Judge Finds It Legal for Police|to Taser Suspect to Get DNA Sample

LOCKPORT, N.Y. (CN) - It's legal for police to zap a suspect with a Taser to get a DNA sample, as long as it's not done "maliciously, or to an excessive extent, or with resulting injury," a Niagara County judge has ruled in what appears to be the first case of its kind.

New York Supreme Court Judge Sara Sperrazza ruled it was not unconstitutional for Niagara Falls police to shock Ryan Smith with a 50,000-volt "drive stun" to get a DNA sample that allegedly links him to two crimes. She denied Smith's request to have the evidence thrown out.

One month before he was Tasered, Smith provided a DNA sample, taken with a swab of the cheek, without protest. It was sent to the wrong lab and opened, compromising the sample. When officers ordered him to give another one, he refused.

Prosecutors asked Sperrazza for another court order, which she signed.

Smith, 21, of Niagara Falls, was not represented by an attorney at the time, which meant he had to be personally made aware of the order, according to his lawyer Patrick Balkin. Balkin he said his client already had given police several samples.

Smith was grabbed on the street by two detectives and brought to police headquarters.

He refused to give another sample, objecting to the authority of the court order. He told the officers that they would have to "Tase" him to get another swab.

Police considered holding him down and forcing open his mouth. A Niagara Falls detective lieutenant called an assistant district attorney, who told him they could use the "minimum" force necessary to obtain the sample.

A video shows Smith handcuffed, seated on the floor with his shirt pulled up over his bare shoulders. Police can be heard telling him that the Taser would be "painful and unpleasant," but he persisted in his refusal, according to the judge.

The officer applied the Taser to Smith's shoulder area, which caused him to cry out and pull away. The data record for the device showed it was activated for 4 seconds.

"The video recording indicates that the defendant did yell out as if in pain and then agreed to comply with the order," Sperrazza wrote.

Smith allegedly was unconscious when the swab was taken, and was arrested for refusing to submit to a court order.

"It's terrifying," Balkin said. "You should never use force to collect evidence. We're headed down the wrong way if we're going to do that."

Balkin said the judge should have brought Smith to court and explained that he needed to comply. "He had already given two to four samples of DNA voluntarily; nobody had to Taser him. When met with passive residence to a court order, we can't use violence."

But Sperrazza allowed the uses of force based on the nature of the crimes and the evidence against Smith.

In July 2006, four suspects invaded a home, bound and gagged two small children and took the mother hostage. One man stayed behind with the kids while the other three took the mother to another home, where they shot a man during a robbery.

When police arrived at the first house they found one child still duct-taped and the other hiding on the roof. They also found DNA evidence on a can of soda.

Smith is also suspected of holding up a Sunoco convenience store while wielding a shotgun on Christmas Eve 2006, according to the indictment. Police found a glove left behind by the robber.

The DNA on the soda can and the glove was matched by the FBI's Combined DNA System, and the Erie County Forensic Lab found a connection between Smith's previous DNA test and evidence found on the can.

Judge Sperrazza recommended in similar situations that the court should order the suspect to appear and "explain the ramifications, including the authority to use reasonable force to effect compliance."

She said the court has not found any New York state cases regarding the use of force to collect DNA samples, but cited cases in Arizona, Idaho and Wyoming in which force was used by police to obtain hair and blood samples from non-compliant suspects. None involved Tasers.

Balkin said he plans to appeal if Smith is convicted in his August trial and will seek to have the DNA evidence declared inadmissible.

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