system in which the government will have access to the genetic information of everyone in the population, which will be used t