COUNSEL. MR. DEEN: GOOD AND MORE, YOUR HONOR, SHIRAZ DEEN ASSISTANT OCEAN
COUNTY ON BEHALF THE STATE. MS. LEONARD: DEPUTY ATTORNEY GENERAL LILA
B. LEN IN ORDER FOR THE ATTORNEY GENERAL OFFICE. MR. KEENAN BRIAN P. KEEN
19 ON BEHALF OF J.P. THE COURT: GOOD MORNINGING COUNSEL, MR. BEAN, PLEASE
GO AHEAD. MR. DEEN: YOUR HONOR'S BEFORE I BEGIN I WOULD LIKE TO RESERVE
2 MINUTES FOR REBUTTAL. THE COURT: THAT'S FINE. MR. DEEN:
MAY IT PLEASE THE COURT, THIS CASE IS ABOUT ARE THE STATE'S A TERPT TO TEST THE STRENGTH
OF ITS EVIDENCE PRIOR TO MAKING AN ARREST BASED OFF AN INCOMPLETE INVESTIGATION. WE SOUGHT
AN INVESTIGATIVE DETEPGS OF J.P. PURCHASE SOUP TO RULE 35 A BECAUSE WE BELIEVE THAT THIS
COURSE PROVIDE BEST BALANCE BETWEEN J.P.'S FOURTH DEGREE AMENTD MENT RIGHT AND R STATE'S
INTEREST IN R INVESTIGATING IS THE BURGLARY AT ISSUE. HOWEVER ARE THE TRIAL AND APPELLATE
COURTS ULTIMATE THE HELD THE STATE FAILED TO SATISFY RULE 35 A-4 BECAUSE THEY ALREADY
R ABSCESS BECAUSE THE STATE HAD ALREADY HAD ACCESS TO J.P.'S DNA IN THE CODIS DATABASE.
THE COURTS WENT ON TO SAY THAT THE STATE WOULD BE ABLE TO PURSUE ANOTHER APPLICATION
FOR J.P.'S DNA PERHAPS IN A MORE FAVOR AB LIGHT IN THE POST ARREST CONTEXT. I'D LIKE
TO DISCUSS THREE CLOSELY RELATED PROBLEMS WITH THE LOWER COURT'S REASONING.
FIRST, THE LOWER COURT'S DECISION CONTRADICTS THE EN TOIR PURPOSE OF A PRE ARREST INVESTIGATIVE
DETENTION WHICH TOED A VANS THE STATE'S INVESTIGATION BEFORE MAKING AN ARREST BASED
ON IT. SECOND, THE LOWER COURT'S MISINTERPRETED SUBSECTION D OF ROOL 35 A-4 AND 3RD THE
LOWER COURT IS KRRGS OF A FUTURE ARREST WAS INAPPROPRIATE AND PRO MATURE IN THE CONTEXT
OF RULE 3 FOIF A. AND 1 OTHER COULDN'T SEP THAT I BELIEVE SOCIAL SECURITY ALL TLEEF HO
ARGUMENT EX MRI OCCASION IS THE DISTINCTION BETWEEN INFORMATION AND EVIDENCE. THERE'S
NO QUESTION THAT THE STATE HAS ACCESS TO THE INFORMATION OF J.P.'S DNA MUCH THAT'S BECAUSE
DNA DOESN'T CHAFRP A SAMPLE TAKEN TODAY CONTAINS SAKT THE SAME INFORMATION SCAM SAL PEM
RNGS 3 YEARS AGO TRSHGS SAM TAKEN 3 YEARS FROM NOW. BUT EVERY SAMPLE HAS ITS OWN UNIQUE
REVVED SHUL VALUE. THE EVIDENTIAL VALUE OF THE SAMPLE THAT THE STATE KWEFTD UNDER 35
A IS THAT WE CAN ESTABLISH A CHAIN OF THE CUSTODY AND USE IT FOR COULDN'T TIRM NATION
TESTING. AND WHEN THE STATE'S PIN IS THAT THE LOWER COURT TSZ CONFLATED THOSE 2 CONCEPTS
IN THAKING THEIR DECISION WHICH LED TO AN ILLOGICAL DIE COULD THE FM IN THEIR
REASONING, NAME THE APPELLATE COURT ESSENTIALLY STATED, STATE WE GREET WITH YOU THAT THAT
IS A VALID PURPOSE FOR CONFIRMATORY TESTING, THIT WILL IN FACT ADVANCE YOUR INVESTIGATION
PURSUANT TO RULE 35 A-4 SUBSECTION C. HOEFSHGS WE CAN'T GRANT YOU AN INVESTIGATIVE DETENTION
BECAUSE YOU ALREADY HAVE ACCESS TO THE INFORMATION OF JP'S DNA IN THE CODIS
DATABASE. BUT THEN THE COURT GOES ON TO SAY IN THE POST ARREST COULDN'T TEBS DESPITE THE
FACT THAT YOU STILL HAVE EXACT SAME ACCESS TO THE SAME CODIS INFORMATION IN THE DATABASE
THE STATE WILL NOW ALLOW THE COURT TO GRANT A DETENTION FOR THE PUMP OBTAINING THAT SAME
DNA DH WE JUST SAID THAT YOU ALREADY HAVE ACCESS TO, BECAUSE IT'S EVIDENTIAL VALUE IS
SIGNIFICANT S STATE IS ASKING THIS DORT RESOLVE THAT DICHOTOMY AND PROPERLY RULE THAT THE
STATE PROPERLY SATISFIED ALL THE REQUIREMENTS OF RULE THROW 5 A AND THAT WE DO NEED A
NEW EVIDENTIAL SAMPLE OF J.P.'S DNA. THIS CONS CLUDZ MY OPENING STATEMENT
V NOUSHTHS TURNING FIRST TO THE PURPOSE OF A PRE ARREST INVESTIGATION TO. JUSTICE
ALBIN: CAN I ASK YOU A QUESTION. MR. DEEN: CERTAINLY. JUSTICE
ALBIN: DOES THE STATE HAVE THE DNA IN THE STATE POLICE LABORATORY THAT IT COULD RETEST
THIS DEFENDANT'S DNA? DEAN DON'T NOT PURSUANT TO THE CODIS MANUAL MUCH THE CODE DID YOU SAY
MANUAL SPIFBLG DEMAN IT BE A. JUSTICE ALBIN: FOR GET ABOUT THE CODIS
MANUAL, FOR GET ABOUT THAT. DOES THE STATE HAVE POSSESSION OF THE DEFENDANT'S DNA, SOME
DNA SAMPLE IN A STATE POLICE LABORATORY. MR. DEEN: WE ONLY HAVE THE REFERENCE
SAMPLE XH HAS ALREADY BN UPLOET HE HAD TO THE CODIS DATABASE, IN THE STATE'S SYSTEM TO
MY KNOWLEDGE THERE IS NO SAMPLE OTHER THAN THAT REFERENCE SAMPLE. JUSTICE ALBIN:
THERE'S IN AMPLE THAT COULD BE RETESTED IS THAT WHAT YOU'RE RESTING TO. EUFPLT:
DEAN GOEN I BELIEVE THAT IS THE CASE. CHIEF JUSTICE RABNER: TELL US WHY
THE MANUAL REQUIRES WHAT IT DOES. PLAINLY SAYS WE NEED ANOTHER SAMPLE, THE WHAT THE REASON
FOR THAT. DON'T DON'T THE MANUAL IS TRYING TO ENACT A SAFEGUARD AGAINST THE POSSIBILITY
OF HUMAN ERROR BECAUSE THERE IS NO CHAIN OF CUSTODY WITH RESPECT TO DNA SAMPLES THAT ARE
TAKEN FROM POLICE DEPARTMENTS ACROSS THE ENTIRE 78. THEY'RE SIMPLY TAKEN BY JAILHOUSE
PERSONNEL, THEY'RE MAIL TO THE CODIS LAB TESTIFIED FOR THEIR ACCURACY AND INPUT INTO
THE SYSTEM. JUSTICE TIMPONE: IT WAS A MATCH, URNL. MR. DEEN:
IT WAS A MATCH CORRECT YOUR HONOR. JUSTICE TIMPONE: DNA IS I AM MUTE ABL
SO AETS NOT GOING TO CHANGE, JONDZ WHERE THE ISSUE ARISES V. MR. DEEN: THE
ISSUE ARISES IN THAT WE NEED TO ESTABLISH A CHAIN OF ONE OF THE TOWED BECAUSE WE DON'T
KNOW IF THERE WAS SOME SORT OF ERR ROSH AT THE JAILHOUSE LEVEL, LET'S SAY IN THE JAILHOUSE
TECHNICIAN DROPPED A VIAL OF SOMEBODY VS ELS BECAUSE THEY TAKEN 15 THOUSAND OF THIS SAMPLE
APPROXIMATELY A YEEFRMENT THERE'S NO WAY THE CODIS TK NIGS WOULD KNOW THAT THAT ERROR
HAD HAPPENED, IF THERE WAS AN ERROR DURING THE PROCESSING IN THE ORDINARY POSTAL MAIL.
JUSTICE TIMPONE: DOESN'T THE FACT THAT THERE'S A MATCH INDICATE THAT THERE WAS
NO ERROR? MR. DEEN: THE MATCH IS SIMPLY TO THE PAPERWORK LISTED UNDER THE
JAILHOUSE THAT THEY SUBMIT TO THE LABORATORY. SO IF THE JAILHOUSE IS REPRESENTING THIS IS
THE PERSON WHO THIS DNA BELONGS TO, THE CODIS LABORATORY HAS NO RECOURSE BUT TO SAY THIS IS
THE PERSON. JUSTICE ALBIN: YOU DON'T HAVE TO BRING EVERYONE IN THE CHAIN
OF CUFFED TOTE TO THE KOFRMENT DEAN I'M SORRY, AL I WAS DO NO HAVE TO BRING EVERY PERSON
IN THE CHAIN OF CUSTODY TO THE COURT, DO YOU? MR. DEEN: I DON'T BELIEVE
WEB DO, URM. JUSTICE ALBIN: WHY CAN'T THE STATE HAND DELIVER THOSE SAMPLES
TO THE STATE POLICE LAB SO THEY WILL BE A CHAIN OF CUSTODY IN THE FUTURE. DEAN IT'S
KWAEGS OF PRAK PRACTICALITY, JUDGE, 15 THOUSAND SAMPLES PER YEAR IT'S SIMPLY NOT FOES ABL
FOR A COUNTY SUCH AS CAPE MAY AND SUSSEX TO SEND A NEVER ENDING CAR VAN OF POLICE OFFICERS
FOR EVERY SINGLE SAMPLE BECAUSE THE SAMPLE IS TAKEN NOT JUST FOR EVIDENCE HEAR ANALYSIS
A, THESE SAMPLES AT ISSUE ARE SAMPLES TAKEN PR SUN TO THE STATUTE REQUIRING SAMPLES TO BE
TAKEN UPON CONVICTION OF ANY CRIME OR ARREST FOR A FIRST-DEGREE, SECOND AND CERTAIN E
NUMERATED OFFENSES WE DON'T HAVE THE MANPOWER AND RESOURCES AND I DON'T THINK THERE'S A
STATE AGENCY IN THIS STATE WHICH IS GOING TO SAY THEY HAVE 3 PEOPLE THAT THEY CAN SPARE
TO, YOU KNOW, SEND AGAIN NEVER ENDING EVERY SING DPUL DAY THEY WOULD HAVE TO TRANSPORT
THE SAMPLES BY R HAND TO TRENTON AND BACKWARDS, THEY CAN'T PROCESS IT WITHIN THE MEEGS.
