Buccal Swab Warrants (Part 2)

by | Oct 31, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Court continued in relevant part: Defendant moved to dismiss the appeal as moot because it came to light that the gun was tested for DNA in 2016 and no DNA was found.  The Court now denies the motion, choosing to resolve this important constitutional question.

Although an affidavit of a police officer familiar with the investigation is preferable, a hearsay certification from an assistant prosecutor may support probable cause to compel a defendant to submit to a buccal swab if it sets forth the basis for the prosecutor’s knowledge.  Second, an affidavit or certification supporting probable cause to compel a buccal swab must establish a fair probability that defendant’s DNA will be found on the evidence.  Here, the State failed to show probable cause.

The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures.  In conducting a reasonableness analysis, a court must balance the intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate governmental interests.  Except in certain well-defined circumstances, a search or seizure is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.  New Jersey has adopted a totality-of-the-circumstances test to determine whether warrants are based on probable cause.

It is not disputed that a blood test or cheek swab for the purposes of obtaining a DNA sample is a search.  Although this case involves the “minimal intrusion” of a buccal swab, the circumstances under which the swab was sought are different from those the Supreme Court considered in Maryland v. King, 569 U.S. 435 (2013). Unlike the Maryland Legislature, the New Jersey Legislature has not provided authority to take a defendant’s buccal swab at any time prior to conviction except in specific circumstances. For that reason, it is necessary to consider the nature and quality of the evidence upon which the order was obtained. Here, the State relied upon an assistant prosecutor’s hearsay certification to support its motion to compel defendant to submit to a buccal swab.

The reference to the New Jersey Legislature making it more difficult to obtain a buccal swab than the Maryland Legislature will likely lead to a proposed bill in the New Jersey Legislature. Politicians love to appear to be tough on crime. Providing law enforcement with more DNA samples for use in solving crimes would be a popular move so long as it is viewed as a crime-fighting tool as opposed to an invasion of privacy.