                                   RECORD IMPOUNDED

                              NOT FOR PUBLICATION WITHOUT THE
                             APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-0228-18T1


IN THE MATTER OF THE
INVESTIGATION OF BURGLARY
AND THEFT.
_________________________________

                Argued November 5, 2018 – Decided November 28, 2018

                Before Judges Sabatino, Haas and Mitterhoff.

                On appeal from Superior Court of New Jersey, Law
                Division, Ocean County, Docket No. 15-020585.

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

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

      On leave granted, the State appeals the trial court's August 1, 2018 order

denying its motion under Rule 3:5A-4 to authorize the investigative detention

of J.P., an individual who is suspected of committing burglary and theft. The

State sought the court's permission to detain J.P. for the purposes of obtaining a

DNA sample from him through a buccal swab. 1 The State contends it needs the

DNA sample from J.P. because the DNA sample or samples for him already on

file in the DNA database may not be admissible at an eventual trial due to chain-

of-custody concerns.

      The trial court concluded in a written opinion that the State had failed to

make a sufficient showing to detain J.P. and obtain his sample. Specifically, the

trial court found the State did not satisfy Rule 3:5A-4(d), which requires the

State to demonstrate "the physical characteristics sought [from the person]

cannot otherwise practicably be obtained."




1
   "[A] buccal cell collection involves wiping a small piece of filler paper or
cotton swab similar to a Q-tip against the cheek of an individual to collect some
skin cells. The procedure is quick and painless. The swab touches inside an
arrestee's mouth, but it requires no 'surgical intrusio[n] beneath the skin,' and it
poses no 'threa[t] to the health or safety' of arrestees." Maryland v. King, 569
U.S. 435, 444 (2013) (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).
                                                                            A-0228-18T1
                                         2
      For the reasons that follow, we affirm the trial court's order. However,

we do so without prejudice to the State's right to file a new application in the

trial court to obtain a sample from J.P., who is presently in the State's custody

and who will not be released until 2020, if and when it charges him with these

offenses.

                                       I.

      The State's factual contentions are derived from an affidavit by Sergeant

Chase Messer of the Lakewood Township Police Department. We set forth the

contentions most pertinent to our analysis.

      On March 20, 2015, at approximately 12:34 a.m., Lakewood Township

police officers were dispatched to a building on Madison Avenue after an alarm

was activated. When the police officers arrived, they spoke with a woman. She

informed the officers that she heard a window smash and observed a man

approximately 5'8" tall with a thin build and hooded sweatshirt running through

her yard and towards Main Street. The woman informed the officers she had

observed the man throw a pair of light blue gloves into a trash can in front of

her house.

      The officers searched the immediate area, but were unable to locate the

suspect. Upon a search of the building, the officers noticed a broken window


                                                                         A-0228-18T1
                                       3
next to the rear door and some dollar bills located on the ground by the steps.

An officer located the light blue gloves inside the trash can.

      The Ocean County Sherriff's Department Crime Scene Investigations

("CSI") Unit responded to the scene. The CSI unit processed the gloves for

DNA, and submitted a DNA sample to the New Jersey State Police ("NJSP")

Office of Forensic Sciences.

      Sergeant Messer thereafter received a notification letter from the NJSP

Office of Forensic Sciences (known as the Combined DNA Index System

"'CODIS' lab") informing him of a possible investigative lead on the DNA

sample retrieved from the blue gloves. The letter from the CODIS lab reported

an "investigative hit" for J.P., and requested that a buccal swab "reference

sample" from J.P. be submitted for comparison.

      On June 13, 2018, the State moved for an investigative detention of J.P.,

seeking to have a buccal swab recovered from him and sent to the CODIS lab

for analysis. Sergeant Messer averred in his affidavit that he has "probable cause

to believe and does believe that the DNA samples of [J.P.] will constitute

evidence or tend to show violations of the penal laws of New Jersey." The

sergeant added that a "buccal swab of the accused can be used by the [NJSP] to

develop genetic profiles to compare to the evidence previously seized, which


                                                                          A-0228-18T1
                                        4
were potentially used by the accused, [and] worn by the accused in the

commission of the above referenced offenses." The affidavit requested a court

order authorizing the Ocean County Sheriff's Department "Criminalistics Unit"

to obtain a fresh buccal swab from J.P.