JUSTICE PATTERSON: CODIS YOU'RE IN ANY WAY TO CHANGE THE WAY CODIS SG BUSINESS
OBVIOUSLY. DEAN THIS NOT A UNIQUE NEW JERSEY STANDARD THIS A FEDERALLY R STAND TO OPERATED
IN ALL 50 STATES THE CODIS PERSONNEL ARE ACKNOWLEDGING THAT NO STATE REEL HAS THE
RESOURCES TO DO SO WHICH IS REQUIRE, WHICH IS WHY THEY REQUIRE A NEW SAMPLE TO BE TAKEN
FROM THE PERSON SO THAT THEY CAN ESTABLISH CHAIN OF KFT TOWED BECAUSE THEY ACKNOWLEDGE
IT'S SERPLY NOT FEASIBLE R. CHIEF JUSTICE RABNER: ANY REASON IN ADDITION TO
CHAIN OF CUSTODY? DEAN CHAIN OF CUSTODY IS THE PRIMARY REASON REDONE DAN SO HERE, ANOTHER
ROUND OF ENTIRE NEW ROUND OF TESTING FOR EVIDENTIARY ANALYSIS AND DNA IS POWERFUL
EVIDENCE, THE HE A NOT BEING, IT'S NOT SOMETHING LIKE A SGLUF OR HAT WHERE RUK EYEBALL
IT AND SAY THIS DOESN'T MATCH THE OHMLY HAS BEEN TOWER TECH 96 HATS ABILITY TO ANALYZE
IT AND WHILT GETS TO TRIAL HE'S GOING TO TESTIFY, YOU KNOW, 1 IN HOWEVER MM BILL CHAN
THAT SOMEBODY OTHER THAN THIS PERSON POSSESSED IN THIS CASE A FWLUF. SO IT'S EVERYBODY'S
BEST INTEREST IEN THE FEDERAL BUREAU OF INVESTIGATION AK EM NOD WHICH THEY KREE YAD
THE SAFE BAR THE EVIDENCE WE'RE PRESENTING ACTUAL IMPLICATES THE PERSON. JUSTICE
PATTERSON: THE DEFENDANT WOULD BE VERY QUICK FO POISON UT A LAFSHG CHAIN OF KFT TOWED
TSH IT'S IN THE U S MAIL, NO ONE HAS A IDEA WHO HAND IT IF THAT ORIGINAL SAMPLE, THAT
ORIGINAL MATCH WERE PRESENTED AS EVIDENCE. MR. DEEN: PRE SIELS OUR CODIS
PERSONNEL WHEN THEY SEND A LETTERS TO AND THE LETTER THAT WAS SUBMITTED IT DOESN'T SAY
THAT THIS IS EVIDENCE, IT SAYS THIS SAMPLE THE INITIAL MATCH IS SIMPLY AN INVESTIGATIVE
LEAD. THAT'S THE TERMINOLOGY THAT THE CODIS PERSONNEL ARE SENDING TO THE LAW ENFORCEMENT
AGENCY AND THAT'S WHERE THE DEFENSE ATTORNEY WOULD BRING OUT AT RILE AND I OUT OF
ACKNOWLEDGE THAT THERE COULD BE ERROR HERE AND THE FBI DOESN'T WANT PEOPLE REPRESENTING
THN A UNCOULDN'T FIRPD MATCH IS EVIDENCE. JUSTICE SOLOMON: WASN'T ONE OF THE
THINGS THAT THE COURT SAID IS NO ONE IS CHALLENGING CHAIN OF CUSTODY AT THIS POINT?
MR. DEEN: THE PROBLEM WITH THAT REASONING WE WOULDN'T HAVE A REASON TO KNOW
THAT THERE WAS A CHAIN OF CUSTODY FEKT UNTIL THERE'S ANOTHER ROUFRNTD TESTING.
JUSTICE SOLOMON: IS THE COURT I AM MRIEG YOU SHOULD BE FILING A MOTION IN LIMINE RAISING
THAT QUESTION PRETRIAL AND IS THAT AN ISSUE OR PROBLEM FOR THE PROSECUTOR? MR.
DEEN: THE ISSUE WITH THAT, YOUR HONOR, IS THAT WE WOULD, THE REASON WE WANT TO DO THIS
PRE ARREST AND NOT POST ARREST PRE #2R50I8 IS THAT WE HAVE THE OPPORTUNITY HERE TO VET
OUR REVVED BEFORE WE MAKE AN ARREST AND THTSD NOT ONLY CASE. THASHSS OFTEN THE CASE THAT WE HAVE TO PROCEED ON SOME MINIMUM TLESH PROBABLE RF PROBABLE CAUSE SIFRM BECAUSE
THAT THE SAFEGUARDS THAT WE'RE REQUIRED TO EN NABLTH ANY WAY, AGAIN, THERE'S NO QUESTION
AND I THINK THE LOWER COURTS WERE ON THE SAY PAGE HERE THAT THIS SEFD WILL BE SUBJECT
TO CONFIRMATORY TESTING AT SOME POINT. JUSTICE SOLOMON: WOULDN'T YOU BE
IN A BETTER POSITION AND I'M JUST, ISN'T THIS SOMETHING THE COURT RACE, IF YOU SAID CHAIN
OF CUSTODY THIS WHAT WE HAVE, WE'RE ASKING THE COURT FOR DECLARATION SEE IF THEY CHAL
LEN, THUN GOI BACK TO KOUFRT AN ARGUMENT. DEAN IT'S NOT SIFRM TRIAL ADMISSIBILITY WE'RE
CONCERNED WITH IT'S AN EASY THING TO OVERLOOK BUT WHEN WLER TALKING ABOUT CHAIN OF CUSTODIES
BY THE VERY DEFINITION WOOR TALK ABOUT BOWING MORE CERTAIN THAT THE PERSON THE EVIDENCE
IS IMPLICATING IS IN FACT THE PERSON THAT IS ACTUALLY COMMITTED WHATEVER OFFENSE IT IS.
SOL OL CAN I ASK YOU 1 OTHER QUESTION. JUSTICE SOLOMON: HE'S ALREADY IN
KUFRT TOETD FOR OTHER ROBBERIES. DEAN CORRECT. JUSTICE SOLOMON: HIS DNA
MA AHAB TAKEN IN CONNECTION WITH THOSE OTHER ROBBERIES. MR. DEEN: THAT,
HIS DNA WAS TAKEN IN CONNECTION WITH THE FIRST ROBBERY WHICH IS WHAT WAS UP JOEDED STOT
CODIS SYSTEM THE DNA FROM THE SECOND SYSTEM, THE NEVER SHOULD HAVE BEEN TAKEN IF IT WAS
A NEW JERSEY OFFENSE AS WE BELIEVE IT WAS. IT WOULD HAVE BEEN DESTROYED.
JUSTICE SOLOMON: NTS NOT REEL MY QUESTION. MY QUESTION IS HE'S IN CUSTODY, THERE'S NO,
WHAT IS, DOES THAT IMPACT THE PRIVACY INTEREST ANALYSIS THE SEARCH ANALYSIS THAT HE IS
ALREADY IN CUSTODY AND SECONDARILY, DON YOU HAVE ENOUGH BASED PONT CODIS HIT AND THE THE
ODD EVIDENCE YOU HAVE, THE WITNESS, THE GLOVES, TO GET A WARRANT FOR THIS DNA? DEAN WE
COULD POE 10 SHL THE GET A WARRANT YOUR HONOR BUT THE STATE HAS AT THE ABILITY TO PROCEED
ON THE INVESTIGATIVE DETENTION WHICH IS A LESSER EVIDENTIARY STAND DARMENT STATE WOULD BE
ENTITLED. JUSTICE SOLOMON: MY FIRST QUESTION HE'S IN CUSTODY. DEAN CORRECT
YOUR HONOR. JUSTICE SOLOMON: HE'S IN DETENTION, DOES THAT IN ANY WAY AFFECT
THE ANALYSIS? MR. DEEN: I DON'T THINK IT DOES, YOU WERE. I THINK THE A
NALYSIS IS INDEPENDENT OF ANY SORT OF PRIVACY BALANCING INTEREST. IT SIMPLY ASKS WHETHER
OR NOT THE STATE HAS REQUESTED INTRUSION IS REASONABLE AND WILL LEAD TO EVIDENCE AND
THERE'S NO OTHER MEANS TO ET GOOD IT. JUSTICE SOLOMON: ONCE THE COURT SAID
NO, YOU CAN'T DO IT, WHY DIDN'T THE PROSECUTOR RATHER THAN PEALING AND SEEKING THIS
APPEALING AND SEEKS THISHGS GOING THROUGHS THAT PROCESS RGS SIMPLY TAKE THE WAR REPUBLIC
TO THE JUDGE AND SAY HERE IS OUR PROBABLE CAUSE, LET US TAKE A SWAB? MR. DEEN:
EEJ IT'S AN IMPORTANT ISSUE TO BE ABLE TO DETERMINE WHETHER OR NOT WE CAN PROCEED ON
THOSE INVESTIGATIVE DETENTIONS AND WE HAVE THE TIME IN THIS KASHGS IT'S GOING TO BE RELEVANT
FOR ALL FUTURE CHESS. CHIEF JUSTICE RABNER: YOU WEREN'T A RULING IN THISES
CASE SO YOU DON'T HAVE TO PRESENT WARRANTS IN THE FUTURE. DEAN DOON IT POSSIBLY, IT MAYBE THE
CASE WE BELIEVE WE HAVE PROBABLE CAUSE IN THIS CASE BUT THAT MAY NOT ALWAYS BE THE CASE.
JUSTICE LAVECCHIA: FOUR A BUCCAL SWAB UNDER THE COURT RULE YOU DON'T HAVE
TO HAVE PROBABLE CAUSE. DEAN DIDN'T AETS LESSER STANDARD THAN PROBABLE CAUSE, A REASONABLE
WELL GROUNDED BASIS. JUSTICE LAVECCHIA: WELL HALL SAID THAT APPLIES TO
SEARCHES THAT ARE AKIN TO FINGERPRINTS AND THINGS OF THE LIKE AND WE SAID BUCCAL SWABS
IS A SEARCH THAT REQUIRES PROBABLE CAUSE. DEAN PRIERN INTRUSION YOUR HONOR AND WE THINKING
THAT THE BUCCAL SWAB CONTEXT IS MORE APPROPRIATE TO THE REASONS ABL WELL GROUND THE BASE
CONSIDERING THAT IT WAS ADDED TO THE RULE THROW 5 A -- JUSTICE LAVECCHIA:
IT'S BEING USED FOR CRIMINAL PURPOSE TO ZONE IN ON A PARTICULAR INDIVIDUAL. THIS IS NOT
AN DEN OCCASION PURPOSE. THIS IS A CRIMINAL INVESTIGATORY PURPOSE. MR.
DEEN: THE CRIMINAL VEST GI, BILL NIGHT A INVESTIGATION PURPOSE IS BUILT INTO THE VERY
TEXT OF RULE 355 A-4 SUBSECTION C. VEK VK I THINK YOU'RE MISREADING HALL T I THINK YOUR
OVERK LOOK VERY IMPORTANT LANGUAGE IN HALL AND PROBABLE CAUSE REQUIREMENT IN GATHERS.
MR. DEEN: IT DOESN'T CHAFRT ANALYSIS THAT THE LOWER COURT UNDERSTOOKS
WITH RESPECT TO THIS PARTICULAR ISSUE. WE DO HAVE PROBABLE CAUSE IN THIS CASE WE COULD
IMMEDIATE THAT EVIDENTIAL THESH HOLE. KWE THING STHSHGS A REASONABLE WELL GROUNDED BASIS
IS THE TEXT TO AP MRIESHGS BUT EVEN IF THEY WERE WRONG ON THAT FRONT WITH STILL.COM STRAIGHTED
AND THE LOWER COURTS AGREED THAT WE MET SUBSECTION C OF RULE 355 A-4 C.
