In New York, a search warrant for corporeal evidence allows the target to contest the probable cause before issuance and execution of the warrant on reasonableness and probable cause. Here, defendant didn’t challenge the probable cause, and the warrant could issue. It was otherwise reasonable. People v. Goldman, 2020 NY Slip Op 05977, 2020 N.Y. LEXIS 2515 (Oct. 22, 2020):
It is evident that Abe A.’s requirement of notice and an opportunity to be heard in the pre-execution stage of a warrant authorizing the seizure of evidence by bodily intrusion was satisfied in this case. Defense counsel, having received notice of the hearing on the warrant, was given an opportunity to be heard on the application, other than on the issue of probable cause. Counsel failed to direct any argument to the nature of the intrusion, the value of comparative DNA analysis evidence or the sufficiency of the safeguards preventing unwarranted disclosure of the results of his DNA testing, either at the hearing or in his motion to suppress. Given that “the utility of DNA identification in the criminal justice system is already undisputed” (569 US at 442), defendant could not mount a credible claim that the DNA evidence was unlikely to provide material evidence. The buccal swab—now a simple and common method for securing a convicted defendant’s DNA for inclusion in a computerized identification index (see Executive Law § 995-c)—is undeniably safe, consists of a minimal intrusion and involves no discomfort. The constitutional role of the neutral magistrate to determine whether probable cause of defendant’s commission of the crime and the factual basis for the DNA comparative evidence set forth in the warrant application required no supplemental adversarial process. Thus, the method and procedures employed in taking the saliva undoubtedly respected relevant Fourth Amendment standards of reasonableness, and defendant’s claim that the failure to provide him discovery of the extant probable cause and an adversarial hearing nonetheless warrants the invocation of the exclusionary rule is without constitutional basis.
Since defendant received notice and an opportunity to be heard on the nature of the bodily intrusion to be authorized by, and the evidence to be collected under, the warrant in this case, it is not necessary to address the People’s arguments that Abe A.’s notice procedure preceding the issuance of a search warrant is no longer required for the minimal intrusion occasioned by a buccal swab or that the notice procedure does not apply to a suspect who is in custody. Supreme Court properly denied the motion to suppress the DNA evidence.