                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4772-15T2

STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION
         Plaintiff-Respondent,
                                            March 21, 2017
    v.
                                         APPELLATE DIVISION

TARIQ S. GATHERS,

          Defendant-Appellant.
___________________________________________________

         Argued October 25, 2016 – Decided March 21, 2017

         Before Judges Fisher, Ostrer and Vernoia.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,  Hudson County,
         Indictment No. 15-11-1558.

         Chanel J. Hudson, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph   E.  Krakora,  Public   Defender,
         attorney; Joseph J. Russo, Deputy Public
         Defender, of counsel; Ms. Hudson, on the
         brief).

         Timothy M. Lanni, Assistant Prosecutor,
         argued the cause for respondent (Esther
         Suarez, Hudson County Prosecutor, attorney;
         Mr. Lanni, on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    We granted leave to appeal to consider defendant's argument

that the trial judge erroneously directed that he provide a
buccal   swab.    The    State    seeks    the     swab     to    determine      whether

defendant's      DNA    matches    DNA    that     might     be    obtained      from     a

handgun the State believes defendant unlawfully possessed. We

reverse not only because the State failed to submit proper sworn

statements,      but    also   because    the      State     has    not     ascertained

whether DNA may be obtained from the handgun or, if that DNA

were to become available, why it is not sufficient – before now

seizing DNA from defendant – for comparison with information

derived from DNA already taken from defendant and retained by

the State as a result of a prior conviction.

       The factual record is quite limited. Defendant was charged

with   second-degree       possession         of   a     weapon    for    an    unlawful

purpose, N.J.S.A. 2C:39-4, second-degree unlawful possession of

a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree certain persons

not to have weapons, N.J.S.A. 2C:39-7(a), for conduct occurring

in Jersey City on August 21, 2015. On April 22, 2016, eight

months   after    the    alleged    offense        and    five     months      after   the

indictment – as defendant resided in the county jail awaiting

trial – the State moved for an order authorizing the taking of a

buccal swab of defendant's mouth.

       The motion was only supported by a certification signed by

an assistant prosecutor who asserted that:

                  police received a call that "shots
                    [were] fired" near 67 Clinton Avenue;



                                          2                                      A-4772-15T2
              in canvassing the area, police found a
                revolver   lying   "behind  the  back
                passenger tire of" a Chevrolet parked
                near 86 Sackett Street;

              police   examined   the   revolver  and
                discovered it contained five live
                rounds and one spent shell casing;

              police dusted   the handgun    and five
                bullets for    fingerprints   "with no
                results";

              police swabbed the handgun and prepared
                the swabs for submission to the state
                police CODIS1 lab;

              a police detective went to a nearby
                hospital to speak with defendant, who
                had sustained an "entry wound . . . on
                the top part of his left knee with an
                exit wound on the lower part of his
                left leg," and, from the area of the
                wound and other information, officers
                "deduced that defendant likely shot
                himself";

              in   the   interview    that   followed,
                defendant "shouted out, 'so I shot
                myself, that ain't no charge!'";

              when asked to identify the weapon,
                defendant told police, "I don't know,
                a big ass revolver and it went off";
                and




1
  CODIS refers to the Combined DNA Index System maintained in all
fifty states and a number of federal agencies to collect DNA
profiles to be used for, among other things, human identity
testing. See N.J.S.A. 53:1-20.19; Maryland v. King, 569 U.S. __,
__, 133 S. Ct. 1958, 1968, 186 L. Ed. 2d 1, 18-19 (2013).



                               3                          A-4772-15T2
                    upon inquiry about the location of the
                      weapon,   defendant  said   he  "just
                      'dropped it.'"

Based on this hearsay,2 the State sought the order in question,

claiming a buccal swab was required "to make proper comparisons

to the items of evidence which are currently being submitted to

the   New   Jersey       State   Police."       Defendant     opposed    the    motion,

arguing, among other things, that he was previously convicted of

an offense that required a turnover of DNA and that because the

State has access to that information, there is no need for an

additional buccal swab.

      On    June   27,     2016,    the    trial    judge   granted      the    State's

motion     and   entered    an     order    compelling      defendant      to   submit,

within ten days, "to the taking of buccal swabs . . . for the

purpose of identification by DNA analysis." The next day, the

judge denied defendant's motion for a stay. Proceeding on an

expedited basis, we granted leave to appeal and stayed the June

27 order, which we now reverse for the following reasons.

