14-2-2814 State v. Gathers, N.J. Super. App. Div. (Fisher, P.J.A.D.) (13pp)
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
A case was recently decided by New Jersey Appellate Division in which the Court ruled a buccal (mouth) swab, taken from a defendant while he awaited trial, was unreasonable. In this case, the defendant was charged with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). The State moved for an order authorizing a buccal swab of defendant’s mouth while he was in jail awaiting trial. The swab would be used to compare possible DNA evidence found on the handgun at the scene of the crime.
The only support for this motion was an assistant prosecutor’s certification which consisted of nothing but hearsay, to which he had no personal knowledge of the events, and the others who were quoted by the assistant prosecutor may not even have had personal knowledge. In order for a court to grant a motion like this, there needs to be probable cause supported by factual evidence. Proper factual evidence would be quoting an individual with personal firsthand knowledge of the facts asserted. Hearsay on the other hand, an out of court statement made for the truth of the matter, cannot be admitted into evidence. Therefore, there was no factual evidence to support claim that probable cause existed.
Nonetheless, even if the court assumed that the facts were correct, the search and seizure ordered by the trial court would still be unreasonable. First, there is no question that entering and removing biological material from an individual’s mouth constitutes a search and seizure. Second, the measure of a governmental search is “reasonableness” which is assessed by comparing law enforcement needs with the individual’s expectation of privacy and the depth of the intrusion. Buccal swabs such as this are very minor intrusions. However, the timing of this request was unreasonable. If the search had been requested at the time of the arrest, it would have been more reasonable since an arrestee has an expectation of being searched. Rather, this occurred 8 months after the arrest. The timing of this request is for mere convenience, and therefore was unreasonable.
Further, the DNA Act N.J.S.A. 53:1-20.17 to -20.37, which gives the State the authority to collect DNA, also prohibits collecting DNA more than one time. The State had already collected DNA evidence from the defendant from a prior conviction.
In conclusion, this buccal swab request was
- not supported by any factual evidence, only hearsay
- unreasonable because of the time lapse after arrest, and
- unreasonable because the State had already collected the defendant’s DNA from a prior conviction.