State of New Jersey v. Tariq S. Gathers , 449 N.J. Super. 265 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4772-15T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
March 21, 2017
v.
APPELLATE DIVISION
TARIQ S. GATHERS,
Defendant-Appellant.
___________________________________________________
Argued October 25, 2016 – Decided March 21, 2017
Before Judges Fisher, Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 15-11-1558.
Chanel J. Hudson, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Joseph J. Russo, Deputy Public
Defender, of counsel; Ms. Hudson, on the
brief).
Timothy M. Lanni, Assistant Prosecutor,
argued the cause for respondent (Esther
Suarez, Hudson County Prosecutor, attorney;
Mr. Lanni, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
We granted leave to appeal to consider defendant's argument
that the trial judge erroneously directed that he provide a
buccal swab. The State seeks the swab to determine whether
defendant's DNA matches DNA that might be obtained from a
handgun the State believes defendant unlawfully possessed. We
reverse not only because the State failed to submit proper sworn
statements, but also because the State has not ascertained
whether DNA may be obtained from the handgun or, if that DNA
were to become available, why it is not sufficient – before now
seizing DNA from defendant – for comparison with information
derived from DNA already taken from defendant and retained by
the State as a result of a prior conviction.
The factual record is quite limited. Defendant was charged
with second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4, second-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree certain persons
not to have weapons, N.J.S.A. 2C:39-7(a), for conduct occurring
in Jersey City on August 21, 2015. On April 22, 2016, eight
months after the alleged offense and five months after the
indictment – as defendant resided in the county jail awaiting
trial – the State moved for an order authorizing the taking of a
buccal swab of defendant's mouth.
The motion was only supported by a certification signed by
an assistant prosecutor who asserted that:
 police received a call that "shots
[were] fired" near 67 Clinton Avenue;
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 in canvassing the area, police found a
revolver lying "behind the back
passenger tire of" a Chevrolet parked
near 86 Sackett Street;
 police examined the revolver and
discovered it contained five live
rounds and one spent shell casing;
 police dusted the handgun and five
bullets for fingerprints "with no
results";
 police swabbed the handgun and prepared
the swabs for submission to the state
police CODIS1 lab;
 a police detective went to a nearby
hospital to speak with defendant, who
had sustained an "entry wound . . . on
the top part of his left knee with an
exit wound on the lower part of his
left leg," and, from the area of the
wound and other information, officers
"deduced that defendant likely shot
himself";
 in the interview that followed,
defendant "shouted out, 'so I shot
myself, that ain't no charge!'";
 when asked to identify the weapon,
defendant told police, "I don't know,
a big ass revolver and it went off";
and
1
CODIS refers to the Combined DNA Index System maintained in all
fifty states and a number of federal agencies to collect DNA
profiles to be used for, among other things, human identity
testing. See N.J.S.A. 53:1-20.19; Maryland v. King, 569 U.S. __,
__, 133 S. Ct. 1958, 1968, 186 L. Ed. 2d 1, 18-19 (2013).
3 A-4772-15T2
 upon inquiry about the location of the
weapon, defendant said he "just
'dropped it.'"
Based on this hearsay,2 the State sought the order in question,
claiming a buccal swab was required "to make proper comparisons
to the items of evidence which are currently being submitted to
the New Jersey State Police." Defendant opposed the motion,
arguing, among other things, that he was previously convicted of
an offense that required a turnover of DNA and that because the
State has access to that information, there is no need for an
additional buccal swab.
On June 27, 2016, the trial judge granted the State's
motion and entered an order compelling defendant to submit,
within ten days, "to the taking of buccal swabs . . . for the
purpose of identification by DNA analysis." The next day, the
judge denied defendant's motion for a stay. Proceeding on an
expedited basis, we granted leave to appeal and stayed the June
27 order, which we now reverse for the following reasons.
