MA: Conflict of laws: Blood draw in MD complied with requirements of MA law

Defendant was stopped while driving his victim’s car in Maryland, and the officer saw blood on him. Blood was drawn in Maryland and sent back to Massachusetts for testing. Defendant was not prejudiced by how the blood draw was done in Maryland, and it complied with the requirements of Massachusetts law. Commonwealth v. Banville, 457 Mass. 530, 931 N.E.2d 457 (2010):

At such a hearing the judge “must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other.” Id. at 836, quoting Matter of an Investigation into the Death of Abe A., 56 N.Y.2d 288, 291, 437 N.E.2d 265, 452 N.Y.S.2d 6 (1982). Such a hearing need not extend beyond affidavits and documentary evidence. Commonwealth v. Maxwell, 441 Mass. 773, 779, 808 N.E.2d 806 (2004). Written findings are preferred, but their absence “is not fatal where the record plainly supports the conclusion that any weighing of these factors would tilt heavily in favor of granting the Commonwealth’s [application for the search warrant].” Id. at 779 n.13. See Commonwealth v. Williams, 439 Mass. 678, 685-686, 790 N.E.2d 662 (2003). The defendant does not suggest that any of these procedures are required under Maryland law.

Here, the record reflects that the warrant application plainly satisfies Massachusetts evidentiary requirements. Murder and rape are serious crimes. DNA evidence that definitively identifies the victim’s blood or other bodily fluids on the defendant’s person, or his saliva on the victim’s body in areas suggesting sexual activity, is of great importance to the investigation. Finally, the intrusiveness of a buccal swab is minimal. See Commonwealth v. Maxwell; Commonwealth v. Williams, supra. Although there was no adversary hearing, the defendant has offered no argument that might have been made on his behalf at such a hearing, other than a contest of probable cause. If the Commonwealth had waited to apply for a warrant to obtain a buccal swab from the defendant, an adversary hearing would have been held and, based on the information in this application, a search warrant probably would have issued. The defendant has failed to show that the absence of an adversary hearing created a substantial likelihood of a miscarriage of justice.

This really begs the question: What if the blood draw was in complete accord with the other state’s law? What deterrence is there in Massachusetts for a Maryland law enforcement officer doing what is required of him?