JUSTICE LAVECCHIA: I DIDN'T THINK THAT WAS A QUARREL HEEFRMENT MAY I ASK YOU A DIFFERENT
QUESTION, AN ARGUMENT BEING MADE UNDER THE STATUTE 531:20-22, THAT GUEST IS SAYING THE
STATE CAN THE NO TAKE A DNA SAMPLE TWICE UNDER SUBSECTION D. NOW, THAT SAYS
NO SAMPLE SHALL BE DRAWN OR COLLECTED PURSUANT TO SECTION 4 THAT'S 531, 1-20.20 IF THEY
PREVIOUSLY TAKEN A BLOOD OR BIOLOGICAL R SAMPLE FROM A PERSON BUT THAT CROSS-REFERENCE
HAS AN EXCEPTION FOR ANOTHER DNA AS MANY PEL BEING TAEN BY JUDICIAL ORDER. SO DO YOU
READ THAT EXCEPTION AS COVERING YOUR SITUATION? DEAN DON'T ABSOLUTELY, YOU WERE. THAT
PRF STATUTE THAT YOU'RE REFERRING SIPLY DESIGNED SO THERE ARE REASON REPETITIVE SAMPLES
TAKEN FOR CONVICTIONS A PURSUANT TO SH STATUTE FOR, FOR EXAMPLE IN THIS CASE IT WOULDN'T
HAVE BEEN ALLOWED TO TAKE A SAMPLE FOR THE 2018 COULDN'T VIC. WE DON'T WANT TO SAMPLE
EVERY SINGLE TIME, 1 REFERENCE SAMPLE AND COULDN'T TILL CONFIRM AS SLEFD SHEAR
ANALYSIS. JUSTICE LAVECCHIA: THAT'S KIFRT AN WITH YOUR ARGUMENT THAT THERE ARE
2 DIFFERENT PURPOSES, THE DEPARTMENT OCCASION PURPOSE AND DATE T BASE DESIGN OF THE DNA
STATUTE THAT FITS WITH THE FED CAN YOU TELL SCHEME AND THE INVESTIGATORY PURPOSE THAT
YOU'RE INVOKE UNDER THE COURT RULE. MR. DEEN: ABSOLUTELY. CHIEF
JUSTICE RABNER: ARE YOU SUGGEST THE CONFIRMATORY SAMPLE THE SECOND SAMPLE IS NEEDED AND
I'M PARAPHRASING FO MAKE SURE THAT IT WAS DONE RIGHT THE FIRST TIME. IS THE
TESTING ANY DIFFERENT? DEAN DON TO MOI KNOWLEDGE THE TESTING WOULD BE VERY SIMILAR, YOU
WERE. I'M NOT EN TOIRLY CERTAIN IF THERE'S ANY MATERIAL DIFFERENCE SCIENTIFICALLY SPEAKING.
CHIEF JUSTICE RABNER: IS THERE ANY DIFFERENCE IN THE TESTING ITSELF? DEAN
DON'T I WOULDN'T BELIEVE THAT THAT IS A WHAT WE'RE INTERESTED IS STHAEBING CHAIN OF KFT
TOWED TO KNOW THAT THIS SAMPLE IS CORRECT, ANOTHER ROUNT OF TESTING ON THIS NEW SAMPLE
SO JUST IN CASE THERE WAS ANY LABORATORY ERROR IN THE FIRST TESTING THAT WOULD BE REVEALED
BY THE SECOND ROUND OF TESTING. CHIEF JUSTICE RABNER: SO THE PROBLEM WITH
THE SECOND REASON IS WHY WOULDN'T IT HAVE BEEN JUSTIFY A THIRD AND A 4TH SAMUEL. DEAN
DON'T WE'RE ONLY REQUIRED TO TO A 1, THIS ISN'T OPTIONAL THE FBI REQUIRE IT.
CHIEF JUSTICE RABNER: ISN'T JUROR ARMTH JUST THAT, WE'RE REQUIRED TO DO IT UNDER FEDERAL
LAW, AND WE WANTS TO ESTABLISH CHAIN OF CUSTODY. NOT THE RMS ADDITIONAL REASON YOU'RE
PROFESSOR FERING. DEAN THE REASONS THESE 2, THE REASON THE FBI REQUIRES IS IN MART IS
THAT WE'RE INTERESTED IN STAESHING THAT THIS PERSON WHO COMMITTED THIS OFFENSE WHO WE HAVE
DNA EVIDENCE, THIS INITIAL INVESTIGATIVE LEAD, TIEG HIM TO THIS GLOVE IS IN FACT THE PERSON
WHO COMMITTED THIS TRIEM CRIME, IF WE COULD TEST THIS A THOUSAND TIMES IN A PERFECT WORLD
WE WOULD. BUT TWICE IS VERY LEAST, ELIMINATES THE POSSIBILITY OF RER TO SUCH A LOW DEGREE
THAT WOULD REROON AND COULD FENT TO PROCEED ON THIS EVIDENCE. JUSTICE ALBIN:
WOULD YOU AGREE IF HAD YOU A PRIOR SAMPLE, THAT WAS HANLD DELIVERED, ANALYZED WITH
SCIENTISTS, CORRECT NIGSS AND STATE POLICE LAB, CHAIN OF CUSTODY (THAT TK 96 OR SEEN TIFT
WAS AVAILABLE TO #2E6, THAT UNDER THOSE CIRCUMSTANCES, YOU WOULDN'T BE ABLE TO TAKE A
SECOND SAMPLE EITHER UNDER THE RULE OR EVEN UNDER THE CONSTITUTION? BECAUSE THAT WOULD
NOT BE A REASONABLE SEARCH. MR. DEEN: IF THERE WAS A SECOND SAMPLE WHICH
WAS SUFFICIENT, IT COULD BE YOUFD FOR CONFIRMATORY TESTING WHICH I BELIEVE IF IT
WAS A DOCUMENTED CHAIN OF KOUFT TOWED IF, IT WAS TLIFRD TO THE LAN TRAEFT OOSZ EVIDENTIARY
SAMPLE ABSOLUTELY, I DON'T THINK THAT THE STATE WOULD BE ENTITLED TO IT. I THINK A JUDGE
WOULD LOOK AT THAT'S VEN SAY WHAT IS THE PURPOSE OF IT'S FOR CONFIRMATORY TEFRTING THTHS
WHEN SUBSECTION D WERE APPLY BECAUSE THE EVIDENTIARY SIGNIFICANCE OF THAT SAMPLE WOULD
BE IDENTICAL TO THE 1 THAT THE STATE -- JUSTICE ALBIN: WOULD IT APPLY UNDER
THE RULE BE PROBABLE UNDER OUR CONSTITUTION AS WELL. MR. DEEN: ABSOLUTE
AND THE FOURTH DEGREETH AMENDMENT IT WOULD BE POTENTIALLY BE UNREASONABLE SEARCH AND
SEIZURE. JUSTICE PATTERSON: TELL PEE WHAT I'M MISSING ABOUT THE PROCESS,
WHY COULDN'T THE COUNTY PROSECUTOR'S OFFICES KEEP A REFERENCE SAMPLE, IN OTHER WORDS SEND
THE REFERENCE SAMPLE THAT BECOMES THE INITIAL CODIS SAMPLE, KEEP A SAMPLE JUST SIMPLY
LABELED, APPROPRIATELY SO YOU DEAN EVEN HAVE A CHAIN OF CUSTODY IN TERMS OF TRANSMGS YOU
SAW IT WAS TAKEN ON THIS DAY AND HAVE IT DOCUMENTED AND IF THEN AN ISSUE LIKE THIS
COMES UP YOU GET A CODIS HIT U THEN HAVE A SAMPLE AS TO WHICH YOU COULD CREATE A CHAIN OF
CUSTODY. MR. DEEN: I'M NOT ENTIRELY CERTAIN THAT THE SCIENTIFIC REASONS WHY
WE COULDN'T FOR A PARTICULAR KUK WUL KOBS, THE STATE POLICE IS THE ONLY A SO WE KNOW THAT
IS IT PROCESSING ARE THE SAMPLES CORRECT AND -- JUSTICE PATTERSON: I UNDERSTAND
PROCESSING BUT I'M SUB TRUCK TO YOU PURE STORAGE, YOU TAKT SAMPLE PRESUMABLY PUT IN THROUGH
A TEST TUBE AND LABELED. AND THEN YOU SEND IT OFF. HOW ABOUT KEEPING SOME OF THAT,
RETAIN, OBVIOUSLY THERE'S NO DOUBT A PROTOCOL FOR HOW TO MAINTAIN THE INTEGRITY OF THE
DNA, KEEPING SOME OF THAT AND THN YOU COULD JUST WAIT UNTIL TO SEE IF DO YOU GET A CODIS
HIT AND YOU HAVE NO PROBLEM WITH CHAIN OF CUSTODY. MR. DEEN: WE ARE TALK
ABOUT ANOTHER INTRUSION AS MINOR AS A BUCCAL SWAB INSTRUGS, TAKING 2. JUSTICE
PATTERSON: DIVIDING THE SEAM PEL SOMEHOW, 2 SWABS WITH A Q-TIP DEAN DON'T I DON'T KNOW
THAT THAT WOULD VIOLATION OF SCIENTIFIC PROTOCOL TO RIP APART A Q-TIP WOULD ALLOW FOR THAT.
JUSTICE PATTERSON: WHAT I'M SAYING IT SEEMS LIKE THE PRACTICAL PROBLEMS
HERE IS THE INABILITY AND IT'S UNDERSTANDABLE, TO HAVE HUNDREDS OF THOUSANDS PRESUMABLY
CODIS SAMPLES ALL STOUBT A CHAIN OF CUSTODY COULD BE DEALT WITH AT THE SOURCE. DEAN DON'T
HERE IS ANOTHER CONSIDERATION, YOUR HONOR. WHICH IS THAT WE'RE ULTIMATELY CONCERNED WITH
IS POTENTIAL HUMAN ERROR AT THE JAILHOUSE LEVEL. NOW, IF THEY TOOK THE WRONG PAPERWORK,
SPLIT THAT SAMPLE UP AND PUT IT INTO ANOTHER ENVELOPE, THAT SAME ERROR LIES UNDOUGH TEKTD
AND NOW WE HAVE THE FALSE CONDENSE THAT THIS IN FACT OOT SAMPLE HAD M FAB IT IS ACTUAL
TIDE TO THE TAM PERSON. JUSTICE PATTERSON: NOT GOING TO BE A MATCH THE
SECOND TO MY AR ROURN IF IT'S SOMEBODY ELSE'S THE OF DEAN DON'T ONLY FIND THAT OUT THROUGH
CONFIRMATORY, IF WE TESTED THAT SAME PALM TELL REASON USED FON CONFER TOWER TEST, IT WOULD
BE A MATCH, ABSOLUTELY WE WOULD BE N.J.S.P., THIS IS SKABLTHS THE SAME AS THE OTHER 1
DISFIGHT THE PROTOCOL TN PROCEEDING UNDER A FALSE SENSE OF CONFIDENCE. POTENTIALLY EVEN
WORE THAN WE HAVE NOW MS. WHICH IS ESTABLISHING ANOTHER ROUND OF TESTING IS REQUIRE.
