IN: Penile swab for DNA without exigent circumstances was unreasonable; but harmless here

The police violated a juvenile rape suspect’s Fourth Amendment rights by getting his mother’s consent to a penile swab for DNA. The state’s showing of exigency was insufficient. This was harmless error here, however, where the victim ID’d him and his DNA was left on her and on a ski mask. Lee v. State, 967 N.E.2d 529 (Ind. App. 2012):

The absence of evidence that officers actually believed DNA was about to be destroyed might be due to a lack of evidence that would sufficiently support the State’s appellate claim that the officers did so believe, or it might be due to Lee’s failure to object and thereby press the State to present evidence thereof. In any event, our narrowly tailored holding is that sufficient evidence of exigent circumstances was not presented at trial. Because it is the State’s burden to present such evidence to overcome a presumption of unreasonableness, its failure to overcome that burden renders the admission of such evidence erroneous without another valid justification.

On appeal, the State compares this case to two cases from other jurisdictions in which officers apprehended suspects of sexual assaults soon after the crimes occurred and obtained penile swabs of the suspects in a manner such that appellate courts later held the swabs justified by exigent circumstances. See Kaliku v. U.S., 994 A.2d 765 (D.C. Cir. 2010); Ontiveros v. Texas, 240 S.W.3d 369 (Tex. App. 2007), petition stricken. We agree that the offenses under investigation in Kaliku and Ontiveros are similar to this case, and that the officers faced a similar situation in those cases as the officers did here. We conclude differently from Kaliku and Ontiveros because the evidence presented at Lee’s trial regarding officers’ thoughts and actions do not demonstrate they actually believed Lee might destroy any DNA evidence on his penis.

. . .

Detective Cress’s short statement that he would not allow Lee to wash his hands, without further elaboration, pales in comparison to the evidence presented in Kaliku and Ontiveros, and is insufficient to overcome the State’s burden to demonstrate officers actually held an objective, reasonable belief that evidence was about to be destroyed.9

9 Further, it should be noted that if officers wanted Lee’s DNA, exigent circumstances certainly did not exist because Lee’s DNA would not change and officers could have obtained a warrant and obtained his DNA later.