E.D.N.C.: DNA swab a search; taking a second was reasonable here

The taking of DNA by a buccal swab is a search, and here it would be reasonable. While the defendant concedes he was at the scene, he didn’t stipulate the issue away, so the government gets another buccal swab for DNA testing purposes. United States v. Alvarez-Herrera, 2014 U.S. Dist. LEXIS 55040 (E.D. N.C. April 21, 2014):

Here, the court finds the government’s request to take a saliva sample from Defendant to be reasonable and, thus, not violative of the Fourth Amendment. Defendant is charged with possession of a firearm and ammunition, aiding and abetting, and the government seeks to utilize the saliva sample to identify Defendant as being present when the victim was shot, which constitutes favorable and material evidence. While Defendant urges that “[h]e has admitted to having been present with the victim during the relevant time frame,” Def.’s Resp. at 1, the government persuasively argued at the hearing that Defendant has not stipulated to being present with the victim at the time of the shooting and the government is entitled to discovery of this evidence to corroborate the testimony of the law enforcement officer that took Defendant’s statement. See United States v. Acevedo, No. 12-10120-GAO, 2014 WL 1326544, at *4 (D. Mass. Mar. 28, 2014) (allowing government to take additional buccal swabs from defendants post-arrest to use for comparison to DNA samples taken from the crime scene). Moreover, the court notes that Congress has authorized the Attorney General to “collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States.” 42 U.S.C. § 14135a(a)(l)(A). See also Acevedo, 2014 WL 1326544, at *4 (“[T]he fact that just because a buccal swab was taken at the time of arrest does not preclude another sample.”) (citing King, 133 S.Ct. at 1965 (following the initial identification of King through CODIS as the perpetrator of the rape, additional DNA testing of King was performed to link King to the rape)).