IN THE MATTER OF THE INVESTIGATION OF BURGLARY AND THEFT (15-020585, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0228-18T1
IN THE MATTER OF THE
INVESTIGATION OF BURGLARY
AND THEFT.
_________________________________
Argued November 5, 2018 – Decided November 28, 2018
Before Judges Sabatino, Haas and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. 15-020585.
Shiraz I. Deen, Assistant Prosecutor, argued the cause
for appellant State of New Jersey (Bradley D.
Billhimer, Ocean County Prosecutor, attorney; Samuel
J. Marzarella, Chief Appellate Attorney, of counsel;
Shiraz I. Deen, on the briefs).
Brian P. Keenan, Assistant Deputy Public Defender,
argued the cause for respondent J.P. (Joseph E.
Krakora, Public Defender, attorney; Brian P. Keenan,
of counsel and on the brief).
Lila B. Leonard, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New
Jersey (Gurbir A. Grewal, Attorney General, attorney;
Lila B. Leonard, of counsel and on the brief).
PER CURIAM
On leave granted, the State appeals the trial court's August 1, 2018 order
denying its motion under Rule 3:5A-4 to authorize the investigative detention
of J.P., an individual who is suspected of committing burglary and theft. The
State sought the court's permission to detain J.P. for the purposes of obtaining a
DNA sample from him through a buccal swab. 1 The State contends it needs the
DNA sample from J.P. because the DNA sample or samples for him already on
file in the DNA database may not be admissible at an eventual trial due to chain-
of-custody concerns.
The trial court concluded in a written opinion that the State had failed to
make a sufficient showing to detain J.P. and obtain his sample. Specifically, the
trial court found the State did not satisfy Rule 3:5A-4(d), which requires the
State to demonstrate "the physical characteristics sought [from the person]
cannot otherwise practicably be obtained."
1
"[A] buccal cell collection involves wiping a small piece of filler paper or
cotton swab similar to a Q-tip against the cheek of an individual to collect some
skin cells. The procedure is quick and painless. The swab touches inside an
arrestee's mouth, but it requires no 'surgical intrusio[n] beneath the skin,' and it
poses no 'threa[t] to the health or safety' of arrestees." Maryland v. King, 569
U.S. 435, 444 (2013) (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).
A-0228-18T1
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For the reasons that follow, we affirm the trial court's order. However,
we do so without prejudice to the State's right to file a new application in the
trial court to obtain a sample from J.P., who is presently in the State's custody
and who will not be released until 2020, if and when it charges him with these
offenses.
I.
The State's factual contentions are derived from an affidavit by Sergeant
Chase Messer of the Lakewood Township Police Department. We set forth the
contentions most pertinent to our analysis.
On March 20, 2015, at approximately 12:34 a.m., Lakewood Township
police officers were dispatched to a building on Madison Avenue after an alarm
was activated. When the police officers arrived, they spoke with a woman. She
informed the officers that she heard a window smash and observed a man
approximately 5'8" tall with a thin build and hooded sweatshirt running through
her yard and towards Main Street. The woman informed the officers she had
observed the man throw a pair of light blue gloves into a trash can in front of
her house.
The officers searched the immediate area, but were unable to locate the
suspect. Upon a search of the building, the officers noticed a broken window
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next to the rear door and some dollar bills located on the ground by the steps.
An officer located the light blue gloves inside the trash can.
The Ocean County Sherriff's Department Crime Scene Investigations
("CSI") Unit responded to the scene. The CSI unit processed the gloves for
DNA, and submitted a DNA sample to the New Jersey State Police ("NJSP")
Office of Forensic Sciences.
Sergeant Messer thereafter received a notification letter from the NJSP
Office of Forensic Sciences (known as the Combined DNA Index System
"'CODIS' lab") informing him of a possible investigative lead on the DNA
sample retrieved from the blue gloves. The letter from the CODIS lab reported
an "investigative hit" for J.P., and requested that a buccal swab "reference
sample" from J.P. be submitted for comparison.
On June 13, 2018, the State moved for an investigative detention of J.P.,
seeking to have a buccal swab recovered from him and sent to the CODIS lab
for analysis. Sergeant Messer averred in his affidavit that he has "probable cause
to believe and does believe that the DNA samples of [J.P.] will constitute
evidence or tend to show violations of the penal laws of New Jersey." The
sergeant added that a "buccal swab of the accused can be used by the [NJSP] to
develop genetic profiles to compare to the evidence previously seized, which
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were potentially used by the accused, [and] worn by the accused in the
commission of the above referenced offenses." The affidavit requested a court
order authorizing the Ocean County Sheriff's Department "Criminalistics Unit"
to obtain a fresh buccal swab from J.P.
