USA v. Frederick Hinton

Filing

Opinion issued by court as to Appellant Frederick Fitzgerald Hinton. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11594
Non-Argument Calendar
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D.C. Docket No. 2:14-cr-00025-RWS-JCF-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK FITZGERALD HINTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 18, 2017)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:

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Frederick Fitzgerald Hinton appeals his 149-month total sentence, imposed
after pleading guilty to one count of committing Hobbs Act robbery, in violation of
18 U.S.C. §§ 1951(a), 2, and one count of brandishing firearms during a crime of
violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2. On appeal, Hinton
argues that the district court erred in denying his motion to suppress evidence that
resulted from an initial DNA match between a sample taken from the crime scene
and a DNA profile that the Georgia Bureau of Investigation (“GBI”) kept in the
Combined DNA Index System (“CODIS”) database. This DNA profile was
created and uploaded to the CODIS database from a sample taken by the Georgia
Department of Corrections (“DOC”) after Hinton pled guilty, was sentenced under
Georgia’s First Offender Act (“FOA”), and sent to prison. However, the GBI kept
his profile after he left prison and the match to the crime scene evidence while
Hinton was on probation. He argues that the retention and use of his DNA profile
violated state law and the Fourth Amendment because, under state law, he was
never “convicted” of his FOA offense.
In reviewing the district court’s denial of a motion to suppress, we review
the findings of fact for clear error, and the application of the law to the facts de
novo. United States v. Epps, 613 F.3d 1093, 1097 (11th Cir. 2010). A district
court’s choice between two permissible views of the evidence cannot be clear
error. United States v. Ndiaye, 434 F.3d 1270, 1305 (11th Cir. 2006). We
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construe all facts in the light most favorable to the prevailing party below. United
States v. Lewis, 674 F.3d 1298, 1302-03 (11th Cir. 2012). We may affirm the
denial of a motion to suppress on any ground supported by the record. United
States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
The district court is not required to suppress evidence on the ground that a
state rule was violated. United States v. Noriega, 676 F.3d 1252, 1263 n.4 (11th
Cir. 2012). Federal law, not state law, governs the admissibility of evidence in
federal court, and “complaints that the evidence was obtained in violation of state
law are of no effect.” Id. (quotation omitted).
The Fourth Amendment provides “the right of the people to be secure in
their person, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const., Amend IV. In United States v. Knights, the Supreme Court
held that a warrantless search of a probationer’s apartment based on reasonable
suspicion was not a Fourth Amendment violation because it was reasonable under
the totality of the circumstances. United States v. Knights, 534 U.S. 112, 118
(2001). Knights’s status as a probationer subject to a search condition informed
both sides of the Court’s balancing test. Id. at 119. The Court noted that
probation, like incarceration, was a form of criminal sanction imposed by a court
upon an offender after a verdict, finding, or guilty plea, and it inherently involved
reduced liberty. Id. Additionally, the Court held that Knights, as a probationer,
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was more likely than the ordinary citizen to violate the law, invoking the
government’s interest in apprehending violators of the law. Id. at 120–121.
In Padgett v. Donald, we held that the Georgia statute that required
convicted, incarcerated felons to provide a sample of their DNA to the DOC for
analysis and storage in a data bank maintained by the GBI did not violate the
Fourth Amendment. Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir. 2005). In
assessing whether the statute was reasonable under the totality of the
circumstances, we held that “Georgia’s legitimate interest in creating a permanent
identification record of convicted felons for law enforcement purposes outweighs
the minor intrusion involved in taking prisoners’ saliva samples and storing their
DNA profiles, given prisoners’ reduced expectation of privacy in their identities.”
Id.
Later, in Maryland v. King, the Supreme Court held that Maryland’s DNA
statute was reasonable under the Fourth Amendment. Maryland v. King, 133 S. Ct.
1958, 1980 (2013). This statute permitted law enforcement officials to collect and
analyze DNA samples from individuals arrested and arraigned for certain felonies,
but required destruction of the samples if the charges were found to be unsupported
by probable cause, the defendant was acquitted, or the defendant’s conviction was
vacated or reversed. Id. The Court noted that the law was strictly for purposes of
identification. Id. at 1967. To determine reasonableness, the Court balanced the
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defendant’s legitimate expectations of privacy, the government’s significant
interest in the identification of arrestees, and DNA identification’s unmatched
potential to serve that interest. Id. at 1970, 1977-78, 1980. Ultimately, the Court
found that the taking of a DNA swab constituted a minor intrusion that did not
offend the defendant’s privacy expectations. Id. Consequently, the Court found
that collecting and analyzing DNA, like fingerprinting and photographing, was a
legitimate police booking procedure for serious offenses that was reasonable under
the Fourth Amendment. Id. at 1980.
Pursuant to the Georgia DNA Act:
Any person convicted of a felony offense who is held in a detention
facility or placed on probation shall at the time of entering the
detention facility or being placed on probation have a sample of his or
her blood, an oral swab, or a sample obtained from a noninvasive
procedure taken for DNA (deoxyribonucleic acid) analysis to
determine identification characteristics specific to the person . . . It
shall be the responsibility of the detention facility detaining or entity
supervising a convicted felon to collect the samples required by this
Code section and forward the sample to the division unless such
sample has already been collected by the department or another
