This Court denies the People’s application to take a DNA sample from this defendant under the existing circumstances. The police recovered a du-rag from the scene of the homicide and connected it directly to the decedent. The People sought to connect the defendant to that du-rag by DNA evidence. They obtained a sample from the defendant from a cigarette butt recovered by the police who watched the defendant smoke the cigarette. According to a NYPD Property and Evidence Tracking System (“PETS”) form, on May 23, 2019, a cigarette butt, labeled abandoned was collected inside the 52 precinct detective squad interview room after being smoked and discarded from Justin Flores. The cigarette butt was recovered from a new disposable ashtray using latex gloves. The report further states that defendant Flores was the only individual to smoke from the cigarette butt. It goes on to say “subject’s DNA to be located at the end of the cigarette butt”. The DNA on the cigarette butt did not match the DNA at all as to the DNA harvested and tested from the du-rag. Therefore it is clear that the DNA of the defendant was not found on the item that would be consistent with the Grand Jury’s finding of probable cause. The People now seek to obtain a buccal swab of the defendant to basically test the du-rag again. The basis for the People’s application is that the Medical Examiner claims that such samples are in their terms “pseudo-exemplars”. This is a term of art. As the Court of Appeals has stated, “[n]omenclature notwithstanding, if the application and the relief comport with all the requisites of a search warrant, it may be taken for what it is.” Matter of Abe A., 56 NY2d 288, 294 (1982). So long as the requirements of Abe A. are met then this Court has authority to issue an order requiring defendant to provide a DNA sample and authorizing the testing of that sample by the Office of the Chief Medical Examiner (“OCME”). Here the requirements of Abe A. are not met because there is no clear indication that relevant material evidence will be found since the item tested showed the absolute absence of relevant material evidence. There is no law that permits DNA testing until it comes out a certain way. Science demands that the result is in fact the result. At the same time, “…[l]aw enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.” Hoffa v. United States, 385 US 293, 310 (1966), quoted in Matter of Abe A., 56 NY2d at 297. It is well settled that in order to obtain an order compelling a defendant to supply corporeal evidence, the People must “…establish (1) probable cause to believe the suspect has committed the crime, (2) a clear indication that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable.” Matter of Abe A., 56 NY2d at 291. In deciding whether to issue such an order, the Court must balance “the seriousness of the crime, the importance of the evidence to the investigation, and the availability of less intrusive means of obtaining it, against concern for the suspect’s constitutional right to be free from bodily intrusion.” Matter of Abe A., 56 NY2d at 291. The application requires a Fourth Amendment inquiry, a multifaceted one focusing on the bodily intrusion itself. This requirement, by insuring that the evidence expected to be found is of importance, guards against a “fishing expedition”. Needless to say, most often facts which would establish probable cause will also tend to establish the high degree of relevance the nontestimonial evidence sought would have. Matter of Abe A., 56 NY2d at 297-8. Here the sample obtained by the Police Department demonstrates both chain of custody and exclusion of any other person’s DNA on the butt of the smoked cigarette. While the method by which the authorized intrusion is to be accomplished must be safe, reliable and impose no more physical discomfort than is reasonably necessary, the question is whether any physical discomfort of the swabbing of one’s cheek is necessary. Thus a minor discomfort is a bodily intrusion. Matter of Abe A. specifically raised the issue of whether there is any other alternative means of obtaining the evidence. 56 NY2d at 298. This method, the obtaining of the DNA from the cigarette butt which excluded this defendant, is the very alternative means that Matter of Abe A. requires the Court to consider. Therefore in examining the text of the standard set in Matter of Abe A., the application is denied. While the Grand Jury indictment establishes probable cause, the indictment is clearly not legally enough, and granted the intrusion, although the intrusion is minimal, the fact that the item to be tested demonstrated that there was no DNA from the defendant on the item makes it clear that this application fails in its second component part. The second part of the requirement to be measured by the Court is based upon the supposition that at present it is not known if in fact material evidence will be found in a comparison of the DNA mixture detected on the du-rag with the DNA profile of this defendant. The People’s application fails because the existing testing forecloses any supposition that the defendant is a contributor to the DNA on the du-rag. Thus the existing testing is in fact a clear indication that as to the defendant sought to be tested, no relevant material evidence will be found, given that it was absent in prior testing and alternative means used by the OCME is not only