CHIEF JUSTICE RABNER: DO COUNTY PROS HAVE THE TOERLS T PROSECUTOR TS HAVE
THE SABLT TO STORE THE R MATERIALS ALONG THE LINES WRP JUST DISCUSSING. DEAN I WOULD
HAVE TO SPEAK WITH THE SCIENTIFIC PERSONNEL WITH RESPECT TO THAT. AS FAR AS I KNOW, THE
N.J.S.P. IS THE OHM JACHT SEE WHICH IS THE ABLE TO AT THE VERY LEAST PROCESS THIS
INFORMATION, SECOND SWAB KEEP A SWAB ISN'T A VIAL ABSOLUTELY. IS THAT SUFFICIENT SIGN
TIFBLGLY TO MEET ALL THE SAFT GUARDS AND REQUIREMENT THE I COULDN'T ANSWER THAT
QUESTION TO YOU RIGHT NOW. I WOULD SUSPECT THIT WOULDN'T, CONSIDERING THE WAY WE'VE BEEN
TREATING THIS EVIDENCE THE FACT THAT THE FBI DOESN'T REQUIRE THAT, I THINK SPEAKS TO THE
FACT THAT THEY, FERN NERN STORE IN IT STORE RIM YOU HAVE TO ESTABLISH SOME METHODS HAD,
SMRS CHAIN OF CUSTODY WITHIN THE SAMPLES THAT AT THE PRRS OFFICE OR AT THE POLICE STATION,
WOULD THAT CROW 88 LOGISTICS PROBLEMS. DEAN ABSOLUTELY, YOUR HONOR. AGAIN WE'RE TALKING
ABOUT 15 THOUSAND SAMPLES PER YEAR AND WE'RE TALKING K ABOUT -- JUSTICE
PATTERSON: THAT'S STATEWIDE. NOT YOUR OFFERS. MR. DEEN: WE DON'T HAVE
15 THOUSAND CONVICTIONS PER YEAR. TALKING ABOUT HOW MANY USED FOR EVIDENTIARY ANALYSIS,
THE NUMBERS IS 6 HUNDRED OR SO, IN THAT BALLPARK. SO WE'RE TALKING ABOUT A MINOR PERCENTAGE,
IT REALLY IS OF A PRACTICAL SIGNIFICANCE TO HAVE A CONFIRMATORY TESTING AFTER A CRIME
IS HAWK YITED AFTER A CODIS HIT HAS BEEN HISHTHS IT OIP MAKES SENSE, WE HAVE TO ACT WITHIN
THE REL. MUCH RATION NANLT PRACTICALITY HEEFRMENT. CHIEF JUSTICE RABNER:
DOES THE SAME PROBLEM PRESENT ITSELF WHEN IT'S A FEDERAL INVESTIGATION, ONE OF THE LOCAL
FBI OFFICES OBTAINS EVIDENCE THROUGH A BUCCAL BE SOMEWHAT AND THEN SENG IT TO THE LAB,
DO THEY NEED TO GET A SECOND SAMPLE. DEAN DOON I WOULD HAVE TO IMAGINE THEY WRO, THE
FBI IS ALSO NDIS PROESHGS THEY CAN'T IGNORE IT ARN MORE THAN WE CAN. CHIEF
JUSTICE RABNER: NOT STORG IT IS TAKE MEASURES TO SAFEGUARD MATERIALS WITHIN THE LOCAL
FIELD OFFICES? MR. DEEN: AS FAR AS I'M AWARE THEY'RE NOT. I MEAN AGAIN
I'M NOT AN EXPERT IN THIS PARTICULAR HAD SUBSET DUT BUT TO MY FOVP I WOULD THINK THEY
WOULD BE REQUIRED TO PROCEED WITH THE SIMPLY THE N DPCHLT I S IS MANUAL PROCEDURES ASSET
FOREIGN, THEY WERE SUPPOSED TO BE APPLICABLE NATIONWIDE AND FOR FBI TO SIMPLY WAY WE'VE
KEPT OUR OWN SAMPLE WE DON'T NEED TO GO AHEAD WITH THIS CONFIRM NATIONS TESTING PROCESS
I THINK WK A DEPARTURE WHICH WOULD HAVE BEEN PROVIDED FOR IN THE MANUAL ITSELF S.
CHIEF JUSTICE RABNER: THE TAKE THE 2ND SAMPLE ON THE SLEKD LEFSHLGS CHALLENGED.
MR. DEEN: NOT IF MY NOVRNGS THIGS SITUATION, IN OUR EXPERIENCE A SAMPLE IS INTEREST EFT
KWD IT'S NORTHERLILY DEVEST GAFT DETENTION IT'S RECENTLY IT'S BECOME AN ISSUE THERE'S
VERY LITTLE CASE TOWN ON THE ACTUAL TOP PICK ITSELF. JUSTICE ALBIN: THE
EVIDENCE IN THIS CASE IS A DNA ON THE GLOVES, WITHOUT THAT YOU HAVE NO CASE. CORRECT?
MR. DEEN: WE HAVE SOME EVIDENCE IN TERMS OF THE VAGUE DESCRIPTION BUT IN
TERMS OF PRIMARY STRENGTH OF OUR EVIDENCE, IT IS SIGNIFICANT LINCHPIN YOUR HONOR.
JUSTICE ALBIN: YOU WANT TO MAKE AN IDENTIFICATION BEFORE YOU CHARGE HIM RATHER
THAN AFTER, DEAN DON'T ABSOLUTELY. JUSTICE ALBIN: THAT'S WHY YOU TWOON DO
IT NOW. MR. DEEN: IT OWN MAKES SENSE FOR THE, IN THE OWN THE DEFENDANT,
THE PERSON OF INTEREST RIGHT NOW, WE'RE TALKING ABOUT A PRACTICAL DIFFERENCE FOR THIS
PERSON, FOR A PRE ARREST VEST GAIL DOUGH TENSION FOR A SWAB OR A POST AR ROPE REST, WE'RE
TALKING 0 ABOUT HIM MREEG TRANSPORTED FO THE JAIL IN A RS MEDICAL WING, SCABBED AND SENT
ON HIS WAY, IF THE POST ARREST, HE'S TRANSPORTED TO THE WERE JAB, MEDICAL WING, SWABBED
INTABD SWABBED HE'S SENT ON HIS WAY, THERE'S NO DIFFERENCE EX SER TO THE THE TYPE, WEFR
THE ABILITY IS IT TO DETERMINE WHETHER OR NOT THIS GOING TOK A WRONGFUL ARREST BRIT HACHLT
STATE IS WILLING TO WITHHOLD AN ARREST, THE COURTS ARE TELLING US GO AHEAD WITH THE MOST
SIGNIFICANT 4THTH AM MENT INTRUSION PROBABLE RATHER THAN CONDUCT POSSIBLY ONE OF THE MOST
MONEY MULL INTRUSIONS POSSIBLE WHICH IS SUBJECT TO ALL THE SAFEGUARDS SET FORTH IN STATE
V. HALL. WHEN WRE LOOK TO WHY THE COURT MADE THAT DECISION, WE'RE LOOKING
AT THE RULE ITSELF AND THE COURT GIVES A VERY LENGTHY ANALYSIS WITH RESPECT TO THE
DIFFERENCES IN 4TH AMENDMENT RIGHTS PREEN POST ARREST BUT ALL OF THAT WAS ESSENTIALLY DICTA
BECAUSE WHEN YOU ACTUALLY LOOK TO THE DHUL HOLDING OF THE COURT THE ACTUAL LEGAL REASON
THAT THE STATE DID NOT SUCCEED IF THAT'S RULE THROW 5 A MREKZ, WELL THEN YOU HAVE AND I
QUOTE THE STATE HAS YET TO DEMONSTRATE THAT IT WILL NOT BE PRACTICABLE TO MAKE EVIDENTIAL
USE OF THE ORIGINAL SAMPLE SANE FROM HIM PREVIOUSLY IN TWPT 15 OR THE 2018 SAIL #235I8
YER, THEY'RE SAYING IT'S A FAILURE OF THE RULE DE. 35 A-4, AND SUBSECTION D IS A FACTUAL
QUESTION, WHETHER OR NOT THE STATE HAS A PRACTICABLE AVENUE IS SIMPLY A MATTER OF
FACT. DOES THE STATE POSSESS AN ACCESS TO THIS OR NOT. AND THE ANSWER TO THAT FACT HAS
TO BE NO, ALONG AL YOUR POSITION IS. JUSTICE ALBIN: YOUR POSITION IS WHAT
SENSE DOES THE MAKE TO ARREST HIM AS THE APPELLATE DECISION IS SUGGESTING, BASED ON
THE CODIS HIT AND MERELY TO TAKE THE TEST AFTERWARDS TO FIND WITHOUT WHETHER THE AN
COULDN'T FIFRM TOWER CONFIRMATORY. WHY DO THAT, IT IS MAKES NO SENSE. MR. DEEN:
ABSOLUTELY, LET'S SAY SAY THE WORSE CASE SEN NAR YOSHGS WE'VE HAVE NO REASON TO BELIEVE
THAT THE HIT WILL NOT BE CONFIRMED, LETS ANY SAY THIS ARE THE FIRST CASE AND WE FINE IT'S
NOT ACTUAL J.P.'S DNA IN THE DATABASE, HOW DO WE EXPLAIN TO J.P. 3 YEARS OR HOWEVER IT
TAKES TO GET THIS CONFIRMATORY RERESULT THAT WE IN NEW JERSEY THOUGHT WE KNEW BIT THAN
FED WRUL PROET CAUSE ARE THE SDARPD SAFEGUARDS THAT ARE PUT IN MISS AND WE IG FORWARD
THEM BECAUSE WE THOUGHT WHAT WE HAD WHAT GOOD ENOUGH. WE HAVE THE ABILITY HOOSH THE TEXT
OF THE RULE SPECIFICALLY STATES THAT THE STATE HAS TO HAVE A VIABLE ALTERNATIVE WHICH
WE DON'T HAVE AT THIS STAGE. AND SO BASIC NOT ONLY DOES BASIC (PULLING OF REASON BUT
ALSO THE TEXT OF THE RULE ITSELF IS GNS THE LOWER COURT IS DECISIONS AND SHOULD BE REVERSED.
JUSTICE PATTERSON: JUST ONE LAST QUESTION ON PROCEDURE. IF YOU WERE TO
GET A SECOND SAMPLE, WHAT WOULD YOU DO TO ESTABLISH A CHAIN OF CUSTODY THAT YOU NEED TO
GET THIS INTO EFTD? DEAN DEN WHOA AEND AND AN OFFICER DOWN THAT. JUSTICE
PATTERSON: STATE POLICE. MR. DEEN: PERSONALLY DRIVE THAT UP TO TRENTON
AND HAND GLIFR IT OVER ON THE N.J.S.P. JUSTICE PATTERSON: NEW JERSEY STATE
POLICE WOULD PROVIDE A CHAIN OF CUSTODY TO THE BE UPLOAD FOR CODIS AND THEN PROUM BLEE
THAT'S ALL YOU NEED? IS DEAN DON'T CORRECT. THE MEMO PROVIDE THE STATE'S BRIEF ESTABLISHES
THERE'S EVEN DIFFERENT KITS THAT ARE USED I DON'T KNOW THAT THERE'S A SCIENTIFIC DIFFERENT
BETWEEN THE KITS BUT AT THE VERY VOEFT LEAST THE A FLAGGED THIS A EVIDENTIARY ANALYSIS,
NOT A REFERENCE SAMPLE AND POE 10 YOU WILL SL MORE SAFEGUARDS AND CAUTION WILL BE EMPLOYED
DURING THE TRANSPOUR TIGS PROCESS. CHIEF JUSTICE RABNER: ANYTHING YOU WOULD
LIKE TO ADD. MR. DEEN: WITH RESPECT TO THE RULE BASED ANALYSIS, WE THINK
THAT THE PROBLEM WITH THE APPELLATE DIVISION ANALYSIS IS THAT THE RULES HAVE TO BE RED
IN HARM MONO, SUB 2ND D CAN'T BE READ ON ITS OERNGS IT HABS TO BE READ WITHIN THE CONTEXT
OF THE OTHER CAN YOU BE SUBSECTION, THE WAY THE APPELLATE DIVISION HAS LADY READ IS THAT
WILL THE STATE CAN POSSESS ANOTHER TRACK PRACTICABLE NEENS AK SEK THE EVIDENCE THAT
DOESN'T NEAT THE GOAL IT IS SET FORL IN SUBSECTION C SO THE STATE WOULD HAVE A VOI ABL
REASON TO HAVE THIS EVIDENCE, THE STATE COULD HAVE A VOI ABL GUEST TOWER OBJECTIVE AND
STILL BE FORECLOSED FROM PROEGD ON THE BECAUSE IT AS SK SAYS TOOTD SIMILAR PIECE OF INFORMATION
WHICH ISN'T SUFFICIENT FOR THAT ANALYSIS AND THE STATE BELIEVES THAT CAN'T BE PROBABLY
KREVENLTH SUBSECTION D WASN'T KREE CROW DZ A A LESSER INTRUSIVE CATCHALL, IT'S DESIGNED
FOR THE PURPOSE OF SAY, STATE DO YOU HAVE ACCESS ANOTHER MEANS WHICH DOESN'T REQUIRE COURT
ORDER, WHICH DOESN'T REQUIRE INTRUSION TO A ARE CHIEF YOSH LEGITIMATE LAW ENFORCEMENT
GOAL AND ANSWER T THAT QUESTION IS NO. AND SPECIFICALLY I POISON TO THE STATE V. HALL
WHEN WHEN TALK ABOUT ORIGIN OF THIS RULE, ARE SPECIFICALLY THE COURT SAYS ADDITIONALLY,
IT MUST BE SHOWN IN THE RESULTS OF THE DETENTION WILL SIGNIFICANTLY ADVANCE ARE THE CRIMINAL
INVESTIGATION AND WILL SERVE TO DETERMINE WHETHER OR NOT THE SUSPECT PROBABLY XHITD THE
CRIME. FURTHER, IT MUST LGS APPEAR THAT THESE INVESTIGATIVE RESULTS CANNOT OTHERWISE
BE PRAK CLEEB OBTAIN. THESE RESULTS WHICH WILL ADVANCE THE INVESTIGATION. NOW,
THAT'S NOT THE CASE FOR A SAMPLE IN THE CODIS DATA BASHGS THAT'S NOT GOING TO ADVANCE
ARE THE INVESTIGATION WHATSOEVER SO WHEN WHER TALKING ABOUT THE INTERPRETATION OF WHAT
DOES OTHERWISE PRACTICABLY OBTAIN MEERNS IT IS HAS TO MEAN A SAMPLE WHICH CAN NEAT MEET
THE RIERNLT THE OF SUBSECTION C. OTHERWISE WE'RE TALKING FORM OVER SUBSTANCE AND DESTROYING
THE PURPOSE OF THE RULE FOR THE CITING SOLELY TO A PROVISION WHICH IS EN 10EDS TO A CATCHALL.
