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State v. Gathers

Supreme Court of New Jersey

July 24, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
TARIQ S. GATHERS, Defendant-Respondent.

          Argued April 23, 2018

          On appeal from the Superior Court, Appellate Division, whose opinion is reported at 449 N.J.Super. 265 (App.Div. 2017).

          Stephanie Davis Elson, Assistant Prosecutor, argued the cause for appellant (Esther Suarez, Hudson County Prosecutor, attorney; Stephanie Davis Elson, on the briefs).

          Chanel J. Hudson, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Chanel J. Hudson, of counsel and on the briefs, and Caitlin Flood, Assistant Deputy Public Defender, on the briefs).

          Lila B. Leonard, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Lila B. Leonard, of counsel and on the brief).

          Joseph Paravecchia, Assistant Mercer County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney; Joseph Paravecchia and Laura Sunyak, Assistant Mercer County Prosecutor, of counsel and on the briefs).

          Tess Borden (American Civil Liberties Union of New Jersey) of the New York bar, admitted pro hac vice, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Rebecca Livengood, Alexander Shalom, Edward L. Barocas, and Jeanne M. LoCicero, on the brief).

         This interlocutory appeal raises two issues: (1) whether the State may rely solely on a hearsay certification to support a motion for an order to compel a buccal swab; and (2) whether the affidavit in this case provided sufficient probable cause to support the search.

         Two Jersey City police officers answered "a call of shots fired." While canvassing the area on foot, one of the officers discovered a Smith and Wesson .357 handgun on the ground. That same night, a detective responded to investigate reports that a male had been shot near the area where shots were allegedly fired. At the hospital, the detective encountered defendant who had sustained a bullet wound on his left leg. While officers examined defendant's pants, defendant said, "so I shot myself, that ain't no charge."

         Meanwhile, the Jersey City Bureau of Criminal Investigations/Crime Scene Unit processed the scene where the gun was found. An examination of the gun revealed "5 bullets and 1 shell case (spent)." The gun, bullets, and shell casing were dusted for latent fingerprints, and swabbed for DNA evidence. The police report stated that "the swabs will be prepared for submission to the N.J. State Police [Combined DNA Index System (CODIS)] lab[] for DNA profile, entry [into] CODIS and comparison to the data base." Ultimately, no fingerprints were retrieved from the gun or bullets. Three months later, a Hudson County grand jury indicted defendant for weapon possession offenses.

         Five months after defendant's indictment, the State moved for an order compelling defendant to submit to a buccal swab. In support of the motion, the State submitted an assistant prosecutor's certification that claimed, in part, that: "References are needed [sic] the defendant in order to make proper comparisons to the items of evidence which are currently being submitted to the New Jersey State Police." The trial court granted the State's motion, finding that taking a buccal swab is "at the very low level of being intrusive to one's body." The Appellate Division granted defendant's motion for leave to appeal and reversed the trial court's order. 449 N.J.Super. 265, 267 (App.Div. 2017). The panel reasoned that, even if the assistant prosecutor's hearsay certification could establish probable cause, the court's order authorized an "unreasonable search, chiefly because of the timing of the request," id. at 269-70, and because the New Jersey DNA Database and Databank Act of 1994 does not justify the intrusion, id. at 272. The Court granted the State's motion for leave to appeal. 230 N.J. 502 (2017).

         Defendant moved to dismiss the appeal as moot because it came to light that the gun was tested for DNA in 2016 and no DNA was found. The Court now denies the motion, choosing to resolve this important constitutional question.

         HELD: Although an affidavit of a police officer familiar with the investigation is preferable, a hearsay certification from an assistant prosecutor may support probable cause to compel a defendant to submit to a buccal swab if it sets forth the basis for the prosecutor's knowledge. Second, an affidavit or certification supporting probable cause to compel a buccal swab must establish a fair probability that defendant's DNA will be found on the evidence. Here, the State failed to show probable cause.

         1. The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. In conducting a reasonableness analysis, a court must balance the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests. Except in certain well-defined circumstances, a search or seizure is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. New Jersey has adopted a totality-of-the-circumstances test to determine whether warrants are based on probable cause. (pp. 11-13)

         2. It is not disputed that a blood test or cheek swab for the purposes of obtaining a DNA sample is a search. Although this case involves the "minimal intrusion" of a buccal swab, the circumstances under which the swab was sought are different from those the Supreme Court considered in Maryland v. King, 569 U.S. 435 (2013). Unlike the Maryland Legislature, the New Jersey Legislature has not provided authority to take a defendant's buccal swab at any time prior to conviction except in specific circumstances. For that reason, it is necessary to consider the nature and quality of the evidence upon which the order was obtained. Here, the State relied upon an assistant prosecutor's hearsay certification to support its motion to compel defendant to submit to a buccal swab. (pp. 13-15)

         3. Although a buccal swab at the time of arrest or booking "does not increase the indignity already attendant to normal incidents of arrest," King, 569 U.S. at 464, the same cannot be presumed nearly eight months after arrest, and five months after indictment. (pp. 15-16)

         4. As a matter of legal principle, the hearsay nature of the assistant prosecutor's certification is not problematic in and of itself. Hearsay has long been admissible in affidavits to support search warrants. An affidavit from a police officer familiar with the investigation would be preferable to an assistant prosecutor's hearsay certification as support for an application for a buccal swab. Nevertheless, although a hearsay affidavit can support a probable cause determination, it may not, on its own, be sufficient to show probable cause. To establish probable cause, the certification or affidavit must contain facts which give the statement an appearance of trustworthiness. Thus, in circumstances like these, the hearsay certification or affidavit must at least establish the affiant's basis of knowledge. Here, the certification failed to establish the basis for the assistant prosecutor's knowledge and, thus, to provide sufficient indicia of reliability to support a motion to compel the buccal swab on its own. (pp. 16-17)

          5. Even if a supporting certification or affidavit establishes the basis of knowledge, it still must satisfy the substantive requirements of probable cause. Probable cause for the issuance of a search warrant requires a fair probability that contraband or evidence of a crime will be found in a particular place. In support of the motion, the assistant prosecutor did not provide a report, certification, or statement by a qualified investigator that there was a "fair probability" that the gun would bear defendant's DNA. Therefore, the State did not establish probable cause that evidence of a crime would be found. (pp. 17-18)

         6. Defendant also argues that the State already had defendant's DNA in CODIS and did not need a buccal swab for comparison. However, DNA samples related to possessory offenses are generally not eligible for upload in CODIS, and defendant's charges are all possessory crimes. In any event, the search was improper because of the State's failure to show probable cause. (pp. 18-19)

         7. In sum, the order to compel a buccal swab in this case needed to be predicated upon probable cause. To show probable cause in support of its motion for an order to compel, the State could rely on a hearsay affidavit that (1) set forth the basis of knowledge for the certification or affidavit and (2) established that there was a "fair probability" that defendant's DNA was on the gun. Without such information, and considering the totality of the circumstances, the Appellate Division properly denied the State's application. (p. 19)

         AFFIRMED.

          OPINION

          SOLOMON JUSTICE

         This interlocutory appeal raises two issues: (1) whether the State may rely solely on a hearsay certification to support a motion for an order to compel a buccal swab; and (2) whether the affidavit in this ...


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