      In explaining our decision, we could start and very well

end with the language of the federal and state constitutions. In

establishing       the    "right     of    the     people   to    be    secure"     from

"unreasonable       searches       and    seizures"    both      federal   and     state


2
  The assistant prosecutor obviously lacked personal knowledge of
any of these facts and circumstances.



                                            4                                   A-4772-15T2
constitutions declare that "no Warrants shall issue except upon

probable cause, supported by Oath or affirmation." U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7.3 The State's motion was

supported    only     by   an   assistant     prosecutor's     certification

consisting of nothing but hearsay – that which the prosecutor

was told by others who themselves may or, for that matter, may

not     possess     personal    knowledge     of    the   facts     asserted.

Consequently, the State's only certification conveyed no factual

information to the judge and could not support the claim that

there    existed    probable    cause   for   the   search.   See   R.     1:6-6;

Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349,

358 (App. Div. 2004), aff’d, 184 N.J. 415 (2005), cert. denied,

546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006).

      Second, even were we to overlook the inadequacies of the

State's submission to the trial judge, and if we were to assume

the judge was entitled to rely on the information provided by

the assistant prosecutor – instead of information provided by

individuals with personal knowledge – we would conclude that the

search and seizure ordered by the judge is unreasonable.

      Not all governmental intrusions are prohibited, only those

that "are not justified in the circumstances, or which are made

3
  Except for the Fourth Amendment's capitalization of the words
"warrants" and "oath," the state constitution is identical.




                                        5                                A-4772-15T2
in an improper manner." Schmerber v. California, 384 U.S. 757,

768, 86 S. Ct. 1826, 1834, 16 L. Ed. 2d 908, 918 (1966). The

"ultimate measure" of a governmental search is "reasonableness,"

which is assessed through a comparison of law enforcement needs

with the individual's expectation of privacy and the depth of

the intrusion. Maryland v. King, supra, 569 U.S. at __, 133 S.

Ct. at 1969, 186 L. Ed. 2d at 20. In light of the circumstances

presented, we conclude that the order issued by the judge on the

prosecution's request authorizes an unreasonable search, chiefly

because of the timing of the request.

    For example, the reasonableness of a search would be judged

differently if sought at the time of arrest rather than, as

here, long after defendant's arrest. The search4 sought by the

State was not incidental to defendant's arrest where concerns

related   to   placing     an    individual        in    police   custody     are

heightened.    It   has   been   long       and   well   established   that    an

arrestee has an expectation of being searched, Maryland v. King,

supra, 569 U.S. at __, 133 S. Ct. at 1970-71, 186 L. Ed. 2d at

21 (citing Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct.


4
  There is no question that entering and removing biological
material from an individual's mouth constitutes a search and
seizure   within  the   meaning  of   the  federal   and  state
constitutions. Maryland v. King, supra, 569 U.S. at __, 133 S.
Ct. at 1968-69, 186 L. Ed. 2d at 19; State v. O'Hagen, 189 N.J.
140, 149 (2007).



                                        6                              A-4772-15T2
341, 344, 58 L. Ed. 652, 655 (1914)), for reasons extending

beyond a suspicion of unlawful activity. A search incident to an

arrest    may    be   necessary        because      of    the     potential      that    the

arrestee is in possession of weapons. Michigan v. DeFillippo,

443 U.S. 31, 35, 99 S. Ct. 2627, 2631, 61 L. Ed. 2d 343, 348

(1979). In Maryland v. King, supra, 569 U.S. at __, 133 S. Ct.

at 1970-74, 186 L. Ed. 2d at 21-25, the Court also recognized

that, at the arrest stage, a search of the person is justified

because     of    the       governmental          interests       in:    obtaining       the

arrestee's identity; ascertaining the arrestee's past criminal

activity;       determining      the    risks      the    arrestee       poses    for    the

facility's       staff   and     other     detainees;       and     in   assessing       the

potential       danger      to   society      if    the     arrestee      is     released.

Whatever search incidental to defendant's arrest was necessary

to meet those legitimate concerns should have been satisfied

long before the State filed the motion in question. The State

does not argue otherwise and has not cited a single one of those

concerns in seeking the search in question.