FURTHERMORE, AND LASTLY, I WOULD LIKE TO TAKE AND THIS ISN'T EXACTLY WHAT
THE APPELLATE DIVISION SETD BUT THIS SOMETHING THEY CONSIDERED AND THE TROIL COURT
CONSIDERED AS HEAVILY ON THEIR MIND WHICH WAS THEY LOOK TO THE FUTURE OF A POE SHEN HULL
ARREST IN MAKE A DETERMINATION ON RULE THROW FOIF AFRJTS IN FACT, MOST OF THE APPELLATE
DIVISION DECISION IS FOCUSED ONTS BALANCE OF THE J.P.'S RIGHTS IN A FUTURE ARREST CONTEXT
VERSUS NOW. BUT IT'S NOT THE RULE OF THE JUDICIARY TO DETERMINE WHETHER OR NOT THERE
WILL BE ARREST. NOT WITH STNING THE FACT IN WE HAVE PROBABLE CAUSE, THERE'S OFTEN CASES
WHERE WE HAVE PROBABLE CAUSE THAT A KROIM HAS BEEN XHITD AND DON'T PROCEED WITH AN ARREST.
OF THE IT COULD BE THE CASE THAT WE'RE INTERESTED IN J.P. AS PART OF A LARGER
INVESTIGATION RISHTHS COULD BE THAT WE BELIEVE THAT SOMEBODY ELSE IS ALSO HAS FITS A CERTAIN
PROFILE THAT COULD BE XHITH THIS CRIME, WE WANT TO EX MORE THESE LEESHGSDZ WE MAY NOT
BE ABLE TO ARREST J.P. BUT BY THE ARREST HAPPELLATE TWIGS TAKING A NAL SIS OF COURSE
YOU HAVE PROBABLE CAUSE YOU'RE GOING TO ARREST THIS PERSON, THEY'RE OVERSTEPG THE RULES OF
COURT IN THE 4TH MANY A MENT CONTEXT, TSDZ A IT'S NOT THE CASE OF THE CERTAIN SEARCH WARRANT
CONTEXT. JUSTICE ALBIN: IF STWAU NONCONFIRMATORY YOU WOULDN'T AR RET HIM.
DEAN DON NOT NECESSARY RLT POINT WHAT. JUSTICE ALBIN: IF IT, IF THOSE BLUE
GLOVES CAME BACK TO SOMEONE ELSE'S DNA YOUR FILL GOING TO ARREST I AM DEAN DON'T ABSOLUTELY
NO. . IF IT EVEN THAT IF THEY COME BACK TO HIS DNA IT DOESN'T MEAN WE'RE GOING TO ARREST
BUT WE WOULDN'T BE ABLE TO A CHIEF CONFIRMATORY TESTING IF THE APPELLATE DIVISION IS K
LOOG TORE THE FUTURE ARREST AS A POSSIBILITY TO MEET THE REQUIREMENTS OF SUBSECTION D.
WHICH IT SEEMED LIKE THEY WERE VIA THEIR DECISION NOTWITHSTANDING THEY DOESN'T SAY THOSE
EXACT WOSHGSDZ THE IN FACT THE QUESTION THAT WAS ASKED DURING ORAL ARGUMENT REPEATEDLY
DON'T YOU HAVE PROBABLE CAUSE T ARREST. ' A FOCUS ON THE APPELLATE COURTS. JUSTICE
PATTERSON: YOUR ARGUMENT IS DECISION TO ARREST SHOULD BE MADE ON THE BASIS OF THE CRITERIA
THAT AR NORMALLY APPLIED TO IT NOT SIMPLY BECAUSE IT'S A WAY TO GET A SAMPLE. DEAN DOON
ABSOLUTELY BECAUSE OUR DETECTIVE, OUR INVESTIGATIVE STAFF HAVE ACCESS TO
INFORMATION THAT ISN'T NECESSARILY PROVIDED TO THE COURT IN DERMG WHETHER OR NOT THERE
WILL BE ARREST. THEY MAY HAVE DOUBTS BY THE WITNESS' TESTIMONY WHO IS THE SOLE LINCHPIN
PROVIDING ARE THE LING RK BETWEEN THE GLOVES P J.P. AND THEY HI BHANT TO FOLLOW UP.
JUSTICE ALBIN: YOU'RE NOT XHOONDED TO MAKE AN AR MEERL BU BAUF PROBABLE CAUSE
THE STATE IS PERMITTED TO CONTINUE ITS INVESTIGATION AND STRENGTHEN ITS CASE TO MAKE
MORE CERTAIN THAT THEY HAVE THE RIGHT SHTHS THITS HAD A THE RIGHT PERSON. DEAN DOON ABSOLUTELY
YOUR HONOR, THAT'S THE POINT THAT WE'RE TRYING TO MAKE HERE. IN CONCLUSION,
THE STATE WOULD SIMPLY NOTE THAT BASIC PRINCIPLING OF REASON DICTATE THAT WHEN THE
STATE IS WILLING TO FORESTALL IN THIS CIRCUMSTANCE, WHEN THE STATE IS WILLING TO
WITH LOELT MOST SIGNIFICANT 4TH INTUGS PROBABLE IT SHOULD BE AFFORDED THE PUNT TO MAKE
A MINIMUM YOU WILL RIN TRUGS SIRNLY TO ASCERTAIN THAT POWERFUL EVIDENCE OF DNA IS DIRECT
AT THE RIGHT PERSON AND THAT JUSTICE IS OF ACHIEVED IN THIS CASE NOT OHM FOR OUR
INVESTIGATION BUT FOR THE PERSON OF INTEREST AS WELL. RAB RACK THANK YOU M
THE AMICUS CURIAE: Good morning, may it please the Court. The Appellate Division
decision should be reversed for two reasons. First the panel
misunderstand the CODIS requirement for reference samples and independent correctly
determined that the previous samples taken from the defendant could practicably
be obtained by the State. Seconds the perpendicular eviscerates the rule for
purposes of obtaining a buccal swab. Regarding the first issue
the appellant panel and the trial court have overcome apply indicated what
is a very straightforward and simple issue. Chapter six of the procedures manual
mandates that every single time the state lab gets a DNA hit from a prove
file on a piece of evidence it /TPHAO*FPS a DNA profile stored in CODIS a DNA sample
must subsequently be obtained as a /RAEFRPBLG sample to be compared to
confirm that match. That's in every single case in every single
state that participates in the CODIS program. This is an intentional
redone see as a safeguard for the defendant and the notion that we could
practicably obtain the sample that was already taken from the defendant and entered
into CODIS as a comparison, that's comparing what we already have. So
that's not a confirmation, that's just simply retesting the exact same sample that
was previous submitted. And it's not a mere convenience of the
State that we mail the offender samples. It would be absolutely unfeasible for
the State to hand deliver every single buccal swab that is taken from an arrestee
or a convicted offender. The state lab so far this year as of
Thursday as of October 18th of this year, the lab has received 11,527 offender
samples. More than a thousand of those have come from Essex County, more than a
thousand of those came from Passaic county. There's no way these law enforcement
agencies could hand deliver a thousand samples plus every single year.
And in addition to that, there's no way to complain a match to a jury if we
use what's previously in CODIS. If we were to use the previous sample. We
can never explain to a jury, well, we got a DNA match to a DNA stored in CODIS because
we can't prejudice the jury against the defendant in that way. In
an additional consideration is that because this is a national program, even if
in New Jersey State Police we change the procedure and hand-delivered every
single buccal swab that was taken from any offender, we can't control the chain of
custody rules in other states. And in particular in New Jersey when we're
in a tri-state area we often have offenders whose prior sample was taken in New
York or Pennsylvania. We can establish their chain of custody and sometimes
we have a little on a DNA profile that was, you know, 20 years old. We can't
necessarily establish chain of custody there because the person who entered
that into the database bay not be available anymore. If we did
hand deliver all of those thousands of samples every single year, what would end
up happening is the law enforcement agencies would hold the samples, they
would go once a month every six weeks. Some of these arrestee samples. The samples
are only taken for that violent crimes so we can't wait for violate crimes
to be unsolved for weeks. This would lead to an increase in violent crime if we were
to radically change our procedures and go this route. And by
comparison while we get anywhere between 15,020,000 offender samples every year,
they typically get between 800 and a reference samples per year. So that
disparity goes towards the argument that it's not -- it wouldn't make sense to
get two samples every single time we swab somebody and send one off in the
offender kit that CODIS provides to the lab and store one in evidence. Because
it's such a small percentage of the samples that are taken.
And then to my second point. By saying that the State has met A through C of rule
35A4 but that we can't practicably obtain the DNA sample unless we arrest
the defendant, that /E voice tender rates the purpose of the /SPWRAOUL will always
be in search warrant territory if we're always going to arrest somebody
if we can meet A through C. The only way to practicably obtain a buccal swab under
this /SRAOUL to get a reference sample that is taken and follows the chain of
custody in the procedure that has been followed since the beginning of CODIS in
New Jersey. CHIEF JUSTICE RABNER: Can you respond to Justice
LaVecchia's earlier question, 35A4 has a lesser standard than probable cause. Do you
need to show probable cause to get a buccal swab. THE AMICUS
CURIAE: We do not. The rule was a reaction to State v. Hall and out of that --
they came up with, this is a reasonable and well grounded basis to believe,
which is less than probable cause. And even throw in State v. Gathers probable cause
was required, that was because gathers, the request for his buccal swab
was made five months after his indictment. And so that's no longer in the rule
35A territory that was in post-arrest and, therefore, probable cause tender
for. JUSTICE LA VECCHIA: What about oh Haagen? Was that
similar? I'm not sure it was in the post-arrest situation.
THE AMICUS CURIAE: I'm not sure if that was post-arrest but I know that the Court
there addressed that this was a special needs consideration.
JUSTICE LA VECCHIA: Well it rejected the special needs analysis.
