Court order for DNA on less than probable cause violates Fourth Amendment. United States v. Martinez, 2013 U.S. Dist. LEXIS 144499 (E.D. Pa. October 7, 2013):<\/p>\n
<\/p>\n
In 2011, Defendant Edgardo Martinez, a suspect in a 2006 New Jersey homicide, was detained in Philadelphia by police who were executing an “Emergent Order for Investigative Detention” to collect Defendant’s DNA. Under New Jersey law, such an “Emergent” Order\u2014 once signed by a New Jersey Superior Court Judge\u2014authorizes the police, on less than probable cause, to detain a suspect to obtain evidence of his “physical characteristics.” After stopping Defendant pursuant to the Order, officers took a buccal swab, which indicated that Defendant’s DNA did not link him to the 2006 homicide. Officers found a loaded firearm in his waistband, however, and a full magazine for the weapon in his car. As a result, Defendant has been charged with possession of a firearm by a convicted felon. 18 U.S.C. \u00a7\u00a7 922(g)(1) and 924(e).<\/p>\n
The “Emergent” Order\u2014obtained and executed some five years after the 2006 homicide\u2014was supported by the Affidavit of a New Jersey Detective, who sought the review of a Philadelphia Assistant District Attorney and a Common Pleas Court Judge. Remarkably, the Assistant District Attorney and the Judge approved the document even though no such Emergent Order exists under Pennsylvania law, even though the Order includes an explicit finding of less than probable cause to detain Defendant forcibly for up to five hours, and even though the Affidavit\u2014stripped of its misleading, incredible, and confusing observations\u2014plainly does not make out probable cause.<\/p>\n
Defendant moves to suppress the gun and magazine. Because the Emergent Order is not based on probable cause, and because the good faith exception does not apply, I will grant Defendant’s Motion.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
b2evALnk.b2WPAutP Continue reading