Although a buccal swab at the time of arrest or booking “does not increase the indignity already attendant to normal incidents of arrest,” King, 569 U.S. at 464, the same cannot be presumed nearly eight months after arrest, and five months after indictment. As a matter of legal principle, the hearsay nature of the assistant prosecutor’s certification is not problematic in and of itself. Hearsay has long been admissible in affidavits to support search warrants. An affidavit from a police officer familiar with the investigation would be preferable to an assistant prosecutor’s hearsay certification as support for an application for a buccal swab. Nevertheless, although a hearsay affidavit can support a probable cause determination, it may not, on its own, be sufficient to show probable cause. To establish probable cause, the certification or affidavit must contain facts which give the statement an appearance of trustworthiness. Thus, in circumstances like these, the hearsay certification or affidavit must at least establish the affiant’s basis of knowledge. Here, the certification failed to establish the basis for the assistant prosecutor’s knowledge and, thus, to provide sufficient indicia of reliability to support a motion to compel the buccal swab on its own.
Even if a supporting certification or affidavit establishes the basis of knowledge, it still must satisfy the substantive requirements of probable cause. Probable cause for the issuance of a search warrant requires a fair probability that contraband or evidence of a crime will be found in a particular place. In support of the motion, the assistant prosecutor did not provide a report, certification, or statement by a qualified investigator that there was a “fair probability” that the gun would bear defendant’s DNA. Therefore, the State did not establish probable cause that evidence of a crime would be found.
Defendant also argues that the State already had defendant’s DNA in CODIS and did not need a buccal swab for comparison. However, DNA samples related to possessory offenses are generally not eligible for upload in CODIS, and defendant’s charges are all possessory crimes. In any event, the search was improper because of the State’s failure to show probable cause.
In sum, the order to compel a buccal swab in this case needed to be predicated upon probable cause. To show probable cause in support of its motion for an order to compel, the State could rely on a hearsay affidavit that (1) set forth the basis of knowledge for the certification or affidavit and (2) established that there was a “fair probability” that defendant’s DNA was on the gun. Without such information, and considering the totality of the circumstances, the Appellate Division properly denied the State’s application.
This holding requires two essential elements to establish probable cause through hearsay. First, the affiant must establish a trustworthy basis of knowledge by, for example, stating that s/he obtained their assertions directly from an individual with firsthand knowledge of the facts. Second, the affiant must state that the individual with firsthand knowledge states that there is a fair probability that the evidence will be found in the place that is the subject of the search.
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