In explaining our decision, we could start and very well
end with the language of the federal and state constitutions. In
establishing the "right of the people to be secure" from
"unreasonable searches and seizures" both federal and state
2
The assistant prosecutor obviously lacked personal knowledge of
any of these facts and circumstances.
4 A-4772-15T2
constitutions declare that "no Warrants shall issue except upon
probable cause, supported by Oath or affirmation." U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7.3 The State's motion was
supported only by an assistant prosecutor's certification
consisting of nothing but hearsay – that which the prosecutor
was told by others who themselves may or, for that matter, may
not possess personal knowledge of the facts asserted.
Consequently, the State's only certification conveyed no factual
information to the judge and could not support the claim that
there existed probable cause for the search. See R. 1:6-6;
Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349,
358 (App. Div. 2004), aff’d, 184 N.J. 415 (2005), cert. denied,
546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006).
Second, even were we to overlook the inadequacies of the
State's submission to the trial judge, and if we were to assume
the judge was entitled to rely on the information provided by
the assistant prosecutor – instead of information provided by
individuals with personal knowledge – we would conclude that the
search and seizure ordered by the judge is unreasonable.
Not all governmental intrusions are prohibited, only those
that "are not justified in the circumstances, or which are made
3
Except for the Fourth Amendment's capitalization of the words
"warrants" and "oath," the state constitution is identical.
5 A-4772-15T2
in an improper manner." Schmerber v. California, 384 U.S. 757,
768, 86 S. Ct. 1826, 1834, 16 L. Ed. 2d 908, 918 (1966). The
"ultimate measure" of a governmental search is "reasonableness,"
which is assessed through a comparison of law enforcement needs
with the individual's expectation of privacy and the depth of
the intrusion. Maryland v. King, supra, 569 U.S. at __, 133 S.
Ct. at 1969, 186 L. Ed. 2d at 20. In light of the circumstances
presented, we conclude that the order issued by the judge on the
prosecution's request authorizes an unreasonable search, chiefly
because of the timing of the request.
For example, the reasonableness of a search would be judged
differently if sought at the time of arrest rather than, as
here, long after defendant's arrest. The search4 sought by the
State was not incidental to defendant's arrest where concerns
related to placing an individual in police custody are
heightened. It has been long and well established that an
arrestee has an expectation of being searched, Maryland v. King,
supra, 569 U.S. at __, 133 S. Ct. at 1970-71, 186 L. Ed. 2d at
21 (citing Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct.
4
There is no question that entering and removing biological
material from an individual's mouth constitutes a search and
seizure within the meaning of the federal and state
constitutions. Maryland v. King, supra, 569 U.S. at __, 133 S.
Ct. at 1968-69, 186 L. Ed. 2d at 19; State v. O'Hagen, 189 N.J.
140, 149 (2007).
6 A-4772-15T2
341, 344, 58 L. Ed. 652, 655 (1914)), for reasons extending
beyond a suspicion of unlawful activity. A search incident to an
arrest may be necessary because of the potential that the
arrestee is in possession of weapons. Michigan v. DeFillippo,
443 U.S. 31, 35, 99 S. Ct. 2627, 2631, 61 L. Ed. 2d 343, 348
(1979). In Maryland v. King, supra, 569 U.S. at __, 133 S. Ct.
at 1970-74, 186 L. Ed. 2d at 21-25, the Court also recognized
that, at the arrest stage, a search of the person is justified
because of the governmental interests in: obtaining the
arrestee's identity; ascertaining the arrestee's past criminal
activity; determining the risks the arrestee poses for the
facility's staff and other detainees; and in assessing the
potential danger to society if the arrestee is released.
Whatever search incidental to defendant's arrest was necessary
to meet those legitimate concerns should have been satisfied
long before the State filed the motion in question. The State
does not argue otherwise and has not cited a single one of those
concerns in seeking the search in question.