agency or entity.
O.C.G.A § 35-3-165(b).
A DNA sample obtained in good faith shall be deemed as obtained in
accordance with the requirements of the Act. O.C.G.A § 35-3-160(b). Its use in
accordance is authorized until a court order directing expungement is obtained and
submitted to the GBI. Id.
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Georgia’s First Offender Act states that “[u]pon a verdict or plea of guilty or
a plea of nolo contendere, and before an adjudication of guilt,” in the case of a
defendant who has not been previously convicted of a felony, the court may,
“without entering a judgment of guilt . . . [d]efer further proceedings and either
place the defendant on probation or sentence the defendant to confinement.”
O.C.G.A. § 42-8-60(a). When the court imposes a sentence pursuant to the FOA,
it “[s]hall state in its sentencing order the prospective effective date of the
defendant being exonerated of guilt and discharged as a matter of law, assuming
the defendant successfully complies with its sentencing order, provided that such
date may not have taken into account the awarding of credit for time served in
custody.” O.C.G.A. § 42-8-60(c). The court may enter an adjudication of guilt
and proceed to sentence the defendant when, among other things, the defendant
violates the terms of his first offender probation. O.C.G.A. § 42-8-60(d). A
defendant sentenced under the FOA shall be exonerated of guilt and shall stand
discharged as a matter of law as soon as the defendant: (1) completes the terms of
his probation; (2) is released by the court prior to termination of his probation; or
(3) is released from confinement and parole, provided that the defendant is not
serving a split sentence. O.C.G.A. § 42-8-60(e).
Under the 2015 version of O.C.G.A. § 42-8-65(c), any person sentenced to a
term of confinement under the FOA shall be deemed to have been convicted of the
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offense during their term of confinement. O.C.G.A. § 42-8-65(c) (2015 version).
Currently, any defendant sentenced for an offense under the FOA shall not be
deemed to have been convicted during such sentence. O.C.G.A. § 42-8-65(c).
Under the exclusionary rule, evidence “derived from” police misconduct is
subject to exclusion as “fruit of the poisonous tree.” United States v. TerzadoMadruga, 897 F.2d 1099, 1112-13 (11th Cir. 1990). In considering whether
evidence is fruit of the poisonous tree that must be suppressed, we ask “whether,
granting establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (quotations omitted).
One exception to the exclusionary rule is the “good faith” exception set forth
by the Supreme Court in United States v. Leon, 468 U.S. 897, 922 (1984). The
Leon good faith exception extends to police officers acting in reasonable reliance
upon a search warrant that ultimately is found unsupported by probable cause.
United States v. Martin, 297 F.3d 1308, 1313 (11th Cir. 2002). It applies in all but
four limited sets of circumstances: (1) where the magistrate or judge in issuing a
warrant was misled by information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of the truth; (2)
where the issuing magistrate wholly abandoned his judicial role; (3) where the
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affidavit supporting the warrant is so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable; and (4) where,
depending upon the circumstances of the particular case, a warrant is so facially
deficient—in failing to particularize the place to be searched or the things to be
seized—that the executing officers cannot reasonably presume it to be valid. Id.
The district court did not err in denying Hinton’s motion to suppress. As an
initial matter, Hinton conceded that the initial collection of his DNA while serving
his FOA sentence was permissible. Instead, Hinton contends that the creation of
his DNA profile, its uploading and retention in CODIS after his incarceration
ended, and the running of a comparison to other profiles after his release from
incarceration violated his Fourth Amendment rights. We need not address whether
these actions constituted searches. Even assuming they were searches, they do not
violate the Fourth Amendment. Further, his argument that they violated Georgia
state law is unavailing, because federal law, not state law, governs the admissibility
of evidence in his case. Noriega, 676 F.3d at 1263 n.4.
Hinton’s Fourth Amendment rights were not violated because the potential
searches were reasonable when weighing his privacy interests against the
government’s interests served by the searches. Hinton’s status as a probationer (or,
earlier, his status as an incarcerated offender) informs both sides of the balancing
test. See Knights, 534 U.S. at 119. As a probationer at the time the GBI made its
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initial CODIS match, Hinton had a reduced expectation of privacy. Id. The fact
that Hinton was not technically convicted under state law is irrelevant, as the
reduced-liberty-for-probationers rationale in Knights did not turn on the
“conviction” status of probationers, but the fact that they were being sanctioned for
a criminal violation following a plea or finding of guilt. Id. Here, Hinton was
sanctioned for his FOA offense after pleading guilty. In contrast, the government
had a strong interest in creating a permanent identification record for convicted
felons for law enforcement purposes. See Padgett, 401 F.3d at 1280. Moreover, as
a probationer, the government holds a higher interest in retaining Hinton’s DNA
profile than that of an ordinary citizen in case of the commission of a future
offense. See Knights, 534 U.S. at 120-121. Consequently, when balancing these
interests, under the totality of the circumstances, uploading, retaining and running
a comparison of Hinton’s DNA profile in CODIS was reasonable and did not
violate the Fourth Amendment. Id. at 118-19.
Moreover, as none of the actions taken by law enforcement constituted a
violation of Hinton’s Fourth Amendment rights, the search warrants obtained to
take additional buccal swabs and seize and search his phone were not tainted, so as
to require suppressing the evidence they yielded. See Wong Sun, 371 U.S. at 488.
Accordingly, because the district court did not err in denying Hinton’s motion to
suppress, we affirm.
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AFFIRMED.

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