State v. Gathers
190 A.3d 409
| N.J. | 2018Background
- Defendant was found shot in the leg and told officers he had dropped and shot a .357 revolver; officers recovered the gun near the scene and swabbed the grip, back strap, trigger, and bullets for DNA.
- No usable fingerprints were recovered; records did not show whether DNA swabs from the gun had been analyzed when the State later moved for a buccal swab.
- Eight months after arrest and five months after indictment on weapons charges, the State sought a court order compelling a buccal swab; the sole support was an assistant prosecutor’s hearsay certification stating the swab was needed to compare to evidence sent to the State Police.
- Trial court granted the motion; Appellate Division reversed, concluding the certification was hearsay that failed to show DNA existed on the gun and expressing concern about timing and indignity to a pretrial detainee.
- The Supreme Court affirmed the Appellate Division: hearsay can support probable cause only if the affidavit shows the affiant’s basis of knowledge and the affidavit must establish a fair probability the defendant’s DNA would be found on the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether hearsay certification alone can support order to compel buccal swab | Assistant prosecutor’s certification, relying on police reports, sufficed under totality-of-circumstances; hearsay historically allowed for probable cause | Certification was pure hearsay lacking indicia of reliability and failed to show necessity | Hearsay may be used, but affidavit must state affiant’s basis of knowledge to show trustworthiness; prosecutor’s certification failed to do so |
| What substantive showing is required for probable cause to compel buccal swab | Need only show governmental interest and that swab is not overly intrusive; CODIS limitations justify obtaining suspect reference sample | No showing that DNA was on the gun or that a buccal swab was necessary; defendant’s DNA might already be in CODIS | Probable cause requires a fair probability defendant’s DNA is on the evidence; State did not show this, so order was improper |
| Effect of delay in requesting buccal swab (months after arrest/indictment) | Delay does not change minimal-intrusion nature of swab; operational/CODIS reasons justify timing | Indignity and increased intrusion when compelled while detained pretrial should be weighed | Delay increases need for stronger probable-cause showing; timing was a factor in evaluating reasonableness |
| Whether DNA Act/CODIS availability obviates need for buccal swab | CODIS rules often bar crime‑scene items from upload; possessory-offense gun swabs may be CODIS‑ineligible, so a reference swab from suspect may be necessary | Defendant’s prior conviction produced a DNA profile already retained by State, so new swab unnecessary | CODIS limitations acknowledged, but State still failed to meet probable‑cause requirements here |
Key Cases Cited
- Maryland v. King, 569 U.S. 435 (2013) (upholding buccal swab of arrestees under certain circumstances)
- United States v. Ventresca, 380 U.S. 102 (1965) (hearsay may support probable cause in affidavit)
- State v. Novembrino, 105 N.J. 95 (1987) (totality-of-the-circumstances test for probable cause and informant credibility)
- State v. DiRienzo, 53 N.J. 360 (1969) (hearsay adequate for probable cause if it appears trustworthy)
- State v. O'Hagen, 189 N.J. 140 (2007) (analyzing DNA sampling and privacy/intrusion considerations)