THE AMICUS CURIAE: Thank you, yes. But the point is that there's this, the rule
35 A is different from post-arrest buccal swabs. There's a reason that
that rule was created so that it creates a die cot me of this is just me -- this is
a presumptive arrest investigation versus post-arrest where in a more serious
territory. JUSTICE LA VECCHIA: Maybe you can help me with
this N justice handler's opinion in hall, when he creates this paradigm for pre
arrest investigations and say this is within the Court's jurisdiction to be able
to assist the State in this way. He relied heavily on ALI section 170 and
it's analogous procedures for pre arrest detentions and investigations. And in
two places in footnotes and in each he was careful to delineate between
the fingerprinting or a lineup situation which is what hall was considering and
the level of intrusive necessary that was involved in taking someone in
a pre arrest situation, bringing them in for that kind of non-intrusive investigation
to further the State's cause. But he has that footnote that
says we're not reaching other procedures that are not of the same level
of intrusion as fingerprinting he cites to that section one extent and in that
section one '70 they list blood tests, urine tests, biological samples
generally as if they are in a separate subsection. So it's from that
language and that hesitancy in hall not to go that far and say for all purposes
reasonable and articulable suspicion is enough. I feel the Court has never quite
reached the conclusion you're asking to us reach here. That in a pre arrest
situation, probable cause or something more than reasonable articulable suspicion
would be the right standard for a buccal swab specifically. I don't think
that we've quite answered it as directly as you're suggesting. THE
AMICUS CURIAE: That may be correct but then the court rule came out of this case
and instead of saying probable cause it says a /SPWRAOEBL well grounded
basis. JUSTICE LA VECCHIA: Which is what hall said.
THE AMICUS CURIAE: Also I'd like to point out that in Maryland V king the United
States Supreme Court there compared a buccal swab to fingerprinting.
JUSTICE LA VECCHIA: Maryland king is an entirely different situation. That
statute was being used for identification purposes, not for criminal
investigation purposes. But I do think Judge Scalia's statements that are taken
frequent /TPR-L that opinion are being used out of context. THE
AMICUS CURIAE: I think the proper /SAEUGS stands for the same that this is a very
minor intrusion that we're asking for a defendant. What we're doing is we
have a DNA match and all we need is confirmation of that match. And so the lower
standard is appropriate and I think that's why it's worded the way that it is.
It doesn't say probable cause. JUSTICE ALBIN: That doesn't lower
the intrusion. So well grounded suspicion to believe that a person has
committed a crime, that's probable cause. Correct? THE AMICUS
CURIAE: Not precisely because I think the language is different for a reason.
JUSTICE ALBIN: No, we've said that. Many, many, many times.
This is written slightly different. JUSTICE LA VECCHIA: Shouldn't
it be probable cause for a search? Not probable cause for arrest, right?
Probable cause that evidence of criminality is going to be obtained as a result
of the search. Because the buccal swab is a search. THE AMICUS
CURIAE: Correct. So it is for the search but I don't think that that the probable
cause is required, that language isn't found in the rule and so I think
there's a reason for that. We're talking about pre arrests and when we have a DNA
match and -- and I asked the CODIS administrator does it ever happen that
we get a sample and a reference sample doesn't match and it doesn't. We've never
had that happen. And so this is very power full evidence but we haven't
arrested yet. We're just confirming what we already know. So I think there's
a good reason there for not requiring probable cause at this point.
JUSTICE ALBIN: I want to go back to what is probable cause for a second.
So we're all on the same page here. I'm just quoting like one of
our case but it's been /-P repeated countless times. Probable cause
exists if at the time of the police action there is a well grounded suspicion that
a crime has been or is being committed. Probable cause, correct?
THE AMICUS CURIAE: That's correct, I don't disagree with that.
JUSTICE ALBIN: The difference would be the well grounded
basis it goes on to say that the believe that the person sought may have committed
the crime rather than did commit the crime. That's what brings us down
to something less than probable cause, correct. THE AMICUS CURIAE:
I think that's right. JUSTICE ALBIN: I just want to follow up
with the question that Judge Lavecchia asked. This has to do with the nature of the
intrusion and also the constitute analytical tea of B in the rule. Which may
not be directly before us because we seem to be dealing with mostly with
D. But in terms of a blood sample, that is a very serious
intrusion, would you not agree? THE AMICUS CURIAE: I'd agree that
it's certainly more intrusive than a cot swab in the mouth.
JUSTICE ALBIN: And a whole lot more intrusive than fingerprints and a lineup is
sticking a needle in a person and taking this or her blood, correct?
THE AMICUS CURIAE: I agree it's more intrusive than this, yes.
JUSTICE ALBIN: So I give that case isn't before us but this particular rule permits
on less than probable cause the drawing of a blood sample, which is a very
serious intrusion, correct? THE AMICUS CURIAE: I agree that's not
direct before the Court and we should dress that at the appropriate time.
JUSTICE LA VECCHIA: You can't look at footnote seven in hall
so we're on the same page. Because this is the footnote that has caused me to have
pause over whether the standard is so clearly applicable to a buccal swab
and in it justice handler says we brief certain procedures constitute intrusion
that is are significantly different than the fingerprinting process and
he distinguishes based on this ALA model code of pre-arraignment procedures which
is sprinkled throughout this opinion. It is the basis for the hall opinion.
There are four subsets. The first is fingerprints, palm prints, footprints, body
measurements or other reasonable body surface examinations. You could make
an argument that a buccal swab is a body surface examination, I don't know, but,
B then is procedures to obtain specimens or samples of blood, urine, saliva,
there's the ambiguous hair or fingernails or bodyly substances that can be obtained
by comparable methods. So hall while it was dealing with a lineup which
is /T* all what /SKWRAOEUFD to fingerprinting, doesn't clearly that say that
that standard would apply in all situations. So we are now in another
sphere I think. THE AMICUS CURIAE: I do think that's fair but
then the rule 3584 came as a reaction to this and so I think that the -- if your
question is should the standard be lower, am Iing Your Honor's question.
JUSTICE LA VECCHIA: Should the standard be higher than what the rule /KURPBLT
says. JUSTICE ALBIN: I don't even know that this circumstance
before us but is B constitutional, something less than probable cause, the take
of a buccal swab preponderate. THE AMICUS CURIAE: I don't think
that's that correctly before the Court as of right now. I do think that
B is constitutional and if Your Honors would like additional briefing on that I'd
be happy to do that. But I think as of right now that question is not really
before the Court because really we're focusing on the appellant panel focused on
D. JUSTICE PATTERSON: Understood. No constitutional issue
has been raised here. THE AMICUS CURIAE: Right.
CHIEF JUSTICE RABNER: I think we have your position. Anything you wanted to add.
Mr. Keenan. THE RESPONDENT: May it please the Court.
The ultimate test of constitutionality of a search is
reasonableness. Reasonableness is determined by measuring the need of the State versus
the privacy interests of the individual and it's the level of intrusion
on that individual. Here, admittedly the privacy interest is
lower being that my client is incarcerated and the intrusion is not a great one
but nevertheless the State's need for this evidence is nonexistent.
JUSTICE ALBIN: What would be a more unreasonable intrusion on your client's
liberty interest than to be wrongly arrested? THE
RESPONDENT: That certainly would be an invasion, a wrongful arrest but if that
occurred. JUSTICE ALBIN: And the State is arguing we don't
want to wrongly arrest someone. That's the reason why we're doing this confirmatory
test. What's the problem. THE RESPONDENT: That's correct.
And my client could volunteer to produce an additional DNA sample if he felt
that was in his interest. But in this case. JUSTICE
FERNANDEZ-VINA: If he didn't feel it was in his interest he wouldn't volunteer
so we'd be where we are arrest today. THE RESPONDENT: We are.
JUSTICE ALBIN: Are you willing to stipulate that the CODIS
sample will be admissible in trial? THE RESPONDENT: No.
JUSTICE ALBIN: Why not? Are you saying that they can't do
the test before then you want them to arrest him and indict him and then what,
then you want them to test your client, otherwise you're going to object
to the CODIS? I'm trying to figure out the whole sense of this.
THE RESPONDENT: So the reason we have a problem here in the first place and has been
discussed here is because the State is determined to mail in the samples
had the State maintained the sample in the database which the statute provides
for, they would have the sample already and there would be no chain of custody
problem to begin with. We talk about whether. THE COURT:
Say that again. THE RESPONDENT: Hand deliver the sample
and maintain the chain of custody of the sample. JUSTICE FERNANDEZ-VINA:
All ten to 15,000 of them? THE RESPONDENT: Not every sample
needs to be delivered. JUSTICE FERNANDEZ-VINA: How would you
nod that until you had a situation like this? You wouldn't know ahead of
time. You'd have to hand /TKHREFR every single sample. THE
RESPONDENT: Not individually. Each crown could drive the samples into the --
JUSTICE ALBIN: They're saying if they wait there may be some
crime that will go uninvolved. They're saying that is not a reasonable option,
waiting weeks or months to deliver that to the lab. THE RESPONDENT:
That's not what we're talking about here. We're talking about samples that are
taken, uploaded into the CODIS database these are after somebody has been convicted.
So these samples. JUSTICE ALBIN: Of one offense but they may
have committed five other offenses that are unsolved. That's what tear saying or
arrested -- that's the reason why they want to upload it, no?
THE RESPONDENT: The samples do get uploaded into the CODIS after there's
analysis. This isn't -- JUSTICE PATTERSON: If this case went
to trial under the current circumstances and they were trying to rely on this
you would be I'm sure with your experience and skill representing your client,
you would be all over that. You would be arguing that this stays out that
there's no proper chain of custody. I would suggest probably be arguing beyond
the hand deliver transportation issue that there's no chain of custody beyond
that provided and you'd probably win that argument, wouldn't you.
THE RESPONDENT: Essentially this is the State's choice in the way to do this.
I'm arguing that it's not practical. The wait of a week isn't going to speed
up the process in which the samples need to be analyzed. /TP*UDZ are there statistics
if you waited a week arraign each individual sample? THE
RESPONDENT: I don't have accessed to that statistics. JUSTICE
FERNANDEZ-VINA: We don't know if there would be any but put whatsoever you still
may have 5,000 trips up to the lab by the different counties /SKWRAOFPLT
if each county made a weekly trip to the lab that wouldn't be over burdensome and
delay the process unduly. JUSTICE TIMPONE: It's about 300
a week. Most of them would come out of Essex. It would be burdensome to
Essex which has one of the highest crime rates /SKWRAOFPLT they would be making
52 weeks if they did it weekly. CHIEF JUSTICE RABNER: We
understand your point. They should figure out a way to hand deliver it.
How do you deal with the fact that the federal authorities are insisting on a second
test? THE RESPONDENT: With regard to the second test I have a
real question as to whether that's really required by the federal authorities.
My reading of the manual indicates that what we received back in this CODIS
hit indicates that they already confirmed the sample. Because you can't release
the personally identified information unless there's actually a confirmed
sample. So my reading and the fact that we got this confirmed hit with a personal
identified information indicates that the samples has already been confirmed.
You look at section six of the manual it doesn't come until the end as a follow-up
to the whole procedure after there's been a confirmed hit that you actually
get to the point where they're requesting a new sample to, you know, just as a
belt suspenders kind of way of making sure everything is okay.
CHIEF JUSTICE RABNER: Do you dispute that that's their requirement I'm looking
at 6.1 /POUPBT three five isn't that what they say, NDIV shall obtain the
local law enforcement agency of the need for the same from the offender. We're
talking about an additional sample here, no. THE RESPONDENT:
Yes. That's the follow-up procedure I was talking about. CHIEF
JUSTICE RABNER: I assume -- THE RESPONDENT: Imagine if the person
suspected is deceased you couldn't get a sample from that person or if the
person is, you know, on the lamb in the wind. You can't get an example there.
JUSTICE PATTERSON: The person is what. THE
RESPONDENT: In the wind. It also says they need to obtain a legally
obtained sample and if this Court determines that it's not legal at this
point to obtain the sample, it can't possibly be a problem for this provision.
