In the Matter of the Investigation of Burglary & Theft

Annotate this Case
Justia Opinion Summary

Police took a DNA sample from blue gloves discarded near the scene of a March 2015 burglary, and the sample was uploaded into CODIS. J.P. was later convicted of an unrelated felony, and a routine sample of his DNA was mailed to the Forensics Office. The Forensics Office confirmed a preliminary match between the DNA sample found on the blue gloves and J.P.’s routine offender sample. The notification requested that the local officials submit a follow-up sample to prove the match. As a result of that request, the State applied for J.P.’s investigative detention under Rule 3:5A-1 to obtain a new DNA sample. The court denied the motion, and the Appellate Division affirmed, holding that the State had not shown that the physical characteristics sought could not otherwise practicably be obtained. At issue before the New Jersey Supreme Court was whether, under Rule 3:5A-1 and Rule 3:5A-4(d), the State should have been permitted to obtain a follow-up buccal swab from J.P. so as to be able to prove in court a preliminary match between his DNA and a DNA specimen taken from the scene of the unsolved burglary. The Supreme Court held that in light of the federal and state requirements to obtain a follow-up sample, the State has shown that the physical characteristics sought in this case could not practicably be obtained by any means other than investigative detention pursuant to Rule 3:5A-1. The Court therefore reversed the Appellate Division.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

     In the Matter of the Investigation of Burglary and Theft (A-61-18) (082243)

Argued October 23, 2019 -- Decided January 21, 2020

SOLOMON, J., writing for the Court.

       The Court considers whether, under Rule 3:5A-1 and Rule 3:5A-4(d), the State
should be permitted to obtain a follow-up buccal swab from J.P. so as to be able to prove
in court a preliminary match between his DNA and a DNA specimen taken from the
scene of an unsolved burglary.

        The Combined DNA Index System (CODIS) database operates on both the
national and state levels. The National DNA Index System (NDIS) is administered by
the FBI. In New Jersey, the state system is managed by the State Police Office of
Forensic Sciences (Forensics Office). Operational and/or procedural issues not addressed
by federal statute are determined by the FBI as administrator of the NDIS. Significantly,
state and local law enforcement agencies may be excluded from using CODIS if they fail
to uphold its quality assurance procedures and standards.

       For DNA samples routinely taken upon arrest, the Forensics Office permits
submission by mail rather than by hand-delivery. If an offender sample is matched to a
sample in CODIS, the Forensics Office informs law enforcement of the need for a legally
obtained sample from the offender that documents the chain of custody through hand-
delivery. Only then -- with the results of this follow-up analysis supported by a chain of
custody -- will the State’s proof of the CODIS match withstand scrutiny in court.

       In this case, police took a DNA sample from blue gloves discarded near the scene
of a March 2015 burglary, and the sample was uploaded into CODIS. J.P. was later
convicted of an unrelated felony, and a routine sample of his DNA was mailed to the
Forensics Office. The Forensics Office confirmed a preliminary match between the DNA
sample found on the blue gloves and J.P.’s routine offender sample. The notification
requested that the local officials submit a follow-up sample to prove the match.

       As a result of that request, the State applied for J.P.’s investigative detention under
Rule 3:5A-1 to obtain a new DNA sample. The court denied the motion, and the
Appellate Division affirmed, holding that the State had not shown that the physical
characteristics sought cannot otherwise practicably be obtained. The Appellate Division
                                              1
suggested in dicta that the State could obtain a new sample by arresting J.P. for the 2015
burglary. The Court granted the State’s motion for leave to appeal.  237 N.J. 170 (2019).

HELD: In light of the federal and state requirements to obtain a follow-up sample, the
State has shown that the physical characteristics sought in this case cannot practicably be
obtained by any means other than investigative detention pursuant to Rule 3:5A-1. The
Court therefore reverses the judgment of the Appellate Division.

