United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA UNITED STATES DISTRICT COURT
Defendant, Wilbert Hayes, is charged in a one-Count
Indictment with violating 18 U.S.C. § 922(g) by
possessing a firearm after having been convicted of a felony
offense. He is charged with possessing a J.C. Higgins bolt
action shotgun bearing no serial number on August 15, 2014,
in spite of three prior felony convictions. Dkt. No. 6. Jury
selection and trial are scheduled for May 2, 2017.
United States moved on April 6, 2017, for authorization to
obtain from Defendant Hayes buccal swabs for DNA analysis and
comparison to DNA profiles obtained from the firearm the
Defendant is charged with possessing. The Defendant opposed
the motion and cross-moved to dismiss the Indictment, and for
other relief, based upon the United States' unexplained
failure timely to marshal and disclose DNA evidence it may
seek to introduce against the Defendant at trial.
April 19, 2017, the Court entered a Text Order granting the
motion upon finding reasonable individualized suspicion
sufficient under the Fourth Amendment to authorize the United
States to take buccal swabs from the Defendant. Dkt. No. 68.
This Decision and Order further states the Court's
reasons for granting the motion, and for granting the motion
without prejudice to Defendant moving in limine to
preclude expert testimony based upon the DNA comparison from
the United States' case in chief, and its rebuttal case,
or to seek alternative relief, on the ground that the United
States failed timely to disclose that it might seek to
introduce DNA evidence.
United States filed its motion for authorization to obtain
buccal swabsfrom Defendant Hayes for DNA analysis and
comparison to a mixed DNA profile obtained from a swab from
the firearm the Defendant is charged with possessing on April
6, 2017. Dkt. No. 63. The motion was filed more than three
years and four months after the firearm was seized by local
law enforcement officers on August 15, 2014. Dkt. Nos. 43,
52. It was filed more than 26 months after the federal
felon-in-possession charge was brought against the Defendant.
Dkt. No. 1. It was filed more than 19 months after the United
States formally represented pursuant to Fed. R. Crim. P.
12(b)(4)(B) that it had disclosed to the Defendant all the
scientific tests and expert testimony it intended to use at
trial, and disclosed no DNA analysis or DNA expert testimony.
Dkt. No. 22, pp. 7-8. The motion was filed nearly a month
after the trial date was set during a court appearance on
March 9, 2017, but less than a month before jury selection
and trial will begin on May 2, 2017. See March 9,
2017 minute entry.
firearm Defendant Hayes is charged with possessing was
analyzed by a municipal forensic laboratory, and a copy of a
“DNA Analysis Report” was provided to the
Defendant's trial counsel when a reply memorandum in
support of the United States' instant motion for buccal
swabs was filed on April 17, 2017. Dkt. No. 67-1. The report
is unclearly worded, but it indicates that a mixture of four
persons' DNA are in a DNA profile extracted from a swab
from the firearm the Defendant is charged with possessing,
and that one of those persons is, like the Defendant, male.
Id. The forensic laboratory represents that a
“known sample” is now necessary to permit
comparison to assess whether the Defendant's DNA profile
is among those on the firearm. Dkt. No. 64, p. 2. The
Defendant is in pretrial detention.
buccal swabs is a minimally-intrusive process, and if the
United States establishes reasonable individualized suspicion
that the procedure will lead to admissible DNA evidence in a
criminal case, the Court will ordinarily authorize it.
See e.g., United States v. Owens, No.
06-CR-72A, 2006 WL 3725547 (W.D.N.Y. Dec. 15, 2006). In this
case, the Grand Jury has found probable cause to believe that
Defendant Hayes actually or constructively possessed a
shotgun when the Grand Jury returned the Indictment charging
the August 15, 2014 violation of 18 U.S.C. § 922(g). The
Defendant denies he either actually or constructively
possessed the shotgun, which was recovered from a closet in
an apartment at 1318 Walnut Avenue, Apt. 2, Upper, Niagara
Falls, New York, where the Defendant was a frequent overnight
occupant. But a cooperating witness told law enforcement the
Defendant owned “a sawed-off 30-06” rifle. And
the cooperating witness allegedly made controlled purchases
of marijuana from the Defendant in the apartment where the
firearm was seized. The record before the Court gives rise to
reasonable suspicion that the Defendant was selling marijuana
in the apartment where the firearm was seized, and that he
possessed the firearm. The Court therefore found reasonable
suspicion sufficient under the Fourth Amendment to authorize
the United States to take buccal swabs from the Defendant to
use to obtain a DNA profile that can be compared to profiles
extracted from a swab of the firearm.
Hayes opposed the United States' motion primarily based
upon the untimeliness of the United States' motion, while
stressing that he has already given four buccal swabs while
being booked or moved to various pretrial detention
facilities during the years this case has been pending, and
that he had earlier sought repeatedly to negotiate to arrange
to have his DNA tested for comparison to any DNA on the
firearm he is charged with possessing, only to be rebuffed by
the United States. He disputes that the probable cause
finding of the Grand Jury that he possessed or constructively
possessed the firearm has any probative value. He argued the
United States' failure to seek DNA evidence from him
until the eve of trial renders what would otherwise be
reasonable and permissible under the Fourth Amendment
unreasonable and impermissible.
response, the United States argued that taking buccal swabs
is only a minor intrusion upon Defendant Hayes' Fourth
Amendment rights. It relied upon Maryland v. King,
133 S.Ct. 1958 (2013), among other authorities. The United
States disregards that the search it seeks authorization for
in this case is years removed from Defendant's arrest and
is unrelated to booking procedures. The Court does not agree
with the United States that the Fourth Amendment standard
approved in King for statutorily-mandated DNA
collection incident to “reasonable booking
procedures” in temporal proximity to every arrest for a
serious crime applies in the present circumstances years
after the Defendant was arrested and processed incident to
his arrest. But see United States v. Eldridge, No.
09-CR-329-A, 2013 WL2635207 (Jun. 12, 2013). The Court
concluded that reasonable individualized suspicion is the
Fourth Amendment standard applicable in this case.
Hayes raised serious questions whether the United States
should be permitted to change the evidence so near the
beginning of his trial. Accordingly, the Court's ruling
was made without prejudice to Defendant moving in
limine to preclude expert testimony based upon the DNA
comparison from the United States' case in chief, and its
rebuttal case, or to seek alternative relief, on the ground
that the United States failed timely to disclose pursuant to
Fed. R. Crim. P. 12(b)(4)(B) that it would seek to introduce
DNA evidence. Dkt. No. 68. The Court expresses no opinion on
the outcome of any such motion in limine or related
request for relief on behalf of the Defendant.
reasons stated above, the motion of the United States for
authorization to obtain from Defendant Hayes buccal swabs for
DNA analysis and comparison to DNA profiles obtained from the
firearm the Defendant is charged with possessing was granted
in a Text Order on April 19, 2017. Dkt. No. 68. The Court
considered the Defendant's cross-motion to dismiss the
Indictment and denies it. The Defendant may move in
limine to preclude expert testimony based upon a DNA
comparison from the United States' case in chief, and its
rebuttal case, or seek alternative ...