Defendants are each charged by felony complaint with Criminal Possession of a Weapon in the Second Degree, PL 265.03(3), and related lesser charges, as well as Unlawful Possession of Marijuana, PL 221.05, a non-criminal violation, after police searched a car in which they were sitting and found a gun inside a bookbag in the trunk. The People have not presented the cases to a grand jury. The People now move pursuant to CPL 245.40(1)(e) for an order compelling each defendant to submit to the harvesting of a biological sample from his body for the purpose of DNA analysis, so that his DNA can be compared to DNA found on the gun. Defendants each oppose the People’s motion, and cross-move for a protective order. The court has reviewed the People’s motions, the defense responses and cross-motions, and the entire court file. For the reasons set forth below, the People’s motion is DENIED as to each defendant. As defendants’ cross-motions for protective orders are thus moot, they need not be addressed. Background These cases arose when, according to the facts alleged in the felony complaint and the People’s submissions in support of this motion, shortly after 3:00 a.m. on June 11, 2020, in the area of Marmion Avenue and Crotona Park North, police officers noticed a car parked in front of a fire hydrant with the engine running. The officers approached the car. As they got closer to the car, they noticed smoke emanating from the vehicle, and smelled marijuana. Defendant Heyward was sitting in the driver’s seat, Iglesias was in the front passenger seat, and Colon was in the backseat. Based on the “strong” odor of marijuana, the officers asked the three men to get out of the car, then proceeded to search the interior of the vehicle. The officers recovered two burnt cigarettes containing suspected marijuana in the center console cupholder, and a small bag of suspected marijuana in the sunglasses compartment. The officers then opened and searched the trunk of the car and found two additional bags of marijuana, and a “bookbag.” The officers opened and searched the bookbag and found a closed “case” (no description of the case is provided). Opening the case, the officers found a 9mm Glock handgun, a magazine containing nine rounds of ammunition, and a box containing one bullet. The three men were then arrested and taken to the precinct. The gun was given to the police Evidence Collection Team to be swabbed for DNA. At the precinct, Heyward (the driver) said, “We were coming to visit family and friends and smoke weed. It’s Iglesias’s gun.” Iglesias (the passenger) said, “The gun is mine. It’s registered to me. We went to the shooting range yesterday and I forgot it was in the trunk. We were smoking weed in the car. I filed for a permit but never got it.” Colon (in the back seat) said, “I didn’t know there was a gun in the car. I’m on probation which finishes in November.” Officers checked the gun registration database maintained by the New York City Police Department and found the gun was not registered there. There is no indication that the officers checked the gun’s serial number or Iglesias’s information in any licensing or registration databases elsewhere in New York State or in any other states. Pedigree information presented at Iglesias’s arraignment indicates he resides in Pennsylvania. The swabs from the gun taken by the Evidence Collection Team were sent to the Office of the Chief Medical Examiner (OCME) for analysis. DNA was found on three areas of the gun: the trigger/trigger guard, the front strap/back strap/side grips, and the slide release/magazine release/slide grooves. The sample from the front strap/back strap/side grips was the only one that produced an analyzable result. The OCME criminalist determined that DNA from three individuals was present in the sample, but that 87 percent of the DNA came from a single male donor. The People now move to compel each defendant to submit to the harvesting of biological material from his body for DNA analysis in the form of a buccal cheek swab. Analysis Our Federal and State constitutions ensure the right of every person to be secure in the integrity of his person against unreasonable, unwarranted government intrusions. (US Const Amend IV; NY Const art I §12). Even more fundamental than the constitutional protection of a person’s home or property from unwarranted government incursion, intrusions into a person’s body implicate the “most personal and deep-rooted expectations of privacy, and Fourth Amendment analysis thus require[s] a discerning inquiry into the facts and circumstances to determine whether the intrusion [i]s justifiable.” (Winston v. Lee, 470 US 753, 760 [1985]). Before a person may be made to submit to such an intrusion as the forcible collecting of his genetic material, the prosecution 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 288, 291 [1982]). Even when these elements are established, however, before ordering such an intrusion, the court “must give careful consideration to the circumstances of the particular case.” Id at 298. Among the factors to be considered are the