1. Rule 3:5A permits temporary investigative detentions under certain circumstances and
establishes procedural requirements for such detentions. Specifically, Rule 3:5A-1
provides that a judge of the Superior Court may authorize the temporary detention of a
person “for the purpose of obtaining evidence of that person’s physical characteristics”
under certain circumstances. And, as relevant here, Rule 3:5A-4 provides that such an
order “shall be issued only if” the State’s application persuades the court of four things.
The parties agree that the first three prongs of Rule 3:5A-4 are satisfied in this case and
disagree only regarding Rule 3:5A-4(d). (pp. 10-11)

2. Rule 3:5A-4(d) asks whether “the physical characteristics sought cannot otherwise
practicably be obtained.” The rule essentially requires a court to make two
determinations: (1) whether “the physical characteristics sought” can be obtained
through other means; and (2) whether that can be done “practicably.” The facts of this
case illustrate the significance of the second inquiry. The Forensics Office cannot
comply with federal requirements or advance its investigation, see R. 3:5A-4(c), by
retesting stored samples that have been mailed. The NDIS expressly requires a follow-up
sample supported by chain of custody -- without regard to any record of chain of custody
for the initial sample. Furthermore, practical limitations make it appropriate for law
enforcement agencies to submit by mail rather than by hand-delivery the approximately
15,000 routine offender samples received by the Forensics Office each year. J.P.’s
counsel has conceded that, if J.P. is charged, counsel will challenge the preliminary
match as unreliable based on chain of custody. The specter of such evidentiary
challenges is another reason why it would not be appropriate to foreclose the State from
obtaining new DNA samples under circumstances like these. (pp. 12-14)

3. The Appellate Division suggested that probable cause exists to arrest J.P. for the 2015
burglary and that the State could obtain a new buccal swab upon J.P.’s arrest. Since
arrest is a greater intrusion than a buccal swab, it is not an alternative to Rule 3:5A-1.
Rule 3:5A-4’s fourth prong is designed to protect against unwarranted intrusions, not
encourage a greater intrusion than is necessary. (p. 14)

       REVERSED and REMANDED for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.
                                             2
                    SUPREME COURT OF NEW JERSEY
                          A-
61 September Term 2018
                                    082243


                       In the Matter of the Investigation
                             of Burglary and Theft.

                      On appeal from the Superior Court,
                             Appellate Division.

                   Argued                        Decided
               October 23, 2019              January 21, 2020


            Shiraz Deen, Assistant Prosecutor, argued the cause for
            appellant State of New Jersey (Bradley D. Billhimer,
            Ocean County Prosecutor, attorney; Samuel Marzarella,
            Chief Appellate attorney, of counsel, and Shiraz Deen
            and on the briefs).

            Brian P. Keenan, Assistant Deputy Public Defender,
            argued the cause for respondent J.P. (Joseph E. Krakora,
            Public Defender, attorney; Brian P. Keenan, of counsel
            and on the briefs).

            Lila B. Leonard, Deputy Attorney General, argued the
            cause for amicus curiae Attorney General of New Jersey
            (Gurbir S. Grewal, Attorney General, attorney; Lila B.
            Leonard, of counsel and on the briefs).


           JUSTICE SOLOMON delivered the opinion of the Court.


      Rule 3:5A-1 allows a Superior Court judge to order temporary detention

to obtain evidence of a person’s physical characteristics under certain

circumstances. Rule 3:5A-4(d) mandates that such an order issue only if “the
                                       1
physical characteristics sought cannot otherwise practicably be obtained .” In

this case, a DNA specimen was taken from the scene of an unsolved burglary

and the DNA profile was uploaded to the Combined DNA Index System

(CODIS) database. When J.P. was arrested for an unrelated offense, a DNA

sample was taken from him and uploaded to CODIS. An analysis of the two

DNA samples revealed a match. We must determine whether, under Rule

3:5A-1 and Rule 3:5A-4(d), the State should be permitted to obtain a follow-up

buccal swab from J.P. so as to be able to prove the preliminary match in court.