      Relying on the sergeant's affidavit, the State moved under Rule 3:5A-4

and requested J.P.'s investigative detention in order to obtain a DNA sample

from him. Represented by counsel, J.P. opposed the State's request, arguing that

the State did not satisfy the four-part test set forth in Rule 3:5A-4(a) to (d).

      After a hearing, Presiding Criminal Judge Wendel E. Daniels denied the

State's motion in a written decision. The judge noted that Rule 3:5A-4 sets forth

the requirements for issuing an order for investigative detention. The Rule

closely tracks the standards prescribed by the New Jersey Supreme Court in

State v. Hall, 93 N.J. 552 (1983).

      Rule 3:5A-4 provides:

             An order for investigative detention shall be issued only
             if the judge concludes from the application 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


                                                                            A-0228-18T1
                                          5
             (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.

             [(Emphasis added).]

      Judge Daniels concluded the first prong of the Rule was met, based on the

information contained in the sergeant's affidavit and the ongoing active

investigation by the Ocean County Prosecutor's Office. The judge also found

the second prong of the Rule was met, based on the sergeant's affidavit, the

general description of the suspect provided by one of the victims, and the initial

"hit" notification from the CODIS lab identifying J.P. as a potential lead. Next,

the judge found the third prong of the Rule was satisfied because the gloves

located near the scene of the offenses contained DNA that could be compared

with a DNA sample from J.P., a process that would help to confirm that the

gloves used in the burglary and theft belonged to or had been used by J.P.

      However, the judge found that the fourth prong of Rule 3:5A-4 was not

satisfied.   As part of his analysis of that prong, the judge discussed the

implications of a recent New Jersey Supreme Court case, State v. Gathers, 234




                                                                          A-0228-18T1
                                        6
N.J. 208 (2018), which concerned the New Jersey DNA Database and Databank

Act of 1994, N.J.S.A. 53:1-20.17 to -20.26 ("the DNA Act").

      Specifically, Judge Daniels found the State had failed to establish that

J.P.'s DNA cannot be obtained through other "practicable" means. The judge

reasoned that J.P.'s DNA is already available for the State to conduct

comparative testing with the DNA found on the blue gloves, because two DNA

samples had been previously collected from J.P. and presumably were in the

DNA database. The first sample was collected from J.P. after an unrelated

felony conviction in 2015. The second was taken from J.P. by the Department

of Corrections ("DOC") in April 2018, after he was incarcerated for violating

the terms of his parole.2

      The State argued it must establish a proper chain of custody for the

evidential use of the DNA sample in a potential criminal trial against J.P. The

State emphasized that, in accordance with customary practices, the samples

taken from J.P. were sent to the State Police lab testing not by hand delivery but

via mail. That raises the possibility that defense counsel in a future criminal

prosecution might seek to suppress the DNA results due to an unreliable chain


2
  As we have already noted in the introductory portion of this opinion, counsel
represented to us at oral argument that J.P. is not expected to be released from
the State's custody for an unrelated parole violation until the year 2020.
                                                                          A-0228-18T1
                                        7
of custody. The State further underscored that State Police policies require law

enforcement agencies to obtain a proper and admissible fresh DNA sample in

these circumstances.    Thus, the State argued, under subsection (d) of the

investigative detention Rule, the State's reliance at trial on a previously drawn

sample from J.P. was not "practicable."

      Judge Daniels found these arguments unpersuasive. He concluded the

State had failed to establish the present necessity of obtaining a fresh DNA

sample from J.P.    Among other things, the judge found the State had not

provided sufficient grounds to call into question the chain of custody of the

existing sample or samples.

      Following the judge's denial of its application, the State moved for leave

to appeal, which we granted. We also granted the Attorney General's unopposed

motion to allow his office to participate in the appeal as an amicus.

                                       II.

      The pivotal question before us is whether the State has satisfied the fourth

prong of Rule 3:5A-4, as expressed in subsection (d), i.e., whether "the physical

characteristics sought [from J.P.] cannot otherwise practicably be obtained." 3



3
   We agree with the trial court that the first three prongs of the Rule in
subsections (a), (b), and (c) are satisfied.
                                                                          A-0228-18T1
                                        8
      Although J.P. is already in the State's custody for another offense, the

State wishes to "detain" him for the purposes of taking a fresh DNA sample.

The State insists it cannot otherwise "practicably" obtain a DNA sample from

him that would yield comparative tests admissible in court, because the prior

samples taken from him have a possibly unreliable chain of custody. The State's

arguments implicate the DNA Act, which we now proceed to discuss.