    Moreover,         the    impact      of   an     intrusion      at    the     time    an

individual is arrested is not the same as when it occurs later,

while     the    individual       is   awaiting          trial.    In    assessing       the

magnitude of a buccal-swab intrusion in Maryland v. King, the

Court described the lack of "physical danger," or "risk, trauma,




                                              7                                   A-4772-15T2
or pain," involved. 569 U.S. at __, 133 S. Ct. at 1979, 186 L.

Ed.   2d    at   31.   Our    Supreme      Court    has   taken   a    similar     view,

describing the insertion of a buccal swab into an individual's

mouth to remove biological material as "a very minor physical

intrusion upon the person." O'Hagen, supra, 189 N.J. at 162.

That circumstance is certainly unaltered by the timing of the

search – whether upon arrest, while awaiting trial, or following

conviction. But the Court in Maryland v. King also identified

the   "indignity"      of     the     intrusion     as    a   relevant       concern   in

assessing the reasonableness of the search. 569 U.S. at __, 133

S. Ct. at 1979, 186 L. Ed. 2d at 31. That concern was irrelevant

in Maryland v. King because the "indignity" of being subjected

to    a    buccal-swab       search    "d[id]      not    increase     the    indignity

already attendant to normal incidents of arrest." Ibid.                            Here,

however, we are not considering the indignity at the arrest-

stage, where it is minimalized or simply indistinguishable from

the indignity of the arrest itself, as in Maryland v. King. Id.

at __, 133 S. Ct. at 1980, 186 L. Ed. 2d at 32. This prosecution

has long passed the arrest stage. The indignity of being forced

to provide a buccal swab while defendant – presumed innocent –

resides     in   the   county       jail    awaiting      trial   is    a    legitimate

concern that should be weighed against the alleged governmental

interest when court approval for such a search is sought.




                                            8                                   A-4772-15T2
       And,       quite    obviously,       we   are    not       presented      with    an

intrusion based upon the State's need to collect DNA upon the

entry   of    a    judgment      of   conviction,      as    permitted      by    the   DNA

Database and Databank Act of 1994, N.J.S.A. 53:1-20.17 to -20.37

(the    DNA   Act).       Again,      the   State   has     not    argued     otherwise.

Indeed, rather than rely on the extent to which the DNA Act may

authorize DNA collection, the State recognizes that the DNA Act

might be construed as precluding the search. For example, the

last sentence of N.J.S.A. 53:1-20.22(b) prohibits the collection

of blood or a biological sample if the State "has previously

received      a    blood    or     biological       sample    from     the       convicted

person."      Despite      recognizing       this   provision       was     intended     to

avoid    repeated         collection        of   biological        samples       from    an

individual – because, in the State's own words here, that would

be "egregious," "wasteful," and "an unnecessary intrusion" – the

State nevertheless seeks precisely that: an order permitting a

seizure of a biological sample from defendant despite having

already received such evidence from him as a result of a prior

conviction.

       Timing       is    everything.        Assuming       for    present        purposes

defendant was arrested for an offense identified in N.J.S.A.

53:1-20.20, the proposed seizure of evidence from defendant's

mouth as an incident of his arrest would likely be reasonable.




                                             9                                    A-4772-15T2
See Maryland v. King, supra, 569 U.S. at __, 133 S. Ct. at 1977,

186 L. Ed. 2d at 29. For defendants not previously convicted of

crimes      identified      in    the     DNA    Act,   such        a    search     after    a

conviction would also be reasonable. But not now. Not without

probable     cause,    which       the    prosecutor's        hearsay          certification

does not establish, and not without a legitimate governmental

need for defendant's biological material.

       To    be    sure,         removing       biological          material       from     an

individual's mouth with a buccal swab constitutes "a very minor

physical intrusion," O'Hagen, supra, 189 N.J. at 162, but that

intrusion     must     be     weighed      against      the    State's          interest    in

seizing it. The only ostensible interest the State appears to

invoke is its convenience.5 It has not demonstrated a need for

the biological material it seeks to extract from defendant.

       The   absence     of      the     State's    need      for       this    evidence    is

readily apparent. As we have already observed, the State: has

possession of the weapon; believes that any DNA that it might

find   on    the   weapon        will,    when     compared     to      defendant's       DNA,

identify him as a person once in possession of the weapon; and

5
  The State asserted at oral argument that it had neither
inspected the weapon for DNA nor compared any DNA found there
with defendant's DNA in CODIS because of some operating
procedure employed by its laboratory. We have been provided with
nothing – no sworn statements and no written laboratory
regulations – that would buttress the prosecutor's statement at
oral argument.