      The trial court denied the State’s Rule 3:5A-1 motion to obtain a new

sample of respondent J.P.’s DNA on the ground that the evidence could be

otherwise obtained. The Appellate Division affirmed that determination. In

light of the federal and state requirements to obtain a follow-up sample, we

hold that the State has shown that the physical characteristics sought cannot

practicably be obtained by any means other than investigative detention

pursuant to Rule 3:5A-1. We therefore reverse the judgment of the Appellate

Division.

                                       I.

      To provide context for the events of this case and the parties’ arguments,

we begin by reviewing the relevant federal and state procedures and

requirements concerning DNA collection and recordation.

                                       2
      Established by the Director of the Federal Bureau of Investigation (FBI)

under the DNA Identification Act of 1994, CODIS uses a software program and

database to match DNA profiles of offenders to profiles of DNA found on crime

scene evidence. 34 U.S.C. § 12592(a), (b)(3); National DNA Index System

(NDIS) Operational Procedures Manual (NDIS Manual), 54-56 (Version 8:

Effective May 1, 2019), https://www.fbi.gov/file-repository/ndis-operational-

procedures-manual.pdf. CODIS operates on both the national and state levels:

The National DNA Index System (NDIS) is administered by the FBI, and the State

DNA Index System (SDIS) is administered by states participating in the CODIS

program. NDIS Manual at 4; see also A.A. ex rel. B.A. v. Attorney Gen. of N.J.,

 189 N.J. 128, 132-33 (2007) (discussing collection of DNA samples and

submission to CODIS). In New Jersey, the SDIS is managed by the CODIS unit

under the New Jersey State Police Office of Forensic Sciences (Forensics Office).

N.J. State Police, DNA Laboratory, https://www.njsp.org/division/investigations/

dna-lab.shtml (last visited Dec. 9, 2019).

      “Operational and/or procedural issues not addressed by the [DNA

Identification Act] . . . are determined by the FBI as administrator of the [NDIS].”

NDIS Manual at 4. “The responsibilities of the FBI and the NDIS participants are

explained in the NDIS Operational Procedures.” Id. at 6. Significantly, state and

local law enforcement agencies may be excluded from using CODIS if they fail to

                                             3
uphold its quality assurance procedures and standards. 34 U.S.C. § 12592(b) to

(c).

       New Jersey law imposes additional requirements on the collection and

preservation of DNA samples. Under the DNA Database and Databank Act of

1994 (DNA Act),  N.J.S.A. 53:1-20.17 to -20.38, certain offenders must provide

DNA samples to be stored by the Forensics Office in a state DNA databank.

 N.J.S.A. 53:1-20.20(a) to (h). The DNA Act further provides that “[n]othing in

this act shall . . . limit or preclude collection of DNA samples as authorized by

court order or in accordance with any other law.”  N.J.S.A. 53:1-20.20(i)

(emphasis added).

       For routine offender samples -- those routinely taken upon arrest, for

example, which generally are not expected to be offered as evidence at trial -- there

is usually no need to assure evidentiary admissibility by establishing a chain of

custody. As a result, the Forensics Office permits local law enforcement to submit

routine offender samples by mail rather than by hand-delivery. Memorandum

from Joseph R. Petersack, Chief Forensic Scientist, N.J. State Police Office of

Forensic Scis., and Janet Flagman, Deputy Attorney Gen., Office of the Attorney

Gen. CODIS Compliance Unit, on Collecting DNA Samples -- Offender Samples

Versus Reference/Person of Interest Samples 1-2 (June 6, 2013) (explaining that

unlike follow-up offender samples, which “require strict chain of custody for

                                          4
future court purposes and should be hand-delivered to” the Forensics Office by the

law enforcement agency collecting the sample, routine offender samples “are

submitted through the [U.S.] mail and have no chain of custody”); see also State v.

Gathers,  234 N.J. 208, 218 (2018) (“[D]ue to chain-of-custody problems, many

DNA collection kit profiles are not considered evidence. According to the State,

even after a CODIS hit, the State usually applies for a confirmatory buccal swab to

establish the chain of custody.”).