Relying on the sergeant's affidavit, the State moved under Rule 3:5A-4
and requested J.P.'s investigative detention in order to obtain a DNA sample
from him. Represented by counsel, J.P. opposed the State's request, arguing that
the State did not satisfy the four-part test set forth in Rule 3:5A-4(a) to (d).
After a hearing, Presiding Criminal Judge Wendel E. Daniels denied the
State's motion in a written decision. The judge noted that Rule 3:5A-4 sets forth
the requirements for issuing an order for investigative detention. The Rule
closely tracks the standards prescribed by the New Jersey Supreme Court in
State v. Hall, 93 N.J. 552 (1983).
Rule 3:5A-4 provides:
An order for investigative detention shall be issued only
if the judge concludes from the application that:
(a) a crime has been committed and is under active
investigation, and
(b) there is a reasonable and well-grounded basis from
which to believe that the person sought may have
committed the crime, and
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(c) the results of the physical characteristics obtained
during the detention will significantly advance the
investigation and determine whether or not the
individual probably committed the crime, and
(d) the physical characteristics sought cannot otherwise
practicably be obtained.
[(Emphasis added).]
Judge Daniels concluded the first prong of the Rule was met, based on the
information contained in the sergeant's affidavit and the ongoing active
investigation by the Ocean County Prosecutor's Office. The judge also found
the second prong of the Rule was met, based on the sergeant's affidavit, the
general description of the suspect provided by one of the victims, and the initial
"hit" notification from the CODIS lab identifying J.P. as a potential lead. Next,
the judge found the third prong of the Rule was satisfied because the gloves
located near the scene of the offenses contained DNA that could be compared
with a DNA sample from J.P., a process that would help to confirm that the
gloves used in the burglary and theft belonged to or had been used by J.P.
However, the judge found that the fourth prong of Rule 3:5A-4 was not
satisfied. As part of his analysis of that prong, the judge discussed the
implications of a recent New Jersey Supreme Court case, State v. Gathers, 234
A-0228-18T1
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N.J. 208 (2018), which concerned the New Jersey DNA Database and Databank
Act of 1994, N.J.S.A. 53:1-20.17 to -20.26 ("the DNA Act").
Specifically, Judge Daniels found the State had failed to establish that
J.P.'s DNA cannot be obtained through other "practicable" means. The judge
reasoned that J.P.'s DNA is already available for the State to conduct
comparative testing with the DNA found on the blue gloves, because two DNA
samples had been previously collected from J.P. and presumably were in the
DNA database. The first sample was collected from J.P. after an unrelated
felony conviction in 2015. The second was taken from J.P. by the Department
of Corrections ("DOC") in April 2018, after he was incarcerated for violating
the terms of his parole.2
The State argued it must establish a proper chain of custody for the
evidential use of the DNA sample in a potential criminal trial against J.P. The
State emphasized that, in accordance with customary practices, the samples
taken from J.P. were sent to the State Police lab testing not by hand delivery but
via mail. That raises the possibility that defense counsel in a future criminal
prosecution might seek to suppress the DNA results due to an unreliable chain
2
As we have already noted in the introductory portion of this opinion, counsel
represented to us at oral argument that J.P. is not expected to be released from
the State's custody for an unrelated parole violation until the year 2020.
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of custody. The State further underscored that State Police policies require law
enforcement agencies to obtain a proper and admissible fresh DNA sample in
these circumstances. Thus, the State argued, under subsection (d) of the
investigative detention Rule, the State's reliance at trial on a previously drawn
sample from J.P. was not "practicable."
Judge Daniels found these arguments unpersuasive. He concluded the
State had failed to establish the present necessity of obtaining a fresh DNA
sample from J.P. Among other things, the judge found the State had not
provided sufficient grounds to call into question the chain of custody of the
existing sample or samples.
Following the judge's denial of its application, the State moved for leave
to appeal, which we granted. We also granted the Attorney General's unopposed
motion to allow his office to participate in the appeal as an amicus.
II.
