SJC: Unlawful DNA swab doesn’t bar later collection

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The exclusion of DNA from a buccal swab conducted without a warrant did not preclude a subsequent post-indictment order for a second swab, the Supreme Judicial Court has ruled.

A rape investigation led to the arrest of a defendant who was then a juvenile. After taking the defendant into custody, police subjected him to a buccal swab to obtain a sample of his DNA without a warrant.

The commonwealth later conceded that the initial swab was unlawful. A Juvenile Court judge suppressed the resulting DNA evidence.

Following the defendant’s indictment as a youthful offender on multiple charges, the same judge granted the commonwealth’s motion to compel a second buccal swab. The DNA evidence originating from that second swab was admitted at trial.

On appeal, the defendant challenged the order compelling a second DNA sample.

“We discern no error in the judge’s determination that the Commonwealth established probable cause to support the compelled postindictment DNA collection, and we affirm that order,” Justice Serge Georges Jr. wrote for the SJC.

“Although the defendant argues that the second, court-ordered buccal swab must be suppressed as the inadmissible ‘fruit’ of the initial, warrantless collection of his DNA, we are not persuaded. The proper inquiry is not whether the prior illegality can be undone, but whether the subsequently seized evidence has been obtained ‘by means sufficiently distinguishable to be purged of the primary taint.’ … Here, the second buccal swab rests on precisely such a distinguishable foundation: a valid postindictment court order supported by probable cause,” Georges wrote.

“Simply put, where a defendant’s DNA sample was initially obtained unlawfully, the exclusionary rule does not impose a blanket prohibition on all future access to the defendant’s DNA; rather, it bars only the use of evidence that exploits that initial illegality. That distinction is dispositive here. The evidentiary record confirms that the subsequent collection of DNA was based on independent, lawful grounds, untainted by the prior violation,” he added.

“Although the initial buccal swab of the defendant was unlawfully gathered, that unlawful search does not require the exclusion of the DNA evidence obtained as a result of a second, different buccal swab gathered through an independent and lawful chain of events. Because the second buccal swab was not obtained through the exploitation of the earlier constitutional violation, the exclusionary rule — and, by extension, its exceptions — are simply inapplicable,” Georges concluded.

The 25-page decision is Commonwealth v. Carvajal, Lawyers Weekly No. 10-104-25.