VI: DNA request 15 months later wasn’t stale, but it was speculative and denied

There was no probable cause for obtaining a buccal swab for DNA 15 months after defendant’s arrest to attempt to link him to a gun. The best that the officers could say was that there may be trace evidence that would link him. It was not stale. This arose as a motion to compel which was treated as an adversarial request for a search warrant. In addition, Maryland v. King on drawing DNA from arrestees didn’t apply. People v. Turnbull, 2014 V.I. LEXIS 69 (Super. Ct. September 4, 2014):

The People’s motion to compel indicates that “[t]he purpose of the buccal swab would be to compare to a swabbing already taken from the firearm recovered on November 28, 2011 from the vehicle being driven by Defendant Jerome Turnbull.” People’s Second Mot. to Compel Saliva Specimens dated Mar. 18, 2013, at 1. However, this Court is constrained to the four corners of Detective Joseph’s affidavit in determining whether probable cause exists. According to Detective Joseph, the buccal sample “will be compared to any DNA that may be on [the firearm].” Joseph Aff. at ¶ u. (emphasis added). Significantly, Detective Joseph’s affidavit does not indicate that a comparison DNA sample has been recovered from the MAC-11.3 Performing a buccal swab procedure has no probability of linking Turnbull to criminal activity unless a comparison DNA sample actually exists on the firearm. “The interests in human dignity and privacy which the Fourth Amendment protects forbid [searches invading the human body] on the mere chance that desired evidence might be obtained.” Schmerber v. California, 384 U.S. 757, 769-770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (emphasis added). Here, a comparison sample of DNA found on the MAC-11 firearm may very well exist. However, absent evidence of such a sample in Detective Joseph’s supporting affidavit, this Court does not find probable cause exists that evidence of criminal activity may be discovered by compelling Turnbull to submit to buccal swabbing.4 Accordingly, this Court finds, as other courts have found, that “absent law enforcement’s recovery of [a] comparison sample of DNA, a buccal swab search warrant is unsupported by probable cause.” United States v. Myers, 2014 U.S. Dist. LEXIS 94449, *27, 2014 WL 3384697, at *8 (D. Minn. June 24, 2014); see also United States v. Marshall, 2012 U.S. Dist. LEXIS 101300, *7-8, 2012 WL 2994020, at *2-3 (W.D.N.Y. July 20, 2012) (opining that, because DNA recovered from firearm was not of sufficient quality to be used for comparison purposes, the government failed to meet its burden to compel DNA samples from defendants even under a reasonable suspicion standard); Cf. People v. Treece, 159 Ill. App. 3d 397, 511 N.E.2d 1361, 1367-68, 111 Ill. Dec. 66 (Ill. App. Ct. 1987) (finding probable cause to obtain DNA sample from defendant accused of sex crime when comparison samples of hairs and spermatozoa were discovered at scene).

As to Maryland v. King:

In summation, the procedure addressed in King is: (1) authorized by statute; (2) part of a routine booking procedure; (3) applied to individuals charged with crimes of violence, attempted crimes of violence, burglaries, and attempted burglaries; (4) specifically designed to deprive individual officers of discretion as to who to search; (5) limited and allowed only for identification purposes; and (6) contains statutory safeguards for arrestees when probable cause is not found at arraignment or a conviction is not obtained and upheld.

In contrast, here: (1) warrantless collection of DNA samples from arrestees is not authorized by statute; (2) the People are seeking to compel a buccal swab several years after arrest rather than as part of a routine booking procedure; (3) the Legislature has explicitly required that DNA samples not taken from designated offenders must have been obtained pursuant to a warrant; (4) the officers involved are exercising discretion in seeking a sample of Turnbull’s DNA; and (5) the DNA sample is sought for investigatory purposes rather than to identify an individual in custody. Further, in King, after the initial DNA sample linked King to an unsolved rape, officers obtained a search warrant to procure a second DNA sample. King 133 S. Ct. at 1966. Even in King, when the taking of the sample was not authorized by statute as part of a routine booking procedure, the police obtained a search warrant with the first sample establishing probable cause for the second sample.

In situations like the one before this Court, when the facts are significantly different from the facts of King, courts have found that King does not control and that a search warrant supported by probable cause is required to obtain a buccal swab. See, e.g., Brown v. Conrado, 2014 U.S. Dist. LEXIS 22488, *7-8, 2014 WL 772803, at *3 (C.D. Cal. Jan 8, 2014) (opining that King is not controlling when DNA swab was not collected as part of a routine booking procedure to comply with state law and when collection was performed to use in the criminal case against the defendant long after he was taken into custody); see also United States v. Martinez, 982 F. Supp. 2d 421, 430-31 (E.D. Pa. 2013) (stating that the Government’s burden at a suppression hearing was not altered by King where a buccal swab was taken on less than probable cause pursuant to an Emergent Order authorizing police to detain defendant to obtain his physical characteristics); United States v. Calhoun, 2013 U.S. Dist. LEXIS 103567, *4-5, 2013 WL 3833206, at *1 (D. Az. July 24, 2013) (opining that King did not apply when the government requested DNA swabs of defendant eight months after arrest because it was clearly not part of a routine booking procedure to help officers process and identify the defendant in a safe and accurate way). The Court holds that King is not the controlling law on this issue and that the People must obtain a search warrant in order to compel an individual to submit saliva samples unless the individual is otherwise required to do so under the Virgin Islands DNA Database and Databank Act.