The pivotal question before us is whether the State has satisfied the fourth
prong of Rule 3:5A-4, as expressed in subsection (d), i.e., whether "the physical
characteristics sought [from J.P.] cannot otherwise practicably be obtained." 3
3
We agree with the trial court that the first three prongs of the Rule in
subsections (a), (b), and (c) are satisfied.
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Although J.P. is already in the State's custody for another offense, the
State wishes to "detain" him for the purposes of taking a fresh DNA sample.
The State insists it cannot otherwise "practicably" obtain a DNA sample from
him that would yield comparative tests admissible in court, because the prior
samples taken from him have a possibly unreliable chain of custody. The State's
arguments implicate the DNA Act, which we now proceed to discuss.
A.
The DNA Act requires persons convicted of certain offenses to provide
samples of blood or biological matter for DNA profiling and for use in
connection with subsequent criminal investigations. The Act requires the NJSP
to record, store, and maintain the characteristics of DNA samples in the State
DNA database. The DNA sample itself is stored and maintained in the State
DNA databank. See N.J.S.A. 53:1-20.21.
The enumerated "mandatory" offenses requiring a person to submit a DNA
sample are set forth in N.J.S.A. 53:1-20.20(a) to (i). Subsections (a) to (c)
require defendants arrested, convicted, found not guilty by reason of insanity,
or juveniles adjudicated delinquent of serious sexual offenses to submit a DNA
sample. N.J.S.A. 53:1-20.20(a) to (c). Subsections (d) through (f) require
defendants arrested, convicted, found not guilty by reason of insanity, or
A-0228-18T1
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juveniles adjudicated delinquent of murder, manslaughter, aggravated assault of
the second degree, kidnapping, luring or enticing a child, engaging in conduct
tending to debauch or impair the morals of a child, or an attempt of any of these
crimes, to submit a DNA sample. N.J.S.A. 53:1-20.20(d) to (f).
Subsections (g) and (h) require defendants convicted, found not guilty by
reason of insanity, or juveniles adjudicated delinquent of "of a crime or a
specified disorderly person offense" to submit a DNA sample. 4 N.J.S.A. 53:1-
20.20(g) to (h). The statute contains no mandate that persons arrested for
offenses enumerated in subsections (g) and (h) be required to submit a DNA
sample.5
4
The Act defines a "specified disorderly persons offense" as: "assault
constituting domestic violence as defined . . . in N.J.S.A. 2C:25-19; prostitution
pursuant to N.J.S.A. 2C:34-1; any disorderly persons offense relating to
narcotics or dangerous drugs for which a person is required to be fingerprinted
pursuant to . . . N.J.S.A. 53:1-18.1, excluding possession of 50 grams or less of
marijuana, including any adulterants or dilutants, or five grams or less of hashish
under N.J.S.A 2C:35-10; or any other disorderly persons offense for which a
person is required to be fingerprinted pursuant to N.J.S.A. 53:1-15. A 'specified
disorderly persons offense' shall not include shoplifting pursuant to
N.J.S.2C:20-11." N.J.S.A. 53:1-20.20(h).
5
The Legislature amended the Act in 2011 to include samples from persons
arrested for certain violent offenses. See 2011 N.J. Sess. Law Serv. Ch. 104.
(SENATE 737); see also N.J. S. Comm. Statement, S.B. 737 (Mar. 18, 2010)
(acknowledging that the amendment would expand "the State's DNA database
to include DNA samples from persons arrested for certain violent crimes").
A-0228-18T1
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Lastly, and most relevant to this case, subsection (i) provides: "[n]othing
in this [A]ct shall be deemed to limit or preclude collection of DNA samples as
authorized by court order or in accordance with any other law." N.J.S.A. 53:1-
20.20(i) (emphasis added). Although not explicitly stated in the statute, DNA
samples submitted pursuant to a court-ordered investigative detention under
Rule 3:5A-4 would logically fall into this category.
Here, J.P. has not yet been arrested for the burglary and theft incidents,
let alone convicted, and therefore he would not qualify under subsections (a)
through (h) for mandatory DNA sampling. Therefore, only subsection (i)
applies to this appeal.
