D.D.C.: Probable cause and need shown for DNA sample seeking to connect defendant to violent crime

The government sought a DNA sample by buccal swab from several defendants to seek to connect them to physical evidence found at the scene of a kidnapping and assault with a box cutter. Only one opposed. The District Court held that taking a DNA sample was a search, and it had to be reasonable under Schmerber. Here, the government showed probable cause and need, and, balanced against the invasion of personal dignity involved, the court found the search reasonable. United States v. Lassiter, 607 F. Supp. 2d 162 (D. D.C. 2009):

Once probable cause has been established, Schmerber and Winston require balancing “the extent to which the procedure may threaten the safety or health of the individual,” and “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” against “the community’s interest in fairly and accurately determining guilt or innocence.” Winston v. Lee, 470 U.S. at 761-62 (citing Schmerber v. California, 384 U.S. at 770-71). The Court will consider the factors in turn.

As to the first factor, the government seeks to obtain the defendant’s DNA by taking a buccal cell swab from the defendant. This procedure involves rubbing a cotton swab along the inside of the defendant’s cheek. For good reason, defendant Hebron does not argue that this procedure poses any threat to his health or safety. Indeed, this procedure is considerably less invasive and poses less of a threat to the health and safety of the defendant than taking blood — the type of search that was permitted in Schmerber. See Johnson v. Quander, 440 F.3d at 496-97. The Court finds that this factor weighs in favor of the government and its request for the DNA sample.

As to the second factor, defendant argues that DNA contains “a plethora of very personal and sensitive information,” and thus the test should be considered “highly intrusive.” Opp. at 4. While there may be potential for misuse of stored DNA information, the purpose of taking Mr. Hebron’s DNA in this case is only to compare his identity with DNA recovered at the crime scene for purposes of the trial in this criminal case. As Judge Walton has noted, when DNA is sought for a limited purpose, a court may wait to consider challenges to other potential use or misuse of an individual’s DNA until those uses have actually occurred. See Johnson v. Quander, 370 F. Supp. 2d 79, 88 n. 6 (D.D.C. 2005) aff’d 370 U.S. App. D.C. 167, 440 F.3d 489. The government has not sought to use the DNA for any purpose other than for identification of defendant Hebron as one of the perpetrators of the offenses with which he is charged. Hypothetical privacy intrusions will not render the use of DNA for these purposes unreasonable. See id. This factor therefore also weighs in the government’s favor.

Finally, the Court must weigh the first two factors against the community’s interest in fairly and accurately determining guilt or innocence. Winston v. Lee, 470 U.S. at 762. Given the violent nature of the alleged acts in this case, the community’s interest in accurately determining guilt or innocence is particularly strong. Cf. United States v. Weston, 134 F. Supp. 2d 115, 132 (D.D.C. 2001). While the defendant argues that “the requested DNA sample is of little, if any, significance” to the ultimate resolution of this case, Opp. at 5, he cannot know this. If the DNA recovered from the crime scene does in fact match Mr. Hebron’s DNA, that evidence would be probative of the government’s assertion that Mr. Hebron was at the crime scene and participated in the assault of Mr. Lyles. Defendant also argues the government has failed to show a need for the sample because its evidence already includes the eyewitness testimony of the victim as well as the statements of various of the co-defendants. See id. Although the DNA evidence might be duplicative or corroborative of testimony given by the victim and others and their identification of Mr. Hebron as a participant in the charged crimes, DNA evidence is evidence of a different form and nature than eyewitness identification testimony and is not susceptible to the same type of reliability challenges. Under the circumstances presented, the Court concludes that the third factor also weighs in favor of the government.