95 A.D.3d 21
N.Y. App. Div.2012Background
- In July 2006, four men robbed two Niagara Falls homes in separate invasions.
- In December 2006, two men robbed a Niagara Falls gas station at gunpoint.
- Defendant was later convicted of assault in the third degree; his DNA was entered into CODIS.
- A hit linked defendant’s DNA to the 2006 invasions and the gas station robbery.
- August 2008, People sought to compel a buccal swab via order to show cause; defendant failed to appear, and a first swab was taken.
- After the sample was deemed compromised, the People sought a second buccal swab; defendant had notice of neither the second application nor the second order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of notice for the second order violated due process | People argue Abe A. allows second order without notice given probable cause. | Defendant contends notice was required for the second order and was denied. | Second order violated due process; suppress the DNA evidence. |
| Whether the taser to obtain the buccal swab violated the Fourth Amendment | People argue taser was reasonable under Graham balancing. | Defendant argues taser was excessive force for nonviolent, nonresisting suspect. | Taser use was objectively unreasonable; suppress the DNA evidence. |
Key Cases Cited
- Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (U.S. 1989) (DNA collection as search and seizure under Fourth Amendment)
- Schmerber v. California, 384 U.S. 757 (U.S. 1966) (bodily intrusion, documentary and evidentiary suppressions; necessity of process)
- Matter of Abe A., 56 N.Y.2d 288 (N.Y. 1982) (notice and burden for compelled DNA sampling; Abe A. standard)
- Graham v. Connor, 490 U.S. 386 (U.S. 1989) (reasonableness standard for excessive force; balancing interests)
- United States v. Bullock, 71 F.3d 171 (5th Cir. 1995) (judicial authorization for use of force to obtain evidence)
- Hammer v. Gross, 932 F.2d 842 (6th Cir. 1991) (tasers and force considerations in Fourth Amendment context)
- Orem v. Rephann, 523 F.3d 442 (6th Cir. 2008) (court-ordered testing and force considerations)
- Hickey v. Reeder, 12 F.3d 754 (6th Cir. 1993) (extreme pain can be inflicted with little or no injury; taser context)