The DNA Act further provides that DNA test results "shall be used" for
the following purposes:
a. For law enforcement identification purposes;
b. For development of a population database;
c. To support identification research and protocol
development of forensic DNA analysis methods;
d. To assist in the recovery or identification of
human remains from mass disasters or for other
humanitarian purposes;
e. For research, administrative and quality control
purposes;
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f. For judicial proceedings, by order of the court, if
otherwise admissible pursuant to applicable statutes or
rules;
g. For criminal defense purposes, on behalf of a
defendant, who shall have access to relevant samples
and analyses performed in connection with the case in
which the defendant is charged; and
h. For such other purposes as may be required under
federal law as a condition for obtaining federal funding.
[N.J.S.A. 53:1–20.21.]
The State's request for sampling in the present case falls under subsections (a)
("law enforcement identification"), (f) ("judicial proceedings, by order of the
court"), and also possibly (g) ("for criminal defense purposes") of Section 20.21.
In addition to establishing a state DNA database, the Act requires the DNA
characteristics obtained from sampling to be forwarded to the Federal Bureau of
Investigation ("FBI") for inclusion in CODIS, which is the FBI's national DNA
identification index system cataloguing DNA records submitted by state
and local forensic laboratories from across the country. N.J.A.C. 13:81-1.1 to -
1.2. The National DNA Index System ("NDIS") allows states to compare DNA
information, through CODIS, with one another. To participate in NDIS,
laboratories must meet certain accreditation requirements. NDIS Operational
Procedures Manual, 12 (Version 7: Effective June 1, 2018) ("NDIS Manual").
A-0228-18T1
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NDIS-participating laboratories are subject to annual audits by the FBI's CODIS
Unit, which reviews laboratory records to ensure compliance with quality and
control requirements. NDIS Manual, at 6-8 (2018).
The NJSP oversees compliance with NDIS and CODIS laboratories in
New Jersey and uploads the samples into CODIS. See N.J.S.A. 53:1-20.24. The
NJSP receives and maintains the offender samples, sends them for analysis,
verifies the analysis, and inputs the profiles into the CODIS system. A.A. ex
rel. B.A. v. Attorney Gen. of New Jersey, 189 N.J. 128, 132 (2007). The NJSP,
pursuant to authority granted by N.J.S.A. 53:1-20.23, has adopted rules
governing the procedures and administration of the DNA Act. See N.J.A.C.
13:81-1.1 to -7.1.
The State and the Attorney General argue the procedures outlined in NDIS
Manual require a newly obtained DNA sample for J.P., in order to enable the
State to confirm a match with the DNA found on the blue gloves near the crime
scene. The relevant section of the NDIS Manual provides:
Although notification of the confirmed match to the
Submitting Law Enforcement Agency concludes the
NDIS Offender Match confirmation process, it is not
the end of the collaboration.
The NDIS participating laboratory shall inform the
Submitting Law Enforcement Agency of the need for a
legally obtained sample from the offender that
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documents the chain of custody. The Casework
Laboratory can then perform DNA analysis on the
newly obtained known biological sample submitted by
the Law Enforcement Agency.
[NDIS Manual § 6.1.3.5 (emphasis added).]
As we have already noted, the State's objection to relying upon J.P.'s
previous buccal swabs is based on its concern that the prosecution would not be
able to verify the chain of custody between the samples sent from the DOC to
the NJSP. In support of its argument, the State has provided a memorandum
from the NJSP's CODIS Compliance Unit, dated June 6, 2013, which provides
the following guidance to law enforcement officials and agencies:
Numerous training opportunities were provided
throughout the state over the past year to demonstrate
the proper use of the Offender DNA Collection Kits
supplied by the CODIS Compliance Unit . . . .
Convicted offender and arrestee samples are used for
investigative purposes and are not considered evidence.
They are submitted through the US mail and have no
chain of custody associated with them.
Please do not use the Offender DNA Collection
Kits supplied by the CODIS Compliance Unit for any
other purpose than CODIS Database submissions from
qualifying convicted offenders/arrestees . . . . The
Offender DNA Collection Kits, including the
Submission Form, sterile swab, and micro card, are not
to be used for casework evidentiary items, known
subject reference samples such as suspects collected
pursuant to a subpoena or consent/ or person of interest
samples.
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Reference samples required from persons of
interest or known suspects should be submitted if
possible with the other evidentiary items in the case.
These samples should be collected directly onto your
agency's typical sterile cotton swab by swabbing the
inside of the cheek using twelve (12) up and down
strokes with the cotton swab. The swab should be
allowed to dry and then packaged in a cardboard
container or simply placed in a sealed envelope. These
samples require a strict chain of custody for future court
purposes and should be hand-delivered to the
laboratory by the law enforcement personnel from the
relevant agency. The Offender DNA Collection kits
should not be used to obtain these reference samples.