      When the Forensics Office receives a DNA sample, it analyzes the sample to

create a DNA profile and then forwards that profile to the FBI to be uploaded to

CODIS.  N.J.S.A. 53:1-20.21. The DNA profile may be used for, among other

things, “law enforcement identification purposes; . . . administrative and quality

control purposes; . . . [and] judicial proceedings, by order of the court, if otherwise

admissible.”  N.J.S.A. 53:1-20.21(a), (e), (f).

      If CODIS identifies significant similarity between the DNA profiles of

an offender sample and of a sample found on crime scene evidence, and if an

NDIS DNA casework analyst reviews those samples and confirms there is a

match, the NDIS sends an “investigative hit notification” to appropriate state

authorities, like the Forensics Office. NDIS Manual at 58-59. Although this

“concludes the NDIS Offender Match confirmation process, it is not the end of

the collaboration.” Id. at 59. The NDIS then discloses to the Forensics Office

                                           5
personally identifiable information about the offender whose DNA profile

matched the DNA profile on crime scene evidence, id. at 59, 63-64, and the

Forensics Office informs the relevant law enforcement agency “of the need for

a legally obtained sample from the offender that documents the chain of

custody[,]” so that the Forensics Office “can then perform DNA analysis on

the newly obtained known biological sample,” id. at 59. Only then -- with the

results of this follow-up analysis supported by a chain of custody -- will the

State’s proof of the CODIS match withstand scrutiny in court.

                                       II.

                                       A.

      Against that backdrop, we turn to the facts of the case as revealed by the

trial court record of the State’s Rule 3:5A-1 motion to obtain a new sample of

J.P.’s DNA.

      In March 2015, Lakewood police responded to an alarm at a church. A

witness informed officers that she heard glass shatter and then saw a man run

through her yard and toss blue gloves into a trash can in front of her home.

Officers found the blue gloves, and the Ocean County Sheriff’s Department

submitted a DNA sample from the gloves to the Forensics Office, which, in

turn, took steps to have that sample’s DNA profile uploaded to CODIS.




                                        6
      At some point between March 2015 and December 2018, J.P. was

convicted of an unrelated felony. Local law enforcement took a routine

sample of J.P.’s DNA pursuant to the DNA Act and mailed that sample to the

Forensics Office. After analyzing the sample to create a profile, the Forensics

Office stored the sample in the state DNA databank and forwarded the profile

to the FBI to be uploaded to CODIS.

      In February 2018, the Forensics Office sent an “investigative hit

notification” to the Lakewood Police Department, confirming a preliminary

match between the DNA sample found on the blue gloves and J.P.’s routine

offender sample. The notification cautioned, however, that only a “possible

investigative lead” had been confirmed and requested that local officials again

“submit a buccal swab reference sample to the laboratory for comparison to

the evidentiary DNA profiles.”

      J.P. was arrested again in April 2018 for a parole violation, after which

he was compelled to submit to another routine DNA sample. Once more, that

sample was mailed to the Forensics Office, the DNA profile was uploaded to

CODIS, and the sample was stored in the state DNA databank.

      J.P. is currently incarcerated but has not been charged or arrested in

connection with the March 2015 church burglary.




                                        7
                                       B.

      As a result of the Forensics Office’s “investigative hit notification” and

request for a follow-up sample to prove the preliminary match, the State

applied for J.P.’s investigative detention under Rule 3:5A-1 to obtain a new

DNA sample. The State argued that the “physical characteristics sought

cannot otherwise practicably be obtained,” R. 3:5A-4(d), even though the State

had access to J.P.’s past samples.

      The court denied the State’s motion, and the Appellate Division

affirmed, holding that the State had not shown that the physical characteristics

sought cannot otherwise practicably be obtained. The Appellate Division

suggested in dicta that the State could obtain a new sample by arresting J.P. for

the March 2015 church burglary.

      We granted the State’s motion for leave to appeal.  237 N.J. 170 (2019).

                                       III.