                                      A.

      The DNA Act requires persons convicted of certain offenses to provide

samples of blood or biological matter for DNA profiling and for use in

connection with subsequent criminal investigations. The Act requires the NJSP

to record, store, and maintain the characteristics of DNA samples in the State

DNA database. The DNA sample itself is stored and maintained in the State

DNA databank. See N.J.S.A. 53:1-20.21.

      The enumerated "mandatory" offenses requiring a person to submit a DNA

sample are set forth in N.J.S.A. 53:1-20.20(a) to (i). Subsections (a) to (c)

require defendants arrested, convicted, found not guilty by reason of insanity,

or juveniles adjudicated delinquent of serious sexual offenses to submit a DNA

sample. N.J.S.A. 53:1-20.20(a) to (c). Subsections (d) through (f) require

defendants arrested, convicted, found not guilty by reason of insanity, or


                                                                       A-0228-18T1
                                      9
juveniles adjudicated delinquent of murder, manslaughter, aggravated assault of

the second degree, kidnapping, luring or enticing a child, engaging in conduct

tending to debauch or impair the morals of a child, or an attempt of any of these

crimes, to submit a DNA sample. N.J.S.A. 53:1-20.20(d) to (f).

      Subsections (g) and (h) require defendants convicted, found not guilty by

reason of insanity, or juveniles adjudicated delinquent of "of a crime or a

specified disorderly person offense" to submit a DNA sample. 4 N.J.S.A. 53:1-

20.20(g) to (h). The statute contains no mandate that persons arrested for

offenses enumerated in subsections (g) and (h) be required to submit a DNA

sample.5


4
    The Act defines a "specified disorderly persons offense" as: "assault
constituting domestic violence as defined . . . in N.J.S.A. 2C:25-19; prostitution
pursuant to N.J.S.A. 2C:34-1; any disorderly persons offense relating to
narcotics or dangerous drugs for which a person is required to be fingerprinted
pursuant to . . . N.J.S.A. 53:1-18.1, excluding possession of 50 grams or less of
marijuana, including any adulterants or dilutants, or five grams or less of hashish
under N.J.S.A 2C:35-10; or any other disorderly persons offense for which a
person is required to be fingerprinted pursuant to N.J.S.A. 53:1-15. A 'specified
disorderly persons offense' shall not include shoplifting pursuant to
N.J.S.2C:20-11." N.J.S.A. 53:1-20.20(h).
5
   The Legislature amended the Act in 2011 to include samples from persons
arrested for certain violent offenses. See 2011 N.J. Sess. Law Serv. Ch. 104.
(SENATE 737); see also N.J. S. Comm. Statement, S.B. 737 (Mar. 18, 2010)
(acknowledging that the amendment would expand "the State's DNA database
to include DNA samples from persons arrested for certain violent crimes").


                                                                           A-0228-18T1
                                       10
      Lastly, and most relevant to this case, subsection (i) provides: "[n]othing

in this [A]ct shall be deemed to 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). Although not explicitly stated in the statute, DNA

samples submitted pursuant to a court-ordered investigative detention under

Rule 3:5A-4 would logically fall into this category.

      Here, J.P. has not yet been arrested for the burglary and theft incidents,

let alone convicted, and therefore he would not qualify under subsections (a)

through (h) for mandatory DNA sampling.         Therefore, only subsection (i)

applies to this appeal.

      The DNA Act further provides that DNA test results "shall be used" for

the following purposes:

            a.     For law enforcement identification purposes;

            b.     For development of a population database;

            c.    To support identification research and protocol
            development of forensic DNA analysis methods;

            d.   To assist in the recovery or identification of
            human remains from mass disasters or for other
            humanitarian purposes;

            e.   For research, administrative and quality control
            purposes;


                                                                         A-0228-18T1
                                      11
            f.     For judicial proceedings, by order of the court, if
            otherwise admissible pursuant to applicable statutes or
            rules;

            g.    For criminal defense purposes, on behalf of a
            defendant, who shall have access to relevant samples
            and analyses performed in connection with the case in
            which the defendant is charged; and

            h.    For such other purposes as may be required under
            federal law as a condition for obtaining federal funding.

            [N.J.S.A. 53:1–20.21.]

The State's request for sampling in the present case falls under subsections (a)

("law enforcement identification"), (f) ("judicial proceedings, by order of the

court"), and also possibly (g) ("for criminal defense purposes") of Section 20.21.