[(Emphasis both in original and added).]
The memorandum directs the law enforcement agencies to submit reference
samples from "persons of interest" to the Office, but does not specifically
explain how a law enforcement agency should obtain such reference samples.
The Attorney General as amicus takes the position that the policy of
requiring the new sample is a "protective measure for the benefit of defendants,"
and that "[t]he confirmatory samples are an extra layer of protection to ensure
that DNA stored in CODIS linked to a particular person is actually that person's
DNA."
J.P. counters that the possible unreliability of the chain of custody is the
State's self-generated problem. He asserts that the State can avoid the problem
A-0228-18T1
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in the future simply by hand-delivering future DNA samples to the NJSP rather
than mailing them.
The most recent New Jersey Supreme Court addressing the procedures for
obtaining DNA swabs is Gathers, 234 N.J. at 218. The Supreme Court in
Gathers affirmed this court's ruling that the State's motion to compel the
defendant in that case to submit a buccal swab did not set forth adequate
probable cause for such sampling. State v. Gathers, 456 N.J. Super. 256, 272
(App. Div. 2017), aff'd, 234 N.J. 208 (2018).
In Gathers, 234 N.J. at 214, two police officers responded to a "call of
shots fired." After canvassing the area, the officers found a gun on the ground
but did not locate the shooter. Ibid. The same night, the officers were informed
that a male had been shot near the area where the shots were allegedly fired and
officers responded to a nearby hospital where they encountered the defendant
who had sustained a bullet wound on his left leg. Ibid. Three months later, a
grand jury indicted defendant for weapon possession offenses. Five months
after the defendant's indictment, the State moved for an order compelling the
defendant to submit to a buccal swab. Id. at 215. The State argued that, due to
chain-of-custody problems, many DNA collection kit profiles are not considered
admissible evidence. Therefore, according to the State, even after a CODIS
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"hit," the State usually applies for a confirmatory buccal swab to establish the
chain of custody. Id. at 218.
In support of the its motion, the State in Gathers submitted an assistant
prosecutor's certification, explaining that a sample of the defendant's DNA was
needed for reference in order to make proper comparisons to the items of
evidence already submitted to the State Police. Id. at 215. The defense
countered that the State could use the defendant's DNA profile that was already
in CODIS from a separate drug offense years prior. Id. at 216. Indeed, this
court's opinion noted that the DNA Act "prohibits the collection of blood or
biological sample[s] if the State 'has previously received a blood or biological
sample from the convicted person.'" Gathers, 156 N.J. Super. at 272 (quoting
N.J.S.A. 53:1-20.22(b)). The Supreme Court in Gathers did not discuss this
argument in depth because DNA samples related to possessory offenses are not
eligible for upload into CODIS and the defendant's charges were all possessory
crimes. Gathers, 234 N.J. at 224.
The Court in Gathers observed that "our State Legislature has not provided
authority to take a defendant's buccal swab at any time prior to conviction except
in specific circumstances. Furthermore, the statute allows for the taking of a
buccal swab only at the time of booking or indictment for certain enumerated
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offenses." Id. at 221 (emphasis added) (citation omitted). The Court continued,
"[f]or that reason, we must consider the nature and quality of the evidence upon
which the order was obtained" explaining that such a determination is based on
whether the evidence provided to the court would be sufficient to establish
probable cause. Ibid.
We are mindful there may be constitutional limitations for the taking of a
person's DNA upon arrest, depending upon the severity of the charged offenses.
See King, 569 U.S. at 456-66 (upholding DNA sampling taken upon arrest from
a defendant charged with "serious offenses" of first-degree and second-degree
assault, as part of a "reasonable search that can be considered part of a routine
booking procedure," noting that the privacy expectations of such a person taken
into police custody are "of a diminished scope").
B.
With this context of the DNA Act and pertinent case law in mind, we
return to the trial court's application of the investigative detention provisions in
Rule 3:5A-4. It is clear that there is no "mandatory" basis to extract a fresh
DNA sample from J.P. under N.J.S.A. 53:1-20.20(a) through (h). The question
then becomes whether the State has a valid non-mandatory basis to obtain the
DNA sample from J.P. with a court order under authority of the Rule.