CHIEF JUSTICE RABNER: Has this come up elsewhere, the same
question that the State responded to in federal case law, in federal investigations
in other states, has this process of obtain ago second sample been
challenged in the way that you are now? Is there law that supports your position.
THE RESPONDENT: Not to my knowledge but, you know, I'll note
that Haagen, this Court proved the overall scheme of DNA collection, you know,
based on this notion that there would be a one time collection of DNA.
We couldn't have to rent repeatedly go back. We would have to get confirmatory
samples every time there's a hit from DNA. So this is not the one time
collection that was envisioned. Also the statute itself provides for, you
know, the fact that we're not going to be taken repeated samples from people
F this was a necessary part of the whole DNA scheme the statute itself should
have provided for that instead of doing the opposite and saying we can only
take DNA from individuals at one point. JUSTICE ALBIN: If
they got a warrant would you have any argument? They could have gotten warrant
here. They had probable cause. THE RESPONDENT: I disagree
that there's probable cause here to begin with. JUSTICE ALBIN:
Assume that there is probable cause and they secured a warrant. Would you
have any argument? THE RESPONDENT: I mean there would be
argument as to reasonableness F they've taken DNA already, DNA is immutable. They
have the sample. They can go back and retest the sample. The physical sample
itself is retained in the State's DNA databank different from the database
where the actual electronic record is kept. JUSTICE PATTERSON:
You're still going to run into CODIS finding a lack of, they're looking for a
second sample. And the state police lab sends them a sample that's the same
one they already had, I think it's fair to assume they're going to say no, no,
we need a new legally obtained sample. THE RESPONDENT: There are
circumstances where that's just not possible as I nod.
JUSTICE PATTERSON: You're saying it shouldn't be possible period. You're saying
that no probable cause if there's a CODIS hit. You're saying they can't
do this under the rule. You're basically saying that the State is in a position
where it cannot comply with the federal requirement which is protective among
other things of innocent defendants to obtain a confirmatory sample sample that's
evidential. That's your position. THE RESPONDENT: Under
circumstances where they're under the analysis in oh Haagen given if there
was a requirement that there had to be two samples taken in order for this process
to be fully secured and we have a notion that you know, this is going to work
and produce the expected results. If that was provided for in the
statute, then certainly you could get two samples from a defendant.
JUSTICE LA VECCHIA: What do you mean make of 531-20.20 I that specifically says
nothing in this act shall be deemed to limit or preclude collection of
/TKA*PBS as authorized by consent order. If you get a consent order why can't you
get a second sample? THE RESPONDENT: I'm not saying it's
impossible to get a second sample. I'm saying that would be subject to the normal
analysis of probable cause and whether it was reasonable under the circumstances
to get a -- JUSTICE LA VECCHIA: You're not saying that the
availability of a consent order under this rule is out of question?
THE RESPONDENT: No. And I think that issue with regard to saying that this act
doesn't recess strict the consent order forget ago DNA sample would primarily
go toe cases where the individual isn't in CODIS and there's a sample where have you
an instance where there's a DNA in an item and then there's a suspect who
is not in CODIS and in that situation you can get a consent order to get DNA
sample. JUSTICE LA VECCHIA: I don't understand your answer
to my question then. I was asking you about the CODIS system. Because you're
citing to 20-23 to say you can't get a second sample. I pointed to I which
says you can get a second sample under judicial order and now you're back saying
you can't get one. I don't understand. THE RESPONDENT: I'm
sorry. I'm saying that in the situation I was explaining was with regard to
an individual who is not in CODIS. So have you the statute talking about saying
we don't -- this statute shouldn't be read as recess /STRAEUBTing consent orders
for DNA samples. /-PT. JUSTICE PATTERSON: You're saying that
the consent order in that provision doesn't apply if this is a non-CODIS
hit. You're saying that's what it's for. THE RESPONDENT:
Non-CODIS hits. JUSTICE PATTERSON: So you're saying there is
no route for the State to get the sample that's required by CODIS that either confirms
the hit or contra convenience the original CODIS hit and, therefore, eggs
honor rates your client potentially. That's what you're saying.
THE RESPONDENT: My reading of the statute encompassed that original notion of
the defendant not being in CODIS. I'm not saying that that that's the only thing
it precludes. There could be -- it could be read as also saying that --
JUSTICE PATTERSON: So the solution you're offering for this, I understand you're
representing your client and, you know, good advocacy but the solution for
the State is do your hand delivery of 15,000 samples and, by the way, CODIS is
going tell you this isn't what we want. We want a new sample. It's right
in our manual. So respectfully does that seem like a fair and reasonable solution.
THE RESPONDENT: I mean I do, the entire purpose of this data
data is to accurately identify individuals and you're going to say that we're going to
not care about, you know, the information we're putting into the database
in the first time place we're not going to be secure about we're going to do the
slipshod manner that the State explains how it's occurring in jails and
windows could blow in and things could get messed up. Garbage in, garbage out.
JUSTICE SOLOMON: No, it's not. You said the DNA sample. You
have no idea who the target is and CODIS pops it up and says it's this person you
never saw of, you never heard of, you didn't know was in the State. Now
you've got something. Now you got to further explore and they're saying give us
-- they're going to be literally there are 12 to 15,000 a year like that
and you've decided that's not a problem? It's more than a problem.
THE RESPONDENT: It's a problem when you're putting inaccurate information.
JUSTICE SOLOMON: No. As far as we know it's never been inaccurate. If
you're going to challenge chain of custody and their problem is not is it
inaccurate or accurate it's am I going to get it into court. Am I going to make
it as a basis to arrest somebody, take a buccal swab put them in jail. They're
trying to protect innocent defendants and you're saying that doesn't matter.
THE RESPONDENT: Either the information is accurate or not.
If we're holding saying that the information contained in the CODIS database
is accurate, then there's no problem. JUSTICE PATTERSON: There's
an evidentiary problem. JUSTICE SOLOMON: You just told Justice
Albin, oh, no, things can happen. So you're saying they have to now take
12, 15,000 samples a year, ship them up to the lab, if you're going to for them
if you send them up to CODIS you have to give them a second sample any way.
And that's your suggestion. THE RESPONDENT: I mean either the samples
that are being provided to CODIS are accurate or not F they're contention
is that it's accurate -- 687e0791 but there's such a thing as but inadmissible
samples. It's a technical requirement to lay a foundation for the admissibility
of a DNA sample you would be I'm sure the first to point out defects in that even
if it turns out to be an accurate sample in order to protect your client.
So there's nothing wrong with that. So saying they must be inaccurate if they're
concerned about chain of custody assumes that you would stipulate to the
admissibility of an accurate sample. You've already said you won't.
THE RESPONDENT: We're getting -- there's a difference between what's going to occur
at trial. Naturally a defendant is going to require that there be a chain of
custody. JUSTICE PATTERSON: Of course of course. THE
RESPONDENT: But the State is saying that the information we can't rely on that
information to arrest the client. JUSTICE ALBIN: Let's talk
about this case. Let's get really concrete. You're conceding they can
arrest your client and indict your client based upon the CODIS, correct? Correct job
they have a hit. They have probable cause except can you accept that? Okay
assume it. If you don't want to concede it. THE RESPONDENT: Based
on the information -- JUSTICE ALBIN: Assume that the DNA from
CODIS matches your client on the glove, okay. They're going to indict your
client. You don't want to a confirmatory before. But now when you're at trial
because they're going to be able to do this you're going to object to that,
no chain of custody the, you get it from my client's mouth. THE
RESPONDENT: They can get the. JUSTICE ALBIN: Am I correct about the
way this is going to go forward? THE RESPONDENT: I don't think
so. JUSTICE ALBIN: Tell me where I'm wrong. THE
RESPONDENT: So at the point of arrest as the Appellate Division noted there's a
lower expectation of privacy. There's searches occurring at that point.
At that point you much better argument for the State to get their DNA sample at that
point. JUSTICE SOLOMON: Jury agreeing with Justice Albin.
Forget the intrusion of a swab before you arrest him make sure he's the guy you
want to indict and arrest. Arrest him, swab him and you got what you want
/SKWRAOFPLT they're already sure. CHIEF JUSTICE RABNER: 15 to 20
samples up to the lab personally. You wouldn't arrest anybody because you
wouldn't have anybody going back and forth to Trenton. THE
RESPONDENT: I noted that. JUSTICE SOLOMON: You might disagree.
THE RESPONDENT: The weekly delivery I don't think that's overly
burdensome. The problems described by the State to get an accurate database.
Ultimately if this is not an accurate database as they're
contending, JUSTICE SOLOMON: Whoa whoa whoa nobody contends
it's not an accurate database. You're contending that it's inaccurate because you
can't prove chain of custody. THE RESPONDENT: It's in the State's
brief that they're saying these things could occur, therefore, forget it.
JUSTICE SOLOMON: I heard the AG specifically say as far as
I know it's never been shown to be '98. It's never been disproven. I don't take
from anything they said in the brief that it's inaccurate. What they're
saying you're going to challenge chain of custody, you acknowledge and you think
that hurts the underpinnings of the CODIS hit. THE RESPONDENT: If
they're so sure it's accurate what's the question that's going to be resolved
by and -- JUSTICE PATTERSON: Getting it into evidence. If
the DNA match is very nice to have. JUSTICE ALBIN: I can see your
client before you and this is your advice to him. You can get swabbed before
indictment or after indictment. If they try to swab you before indictment they
have some legal arguments but if it's after indictment and you're going to
be indicted they're going to be able to swab you. What would you prefer? Wouldn't
think the defendant would prefer to be swabbed before just in case it's
wrong? THE RESPONDENT: I think that's the question for the
client to discern themselves. I mean it shouldn't be forced on him. It's his
ultimate decision whether they want to go that way or not. JUSTICE
SOLOMON: You agree that the intrusion of the arrest, I'm sorry, chief, last
question. You agree that the intrusion of of a is greater than the intrusion of
a detention and swab? THE RESPONDENT: Yes. CHIEF
JUSTICE RABNER: I want to can you to articulated for us the standard that must be
shown. Is 35A4 sufficient to get a buccal swab? THE RESPONDENT:
No it's not. CHIEF JUSTICE RABNER: Tell us why.
THE RESPONDENT: A buccal swab is a search. In gathers as Justice LaVecchia noted
the hall decision does notice in footnote seven that it would not citing a
federal case where there was a blood sample taken it distinguishing those sorts
of situations. It sites to the A will. I where saliva is category gore arrived
with the blood sample. CHIEF JUSTICE RABNER: We know the
search has to be reasonable. What language in gathers hall or elsewhere
are you relying on to say that there has to be a demonstration of probable cause
/SKWRAOFPLT I think in gathers they specifically -- you specifically
stated that there was a probable cause requirement that needed to be met. I don't have
the particular cite offhand but it's noted throughout that in constitutional
terms this is a search and we've always required a probable for a search.
JUSTICE ALBIN: Is this issue before us, the constitutional tea of B.
THE RESPONDENT: No. We raised the issue with regard to, you
know -- I 19 a sense we have with regard to the probable cause standard. I've argued
that the probable cause standard needs to be met in this case so that in
a sense -- JUSTICE ALBIN: Has anyone questioned whether or not
in this case B is sufficient under either our state or federal constitution.
THE RESPONDENT: I don't think it's sufficient. JUSTICE
ALBIN: I understand you don't think it's sufficient now. I'm asking you has it
been raised in the trial court and in the Appellate Division.
THE RESPONDENT: I agree that the probable cause needed to be met here. I didn't
specifically say that B is unconstitutional but I -- CHIEF JUSTICE
RABNER: Have you argued that there isn't probable cause in this case.
THE RESPONDENT: Yes. Absolutely. And with regard to that issue looking back
to gathers again we have a very similar situation here where we have a police
officer three years after the initial investigation who is not one of the original
investigating officers stating without citing a basis of knowledge what
occurred in all the critical pieces of information come from this second and third
person hearsay of what other officers investigated and the affidavit officer
never states that he read police report or spoke to a police officer to get that
information. So we've got no basis of knowledge for that officer's
affidavit. This Court in gathers found that to be insufficient.
