NJ Supreme Court Rules on Obtaining a Second DNA Buccal Swab After the First was Suppressed
October 6, 2019 - Posted by Larry E. Holtz, Esq.
Are there any circumstances under which the police may obtain a new buccal swab for DNA, when the previously obtained sample was declared unlawfully obtained and suppressed? In State v. Camey (N.J. 2019), the New Jersey Supreme Court said yes!
THE CASE: Defendant Rafael Camey was charged with murder. Passaic police discovered the victim’s lifeless body behind a supermarket and swabbed it for DNA evidence. “The victim had been brutally beaten and was partially disrobed; the cause of her death was blunt force trauma and drowning.”
The investigation led police to search for a particular violent individual with whom the victim had been seen. To try to solve the crime, the police swabbed multiple individuals for DNA including defendant. Defendant’s DNA profile matched the DNA found in the victim.
The trial court granted defendant’s motion to suppress the DNA results from a buccal swab obtained on the basis of invalid consent. The trial court also determined that the evidence was inadmissible under inevitable discovery exception. In ruling on this part of the case, the New Jersey Supreme Court agreed that the police violated the Fourth Amendment in the way they obtained defendant’s DNA, and therefore, the results from that search could not be used.
When the State filed a separate application under Rule 3:5A-4 to take a second buccal swab from defendant, the trial court again turned to the framework of an inevitable discovery analysis and rejected the application. This time, however, our Supreme Court disagreed with the analysis. Said the Court:
"DNA evidence, however, is immutable. It is unlike a completed search of a home in which the police already removed contraband—a search that cannot be repeated. After a person is swabbed for DNA, of course, his DNA remains intact. It will be the same ten years from now as it was several years ago. …"
"DNA is not an item like guns, drugs, or documents. DNA is different in that immutable evidence lives on. Always. And the breadth of it extends beyond the swab. A new DNA sample might provide the same information as the original sample, but each sample is evidence in its own right. … The State’s request to compel a new sample must therefore be viewed for what it truly is: a request to obtain a new buccal sample—new evidence—notwithstanding that it will lead to the same uniquely identifying information that DNA provides. That one’s identity does not change and is revealed through DNA does not alter the fact that it is still a new sample. …"
"The application for a second buccal swab from defendant calls into question the standard to which the State should be held when making an application for a judicially sanctioned swab as part of an investigative detention[,] after the State’s previous swab—secured through an unconstitutional search and seizure—was excluded. …"
Thus, this appeal “raises a novel question: Under what circumstances, if any, may the police apply to conduct a new search for immutable evidence like DNA? Is a suspect’s DNA off-limits to law enforcement for all time if an initial search was invalid? Or, are there situations in which law enforcement may seek a new buccal swab to examine a person’s DNA?”
Using the “independent source” doctrine to analyze the question and frame an appropriate test, the Court held:
"To apply for a new buccal swab for DNA evidence under Rule 3:5A[,] that the State must demonstrate probable cause for the new search. That showing may include evidence that existed before the initial invalid search, but the showing cannot be tainted by the results of the prior search. In addition, to deter wrongdoing by the police, the State must show by clear and convincing evidence that the initial impermissible search was not the result of flagrant police misconduct. The approach adopted protects a suspect’s constitutional rights and recognizes the legitimate public interest in a fair assessment of whether a second buccal swab sample should be allowed."
In this case, the Court affirmed the suppression of DNA evidence from the first buccal swab. The State’s application for a second buccal swab, however, called for a remand to the trial court for a proper analysis of the State’s application to take a new buccal swab from defendant.
Are there any circumstances under which the police may obtain a new buccal swab for DNA, when the previously obtained sample was declared unlawfully obtained and suppressed? In State v. Camey (N.J. 2019), the New Jersey Supreme Court said yes!
THE CASE: Defendant Rafael Camey was charged with murder. Passaic police discovered the victim’s lifeless body behind a supermarket and swabbed it for DNA evidence. “The victim had been brutally beaten and was partially disrobed; the cause of her death was blunt force trauma and drowning.”
The investigation led police to search for a particular violent individual with whom the victim had been seen. To try to solve the crime, the police swabbed multiple individuals for DNA including defendant. Defendant’s DNA profile matched the DNA found in the victim.
The trial court granted defendant’s motion to suppress the DNA results from a buccal swab obtained on the basis of invalid consent. The trial court also determined that the evidence was inadmissible under inevitable discovery exception. In ruling on this part of the case, the New Jersey Supreme Court agreed that the police violated the Fourth Amendment in the way they obtained defendant’s DNA, and therefore, the results from that search could not be used.
When the State filed a separate application under Rule 3:5A-4 to take a second buccal swab from defendant, the trial court again turned to the framework of an inevitable discovery analysis and rejected the application. This time, however, our Supreme Court disagreed with the analysis. Said the Court:
"DNA evidence, however, is immutable. It is unlike a completed search of a home in which the police already removed contraband—a search that cannot be repeated. After a person is swabbed for DNA, of course, his DNA remains intact. It will be the same ten years from now as it was several years ago. …"
"DNA is not an item like guns, drugs, or documents. DNA is different in that immutable evidence lives on. Always. And the breadth of it extends beyond the swab. A new DNA sample might provide the same information as the original sample, but each sample is evidence in its own right. … The State’s request to compel a new sample must therefore be viewed for what it truly is: a request to obtain a new buccal sample—new evidence—notwithstanding that it will lead to the same uniquely identifying information that DNA provides. That one’s identity does not change and is revealed through DNA does not alter the fact that it is still a new sample. …"
"The application for a second buccal swab from defendant calls into question the standard to which the State should be held when making an application for a judicially sanctioned swab as part of an investigative detention[,] after the State’s previous swab—secured through an unconstitutional search and seizure—was excluded. …"
Thus, this appeal “raises a novel question: Under what circumstances, if any, may the police apply to conduct a new search for immutable evidence like DNA? Is a suspect’s DNA off-limits to law enforcement for all time if an initial search was invalid? Or, are there situations in which law enforcement may seek a new buccal swab to examine a person’s DNA?”
Using the “independent source” doctrine to analyze the question and frame an appropriate test, the Court held:
"To apply for a new buccal swab for DNA evidence under Rule 3:5A[,] that the State must demonstrate probable cause for the new search. That showing may include evidence that existed before the initial invalid search, but the showing cannot be tainted by the results of the prior search. In addition, to deter wrongdoing by the police, the State must show by clear and convincing evidence that the initial impermissible search was not the result of flagrant police misconduct. The approach adopted protects a suspect’s constitutional rights and recognizes the legitimate public interest in a fair assessment of whether a second buccal swab sample should be allowed."
In this case, the Court affirmed the suppression of DNA evidence from the first buccal swab. The State’s application for a second buccal swab, however, called for a remand to the trial court for a proper analysis of the State’s application to take a new buccal swab from defendant.