available but it established the exclusion of the defendant as a contributor to the DNA on the du-rag. The People also suggest that the test is necessary to, in bold capital letters, exclude the defendant from being a contributor to the DNA on the du-rag. The Medical Examiner’s Office has already done that. The People’s desire to exclude the defendant as a contributor is disingenuous given that they maintain there is probable cause that he is a contributor. The advancement of DNA does not let the People have the right to test defendants and invade privacy to exclude them when it asserts that they are included. Finally the practice of referring to items as pseudo samples and the practices of the Medical Examiner’s Office as detailed in their procedural manuals sets standards that may or may not establish scientific reliability. But the dangers of the misleading use of DNA’s absence are well known. Basically the technical manuals of the Office of the Chief Medical Examiner distinguish between what they call “true” and “pseudo” exemplars. A “true exemplar,” such as “a blood sample or an oral swab,” must have “documentation stating that it is in fact from the person named, such as paperwork from the (medical/legal investigator) who obtained the sample, paperwork from the NYPD (including a voucher and sometimes a signed consent form), or paperwork from the (District Attorney’s office).” Forensic Biology Evidence and Case Management Manual: Evidence Examination §15.2.1 [Effective Date 05/16/17]. This is more accurately described as an accurate exemplar or a controlled exemplar. The manual defines “pseudo-exemplars” as having been “abandoned” under circumstances that make them “items with a reasonable probability of finding a single-source DNA profile from the suspect.” Id. §15.3.1. Abandoned DNA is any amount of human tissue capable of DNA analysis and separated from a targeted individual’s person inadvertently or involuntarily, but not by police coercion. Abandoned DNA collection is also distinct from the acquisition of a suspect’s DNA sample pursuant to a court issued warrant. The use of the term abandonment too is a term of art. In fact it is a misnomer in the case where the captive defendant uses an item and the police harvest it specifically to obtain DNA. It is not abandoned but rather seized. Police would not allow a prisoner to keep his cigarette butt, a water bottle or the like when it is a recognized investigative tactic to obtain and secure it as an “abandoned” sample. See People v. Moore, 61 Misc. 3d 868 (Sup Ct, Kings County 2018). But an abandoned sample is one that a person discards in public. It is abandoned because the suspect has given up his right to privacy as regards the object. The Medical Examiner’s Office contends that pseudo exemplars are not reliable because they are often not obtained within controlled conditions in which the sample was acquired and they are not from a reliable documented chain of custody. The pseudo sample taken by the police from an item such as a cigarette butt handed to the defendant while in police custody and immediately retrieved after the defendant exits the room, which is not smoked by anyone else and harvested only with gloved hands, is one taken in a controlled condition as to the acquiring of the sample and is a reliably documented chain of custody. While not as pure as the obtaining of a buccal swab in the opinion of the OCME, the DNA is nonetheless obtained by giving a defendant an item from his oral use. Given how little DNA makes enough for a sample, the distinction between samples obtained during police custody and by buccal swab is de minimus such that the term “pseudo” in this context verges on junk nomenclature. The reason is that the DNA comparison requires a control sample to test against the unknown sample. A control sample can be in the form of whole blood, a buccal swab, or any other known exemplar from the person in question. The easiest type of DNA control sample to obtain is a buccal swab but it invades the privacy rights of a defendant. Matter of Abe A., Id. What the Medical Examiner labels pseudo exemplars is their insistence that a control sample be done the specific way, a buccal swab, which although the easiest is not necessarily the sole scientific means of obtaining a control sample. In May of 2012, Matthew Mandese published his thesis in partial fulfillment of the requirements of a Masters of Science at Pace University. His paper, “The Use of Pseudo Exemplars as DNA Reference Samples in Criminal Cases”, was read by an Assistant Director of OCME and a Criminalist Grade IV of OCME. In that paper pseudo exemplars get their name because the DNA profile is not directly obtained from an individual (Paper p. 11). It recommends that the objects used be ones that the suspect touched last as that DNA profile will be the most dominant one (Paper p. 12). The paper reviews 577 suspect DNA cases with 908 pseudo exemplars tested within those cases. The testing was done from the files of the OCME cases from the period of 2008 to 2019, where a pseudo exemplar was tested, reviewed and all tests were performed under the same laboratory conditions (Paper p. 16). Only 803 of the 908 had enough DNA to test. Full profiles were obtained from 684 of the exemplars. The overall success rate of obtaining a DNA profile from the so called pseudo exemplar was 86 percent, with a 93 percent success