                                            10                                      A-4772-15T2
has already available to it information possessed by CODIS from

having previously collected a biological sample from defendant

following an earlier conviction. The State, however, chooses not

to   connect   the   available   dots.       It    prefers    to    intrude     into

defendant's mouth for additional DNA so that it may wrap up all

its potential evidence in one neat package for its laboratory

personnel.6

      No matter how minimal that intrusion may appear to others,

it   nevertheless        constitutes    an        invasion     of        defendant's

legitimate     privacy    interests    and    requires       him    to    suffer   an

unwarranted indignity while serving no legitimate governmental

interest. We again emphasize what has long guided application of


6
  We observe but need not consider another possible reason for
the State's interest in seizing this evidence before determining
whether it has in its possession DNA on the weapon suspected to
have been in defendant's possession. Profiling of a testable
sample from the weapon – assuming such a sample may actually be
found on the weapon – likely involves a range of subjective
determinations. Providing an analyst with defendant's sample
before profiling the crime scene sample presents a risk that the
former may affect the analysis of the latter. "When analysts are
given the known suspect's profile – as opposed to being asked
what profiles are possible, given the results they have
generated   –  the   risk   of  erroneous   attribution  becomes
heightened. An analyst may unwittingly fall prey to confirmation
bias – seeing in the results what she expects to see, rather
than what may or may not be there. . . . [E]ven the most
conscientious forensic analyst may make the kind of subjective
calls that risk an erroneous interpretation of DNA test
results." Erin Murphy, The Art in the Science of DNA: A
Layperson's Guide to the Subjectivity Inherent in Forensic DNA
Typing, 58 Emory L.J. 489, 492 (2008).



                                       11                                   A-4772-15T2
the   Fourth    Amendment:      the      touchstone      is   reasonableness,          and

reasonableness is determined "by assessing, on the one hand, the

degree to which [a search] intrudes upon an individual's privacy

and, on the other, the degree to which it is needed for the

promotion      of    legitimate      governmental        interests."       Wyoming     v.

Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed.

2d 408, 414 (1999) (emphasis added); see also United States v.

Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001).

In light of the record on appeal, we must conclude that the

State   has    not    suggested      –   let     alone   demonstrated      –    that    it

"needs"   to    search       defendant's       mouth.    Consequently,         what    the

State   proposes,      and    what    the   judge    ordered,    is    –    plain      and

simple – unreasonable.

      We conclude that in circumstances7 like these the State must

at least demonstrate probable cause for the search, i.e., in


7
  We do not interpret the DNA Act's prohibition on the repeated
collection of biological samples as a bar to the relief sought
by the State here. N.J.S.A. 53:1-20.20(i) declares that
"[n]othing in this act shall be deemed to limit or preclude
collection of DNA samples as authorized by court order or in
accordance with any other law." The parties have not provided
anything by which we might ascertain the scope or intent of this
provision. Perhaps this provision was included within the DNA
Act to avoid a conflict with the identification procedures of
Rule 3:5A, which are permitted prior to the filing of a formal
complaint – another circumstance not present here. In any event,
we assume without deciding that N.J.S.A. 53:1-20.20(i) might
authorize a biological seizure after an arrest and prior to
conviction when supported by a legitimate prosecutorial need.
                                                     (continued)


                                            12                                  A-4772-15T2
this   case,   that    the    item   allegedly   containing    DNA   actually

contains DNA and, if it does, that the State has no other access

to   the   accused's    DNA    for   a   comparison.   Short   of    that,   an

individual must be free of an unreasonable – albeit minimal –

governmental intrusion sought only for the State's convenience.8

       The order under review is reversed.




(continued)
The State, however, has not demonstrated that N.J.S.A. 53:1-
20.20(i) authorizes seizures pursued for the prosecution's mere
convenience.
8
  It follows from what we have held about the timing of the
State's application that we do not mean to suggest the search
would be unreasonable if the State were to achieve a favorable
comparison between any material removed from the seized weapon
and the information contained in CODIS.



                                         13                           A-4772-15T2
