On July 24, 2018, the New Jersey Supreme Court decided the Hudson County case of State v. Tariq S. Gathers. The principal issue was whether a hearsay certification from an assistant prosecutor can support probable cause to compel a defendant to submit to a buccal swab.
Writing for a unanimous Court, Justice Solomon held in relevant part as follows: Two Jersey City police officers answered “a call of shots fired.” While canvassing the area on foot, one of the officers discovered a Smith and Wesson .357 handgun on the ground. That same night, a detective responded to investigate reports that a male had been shot near the area where shots were allegedly fired. At the hospital, the detective encountered defendant who had sustained a bullet wound on his left leg. While officers examined defendant’s pants, defendant said, “so I shot myself, that ain’t no charge.”
Meanwhile, the Jersey City Bureau of Criminal Investigations/Crime Scene Unit processed the scene where the gun was found. An examination of the gun revealed “5 bullets and 1 shell case (spent).” The gun, bullets, and shell casing were dusted for latent fingerprints, and swabbed for DNA evidence. The police report stated that “the swabs will be prepared for submission to the NJ State Police Combined DNA Index System (CODIS)] lab for DNA profile, entry into CODIS and comparison to the data base.” Ultimately, no fingerprints were retrieved from the gun or bullets. Three months later, a Hudson County grand jury indicted defendant for weapon possession offenses.
Five months after defendant’s indictment, the State moved for an order compelling defendant to submit to a buccal swab. In support of the motion, the State submitted an assistant prosecutor’s certification that claimed, in part, that: “References are needed [sic] the defendant in order to make proper comparisons to the items of evidence which are currently being submitted to the New Jersey State Police.” The trial court granted the State’s motion, finding that taking a buccal swab is “at the very low level of being intrusive to one’s body.” The Appellate Division granted defendant’s motion for leave to appeal and reversed the trial court’s order. 449 N.J. Super. 265, 267 (App. Div. 2017). The panel reasoned that, even if the assistant prosecutor’s hearsay certification could establish probable cause, the court’s order authorized an “unreasonable search, chiefly because of the timing of the request,” id. at 269-70, and because the New Jersey DNA Database and Databank Act of 1994 does not justify the intrusion, id. at 272. The Court granted the State’s motion for leave to appeal. 230 N.J. 502 (2017).
The defense did well to contest the state’s request for the buccal swab. Most attorneys just consent to the request with the condition that the swab occur “in a medically acceptable manner.”