Criminal law - innocent third parties deserve greater Fourth Amendment protections than criminal suspects and defendants - Commonwealth v. Draheim.

• Author: Perullo, Joseph M.

Criminal Law--Innocent Third Parties Deserve Greater Fourth Amendment Protections Than Criminal Suspects and Defendants--Commonwealth v. Draheim, 849 N.E.2d 823 (Mass. 2006)

Advances in science have revolutionized crime detection, indelibly affecting Fourth Amendment jurisprudence. (1) Forensic identification techniques are continually refined, and accordingly, the concomitant constitutional considerations continue to grow. (2) As technological powers expand the use of deoxyribonucleic acid (DNA) evidence, society must grapple with technology's effect on individual privacy. (3) DNA identification is not physically invasive; therefore, an innocent person will find it increasingly difficult to demonstrate that his right to remain free from unwanted intrusions into his genetic privacy outweighs the government's interest in collecting DNA evidence. (4) In Commonwealth v. Draheim, (5) the Massachusetts Supreme Judicial Court (SJC) considered which standard trial courts should use when considering a motion to compel DNA evidence in a criminal matter from someone who is not a suspect, defendant, or witness. (6) The SJC held that a trial court must find probable cause to believe in the commission of a crime and determine whether the search will likely provide evidence that will help prove the defendant's guilt or innocence. (7)

In Draheim, the Commonwealth alleged that the defendant, Nina Draheim (Draheim), engaged in sexual intercourse with two teenage boys. (8) The Commonwealth sought DNA samples from Draheim, her two children, and the two alleged victims. (9) The test results could scientifically establish paternity, proving that the rapes occurred. (10)

At the hearing on the motion to compel, the Commonwealth supported its motion to obtain buccal swabs from Draheim's two children and the two alleged victims using the same evidence of the alleged rapes presented to the grand jury during indictment. (11) The Commonwealth presented oral testimony from Draheim's former friend that Draheim admitted to "having sex" with one of the boys, and a police detective testified that "JG said he had sexual relations with Draheim." (12) The Commonwealth also presented CG's "statements that he had sex with Draheim[,] ... a handwritten statement from CG, and a videotape of a police interview." (13) The Commonwealth argued that "each [DNA] sample will probably produce evidence relevant to the defendant's guilt, namely whether either complainant was the biological father of either of the defendant's children." (14) The trial court denied the Commonwealth's motion for DNA from Draheim's two children, concluding that the Commonwealth would have to go forward and prosecute the case "as if there [were] no child[ren]." (15) The Commonwealth appealed the trial court's ruling to the SJC, and the SJC held that the moving party's burden requires a showing of "probable cause to believe a crime was committed" and a party must demonstrate the probability that any DNA test would reveal exculpatory or inculpatory evidence. (16)

Compelling an individual to relinquish DNA is a search and seizure under the Fourth Amendment to the United States Constitution. (17) The purpose of the Fourth Amendment is to protect personal privacy and individual dignity against unwarranted intrusion by the state; therefore, any justification for a search should be tailored to each individual. (18) Each case is factually unique, thus the Supreme Court consistently describes Fourth Amendment questions as highly fact intensive, necessitating a totality of the circumstances review. (19) The Court first considered bodily intrusion searches in Schmerber v. California. (20) The Court held that a blood test conducted in a hospital after a car accident was reasonable because the police officers had probable cause to believe that the defendant was intoxicated, and waiting for a warrant would allow any evidence to naturally diminish. (21) Subsequently, in Winston v. Lee, (22) the Court held that a court could not force a defendant to undergo surgery to recover a bullet lodged in his chest. (23) While balancing the individual's privacy interests against the community's need for evidence, the Court reasoned that the prosecution had ample evidence to prosecute the case without resorting to an invasive surgical procedure requiring the use of anesthesia. (24) The Supreme Court, however, has yet to decide the standard a party in a criminal matter must meet when attempting to compel someone other than a suspect or a defendant to relinquish a sample of DNA. (25)

The Massachusetts Rules of Criminal Procedure proscribe the proper procedures in bringing a motion before a trial court requesting an order for an individual to furnish DNA evidence. (26) At a pre-trial hearing, the party requesting the evidence must show that a sample "will probably produce evidence relevant to the question of the defendant's guilt." (27) When considering the pre-trial motion, a court can evaluate the gravity of the crime, the value of the evidence, and the ability to obtain evidence without intrusion, weighed against the defendant's liberty interest to remain free from unwanted bodily invasions. (28) South Carolina, the only other jurisdiction to answer a similar question presented by Draheim, held that the state must show "probable cause to believe a crime was committed[,] ... a clear indication that material evidence relevant to the question of suspect's guilt will be found[,]" and, lastly, that any method of collecting this evidence is "safe and reliable." (29) It is unclear how courts would analyze cases where Fourth Amendment considerations collide with other liberty interests embodied in the Bill of Rights. (30) Courts recognize the Fourteenth Amendment's due process clause protects against government interference with an individual's liberty interests. (31) Innocent third parties are entitled to maximum permissible procedural and substantive due process protections because they have not violated the public trust by involving themselves in any wrongdoing. (32)

In Draheim, the SJC considered the burden a party in a criminal matter must satisfy to compel DNA evidence from someone other than a defendant or a suspect. (33) The SJC held that the burden on the party moving to compel the DNA of a non-suspect is two-fold: first, a trial court must find probable cause to believe that a crime was committed; secondly, the moving party must demonstrate that the DNA test is material and relevant to a defendant's guilt or innocence. (34) The SJC further directed trial courts to weigh "the seriousness of the crime, the importance of the evidence, and the availability of less intrusive means, against the privacy of the individual." (35) The effects, however, of any compulsion order on the targeted individual and any parent-child...