rate for cigarette butts (Paper p. 17). When true exemplars were obtained and matched against the so called pseudo exemplars, only 1 of 103 did not match, which was as to a sample from a bottle. Each of the cigarette butts, 41 out of 41 submitted, matched (Paper p. 18). Indeed the cigarette butts provide more DNA because like the buccal swabs, cheek cells slough off more easily and one would expect “more full profiles” from pseudo exemplars that had contact with the mouth (Paper p. 19). The paper concluded that the cigarette butt gave the highest amount of DNA on average and evenly spread out in amount of DNA. Bottles gave the most amount of DNA, 11 percent more than cigarette butts. However when full and partial profiles are considered together then cigarette butts prove to be better at 93 percent compared to bottles at 88 percent. The paper concludes that since the success rates are so close that there is not a significant difference in sample types in order to generate a DNA profile. Cigarette butts also showed the lowest amount of mixtures. The issue of mixture is the OCME’s prime concern with pseudo exemplars’ “credibility”. As the paper points out a person is less likely to share a cigarette than to give a sip of their drink. This is especially true in police custody where the defendant gets the cigarette specifically to generate DNA evidence. The study’s overall finding was of the 803 pseudo exemplars, 261 matched evidence, 435 did not match any evidence, and 107 resulted in no conclusion. That means that 1/3 of the exemplars matched evidence in a case where the majority did not. No match means specifically that the DNA profile of the pseudo exemplar left by the suspect did not match the DNA profile left at the crime scene or any DNA profile in the local DNA database., i.e suspicions of detectives were incorrect as opposed to a flaw in the DNA process (Paper p. 21). No conclusion also included cases where there was a mixed profile which was “unusable” to match to any evidence, or there was a mixture and the DNA profile could not be excluded as a contributor or there were too few alleles for comparison. Where there was no conclusion then a true exemplar would be needed to conclusively determine if the suspect matched the evidence. In this case the DNA on the du-rag does not match this defendant. This is not a no conclusion case such that a buccal swab is needed. The paper also concludes that since the majority of the pseudo exemplars gave a full profile then each of the pseudo exemplar types, such as cigarette butts, are very dependable when one would want to compare the profile obtained with that of the true exemplar. One of the true exemplars did not match its corresponding exemplar (Paper p. 21-22). In that case the bottle was harvested from a garbage can in the defendant’s house. The detective did not see the defendant use it or drink from it in contrast to the cigarette butt harvested in this case. Here the detective verified this defendant’s use of the cigarette and the collection of it for DNA sampling purposes. Every other pseudo exemplar matched the true exemplar, allowing the author to conclude that there is a 99 percent SUCCESS RATE IN THE RELIABILITY OF PSEUDO EXEMPLARS. The paper concludes that the use of pseudo exemplars is proven to be very dependable (Paper p. 22). Because these exemplars have proven to be 99 percent reliable as true samples the use of the term pseudo exemplars is functionally misleading. Referring to these non-buccal swab samples as “pseudo” is misleading because the word has a specific definition: not genuine; spurious or sham. Calling buccal swabs “true” exemplars does not properly reflect the science. This nomenclature is the means by which science turns into junk science. Complicating matters is that sometimes the Medical Examiner tests these items, as in this case, and sometimes they refuse. See People v. Rodriguez, 60 Misc 3d 1204(A) (Sup Ct, Kings County 2018). Here the DNA profile obtained from the cigarette butt excludes the defendant as a contributor. In order that Matter of Abe A. retain any vitality, the examination of its second factor in this matter demands that defendant’s right to privacy even from the intrusion of a cheek swab be protected when there is clear evidence that no relevant evidence will be found testing the same item a second time after a test of a process with 99 percent reliability all but guarantees that the intrusion will be for naught because no relevant material evidence will be found. The 99 percent reliability produces a safe and reliable method of the same result. Fundamentally, the defense should be able to place into evidence the fact that the du-rag produced no evidence of this defendant’s DNA matching the DNA found on the du-rag. Due to the outsized influence that DNA evidence has upon juries, [see People v. Wright, 25 NY3d 769 (2015), and People v. Powell, 165 AD3d 842 (2nd Dept. 2018)], the People may not consistent with due process argue to the jury in the instant case that a further sample or a buccal swab would have produced evidence of the defendant’s guilt. See Stabile, A; The “Elasticity” of DNA Evidence? When Prosecutorial Storytelling Goes Too Far; 28 Review of Law and Social Justice 137, et seq. (2019). Accordingly, the People’s application is denied. This constitutes the decision and order of the Court. Dated: October 2, 2019 Bronx, New York
