MA: No interlocutory appeal for defendant who said he’d resist taking DNA swab by force

Defendants were ordered to provide DNA by buccal swabs and sought interlocutory review. Defense counsel said that they would resist by force. The court said that it would deal with that issue if it arises, but an erroneous taking of DNA is remediable by appeal. Citing Maryland v. King, it’s not that great an intrusion. Commonwealth v. Bertini, 466 Mass. 131, 993 N.E.2d 654 (2013):

Further, the taking of a buccal swab itself, without more, is not a substantial bodily intrusion warranting interlocutory review under G. L. c. 211, § 3. See Gilday v. Commonwealth, supra (“Only in the most exceptional circumstances will we review interlocutory rulings in criminal cases under our general superintendence powers”). “[A] buccal swab is no more intrusive than the taking of a blood sample,” Commonwealth v. Maxwell, supra, which is itself a “relatively minor intrusion.” See Commonwealth v. Trigones, 397 Mass. 633, 641, 492 N.E.2d 1146 (1986). While the taking of a buccal swab implicates “the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches and seizures,” Commonwealth v. Maxwell, supra, it is, without more, not so significant an intrusion as to render the intrusion irreparable through the normal process of appeal. See Maryland v. King, 133 S. Ct. 1958, 1978, 186 L. Ed. 2d 1 (2013), quoting Bell v. Wolfish, 441 U.S. 520, 557, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (“expectations of privacy of an individual taken into police custody ‘necessarily [are] of a diminished scope'”).