MA: Order for fraternal twin to give up DNA to eliminate him here was unreasonable for an inadequate showing; contempt reversed

“This court concluded that a Superior Court judge, in entering a judgment of contempt in a criminal case due to the refusal, by a third party who was not a suspect, to comply with an order compelling him to provide a buccal swab, erred in finding that the Commonwealth had met its burden of establishing that a sample of the third party’s deoxyribonucleic acid (DNA) probably would produce evidence relevant to the defendant’s guilt, where, weighing the seriousness of the charges against the defendant as well as the minimally intrusive nature of a buccal swab, the third party’s DNA was not so sufficiently relevant or important to the question of the defendant’s guilt as to outweigh the third party’s constitutional rights.” Commonwealth v. Kostka, 656, 471 Mass. 2015 Mass. LEXIS 393 (June 17, 2015):

“A government compelled buccal swab implicates the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches and seizures.” Commonwealth v. Draheim, 447 Mass. 113, 117, 849 N.E.2d 823 (2006), citing Commonwealth v. Maxwell, 441 Mass. 773, 777, 808 N.E.2d 806 (2004). While a buccal swab, which does not involve penetrating the skin, arguably is less intrusive than a blood sample, see Commonwealth v. Maxwell, supra at 777 & n.9, “the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the ‘seizure’ of the ‘person’ necessary to bring him into contact with government agents … and the subsequent search for and seizure of the evidence” (citation omitted). United States v. Dionisio, 410 U.S. 1, 8, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973).

Where the Commonwealth seeks to obtain a buccal swab from a third party who is not suspected of any crime, it bears the burden of establishing probable cause that a crime has been committed,7 and showing “that the sample will probably provide evidence relevant to the question of the defendant’s guilt.” Commonwealth v. Draheim, supra at 119, citing State v. Register, 308 S.C. 534, 538, 419 S.E.2d 771 (1992). Relevance alone, however, meaning simply that the evidence “render[s] the desired inference more probable than it would be without the evidence,” Green v. Richmond, 369 Mass. 47, 59, 337 N.E.2d 691 (1975), is not enough. “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.” Commonwealth v. Draheim, supra, citing Matter of Lavigne, 418 Mass. 831, 836, 641 N.E.2d 1328 (1994). A judge must weigh these factors against the third party’s constitutional right to be free from bodily intrusion. See id. See also State v. Register, supra (“only if this stringent standard is met” may intrusion be sustained).
. . .

We do not agree with the judge’s conclusion that the Commonwealth made an adequate showing. Its arguments for the relevance of Christopher’s DNA depend on Timothy being identified as a contributor to the DNA found under the victim’s fingernails. As noted, when the Commonwealth filed its motion, only the victim’s DNA had been so identified, and laboratory testing had not yet identified Timothy as even a potential contributor. Without evidence that Timothy’s DNA was found at the crime scene, Christopher’s DNA would serve no purpose. Even considering the information set forth in the Commonwealth’s supplemental affidavit, see note 6, supra, we are not persuaded that the Commonwealth has met its burden.