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No Due Process for Skin Cells

Updated: Nov 9, 2020

On October 22, 2020 the Court of Appeals heard the case People v. Goldman, which was based partly upon the question of a suspect's right to notice and an opportunity to be heard prior to the seizure of corporeal evidence by a DNA swab. The defense had argued that the seminal case of Matter of Abe A. required that the defense be able to review the search warrant application and have an opportunity to contest a magistrate's determination of probable cause to seize the person of the suspect and the DNA evidence secreted in his interior cheek skin cells. In overruling the determination of the Fourth Department Appellate Division the Court of Appeals held that the warrant requirement did not trigger any adversarial process wherein the seizure of DNA by buccal swab could be contested. The sole recourse of a criminal defendant lies in the exclusionary rule if it is later determined that due process was lacking, accordingly, an attorney may be able to suppress the evidence seized via the buccal swab but will not be able to prevent the arrest by quashing the warrant in the first instance.

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