      The State argues that because J.P.’s offender samples were mailed rather

than hand-delivered to the Forensics Office, they have a flawed chain of

custody and cannot be used to advance the investigation. The State asserts that

it must obtain a new DNA sample from J.P. not only to comply with CODIS

requirements but also to eliminate the risk that the preliminary match may be

inadmissible at trial. Because that can be accomplished only by hand-

                                        8
delivering a new sample to the Forensics Office, the State contends that Rule

3:5A-4(d)’s requirements have been met here. The State emphasizes that the

difficulty presented in this case cannot be remedied by requiring hand -delivery

of all routine offender DNA samples because it would be unfeasible for local

law enforcement to hand-deliver the approximately 15,000 samples taken each

year. The State adds that the redundancy in the CODIS procedures created by

the need for a follow-up sample not only assures the admissibility of State

evidence but also serves to protect suspects like J.P. against wrongful arrest.

      J.P. claims that the chain-of-custody problem arises not from the

requirements of CODIS but from the State’s choice to mail rather than hand -

deliver his initial offender samples to the Forensics Office. He acknowledges

that, absent proof of chain of custody, he would challenge the preliminary

CODIS match at trial if charged with the church burglary. J.P. nevertheless

argues that the Court should affirm “because the State failed to satisfy the

requirements of Rule 3:5A-4.” J.P. also relies on Gathers and other guidance

pertinent to post-arrest investigations.

                                           IV.

                                           A.

      We begin by noting that J.P.’s reliance on Gathers is misplaced. The

guidelines and procedures applicable when the State seeks to use non-

                                           9
testimonial identification procedures to further post-arrest investigations are

not relevant in this pre-arrest context. This case is instead subject to the

requirements of Rule 3:5A, which enables the State to use such procedures to

further pre-arrest investigations.

      Rule 3:5A was adopted in response to State v. Hall, where the State

sought to compel a suspect to participate in a pre-arrest lineup. See  93 N.J.
 552, 555-57 (1983). We held in that case “that there is jurisdictional authority

that empowers the Superior Court to issue process to compel a suspect to

submit to an investigative detention” and called upon the Criminal Practice

Committee “to study the issue of investigative detentions and recommend rules

to be implemented in this jurisdiction.” Id. at 568. Rule 3:5A, adopted in July

1984, permits temporary investigative detentions under certain circumstances

and establishes procedural requirements for such detentions.

      Specifically, Rule 3:5A-1 provides that, before the “filing of a formal

criminal charge against a person, an order authorizing the temporary detention

of that person and compelling that person to submit to non-testimonial

identification procedures for the purpose of obtaining evidence of that person’s

physical characteristics may be issued by a judge of the Superior Court.” And,

as relevant here, Rule 3:5A-4 provides that such an order “shall be issued only




                                        10
if” the application from the Office of the Attorney General or County

Prosecutor persuades the court that:

            (a) a crime has been committed and is under active
            investigation, and

            (b) there is a reasonable and well-grounded basis from
            which to believe that the person sought may have
            committed the crime, and

            (c) the results of the physical characteristics obtained
            during the detention will significantly advance the
            investigation and determine whether or not the
            individual probably committed the crime, and

            (d) the physical characteristics sought cannot otherwise
            practicably be obtained.

The parties agree that the first three prongs of Rule 3:5A-4 are satisfied in this

case and disagree only regarding Rule 3:5A-4(d).1 Thus, the issue hinges on

whether the sample sought here can be practicably obtained, within the

meaning of the Rule 3:5A-4(d), in another manner.

      We review the meaning of a court rule de novo, guided by the standard

principles of statutory construction. State v. Robinson,  229 N.J. 44, 66-67

(2017). We begin with the rule’s plain language, giving the words their




1
  The parties agree that on this record the State met its burden under
subsection (b), and the Court further determines that probable cause was
established.
                                        11
ordinary meaning. Wiese v. Dedhia,  188 N.J. 587, 592 (2006). Here, we

interpret subsection (d) as a matter of first impression.

                                        V.