value of the evidence and its necessity to the People’s case. Id. In explaining this balancing test, the Court of Appeals in Abe A. looked to Schmerber v. California, in which the United States Supreme Court upheld a court order to draw blood from a suspect “under stringently limited conditions,” (384 US 757, 772 [1966]), and a similar case decided by the California Supreme Court, which reasoned that “the human body is not a sanctuary in which evidence may be concealed with impunity,” and “[a]ppropriate procedures to remove such evidence” may be permissible, provided that the reasonableness requirements of the Fourth Amendment are met. (People v. Scott, 21 Cal 3d 284, 292-293, 578 P2d 123, 127 [1978]). As in all searches, “‘[r]easonableness’ is determined by balancing ‘the need to search against the invasion which the search entails.’” (Id., quoting Terry v. Ohio, 392 US 1, 21 [1968]). The Abe A. court emphasized that “probable cause to believe the suspect has committed the crime” is an indispensable prerequisite (Id. at 291; 296-297, citing Schmerber, 384 US at 770-771, and Dunaway v. New York, 442 US 200 [1979]). Moreover, where the place to be searched is a person’s body, there must be a “clear indication” that relevant evidence will be found. (Abe A., 56 NY2d at 291). “The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” (Schmerber, 384 US at 769-770). Rather, the prosecution must show “a clear indication that in fact such evidence will be found.” (Id. at 770). The first three prongs of the Abe A. test have now been codified in New York’s Criminal Procedure Law. (See CPL 245.40[1][e]). However, the rest of the Abe A. analysis, not included in the statute, is necessary to ensure that “the suspect’s constitutional right to be free from bodily intrusion” is not violated and that any intrusion a court may permit comports with constitutional requirements. (56 NY2d at 291). Pursuant to Abe A., once the initial three prongs have been shown, the court must then carefully consider the particular circumstances of the case, including the importance and necessity of the evidence, and whether alternative means of obtaining it exist. (Id. at 298). Subsequent to Abe A., the required constitutional analysis has also been further expounded upon by the United States Supreme Court. In Winston v. Lee, the Supreme Court considered a more extreme instance of bodily intrusion where the state sought to compel an attempted robbery suspect to undergo surgery to remove a bullet allegedly fired by the victim. (470 US 753, 761-762 [1985]). The Winston court reaffirmed that “the ordinary requirements of the Fourth Amendment would be the threshold requirements ‘where intrusions into the human body are concerned.’” (Id. at 760, quoting Schmerber, 384 US at 770). Once probable cause is established, a court must then consider the “reasonableness” of the intrusion. This requires considering “the magnitude of the intrusion,” both in terms of any potential risks to the physical health of the suspect and “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity.” (Id. at 761). The court must also consider the prosecution’s “need to intrude” into the person’s body, which requires both a “clear indication” that evidence will be found, and a “compelling need” for that evidence in light of all the circumstances. (Id. at 765). Defendant Colon As to defendant Colon, as an initial matter the People have not established probable cause to believe that he possessed the gun. Simply being present in a car that someone else was driving does not indicate that he even knew that a gun was in the trunk, inside a closed container, inside someone’s personal bag. Furthermore, even if he had any knowledge that one of his companions had a gun in the trunk, the People present no facts that would indicate that Colon, the backseat passenger, in any way exercised dominion and control over the weapon, as is necessary to legally constitute possession. (PL 10.00[8]; People v. Ballard, 133 Misc 2d 584 [Sup Ct, NY, 1986]). For similar reasons, the People have not alleged any facts that create a “clear indication” that Colon’s DNA would be found on the gun. The People do not allege that Colon ever handled the gun. The allegations presented by the People are that the gun belongs to Iglesias, based on his statement to the police that the gun was his, which is reinforced by Heyward’s statement also asserting that the gun belongs to Iglesias. Colon disclaimed any knowledge of the gun’s existence, and the People have provided no basis to conclude otherwise. The “clear indication” that the intrusion will supply probative evidence is a prerequisite for an infringement on bodily integrity and privacy as the People are requesting here. (Winston, 470 US at 762; Abe A., 56 NY2d at 297; Schmerber, 384 US at 770.). As the People have not met the basic, preliminary requirements necessary for the issuance of the order, the People’s motion as to defendant Colon is denied. It should be noted that the People may not rely on the “automobile presumption” to establish probable cause for the purpose of the present