TRENTON, N.J. (CN) -- The New Jersey Supreme Court heard arguments Wednesday about whether a man accused of murder needs to submit another cheek swab after the first was deemed unlawful.
Authorities swabbed Rafael Camey's inner cheek because a prostitute eyewitness told police she saw him – whom she described as a “violent Mexican man” – with a woman the Passiac Police Department had found dead a month earlier. The results from the swab matched DNA found on the woman’s body.
But Superior Court Judge Marilyn Clark suppressed the evidence from the swab because Camey received the consent form for the swab in English, even though he mostly speaks Spanish and only has a second-grade education.
Judge Clark then barred the state from entering the DNA evidence under the theory of inevitable discovery – which is a doctrine allowing inadmissible evidence that would have eventually been discovered lawfully. Camey is an illegal immigrant, and Clark cited Sergeant Roy Bordamonte's “angry remarks” about illegal immigrants in her doubt about whether he would have applied for a search warrant.
Lila Leonard, representing the state, argued to the panel that denial of inevitable discovery should not block police from lawfully conducting a new swab.
Chief Justice Stuart Rabner struggled to make sense of her argument.
“So the police can do it wrong the first time, and then simply say ‘Oh I’ll do it right this time’?” Justice Rabner said.
Leonard argued that even though the prostitute was under the influence of narcotics, her testimony provided enough probable cause to swab Camey.
“If she had been a school teacher, it would have been enough,” Leonard said.
Justice Barry Albin reminded Leonard that police arrested Camey based on evidence from the swab, not based on witness testimony.
Albin further pressed Leonard on why police waited eight months to get DNA evidence on Camey if he was a prime suspect and they had probable cause.
“Just because there was more that could have been done doesn't erase probable cause,” Leonard said.
Stefan Ventura, representing Camey, did not see how the state could prove its second application for a new and lawful swab would be allowed.
“The state would be hard-pressed to show that the application was independent of the already suppressed evidence,” Ventura said.
Justice Solomon questioned whether police did anything wrong in regards to probable cause, but Ventura insisted he did not believe there was probable cause at all.
Ventura reminded the court that Camey only had a second-grade education – and that although police translated the buccal swab document, they failed to help him understand just what a buccal swab meant.
Justices Anne Patterson, Faustino Fernandez-Vina, Jaynee LaVecchia and Walter Timpone rounded out the panel.
Alexander Shalom appeared on behalf of the ACLU-NJ as a friend of the court.
The court did not indicate when it will reach a decision.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.