New Jersey v. Gathers

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This interlocutory appeal presented 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 investigating, one of the officers discovered a .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.” Analysis of the gun, bullets and shell casings were used as grounds for a grand jury indictment of 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. The Appellate Division granted defendant’s motion for leave to appeal and reversed the trial court’s order, reasoning 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,” and because the New Jersey DNA Database and Databank Act of 1994 did not justify the intrusion. The New Jersey Supreme Court granted the State’s motion for leave to appeal. Although an affidavit of a police officer familiar with the investigation is preferable, the Court determined a hearsay certification from an assistant prosecutor could support probable cause to compel a defendant to submit to a buccal swab if it set forth the basis for the prosecutor’s knowledge. Furthermore, 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. View "New Jersey v. Gathers" on Justia Law