Moreover, the impact of an intrusion at the time an
individual is arrested is not the same as when it occurs later,
while the individual is awaiting trial. In assessing the
magnitude of a buccal-swab intrusion in Maryland v. King, the
Court described the lack of "physical danger," or "risk, trauma,
7 A-4772-15T2
or pain," involved. 569 U.S. at __, 133 S. Ct. at 1979, 186 L.
Ed. 2d at 31. Our Supreme Court has taken a similar view,
describing the insertion of a buccal swab into an individual's
mouth to remove biological material as "a very minor physical
intrusion upon the person." O'Hagen, supra, 189 N.J. at 162.
That circumstance is certainly unaltered by the timing of the
search – whether upon arrest, while awaiting trial, or following
conviction. But the Court in Maryland v. King also identified
the "indignity" of the intrusion as a relevant concern in
assessing the reasonableness of the search. 569 U.S. at __, 133
S. Ct. at 1979, 186 L. Ed. 2d at 31. That concern was irrelevant
in Maryland v. King because the "indignity" of being subjected
to a buccal-swab search "d[id] not increase the indignity
already attendant to normal incidents of arrest." Ibid. Here,
however, we are not considering the indignity at the arrest-
stage, where it is minimalized or simply indistinguishable from
the indignity of the arrest itself, as in Maryland v. King. Id.
at __, 133 S. Ct. at 1980, 186 L. Ed. 2d at 32. This prosecution
has long passed the arrest stage. The indignity of being forced
to provide a buccal swab while defendant – presumed innocent –
resides in the county jail awaiting trial is a legitimate
concern that should be weighed against the alleged governmental
interest when court approval for such a search is sought.
8 A-4772-15T2
And, quite obviously, we are not presented with an
intrusion based upon the State's need to collect DNA upon the
entry of a judgment of conviction, as permitted by the DNA
Database and Databank Act of 1994, N.J.S.A. 53:1-20.17 to -20.37
(the DNA Act). Again, the State has not argued otherwise.
Indeed, rather than rely on the extent to which the DNA Act may
authorize DNA collection, the State recognizes that the DNA Act
might be construed as precluding the search. For example, the
last sentence of N.J.S.A. 53:1-20.22(b) prohibits the collection
of blood or a biological sample if the State "has previously
received a blood or biological sample from the convicted
person." Despite recognizing this provision was intended to
avoid repeated collection of biological samples from an
individual – because, in the State's own words here, that would
be "egregious," "wasteful," and "an unnecessary intrusion" – the
State nevertheless seeks precisely that: an order permitting a
seizure of a biological sample from defendant despite having
already received such evidence from him as a result of a prior
conviction.
Timing is everything. Assuming for present purposes
defendant was arrested for an offense identified in N.J.S.A.
53:1-20.20, the proposed seizure of evidence from defendant's
mouth as an incident of his arrest would likely be reasonable.
9 A-4772-15T2
See Maryland v. King, supra, 569 U.S. at __, 133 S. Ct. at 1977,
186 L. Ed. 2d at 29. For defendants not previously convicted of
crimes identified in the DNA Act, such a search after a
conviction would also be reasonable. But not now. Not without
probable cause, which the prosecutor's hearsay certification
does not establish, and not without a legitimate governmental
need for defendant's biological material.
To be sure, removing biological material from an
individual's mouth with a buccal swab constitutes "a very minor
physical intrusion," O'Hagen, supra, 189 N.J. at 162, but that
intrusion must be weighed against the State's interest in
seizing it. The only ostensible interest the State appears to
invoke is its convenience.5 It has not demonstrated a need for
the biological material it seeks to extract from defendant.
The absence of the State's need for this evidence is
readily apparent. As we have already observed, the State: has
possession of the weapon; believes that any DNA that it might
find on the weapon will, when compared to defendant's DNA,
identify him as a person once in possession of the weapon; and
5
The State asserted at oral argument that it had neither
inspected the weapon for DNA nor compared any DNA found there
with defendant's DNA in CODIS because of some operating
procedure employed by its laboratory. We have been provided with
nothing – no sworn statements and no written laboratory
regulations – that would buttress the prosecutor's statement at
oral argument.
