NY3: No-knock and nighttime search warrant to gather DNA from person is excessive and suppressed

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).

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