WA Supremes hold that collecting a DNA swab from a defendant was unlawful search because it was made without a warrant and without probable cause based on oath or affirmation.
Petitioner Alejandro Garcia-Salgado was convicted of rape in King County Superior Court after the results of his D.N.A. test linked him to the victim, and were were admitted into evidence during his trial. He appealed his conviction, saying that the State lacked probable cause to test his D.N.A. and that conducting the test without his consent pursuant to a court order violated his constitutional rights. The Washington Court of Appeals affirmed Garcia-Salgado’s conviction, holding that sufficient evidence existed in the record to establish probable cause for a test of Garcia-Salgado’s D.N.A. Garcia-Salgado appealed this decision to the Supreme Court of Washington.
The Court reasoned that a cheek swab for DNA is indeed a search that intrudes into the body. A search that intrudes into the body may be made pursuant to an order entered under CrR 4.7(b)(2)(vi) if (1) the order is supported by probable case based on oath or affirmation, (2) is entered by a neutral and detached magistrate, (3) describes the place to be searched and the thing to be seized, and (4) if there is a clear indication that the desired evidence will be found, the test is reasonable, and the test is performed in a reasonable manner.
Here, the WA Supremes decided the trial court errored in procuring the DNA swab because the State lacked a warrant supported by probable cause. “Consequently, this court cannot say that there was probable cause to search Garcia-Salgado’s DNA. We reverse the Court of Appeals and remand.”
My opinion? Heinous as the crime was, the WA Supremes decided correctly. Defendants have rights, plain and simple. The criminal justice system must conduct investigations in accordance with these rights. If the process is shortcutted or made sloppy, then convictions cannot stand. Here, the State failed to get a warrant for the DNA swab. Consequently, they should not be allowed to present the DNA evidence at trial. Good opinion.