10 A-4772-15T2
has already available to it information possessed by CODIS from
having previously collected a biological sample from defendant
following an earlier conviction. The State, however, chooses not
to connect the available dots. It prefers to intrude into
defendant's mouth for additional DNA so that it may wrap up all
its potential evidence in one neat package for its laboratory
personnel.6
No matter how minimal that intrusion may appear to others,
it nevertheless constitutes an invasion of defendant's
legitimate privacy interests and requires him to suffer an
unwarranted indignity while serving no legitimate governmental
interest. We again emphasize what has long guided application of
6
We observe but need not consider another possible reason for
the State's interest in seizing this evidence before determining
whether it has in its possession DNA on the weapon suspected to
have been in defendant's possession. Profiling of a testable
sample from the weapon – assuming such a sample may actually be
found on the weapon – likely involves a range of subjective
determinations. Providing an analyst with defendant's sample
before profiling the crime scene sample presents a risk that the
former may affect the analysis of the latter. "When analysts are
given the known suspect's profile – as opposed to being asked
what profiles are possible, given the results they have
generated – the risk of erroneous attribution becomes
heightened. An analyst may unwittingly fall prey to confirmation
bias – seeing in the results what she expects to see, rather
than what may or may not be there. . . . [E]ven the most
conscientious forensic analyst may make the kind of subjective
calls that risk an erroneous interpretation of DNA test
results." Erin Murphy, The Art in the Science of DNA: A
Layperson's Guide to the Subjectivity Inherent in Forensic DNA
Typing, 58 Emory L.J. 489, 492 (2008).
11 A-4772-15T2
the Fourth Amendment: the touchstone is reasonableness, and
reasonableness is determined "by assessing, on the one hand, the
degree to which [a search] intrudes upon an individual's privacy
and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests." Wyoming v.
Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed.
2d 408, 414 (1999) (emphasis added); see also United States v.
Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001).
In light of the record on appeal, we must conclude that the
State has not suggested – let alone demonstrated – that it
"needs" to search defendant's mouth. Consequently, what the
State proposes, and what the judge ordered, is – plain and
simple – unreasonable.
We conclude that in circumstances7 like these the State must
at least demonstrate probable cause for the search, i.e., in
7
We do not interpret the DNA Act's prohibition on the repeated
collection of biological samples as a bar to the relief sought
by the State here. N.J.S.A. 53:1-20.20(i) declares that
"[n]othing in this act shall be deemed to limit or preclude
collection of DNA samples as authorized by court order or in
accordance with any other law." The parties have not provided
anything by which we might ascertain the scope or intent of this
provision. Perhaps this provision was included within the DNA
Act to avoid a conflict with the identification procedures of
Rule 3:5A, which are permitted prior to the filing of a formal
complaint – another circumstance not present here. In any event,
we assume without deciding that N.J.S.A. 53:1-20.20(i) might
authorize a biological seizure after an arrest and prior to
conviction when supported by a legitimate prosecutorial need.
(continued)
12 A-4772-15T2
this case, that the item allegedly containing DNA actually
contains DNA and, if it does, that the State has no other access
to the accused's DNA for a comparison. Short of that, an
individual must be free of an unreasonable – albeit minimal –
governmental intrusion sought only for the State's convenience.8
The order under review is reversed.
(continued)
The State, however, has not demonstrated that N.J.S.A. 53:1-
20.20(i) authorizes seizures pursued for the prosecution's mere
convenience.
8
It follows from what we have held about the timing of the
State's application that we do not mean to suggest the search
would be unreasonable if the State were to achieve a favorable
comparison between any material removed from the seized weapon
and the information contained in CODIS.
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