No-knock and nighttime search warrant to gather DNA from person is excessive and suppressed as a violation of the Fourth Amendment. It wasn’t going anywhere. A Yankees cap was left at the scene of a robbery and shooting, and the DNA on the cap matched the DNA on defendant’s cell phone, also left at the scene. People v. Walker, 2014 NY Slip Op 2975, 2014 N.Y. App. Div. LEXIS 2907 (3d Dept. May 1, 2014):
The DNA evidence taken from defendant in April 2010 via a no-knock search warrant issued without notice to him when he was a suspect should have been suppressed. “[A] search warrant authorizing an intrusion into the human body for the purpose of obtaining corporeal evidence, such as bodily fluids for DNA analysis, is subject to the constraints of the Fourth Amendment” (People v Fomby, 103 AD3d 28, 29 [2012], lv denied 21 NY3d 1015 [2013]; see People v Smith, 95 AD3d 21, 24 [2012]). The guidelines for obtaining a search warrant for corporeal evidence are well established (see Matter of Abe A., 56 NY2d 288, 291 [1982]; People v Oliver, 92 AD3d 900, 901 [2012], lv denied 19 NY3d 965 [2012]; People v Pryor, 14 AD3d 723, 725 [2005], lvs denied 6 NY3d 779 [2006]; People v King, 232 AD2d 111, 116 [1997], lv denied 91 NY2d 875 [1997]). Significantly, where “there is ‘no exigency, … [then] frustration of the purpose of the application is not at risk’ and, in that case, ‘it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed'” (People v Fomby, 103 AD3d at 30, quoting Matter of Abe A., 56 NY2d at 296; see People v Smith, 95 AD3d at 25; see also Matter of Ford v Vaughan, 196 AD2d 869, 869 [1993]).
In his motion to suppress, defendant challenged the DNA swabbing that occurred in April 2010 as violative of his constitutional rights, stated that he did not consent to the search, and attached the search warrant application and the search warrant. The search warrant application to obtain DNA from defendant included the unsubstantiated and inaccurate allegations that the “search warrant cannot be executed between the hours of 6:00 A.M. and 9:00 P.M.,” “the property sought will be removed or destroyed if not seized forthwith,” and “[t]he property sought may be easily and quickly destroyed or disposed of.” There were no factual allegations reflecting exigent circumstances justifying the lack of any notice to defendant of the application to obtain a DNA sample from him. He could not destroy or dispose of his own DNA, and the People’s speculation in their brief that he might have fled was not alleged or supported by facts in the application.
The ensuing search warrant inconsistently stated both that it was to be executed between 6:00 a.m. and 9:00 p.m. and that it could be executed at any time day or night; and it further authorized police to enter the premises where defendant resided without giving notice of their authority or purpose. Under the authority of the warrant, police arrived unannounced at the place where defendant lived demanding his DNA. The total absence of notice to defendant of the search warrant application, which had obvious defects regarding the manner purportedly necessary to obtain defendant’s DNA, violated his constitutional rights and the DNA obtained in such search must be suppressed and the judgment reversed (see People v Fomby, 103 AD3d at 30; People v Smith, 95 AD3d at 25).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)