      In addition to establishing a state DNA database, the Act requires the DNA

characteristics obtained from sampling to be forwarded to the Federal Bureau of

Investigation ("FBI") for inclusion in CODIS, which is the FBI's national DNA

identification index system cataloguing DNA records submitted by state

and local forensic laboratories from across the country. N.J.A.C. 13:81-1.1 to -

1.2. The National DNA Index System ("NDIS") allows states to compare DNA

information, through CODIS, with one another.          To participate in NDIS,

laboratories must meet certain accreditation requirements. NDIS Operational

Procedures Manual, 12 (Version 7: Effective June 1, 2018) ("NDIS Manual").


                                                                          A-0228-18T1
                                       12
NDIS-participating laboratories are subject to annual audits by the FBI's CODIS

Unit, which reviews laboratory records to ensure compliance with quality and

control requirements. NDIS Manual, at 6-8 (2018).

      The NJSP oversees compliance with NDIS and CODIS laboratories in

New Jersey and uploads the samples into CODIS. See N.J.S.A. 53:1-20.24. The

NJSP receives and maintains the offender samples, sends them for analysis,

verifies the analysis, and inputs the profiles into the CODIS system. A.A. ex

rel. B.A. v. Attorney Gen. of New Jersey, 189 N.J. 128, 132 (2007). The NJSP,

pursuant to authority granted by N.J.S.A. 53:1-20.23, has adopted rules

governing the procedures and administration of the DNA Act. See N.J.A.C.

13:81-1.1 to -7.1.

      The State and the Attorney General argue the procedures outlined in NDIS

Manual require a newly obtained DNA sample for J.P., in order to enable the

State to confirm a match with the DNA found on the blue gloves near the crime

scene. The relevant section of the NDIS Manual provides:

            Although notification of the confirmed match to the
            Submitting Law Enforcement Agency concludes the
            NDIS Offender Match confirmation process, it is not
            the end of the collaboration.

            The NDIS participating laboratory shall inform the
            Submitting Law Enforcement Agency of the need for a
            legally obtained sample from the offender that

                                                                       A-0228-18T1
                                     13
            documents the chain of custody. The Casework
            Laboratory can then perform DNA analysis on the
            newly obtained known biological sample submitted by
            the Law Enforcement Agency.

            [NDIS Manual § 6.1.3.5 (emphasis added).]

      As we have already noted, the State's objection to relying upon J.P.'s

previous buccal swabs is based on its concern that the prosecution would not be

able to verify the chain of custody between the samples sent from the DOC to

the NJSP. In support of its argument, the State has provided a memorandum

from the NJSP's CODIS Compliance Unit, dated June 6, 2013, which provides

the following guidance to law enforcement officials and agencies:

                  Numerous training opportunities were provided
            throughout the state over the past year to demonstrate
            the proper use of the Offender DNA Collection Kits
            supplied by the CODIS Compliance Unit . . . .
            Convicted offender and arrestee samples are used for
            investigative purposes and are not considered evidence.
            They are submitted through the US mail and have no
            chain of custody associated with them.

                  Please do not use the Offender DNA Collection
            Kits supplied by the CODIS Compliance Unit for any
            other purpose than CODIS Database submissions from
            qualifying convicted offenders/arrestees . . . . The
            Offender DNA Collection Kits, including the
            Submission Form, sterile swab, and micro card, are not
            to be used for casework evidentiary items, known
            subject reference samples such as suspects collected
            pursuant to a subpoena or consent/ or person of interest
            samples.

                                                                       A-0228-18T1
                                      14
                  Reference samples required from persons of
            interest or known suspects should be submitted if
            possible with the other evidentiary items in the case.
            These samples should be collected directly onto your
            agency's typical sterile cotton swab by swabbing the
            inside of the cheek using twelve (12) up and down
            strokes with the cotton swab. The swab should be
            allowed to dry and then packaged in a cardboard
            container or simply placed in a sealed envelope. These
            samples require a strict chain of custody for future court
            purposes and should be hand-delivered to the
            laboratory by the law enforcement personnel from the
            relevant agency. The Offender DNA Collection kits
            should not be used to obtain these reference samples.

            [(Emphasis both in original and added).]

The memorandum directs the law enforcement agencies to submit reference

samples from "persons of interest" to the Office, but does not specifically

explain how a law enforcement agency should obtain such reference samples.