inquiry. The “automobile presumption” codifies the commonsensical conclusion that where a gun is found in a car, that may, but need not, be taken as some evidence that everyone in the car at the time possessed it. (See PL 265.15[3], “the presence in an automobile of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found[]“). However the presumption is unconstitutional in the absence of “a reasonable basis for concluding that the defendant had control over the weapon.” (People v. Porter, 133 Misc 2d 584, 590-591, citing Ulster County Court v. Allen, 442 US 140, 157 [1979]). Defendant Heyward With respect to defendant Heyward, the driver, although the question of probable cause is a closer call, the People have failed to establish a “clear indication” that his DNA will be found on the gun. Although Heyward seems to have known the gun existed (he stated, “It’s Iglesias’s gun”), it is not clear that he knew it was in the car at the time, or, more significantly, that he exercised dominion and control over an item belonging to another and secreted inside a closed container, inside the closed personal belongings of the owner.1 The People’s chief argument with regard to Heyward rests on a tortured interpretation of Iglesias’s statement, “We went to the shooting range yesterday and I forgot it was in the trunk.” The People assert baselessly that the “we” to whom Iglesias refers includes Heyward. This is entirely speculative. The People offer no actual, factual allegations to support this assertion, and moreover no reason to believe Heyward ever handled the gun such that his DNA would be present on it. In the absence of any such factual allegations, there is no “clear indication” that probative evidence would be found as a result of harvesting Heyward’s DNA. Thus the intrusion upon defendant Heyward’s body sought by the People is unreasonable. The People’s motion with respect to Heyward is denied. Defendant Iglesias Finally, regarding defendant Iglesias, the People have established probable cause to believe that he possessed the gun as charged. Indeed, Iglesias freely admitted that the gun belongs to him, and one of his companions also attributed ownership to him. (cf. People v. Reid, 221 AD2d 213 [1st Dept 1995]). There is also a clear indication that Iglesias’s DNA will be found on the gun: he not only admitted to ownership of the gun, but further admitted to handling the weapon recently. The People have therefore met the first two prongs of the Abe A. test. The third prong, regarding the proposed method to be used to capture the DNA, a buccal swab of the inside of his cheek is widely accepted as safe, effective, and causing little or no discomfort. As the People have met the preliminary requirements for the bodily intrusion of defendant Iglesias, the court now “must give careful consideration to the circumstances of the particular case.” (Abe A., 56 NY2d at 298). One important factor to be considered, uniformly highlighted by the courts in Abe A., Schmerber, and Winston, is the state’s “need to intrude into [the defendant]‘s body,” and specifically whether there is a “compelling need” for the evidence sought to be recovered through the intrusion. (470 US at 465). Here, Iglesias freely admitted to possessing the gun. His companion, Heyward, also asserted that Iglesias possessed the gun. There does not seem to be an evidentiary “missing piece” that the DNA could provide. And while it may not be for the court to draw a line as to how strong of a case the People may build — in this case it is arguable that the People are entitled to have DNA evidence in addition to defendant’s statement to prove a case against him, especially where the intrusion is limited to an oral swab — the need for the evidence is only one factor that the Court of Appeals has indicated a court must consider. Recognizing the serious constitutional implications involved, Abe A. requires that a court examine all of the “the circumstances of the particular case.” (56 NY2d at 298). The circumstances of this case are that police officers, happening upon a group of young men in a parked car smoking marijuana on a summer night (a relatively minor, non-criminal offense), engaged in not just the arguably reasonable search of the car’s interior for the marijuana that they smelled, but went on to open the car’s trunk and search it. The officers then went further and opened a bookbag they found inside the trunk. Going still further, they opened a closed case found within the bag. As no motion to suppress has yet been litigated, this court is loath to order the forcible removal from a person’s body of his most basic, biological essence while no justification for these escalating intrusions have occurred. The motion with respect to defendant Iglesias is therefore denied with leave to renew after a suppression hearing has fully scrutinized the basis for the police intrusions which led to the retrieval of the gun in the first place. The People’s motions with respect to defendants Colon and Heyward are denied. This constitutes the decision and order of the court. Dated: January 28, 2021