      Again, Rule 3:5A-4(d) asks whether “the physical characteristics sought

cannot otherwise practicably be obtained.” The rule essentially requires a

court to make two determinations: (1) whether “the physical characteristics

sought” can be obtained through other means; and (2) whether that can be done

“practicably.” If something is “practicable,” it is “reasonably capable of being

accomplished; feasible.” Black’s Law Dictionary 1291 (9th ed. 2009)

(emphases added). The first inquiry under subsection (d) requires an

assessment of possibility; the second demands a more nuanced, holistic

evaluation. The facts of this case illustrate the significance of the second

inquiry.

      First, J.P.’s routine offender sample was submitted to the Forensics

Office by mail. That sample matched the DNA sample from the church

burglary, and, as explained above, the NDIS considers the preliminary CODIS

match confirmed. Nevertheless, to conclusively establish that the samples are

from the same source, the NDIS requires that the Forensics Office obtain a

follow-up DNA sample with a documented chain of custody to be compared to

the DNA sample on the evidence -- the blue gloves. Accordingly, the

                                        12
Forensics Office cannot comply with federal requirements or advance its

investigation, see R. 3:5A-4(c), by recalling and retesting stored samples that

have been mailed. Therefore, without resort to investigative detention to

obtain a follow-up DNA sample with a confirmed chain of custody and

evidentiary value, “the physical characteristics sought cannot . . . practicably

be obtained.” R. 3:5A-4(d).

      Contrary to J.P.’s contention that this need was created by the State’s

failure to maintain chain of custody for the earlier samples, the NDIS

expressly requires that the Forensics Office obtain a follow-up sample

supported by chain of custody -- without regard to any record of chain of

custody for the initial sample. NDIS Manual at 59 (stating that the Forensics

Office “shall inform” the relevant enforcement agency “of the need for a

legally obtained sample from the offender that documents the chain of

custody[,]” so that the Forensics Office “can then perform DNA analysis on

the newly obtained known biological sample” (emphases added)).

Furthermore, practical limitations make it appropriate for law enforcement

agencies to submit by mail rather than by hand-delivery the approximately

15,000 routine offender samples received by the Forensics Office each year.

      Although J.P. argues that there is no need to satisfy the NDIS with an

additional sample because the State can use the earlier samples to establish the

                                        13
preliminary CODIS match at trial, J.P.’s counsel has conceded that, if J.P. is

charged, counsel will challenge the preliminary match as unreliable based on

chain of custody. Counsel admits he will make that challenge even though he

now opposes the State’s effort to obtain a sample that would either yield a

reliable match or ensure J.P. is not arrested in error. The specter of such

evidentiary challenges is another reason why it would not be appropriate to

foreclose the State from obtaining new DNA samples under circumstances like

these.

         Finally, the Appellate Division, relying on the preliminary DNA match,

suggested that probable cause exists to arrest J.P. and the State could obtain a

new buccal swab upon J.P.’s arrest. Since arrest is a greater intrusion than a

buccal swab, it is not an alternative to Rule 3:5A-1. Indeed, resort to

alternatives more intrusive than investigative detention turns on its head Rule

3:5A-4’s fourth prong, which is designed to protect against unwarranted

intrusions, not encourage a greater intrusion than is necessary.

         In short, a sample with an established chain of custody is required to

proceed with this investigation. In light of the circumstances of this case and

the legal requirements for DNA sample collection, such a sample “cannot

otherwise practicably be obtained” without investigative detention. It would

be overly burdensome on the State to require that all routine DNA samples be

                                         14
hand-delivered to the Forensics Office -- a reality anticipated in the NDIS

requirements themselves. And it would likewise be unduly burdensome to

demand the State arrest a defendant to obtain a sample that may, in fact,

exonerate him. Accordingly, we determine that the State has satisfied all four

requirements of Rule 3:5A-4.

                                      VI.

      For the reasons set forth above, the judgment of the Appellate Division

is reversed and the case is remanded for proceedings consistent with this

opinion.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’S opinion.




                                       15