      The Attorney General as amicus takes the position that the policy of

requiring the new sample is a "protective measure for the benefit of defendants,"

and that "[t]he confirmatory samples are an extra layer of protection to ensure

that DNA stored in CODIS linked to a particular person is actually that person's

DNA."

      J.P. counters that the possible unreliability of the chain of custody is the

State's self-generated problem. He asserts that the State can avoid the problem


                                                                          A-0228-18T1
                                       15
in the future simply by hand-delivering future DNA samples to the NJSP rather

than mailing them.

      The most recent New Jersey Supreme Court addressing the procedures for

obtaining DNA swabs is Gathers, 234 N.J. at 218. The Supreme Court in

Gathers affirmed this court's ruling that the State's motion to compel the

defendant in that case to submit a buccal swab did not set forth adequate

probable cause for such sampling. State v. Gathers, 456 N.J. Super. 256, 272

(App. Div. 2017), aff'd, 234 N.J. 208 (2018).

      In Gathers, 234 N.J. at 214, two police officers responded to a "call of

shots fired." After canvassing the area, the officers found a gun on the ground

but did not locate the shooter. Ibid. The same night, the officers were informed

that a male had been shot near the area where the shots were allegedly fired and

officers responded to a nearby hospital where they encountered the defendant

who had sustained a bullet wound on his left leg. Ibid. Three months later, a

grand jury indicted defendant for weapon possession offenses. Five months

after the defendant's indictment, the State moved for an order compelling the

defendant to submit to a buccal swab. Id. at 215. The State argued that, due to

chain-of-custody problems, many DNA collection kit profiles are not considered

admissible evidence. Therefore, according to the State, even after a CODIS


                                                                        A-0228-18T1
                                      16
"hit," the State usually applies for a confirmatory buccal swab to establish the

chain of custody. Id. at 218.

      In support of the its motion, the State in Gathers submitted an assistant

prosecutor's certification, explaining that a sample of the defendant's DNA was

needed for reference in order to make proper comparisons to the items of

evidence already submitted to the State Police.       Id. at 215.   The defense

countered that the State could use the defendant's DNA profile that was already

in CODIS from a separate drug offense years prior. Id. at 216. Indeed, this

court's opinion noted that the DNA Act "prohibits the collection of blood or

biological sample[s] if the State 'has previously received a blood or biological

sample from the convicted person.'" Gathers, 156 N.J. Super. at 272 (quoting

N.J.S.A. 53:1-20.22(b)). The Supreme Court in Gathers did not discuss this

argument in depth because DNA samples related to possessory offenses are not

eligible for upload into CODIS and the defendant's charges were all possessory

crimes. Gathers, 234 N.J. at 224.

      The Court in Gathers observed that "our State Legislature has not provided

authority to take a defendant's buccal swab at any time prior to conviction except

in specific circumstances. Furthermore, the statute allows for the taking of a

buccal swab only at the time of booking or indictment for certain enumerated


                                                                          A-0228-18T1
                                       17
offenses." Id. at 221 (emphasis added) (citation omitted). The Court continued,

"[f]or that reason, we must consider the nature and quality of the evidence upon

which the order was obtained" explaining that such a determination is based on

whether the evidence provided to the court would be sufficient to establish

probable cause. Ibid.

      We are mindful there may be constitutional limitations for the taking of a

person's DNA upon arrest, depending upon the severity of the charged offenses.

See King, 569 U.S. at 456-66 (upholding DNA sampling taken upon arrest from

a defendant charged with "serious offenses" of first-degree and second-degree

assault, as part of a "reasonable search that can be considered part of a routine

booking procedure," noting that the privacy expectations of such a person taken

into police custody are "of a diminished scope").

                                        B.

      With this context of the DNA Act and pertinent case law in mind, we

return to the trial court's application of the investigative detention provisions in

Rule 3:5A-4. It is clear that there is no "mandatory" basis to extract a fresh

DNA sample from J.P. under N.J.S.A. 53:1-20.20(a) through (h). The question

then becomes whether the State has a valid non-mandatory basis to obtain the

DNA sample from J.P. with a court order under authority of the Rule.


                                                                            A-0228-18T1
                                        18
      Having considered the arguments of the State, the Attorney General, and

J.P. in this factual and procedural context, we conclude the trial court did not err

in denying the State's motion, given the present status of the burglary and theft

matter. The State has yet to demonstrate it will not be "practicable" to make

evidential use of the original sample taken from him previously in 2015 or the

2018 sample.6 The trial court reasonably concluded the State's application is, in

essence, premature.

