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New Jersey Supreme Court Announces New Test to Determine When State May Obtain Second DNA Sample After Unlawfully Obtained First Sample

by Douglas Ankney

The Supreme Court of New Jersey rejected the “inevitable discovery doctrine” as being “a poor fit” for determining whether a second DNA sample could be obtained after a trial court determined that the first sample was unlawfully obtained. Instead, the Court announced a new test that is a derivative of the “independent source doctrine.”

Sergeant Roy Bordamonte of the Passaic Police Department was the lead investigator of the brutal rape and murder of a sex worker identified by the court as Katie. Another sex worker, identified as Tina, told Bordamonte that the “rumor on the street” was that a violent Mexican known as “Blaze” had killed Katie. Blaze’s legal name is Rafael Camey.

Tina later made a street identification of Camey to Bordamonte. Police then grabbed Camey in a bar and transported him to police headquarters. Detective Alex Flores — a Spanish-speaking officer — read Camey his Miranda warnings but made no effort to have Camey understand them.

Camey, who had a second-grade education, repeatedly told police, “I don’t understand and I don’t know.”

Police then had Camey sign a consent form printed in English while knowing he spoke almost no English. The form stated Camey waived his rights and “consented” to a buccal swab for the purpose of collecting DNA for a profile. Before taking the swab, police never translated the consent form, never told Camey he could refuse the taking of the swab, and never told him the swab would be sent to the police lab for DNA testing as part of a criminal investigation. Camey was released.

Bordamonte also learned that Katie’s husband had been previously charged with domestic assault on Katie, in addition to having a charge of aggravated sexual assault on another person. Yet Bordamonte neither got a warrant for DNA from Katie’s husband nor investigated him in any manner.

Instead, police grabbed Camey a second time without a warrant or probable cause and transported him to police headquarters. The police elicited statements from Camey without ensuring he voluntarily waived his Miranda rights. Police released him only to unlawfully detain him again a few days later. Without securing a valid waiver of his Miranda rights, Camey was subjected to an interrogation that lasted six-and-a-half hours. He was not provided any food, even though he said he was dying of hunger, and he was not given a bathroom break.

Bordamonte verbally abused Camey, calling him a “little freak,” a “motherf**king liar,” and a “tutti-frutti.” Bordamonte threatened Camey that if he persisted in his denials he would be deprived of water. Camey was again released.

When the DNA analysis confirmed that Camey was the contributor of the DNA recovered from Katie, he was arrested. Camey moved to suppress the evidence because it was obtained as the result of an illegal seizure and in violation of Camey’s Miranda rights.

The State argued that even if the evidence was illegally seized, the evidence was still admissible under the doctrine of inevitable discovery. The State further argued that it should be permitted to obtain a warrant for a second DNA sample if the trial court determined the first sample was unlawfully obtained.

After listening to arguments from both parties, the Superior Court stated it had “rarely seen such a blatant disregard for the most basic of constitutional safeguards.... The procedures here were beyond offensive.” The court called the three detentions and the taking of the DNA sample “blatantly illegal.” The court also found that the inevitable discovery doctrine was inapplicable and ordered Camey’s statements and the DNA evidence be suppressed. The State appealed. The Appellate Court affirmed, and the Supreme Court granted further review.

The Supreme Court observed that the Fourth Amendment to the U.S. Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals from unreasonable searches and seizures. State v. Gathers, 190 A.3d 409 (N.J. 2018). The taking of a DNA sample is a search. Id. Before a search or seizure is lawfully permitted, a warrant must be procured from a neutral magistrate based upon probable cause. Id. Searches conducted without a warrant are presumed to be unreasonable unless the search falls within a recognized exception to the warrant requirement. State v. Sullivan, 777 A.2d 60 (N.J. 2001). Evidence obtained without a warrant, or in circumstances without conditions to meet a recognized exception to the warrant requirement, is excluded. Id. One authorized exception is the “inevitable discovery doctrine” that allows for admission of illegally seized evidence if such evidence would have been obtained in absence of the police misconduct. Nix v. Williams, 467 U.S. 431 (1984).

This is a narrow exception that requires the State to show by clear and convincing evidence that: (1) proper, normal, and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means. State v. Sugar, 495 A.2d 90 (N.J. 1985). The exception should not be applied when the police misconduct consists simply of failing to get a warrant because this would defeat the purpose of the exclusionary rule, i.e., deterring law enforcement from violating the constitutional protections against unreasonable searches. Id.

The Supreme Court in the instant case affirmed the decisions of the lower courts, ruling that those courts correctly applied the inevitable discovery doctrine. There was no clear and convincing evidence that Bordamonte would have secured a warrant through ordinary investigative means. The entirety of the police conduct toward Camey showed they failed to secure a warrant for the buccal swabs, illegally detained him three times, and subjected him to three illegal interrogations.

But the Supreme Court also determined that the inevitable discovery framework was not a fit for the facts of this case. The doctrine generally addresses completed searches that cannot be replicated. A key factor in the trial court’s decision was its perception that the State was seeking to obtain through legal means the same evidence that it had earlier obtained unlawfully. That “look-back” logic would, for example, bar a belated application for a search warrant that would allow police to lawfully recover a murder weapon it had discovered only through an initial illegal search. And rightly so because allowing the belated warrant would completely undermine the deterrent effect of the exclusionary rule.

However, DNA is not an item like guns, drugs, or documents. DNA is immutable evidence. A new DNA sample would provide the same information as the original sample, but each sample would be evidence in its own right. Therefore, the Supreme Court announced a test based on the “independent source doctrine” from State v. Holland, 823 A.2d 38 (N.J. 2003). The test requires the State to demonstrate probable cause for a second DNA sample. That showing may include evidence that existed before the initial invalid search but cannot be tainted by the results of the prior search. And to deter misconduct by the police, the State must show by clear and convincing evidence that the initial impermissible search was not tainted by flagrant police misconduct. If the State can make such a showing, a trial court, under Rule 3:5A, may issue investigative detention orders for “the purpose of obtaining evidence of a person’s physical characteristics,” which would include the taking of a second DNA sample.

But the record in this case was inadequate to permit the Court to decide if the evidence showed a second DNA sample could lawfully be taken. Accordingly, the Court affirmed the lower courts’ decisions with regard to the inevitable discovery doctrine but remanded to the Superior Court for further proceedings consistent with the new test described in the opinion. See: State v. Camey, 2019 N.J. LEXIS 1038 (2019). 

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