MA: The Fourth Amendment does not prohibit taking a buccal swab for DNA to exclude a fraternal twin in an investigation

The Fourth Amendment does not prohibit taking a buccal swab for DNA to exclude a fraternal twin in an investigation. Commonwealth v. Kostka, 86 Mass. App. Ct. 69 (July 25, 2014):

In Commonwealth v. Draheim, 447 Mass. at 118, the Supreme Judicial Court considered the “novel question … whether or in what circumstances the Commonwealth can obtain a sample of physical evidence from the body of a third party” not suspected of a crime. The court held that, where third parties rather than suspects are involved, in order to respect their constitutional rights “the Commonwealth must show probable cause to believe a crime was committed, and that the sample will probably provide evidence relevant to the question of the defendant’s guilt. … Additional factors concerning the seriousness of the crime, the importance of the evidence, and the unavailability of less intrusive means of obtaining it are germane.” Id. at 119.

The Superior Court’s order reflects correct application of the Draheim standard. “In this case, the Commonwealth’s burden to show probable cause that a crime has been committed is easily met because [Timothy] has been indicted.” Ibid. The Commonwealth’s burden to “prove additionally that the saliva samples will probably provide evidence relevant to [Timothy’s] guilt,” ibid., is met by the judge’s findings that “the only definitive way the Commonwealth can establish that Timothy Kostka and Christopher Kostka are truly fraternal twins and not identical twins is through DNA testing” and that determination that Timothy’s DNA is unique as a contributing source of the DNA recovered from the crime scene is relevant to the question of Timothy’s guilt. Finally, the judge considered the influence of the additional factors of “the seriousness of the crime, the importance of the evidence, and the unavailability of less intrusive means of obtaining [the evidence],” Commonwealth v. Draheim, supra, observing that the crimes of armed home invasion and murder are unquestionably serious, that the evidence is plainly important to determine whether Timothy and Christopher are fraternal or identical twins, and that DNA testing is the only means to do so. There was no error in the allowance of the Commonwealth’s motion to compel; accordingly, entry of the judgment of contempt on Christopher’s refusal to comply with the order compelling him to provide a buccal swab was appropriate.