      We conclude the State's request can be renewed through an appropriate

motion after it charges J.P. with the burglary and theft offenses, assuming it

chooses to do so. Although the existing sample in CODIS may or may not be

admissible at a future trial, the apparent "match" with DNA from the blue gloves,

coupled with the witness's observations, appear to support probable cause to

charge J.P. As we noted, the judge's finding of probable cause within the context

of this motion record is sound.




6
  At oral argument on appeal, counsel for J.P. argued the second sample taken
in 2018 at the time of his arrest for parole violations could not be used because
that sample, taken without a court order, violates N.J.S.A. 53:1-20.22, which
J.P. construes to disallow such repetitive sampling where a DNA sample for a
person is already on file with CODIS. It is not clear, however, that the
prohibition in Section 20.22 applies to a situation where, as here, the State
applies for a court order requesting an additional sample.
                                                                            A-0228-18T1
                                        19
      If J.P. is actually charged, the legal context materially changes. Rule

3:5A-4 reflects a careful balancing of interests between the State's investigatory

needs and a citizen's interests in liberty and prison. See Hall, 93 N.J. at 557; see

also State v. Rolle, 265 N.J. Super. 482, 486 (App. Div. 1993). The individual's

interests essentially have two components: (1) the freedom to move about

society and not be detained by government; and (2) freedom from a search of

his or her person.

      In the present case, J.P. is already confined in the State's custody. He will

not be released until 2020. As such, he has a diminished expectation of liberty,

as he is, for all practical purposes, already "detained." The question then would

become whether the State's law enforcement interests, post-charge, outweigh

J.P.'s right to be free from unreasonable searches and seizures. See State v.

O'Hagen, 189 N.J. 140, 149 (2007) ("It is not disputed that a blood test or cheek

swab for purposes of obtaining a DNA sample is a 'search.'"). Although we need

not decide that balance here definitively, we suggest a post-charge context may

result in a different outcome if the State files a new application to compel a swab

after lodging such charges.

      This distinction between post-charge and post-arrest situations from pre-

charge and pre-arrest situations is consistent with the background of Rule 3:5A-


                                                                            A-0228-18T1
                                        20
4 and the 1984 Report of the Supreme Court's Committee on Criminal Practice,

113 N.J.L.J. 698-99 (June 21, 1984). The Committee observed in its Report:

            The rule, as drafted, is a response to [the Supreme
            Court's] referral [in State v. Hall]. It is specifically
            limited to pre-charge applications. Once a person who
            has been charged and the court has obtained jurisdiction
            there is no legal impediment imposed by the Fourth or
            Fifth Amendments to an order compelling him to
            disclose identifying physical characteristics.

            [Report of the Supreme Court's Committee on Criminal
            Practice, 113 N.J.L.J. at 698 (citations omitted).]

      The Committee's comments and rationale are instructive. If the State

charges J.P. with burglary and theft, and he remains, as expected, in the State's

custody, we discern no "impediment" to the State making an application to the

trial court to obtain a fresh DNA sample from him, with the defense at that ti me

presenting any countervailing arguments it may have. Although such a future

application may not literally fit the intended "pre-charge" terms of Rule 3:5A-

4, the balancing-of-factors test logically should apply. Indeed, this court in

Gathers presumed that the State could have attempted to extract a swab from the

defendant at the time of his arrest, but failed to do so. Gathers, 449 N.J. Super.

at 271 (noting that the State's request for a swab was pursued long after "the

arrest stage"). We suggest the State could make such an application at the time

of J.P.'s initial appearance, if he is indeed charged.

                                                                          A-0228-18T1
                                        21
      We discern no prohibition to such a procedure within N.J.S.A. 53:1-20.22,

which disallows additional sampling only if the previously received sample "was

adequate for successful analysis and identification."          Here, the State is

contending that the existing sample(s) of J.P. in the CODIS databank, given the

chain-of-custody problems, may not be "adequate" for admissibility at the time

of trial. We need not resolve that adequacy question on the limited record before

us. That issue can be examined more fully by the trial court if the State files a

new motion, post-charge.

      For all of these reasons, we affirm the trial court's order denying the State's

application, without prejudice to the State filing a new application with the trial

court when and if it charges and "arrests" J.P.

      Affirmed.




                                                                             A-0228-18T1
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