UT: Discovery order for DNA taking based on showing of PC was valid way to get it

Defendant was accused of burglary and aggravated assault, but he could not be identified by his victims. The state applied for a DNA collection order via the discovery rules, and defendant said he would not comply. Then an order was entered to take it by force if necessary. Defendant acceded and it was taken without force. His agreeing to take it without force was not consent. The discovery rule permits body evidence “subject to constitutional limitations,” and there was a showing of probable cause for this taking. State v. White, 2016 UT App 241, 2016 Utah App. LEXIS 253 (Dec. 15, 2016):

[*P22] We cannot agree with Defendant’s interpretation of the rule, which would effectively preclude the State from seeking information through discovery if that information could properly be the subject of a warrant. Instead, the rule grants the trial court considerable discretion to make discovery orders, so long as those orders comply with constitutional requirements. The constitutional requirement applicable to searches of a defendant’s person and seizure of his or her DNA is one of reasonableness: “The right of the people to be secure in their persons . . . against unreasonable searches and seizures shall not be violated ….” Utah Const. art. I, § 14.

[*P23] The most common way the law ensures that a search and seizure is reasonable is to require a warrant, which “shall [not] issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.” Id. Probable cause “undoubtedly requires a nexus between suspected criminal activity and the place to be searched.” State v. Dable, 2003 UT App 389, ¶ 5, 81 P.3d 783 (citation and internal quotation marks omitted). Probable cause is typically established by affidavit, as occurred here. In the present case, the suspected criminal activity was a man’s unlawful entry into Victim’s home and the ensuing altercation, which left blood on the clothes iron. The place to be searched was Defendant’s person via a buccal swab for DNA. The strong nexus between the criminal activity and the place to be searched was the match between the DNA in the blood found on the iron and Defendant’s preexisting DNA sample in Utah’s Combined DNA Index System. Probable cause existed for the retrieval of Defendant’s DNA, and we are confident that if the trial court had required the State to obtain a warrant—rather than granting the rule 16 motion—the State would have been readily able to do so. For this reason, we have no difficulty concluding that the trial court’s order complied with the “constitutional limitations” imposed on rule 16 discovery orders. See Utah R. Crim. P. 16(h).

Comment: I’ve been involved in more than a few of these. Often they just seek an order without a showing of need or justification. If, after objection, the state makes a probable cause showing, either on the record or in writing, they can get the DNA. I had one where it was argued they didn’t show PC and couldn’t have it. After a while they were able to get over the PC hurdle. Usually, however, they can readily show PC and I just agree that they made the showing and the order may issue.