Court Tosses Illegal DNA Swab but Cuts Route for Do-Over

TRENTON, N.J. (CN) – Sparking criticism that it has authorized a do-over for an illegal search, the New Jersey Supreme Court laid out directions Thursday on how the state can test the DNA of a man is suspects of having raped and beaten to death a prostitute.

When Passaic police found a brutally battered corpse six years ago in the woods behind a ShopRite, a prostitute named Tina told police that the woman was “the new girl on the block.”

Katie, as the woman is referred to in court documents, had gone off with a “violent Mexican male” around 11 p.m. on the night she was killed, Tina said.

She also told police that the client had choked Katie during a previous encounter and also had assaulted another woman.

Police drove around with Tina that night but were unable to locate the man. They also took DNA swabs of about 20 homeless people found near the site.

A month later, however, Tina’s on-scene identification led police to detain Rafael Camey at a bar.

Though detectives interviewed Camey and read him his Miranda rights in Spanish, his native language, they had him sign a consent form for a buccal swab in English.

As recounted in a dissent by Justice Barry Albin, this was one of three illegal detentions of Camey at police headquarters. During the third interrogation, officers refused to give Camey water or let him use the bathroom. Albin notes that Camey allegedly has only a second-grade education, that police made no effort to ensure he understood his rights, and one sergeant called Camey a “little freak” and a “motherfucking liar.”

Months passed before the swab came up positive for DNA found on Katie, and police arrested Camey.

At trial, however, Superior Court Judge Marilyn Clark suppressed the evidence from Camey’s DNA swab, finding that Camey was not fully aware of his rights when he signed the consent form. She also said the state’s argument of inevitable discovery — the theory that police would have gotten the DNA evidence eventually — did not apply in this case.

The Appellate Division affirmed, leading to oral arguments before the Supreme Court in January.

Chief Justice Stuart Rabner asked at that hearing whether police should be allowed a do-over in the case. “So the police can do it wrong the first time, and then simply say ‘Oh, I’ll do it right this time?’” Rabner asked. 

The ACLU filed an amicus brief in the case in which it argued that prosecutors established only that it was plausible, and not inevitable, that police would have gotten a warrant for Camey’s DNA had they not gotten it through illegal means.

The ACLU also noted that police officers have no incentive to seek warrants if they can simply argue inevitable discovery later on.

Thursday’s 6-1 ruling notes that, while DNA evidence is extremely useful for identification purposes in criminal prosecutions, police must adhere to the same constitutional principles that apply to searches and seizures.

“To pass constitutional muster, a search must be conducted pursuant to a search warrant or must fall within an exception to the warrant requirement,” Justice Jaynee LaVecchia wrote for the majority.

He said police can rely on either voluntary consent or search warrants, but in this case they did neither, nor did they conduct an independent investigation of Camey unrelated to the swab.

Police failed to question Camey’s co-workers and roommates about his whereabouts on the night of Katie’s murder, never obtained a search warrant for Katie’s husband’s home despite the husband’s criminal history and history of domestic violence against Katie, and they held Camey’s DNA for almost three months before even sending it to the lab.

“Our standard of proof requires that the state carry its burden by clear and convincing evidence in order for otherwise excluded evidence to be allowed in through inevitable discovery,” LaVecchia wrote, noting that no New Jersey court has previously ruled on this particular issue.

Further, LaVecchia wrote that the inevitable discovery framework typically applies to completed searches that cannot be replicated, and that DNA swabs are always the same evidence. “DNA is different in that immutable evidence lives on. Always. And the breadth of it extends beyond the swab,” LaVecchia wrote.

Giving police a possible out from the Catch-22, the court noted that officers could legally retrieve a cup with Camey’s DNA on it or else establish probable cause to conduct a new swab using new or existing evidence.

“Tina’s statements and her identification of [Camey] are not off-limits,” LaVecchia noted.

Albin in the dissenting opinion meanwhile blasted his colleagues allowing police “a do-over” that ignored constitutional violations. “Defense attorneys will soon see the futility of filing suppression motions, leading to police practices that are indifferent ot the Constitution’s warrant requirement,” Albin wrote.

Neither the public defender’s office, which represented Camey, nor the ACLU immediately responded to requests for comment. 

Jason Statuto, the chief assistant prosecutor for Passaic County handling the case, said he has no general comment on the ruling, but he added the opinion creates a new framework for obtaining a DNA swab and that the office is getting ready for the remand hearing.

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