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Having considered the arguments of the State, the Attorney General, and
J.P. in this factual and procedural context, we conclude the trial court did not err
in denying the State's motion, given the present status of the burglary and theft
matter. The State has yet to demonstrate it will not be "practicable" to make
evidential use of the original sample taken from him previously in 2015 or the
2018 sample.6 The trial court reasonably concluded the State's application is, in
essence, premature.
We conclude the State's request can be renewed through an appropriate
motion after it charges J.P. with the burglary and theft offenses, assuming it
chooses to do so. Although the existing sample in CODIS may or may not be
admissible at a future trial, the apparent "match" with DNA from the blue gloves,
coupled with the witness's observations, appear to support probable cause to
charge J.P. As we noted, the judge's finding of probable cause within the context
of this motion record is sound.
6
At oral argument on appeal, counsel for J.P. argued the second sample taken
in 2018 at the time of his arrest for parole violations could not be used because
that sample, taken without a court order, violates N.J.S.A. 53:1-20.22, which
J.P. construes to disallow such repetitive sampling where a DNA sample for a
person is already on file with CODIS. It is not clear, however, that the
prohibition in Section 20.22 applies to a situation where, as here, the State
applies for a court order requesting an additional sample.
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If J.P. is actually charged, the legal context materially changes. Rule
3:5A-4 reflects a careful balancing of interests between the State's investigatory
needs and a citizen's interests in liberty and prison. See Hall, 93 N.J. at 557; see
also State v. Rolle, 265 N.J. Super. 482, 486 (App. Div. 1993). The individual's
interests essentially have two components: (1) the freedom to move about
society and not be detained by government; and (2) freedom from a search of
his or her person.
In the present case, J.P. is already confined in the State's custody. He will
not be released until 2020. As such, he has a diminished expectation of liberty,
as he is, for all practical purposes, already "detained." The question then would
become whether the State's law enforcement interests, post-charge, outweigh
J.P.'s right to be free from unreasonable searches and seizures. See State v.
O'Hagen, 189 N.J. 140, 149 (2007) ("It is not disputed that a blood test or cheek
swab for purposes of obtaining a DNA sample is a 'search.'"). Although we need
not decide that balance here definitively, we suggest a post-charge context may
result in a different outcome if the State files a new application to compel a swab
after lodging such charges.
This distinction between post-charge and post-arrest situations from pre-
charge and pre-arrest situations is consistent with the background of Rule 3:5A-
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4 and the 1984 Report of the Supreme Court's Committee on Criminal Practice,
113 N.J.L.J. 698-99 (June 21, 1984). The Committee observed in its Report:
The rule, as drafted, is a response to [the Supreme
Court's] referral [in State v. Hall]. It is specifically
limited to pre-charge applications. Once a person who
has been charged and the court has obtained jurisdiction
there is no legal impediment imposed by the Fourth or
Fifth Amendments to an order compelling him to
disclose identifying physical characteristics.
[Report of the Supreme Court's Committee on Criminal
Practice, 113 N.J.L.J. at 698 (citations omitted).]
The Committee's comments and rationale are instructive. If the State
charges J.P. with burglary and theft, and he remains, as expected, in the State's
custody, we discern no "impediment" to the State making an application to the
trial court to obtain a fresh DNA sample from him, with the defense at that ti me
presenting any countervailing arguments it may have. Although such a future
application may not literally fit the intended "pre-charge" terms of Rule 3:5A-
4, the balancing-of-factors test logically should apply. Indeed, this court in
Gathers presumed that the State could have attempted to extract a swab from the
defendant at the time of his arrest, but failed to do so. Gathers, 449 N.J. Super.
at 271 (noting that the State's request for a swab was pursued long after "the
arrest stage"). We suggest the State could make such an application at the time
of J.P.'s initial appearance, if he is indeed charged.
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We discern no prohibition to such a procedure within N.J.S.A. 53:1-20.22,
which disallows additional sampling only if the previously received sample "was
adequate for successful analysis and identification." Here, the State is
contending that the existing sample(s) of J.P. in the CODIS databank, given the
chain-of-custody problems, may not be "adequate" for admissibility at the time
of trial. We need not resolve that adequacy question on the limited record before
us. That issue can be examined more fully by the trial court if the State files a
new motion, post-charge.
For all of these reasons, we affirm the trial court's order denying the State's
application, without prejudice to the State filing a new application with the trial
court when and if it charges and "arrests" J.P.
Affirmed.
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