MA: DNA swab taken by consent during arrest without PC is suppressed, but state can do it over on remand

Defendant was arrested for murder, handcuffed and taken in for interrogation, all without probable cause. His statement was suppressed, and the state fails to show that obtaining his buccal swab during this time would clear even the low bar for inevitable discovery. But, the state can get a do over on remand. Commonwealth v. Pinney, 2020 Mass. App. LEXIS 49 (May 11, 2020):

We acknowledge that this is a relatively low bar and that motions for a buccal swab are commonplace in the Superior Court and frequently allowed. But at the time, there was no motion before the judge explaining the relevance of the defendant’s buccal swab in this case. And the evidence at the hearing on the motion to suppress, absent the defendant’s statements, did not support a conclusion that discovery of the buccal swab was inevitable and certain as a practical matter.

. . .

n.8: Nothing in our decision should be interpreted as prohibiting the Commonwealth from seeking a court order for the defendant’s buccal swab on remand. Such an application, of course, cannot rely on evidence suppressed under our decision.

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