Cops may not use Taser to obtain DNA sample

People v Smith, 2012 NY Slip Op 01896 (4th Dept 2012) (available here)

Prosecutors in Niagara received a hit from the state DNA database that indicated Ryan Smith's DNA matched DNA collected from the scene of some home invasion robberies in Niagara Falls, New York. The prosecutor asked the Court to order Smith to provide a DNA sample to confirm the hit from the state database, and provided Smith notice of the application and an opportunity to be heard in opposition. Smith did not respond to the motion, the Court granted the order, and Smith gave a DNA sample as required by the Court.

Then the cops sent the DNA sample "to the incorrect lab" and the sample was compromised.

So the prosecutor went back to Court (hat in hand, presumably, if the ADAs in Niagara County still wear hats these days), and asked the Court to sign another Order forcing Smith to give another DNA sample. This time, Smith was not provided any notice of the application, and was given no opportunity to be heard in opposition. The judge signed the Order anyway.

New order in hand, the police caught up to Smith on the street in Buffalo. Two officers put Smith into the back of a police cruiser and took him back to the police station. Once at the station, "defendant was placed in a secure room, where he was handcuffed, seated on the floor, and surrounded by three patrol officers and two detectives." When asked to open his mouth so the police could swab his cheek for DNA, Smith refused.

Although the decision from the Fourth Department does not mention it, Smith did a little more than refuse. His exact words were, "You are gonna have to Taser me if you want my DNA." (Hat Tip: Simple Justice, by way of New York Criminal Defense.) To which the cops responded: why didn't we think of that? The officers tased Smith until he opened his mouth and gave the sample.

The trial court refused to suppress the DNA evidence, finding both that it was 1) completely kosher that the second Order compelling Mr. Smith to submit his DNA was obtained without any notice to Smith, and 2) that the police did not use excessive force to obtain the sample.

The Fourth Department, in a thoughtful and strong opinion from Justice Erin Peradotto, disagreed on both scores. On the notice issue, the Court had little trouble holding "it does not elevate form over substance with respect to defendant's due process rights to require the People to provide notice to an uncharged suspect each and every time they seek authorization to invade the individual's body in search of evidence of guilt." Or, waiving your right to object to the invasion of your body for evidence collection one time does not open the door to invasive police conduct in perpetuity.

The Court went on to hold that the use of the taser was "objectively unreasonably under the circumstances," noting:

the record reflects that defendant refused to open his mouth for, at most, 10 to 15 minutes before the police used the taser to force him to do so. Defendant was picked up by the police at approximatley 6:00 p.m., and was tased at 6:18 p.m. During the intervening time, the police drove defendant to the police station, consulted with their superiors, and decided to utilize the taser. We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-order baccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

Congrats to Mark Funk, on the brief for Mr. Smith at the Fourth Department. Mark actually attached a CD of the video of the tasing to his brief (hat tip, again, the Mr. Shiffrin at New York Criminal Defense), and Justice Peradotto noted in the decision that the Court reviewed the video and used it to rebut the People's argument that, you know, getting shocked with a taser isn't so bad in the grand scheme of things.