So all the criminal information -- I'm sorry. JUSTICE SOLOMON:
But they didn't have DNA from the gun. They that DNA from the gloves unlike
gathers so they know there's DNA and frankly they know CODIS identify the defendant
as the person's whose DNA was in the glove. That's a lot different than gathers.
THE RESPONDENT: It's a very different case than /TKPWA*ERS.
JUSTICE SOLOMON: There's a lot more probable cause in this
than there was in gathers. THE RESPONDENT: But all the critical
information linking the glove to the commission of the crime is based on
those statements from the officer who interviewed the witness. So without the
witness' testimony that the suspect threw the glove into the garbage can
it doesn't have any connection to any crime. So just saying we have a glove that
matches my client without the statement from the witness saying that I saw
this person running through my yard after I heard. JUSTICE SOLOMON:
Gathers just found the gun in the area where they thought a shooting had
occur. They said didn't identify the gun to the defendant. They certainly didn't know
if there was DNA on the gun. THE RESPONDENT: There's no link to the crime /HAOERB without the testimony. JUSTICE
JUSTICE SOLOMON: True. And that's probable cause can be based on an
eyewitness. THE RESPONDENT: Right but there's no indication
that the officer here spoke to any eyewitness or spoke to even the officers who
talked to the eyewitness or even read a police report I remember watching
the argument in gathers and that was the very problem, no basis of knowledge here.
JUSTICE SOLOMON: You're saying a prosecutor who talked to
a police officer who talked to a witness. We didn't say no hearsay can be used.
THE RESPONDENT: Her say can be used, absolutely but there needs
to be a basis of knowledge for that hearsay. JUSTICE
SOLOMON: I got you. THE RESPONDENT: In addition, I also talked
about in my brief that this is touch DNA and what the significance of touch
DNA being found on a glove in a garbage can and the ease of which touch DNA can be
transferred between different things. And without in the affidavit stating
the number of profiles that were taken off that glove and the number of CODIS hits
that came back, you can't really evaluate whether there's probable cause
here. Because, for example, if there was ten different DNA profiles lifted off
that glove we got five CODIS hits you couldn't possibly say there's probable
cause to believe my clients was the one wearing those gloves versus some of his
skin cells being in the garbage can from various other means.
CHIEF JUSTICE RABNER: Aren't you asking for a higher cause than probable cause
with that argument. THE RESPONDENT: If you have two people,
for example, have you two hits back, how can you possibly say that one person
is more likely than not than the other to have committed the crime? . You
can't. It would be completely arbitrary to say this one did it and that one didn't.
JUSTICE LA VECCHIA: Isn't probable to search not probable to
arrest which has to find more likely than not the evidence of criminality is going
to be found upon a search of the item you're looking for. THE
RESPONDENT: Right. JUSTICE LA VECCHIA: You don't have to prove
that this person committed the crime, just that further evidence in the investigation
can be provided. THE RESPONDENT: I thought a lot about that
distinction. JUSTICE LA VECCHIA: That distinction was made
in chipper row. THE RESPONDENT: Here in this case what's
being searched is identity. So it's really synonymous. When you're doing a
search for the identity of the individual versus a search for a gun that might
contribute to probable cause that the individual committed a crime, here
we're just looking to identify the individual and that identity itself then will
connect to the other evidence that the State has. So it's really essentially
the same thing in this case. CHIEF JUSTICE RABNER: Anything you'd
like to add? THE RESPONDENT: No, Your Honor.
CHIEF JUSTICE RABNER: MR. DEEN, BRIEF REBUTTALS DEAN THANK YOU YOUR HONOR, THE STATE WOULD
LOIK TO ADDRESS THE DEFENDANT DEFENSE'S ARGUMENT WITH RESPECT TO THE ASSERTION THAT THE
PROSECUTOR'S OFFICES ARE THE LOCAL JAIL SHOULD SOMEHOW HOLD ON TO THESE DNA SAMPLES FOR
WEEKS AND DELIVER THEM ALL AT 1 TIME. BUT THE DEFENSE IS PROPOSING IS ANOTHER REGULATORY
SCHEME BY WHICH THE JAIL HAS TO KEEP TRACK OF THIS INFORMATION WHICH IN AND OF ITSELF
IS SUSCEPTIBLE TO ERROR SO WE'RE INTRODUCING ANOTHER ELEMENT THAT COULD POTENTIALLY, WERE
WHAT WE HAVE NOW IS THE DETECTIVE LITERALLY TAKES THE SAMPLE FROM THE DEFENDANT HIMSELF
AND DRIVES THAT OVER TO THE N.J.S.P. WHICH IS AS RIERN CLAD IT GETS WITH RESPECT TO R
CHAIN OF CUSTODY. WE'RE TALKING ABOUT USING MORE RESOURCES WHICH IS WE HAVE ORIGINALLY
KEEPING TRACK OF THESE 15,000 SAMPLES THAT WILL BE HELL AT SOME POINT WITHIN OUR OFFICES.
ALSO, WHEN WE TALK ABOUT THE NDIS MANUAL ITSELF, EVEN IF WE HOLD ON TO THESE
SAMPLES AND WE DOCUMENT THEM, THERE IS SOME IT'S NOT ENTIRELY CLEAR BUT THE MANUAL UNDER
6.1.3.5 SPIFBLG NOTES THERE MUST BE A THE KAES WORK LABORATORY DNA ANALYSIS ON THE NULL
OBTAINED KNOWN BY LOGICAL SAMPLE SMITD BY THE LAW ENFORCEMENT AGENCY. SO WILL IS SOME
QUESTION AS TO WHRPT IF WE ON OUR OWN KEEP A SAMPLE ON HAND WHETHER THAT WILL BE GOOD
ENOUGH FOR THE FBI'S PURPOSE, NOT OHMLY FBI CAN ANSWER THAT QUESTION BUT IF IT WASN'T,
THAT WOULD DEFEAT THE STATE'S PURPOSE AND I DON'T THINK IT WOULD RUN AFOUL OF OUR CONSTITUTION.
JUSTICE PATTERSON: THE WAY IT'S WORDED WOULD SUGGEST IF YOU TRY TO DO THAT
THEY WOULD POLITELY TELL YOU YOU GOT, YOU DIDN'T READ OR MANUAL CORRECTLY. LEGALLY OBTAIN
NEW SAMPLE, THANK YOU VERY MUCH, WE'LL HEAR FROM YOU. DEAN DON'T WE DON'T KNOW TO WHAT
EXTENT THE NOOIB WOULD BE INSTRUCT IN UP HOLING THIS PARTICULAR SUBSECTION BUT IF HE WE
REED IT AS IT IS THERE MUST BE A NEW SAMPLE PURSUANT THIS WITH, MAYBE THAT WHAT TO
ESTABLISH SOME FORM OF UNIFORM IN THE AMONG ALL 50 STATES SO NOBODY IS CREATING THEIR OWN
COMPLOERS IS SUSCEPTIBLE TO ERROR AND COULD POTENTIALLY COMPANY XROES THE INTEGRITY OF
THE CODIS STIMENT, WHETHER OR NOT WE'RE COMPLOIING SPECIFICALLY WITH THE MAN PULL, IF THAT
ADD DID IT REVEALS WE'RE GOING ROGUE ON PERSON ASPECTING WE COULD LOSE OUR ACCREDITATION,
LOSE THE ABILITY TO ACCESS THE DATABASE WHICH IS A SITUATION EVERYONE WISHES TO AVOID.
JUSTICE ALBIN: THE CONSTITUTION BEFORE US DEAN DIDN'T THE DEFENSE DID NOT
CROSS APPEAL ON THAT ISSUE. THE APPELLATE DIVISION SAID STATE SATISFIED A, B AND C OF
THE ROUL 35 A-4 SO TO THE EXTENT THAT ARGUE SMENT HAS BEEN RACHDED IS NOT PRONE PARTICULARLY
PROPERLY BEFORE THIS COURT, PERHAPS IN A FOUP CHER CASE WHERE IT COULD BE BRIEFED AND
DISCUSSED WOULD BE MORE APPROPRIATE. WITH RESPECT TO THE DWEN'S ARGUMENT
THAT GATHERS IS DISTINGUISHABLE FROM THIS CASE WITH RESPECT TO THE BASIS OF KNOWLEDGE,
AS I THINK JUF TIS SOLOMON WAS INDICATING, GATHERS WAS TALKING ABOUT AN ASSISTANT
PROSECUTOR SIMPLY TALKING HEARSAY STATEMENTS WITHOUT ANY IDEA OF WHERE HE'S GETTING THIS
INFORMATION FROM. IN CONTRAST IN THIS CASE, WE SMITD AN AFFIDAVIT FROM OUR LEAD DETECTIVE
ON THE CASE, THERE'S EVEN AN INDICATION FROM THE LEAD DETECTIVE THEY PERSONALLY SPOKE
WITH THE CODIS PERSONNEL WHO TOLD HIM WHERE THEY GOT THE GLOVE FROM, SO HE ESTABLISHED
HIS 1ST MAPPED KNOWLEDGE, WHERE WE'RE HERE UNDER NOT A SEARCH WARRANT CONTEXT, WE'RE
HERE UPT IS THE INVESTIGATIVE CONTEXT WHICH IS ARGUABLY A LOWER STANDARD, WHETHER OR NOT
THAT IS THE CASE CAN BE EX PULL CATER ON A FUTURE DATE BUT IT WAS JUDGE DANIELS' ABILITY
TO DRAW THAT INFERENCE THAT THIS OFFICER AS A LAW ENFORCEMENT PERSONNEL HAD A BASIS OF
KNOWLEDGE SFIERMENTS HE'S MAKE AND THAT WAS IT WAS REASONABLE INFERENCE AND SO THE COURT'S
PROPERLY SDIETD THE SUBSECTION (B) WAS PROPERLY HELD. AND LASTLY, THE STATE
WOULD LEAK TO LEAVE THIS DEFENSES ARGUE MANY THAT SOMEHOW THIS DECISION SHOULD BE LEFT
TO THE SUSPECT HIMSELF TO DETERMINE WHETHER OR NOT HE GETS A BUCCAL SWAB AND THERE'S AN
IMPORTANT POLICY ARGUMENT I THINK UNDERLYING THIS SITUATION. AETS NOT NECESSARILY GROUNDED
IN LAW BUT AS A PRACTICABLE MATTER WHEN WE'RE TALKING K ABOUT THE CODIS BAIT DATABASE
WE'RE TALKING ABOUT PEOPLE WHO HAVE BEEN EITHER CONVICTED OF A KROIL OR ARRESTED FOR A
SERIOUS OFFENSE SO THEY HAVE ARGUABLY WHAT THEY CONSIDER A NEGATIVE EXPERIENCE WITH THE
CRIMINAL JUSTICE SYSTEM, SOME MAY HAVE HAD COULDN'T SEN TO SEARCHES OR STATEMENTS USED
AGAINST THEM. BUT HAD DOESN'T MEAN THEY SHOULD BE A FORRED A STANDARD PROCEDURAL SAFEGUARD
AGAINST WRONG FULL ARREST WHICH IS WHAT WE'RE TALKING, THE STATE SEEKING TO EN FOORS MAN
WUP ENSURE WEFR THE RIGHT PERSON HERE, THAT WE MAKE THE RIGHT ARREST BEFORE AND WE ACT
ON OUR HE HAVE ONLY AFTER WE TEST IT WHICH TWOEF DO IN ANY COURSE, DURING THE COURSE OF THE
INVESTIGATION WHETHER BEFORE ARREST OR AFTER ARREST IT NEEDS TO BE DONE, IT ONLY MAKES
RATIONAL SENSE TO DO IT BEFOREHAND R THANK YOU. CHIEF JUSTICE RABNER: WEEK
WERE TAKTD PD A ADVISEMENT.