NY4: Buccal swab for DNA requires a court order without consent

Buccal swab for DNA requires a court order if defendant doesn’t consent. People v Smith, 95 A.D.3d 21, 940 N.Y.S.2d 373, 2012 NY Slip Op 1896 (4th Dept. 2012):

An order compelling an individual to provide corporeal evidence, such as blood or saliva for DNA analysis, constitutes a search and seizure within the meaning of the Fourth Amendment (see Skinner v Railway Labor Executives’ Assn., 489 U.S. 602, 618; Schmerber v California, 384 U.S. 757, 767; Matter of Abe A., 56 NY2d 288, 295). Although no New York statute expressly authorizes courts to compel uncharged suspects to supply a DNA sample (see Abe A., 56 NY2d at 293-294; cf. CPL 240.40 [2]), the Court of Appeals has held that a court may issue an order to obtain a blood sample from a suspect so long as the People establish: “(1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court 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. Only if this stringent standard is met … may the intrusion be sustained” (Abe A., 56 NY2d at 291). Here, the court determined that the People satisfied the requirements of Abe A. set forth above, and defendant does not expressly challenge that determination. Rather, defendant contends that (1) he was denied due process because the second order compelling defendant to provide a buccal swab was not made upon notice to him; and (2) the method of collecting the swab, i.e., the use of the taser, was excessive and objectively unreasonable. We agree with defendant on both counts, and thus that reversal is required.