
    STATE of Louisiana v. Charles FRANKLIN.
    No. 2010-K-0564.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 11, 2010.
    
      Kerry P. Cuccia, Executive Director, Lance Unglesby, Price Quenin, Capital Defense Project of Southeast Louisiana, New Orleans, LA, for Charles Franklin.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State Of Louisiana.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge, ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

| TPefendant Charles Franklin filed a supervisory writ in connection with the Magistrate Commissioner’s grant of the State’s motion for a buccal swab to be taken from Mr. Franklin. For the reasons that follow, we grant the writ, reverse the order, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

The Defendant, Charles Franklin, was arrested on January 11, 2010, pursuant to an arrest warrant. The case arises out of a January 7, 2010 shooting in which three individuals were killed and one individual was wounded. In the supporting affidavit for the arrest warrant, Detective Timothy Bender affirmed that a witness informed him that he observed Mr. Franklin and Dwayne Johnson changing out of their clothing and into clothing that was black. On March 15, 2010, the court conducted a preliminary examination. At the hearing, Detective Bender testified that, pursuant to a search warrant for a nearby residence, he recovered clothing similar to what Mr. Franklin was observed wearing and subsequently removing on the night of the offense.

|2On March 22, 2010, the State filed a motion to obtain a buccal swab from Mr. Franklin for DNA (deoxyribonucleic acid) analysis, and the defense filed a memorandum in opposition. After a hearing, the court granted the motion on April 5, 2010, and the defense noticed its intent to seek supervisory writs. The matter was set for oral argument in this Court on May 11, 2010.

DISCUSSION

The defense argues that the State has not established probable cause for taking a buccal swab from Mr. Franklin, because the State does not allege the existence of an unknown DNA profile with which to compare Mr. Franklin’s DNA, as the recovered clothing has yet to be tested. Additionally, the defense submits that the State improperly filed an unsworn motion rather than filing an application a search warrant for the buccal swab.

The Louisiana and Federal constitutions prohibit unreasonable searches and seizures. U.S. Constitution Amend., art. IV; La. Const, art. I, § 5. The Louisiana Supreme Court recognized in State v. Lee that “[according to the United States Fifth Circuit, ‘[i]t is undisputed that the collection of a saliva sample for DNA analysis is a search [requiring a warrant] implicating the Fourth Amendment.’ ” State v. Lee, 05-2098, p. 16 (La.1/16/08), 976 So.2d 109, 128 (quoting Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir.2006)). In Lee, the State filed a subpoena \ -.duces tecum for the defendant’s buccal swab rather than applying for a search warrant; consequently, the Lee Court noted that “we observe the subpoena in the present case did not include the sworn supporting affidavit [that] a search warrant is required to contain.” Lee, 05-2098, p. 20, 976 So.2d at 125 (quoting La. Const, art. I, § 5 (“No warrant shall issue without probable cause supported by oath or affirmation. ...”)).

Nevertheless, the Court held that “even assuming a subpoena duces tecum may constitute the functional equivalent of a search warrant in some circumstances, the application at a minimum must rest upon a showing of probable cause, not simply the ‘reasonable grounds’ required by [La. C.Cr.P.] art. 66.” Lee, 05-2098, p. 20, 976 So.2d at 125 (emphasis added). Accordingly, “the application must contain within its four corners the facts establishing the existence of probable cause.” Id. The Lee Court ultimately concluded that “the collection of defendant’s DNA constituted a Fourth Amendment ‘search’ that would require probable cause, a sworn supporting affidavit, and the issuance of a proper search warrant.” Lee, 05-2098, p. 30, 976 So.2d at 131 (emphasis added).

Similarly, in State v. Hankton, this Court quashed the State’s search warrant for a buccal swab of the defendant, finding that the affidavit failed to demonstrate that an unidentified DNA profile had been found either at the crime scene or pursuant to the investigation. State v. Hankton, 2009-1532, unpub. (La.App. 4 Cir.) (01/05/10). This Court relied in part upon Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), in finding that the |4State failed to demonstrate that evidence of the crime would be discovered by the buccal swab. Id. We also relied upon State v. Lee, supra, and Schmerber v. California, 384 U.S. 757, 86 5.Ct. 1826, 16 L.Ed.2d 908 (1966), to determine that the proper procedure for obtaining a DNA sample is through a search warrant supported by probable cause. Id.

In this case, the State simply filed an unsworn motion; therefore, it is not the functional equivalent of a search warrant under these particular facts and circumstances. See State v. Lee, 05-2098, p. 80, 976 So.2d at 131. Even assuming arguen-do that the functional equivalent of a search warrant could suffice for a body-invasion search, the State’s motion in this case failed to set forth “facts establishing the existence of probable cause.” State v. Lee, 05-2098, p. 20, 976 So.2d at 125. The State has not developed a DNA profile from the seized clothing; therefore, the State has not established that the DNA to be seized from Mr. Franklin, standing alone, could “constitute evidence tending to prove the commission of an offense” pursuant to La.C.Cr.P. art. 161 A(3). Accordingly, we find that, as was the case in State v. Hankton, the commissioner did not have a “substantial basis for concluding that a [buccal swab] search would uncover | .^evidence of wrongdoing.” Hankton, supra; see also Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. 2317. Therefore, the court erred in finding probable cause.

Should the State develop probable cause in the future to obtain a buccal swab from Mr. Franklin, it is free to file an application for a valid search warrant. On April 27, 2010, Mr. Franklin was indicted by a Grand Jury; thus, he will remain in State custody. Furthermore, Mr. Franklin’s DNA profile will remain unchanged with the passage of time.

CONCLUSION

For the foregoing reasons, the Defendant’s writ is granted. The trial court’s order granting the State’s motion for a buccal swab of Charles Franklin is hereby reversed, and the matter is remanded for proceedings consistent with this opinion.

WRIT GRANTED; REVERSED AND REMANDED.

BONIN, J. Concurs With Additional Reasons.

BONIN, J.,

concurs with additional reasons.

hi join the majority opinion but write separately to express additional reasons.

A search for Mr. Franklin’s DNA would be unreasonable on the basis of the prosecution’s unsworn motion for a buccal swab, without, at the very least, probable cause and a sworn supporting affidavit. See La. C.Cr.P. art. 162; State v. Lee, 05-2098, p. 30 (La.1/16/08), 976 So.2d 109, 131. The supporting affidavit for a warrant seeking a person’s DNA must show that the DNA to be seized “[m]ay constitute evidence tending to prove the commission of an offense.” La.C.Cr.P. art. 161 A(3); See also Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (“There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities, or contraband — between the item to be seized and criminal behavior.”)

Because the Louisiana Supreme Court in Lee did not specifically require a search warrant in all instances of DNA collection, I stress that the prosecution has not established sufficient probable cause to justify the procurement of Mr. Franklin’s DNA. Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has | ¡reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” Lee, supra, 976 So.2d at 122.

Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Lee, supra, 05-2098, p. 14, 976 So.2d at 122; State v. Johnson, 408 So.2d 1280, 1283 (La.1982). A reviewing court’s task in evaluating the validity of a search warrant is to insure that, under the totality of the circumstances, the issuing magistrate has a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We review the magistrate’s probable cause determination by the same standard, because although there was no search warrant issued in this matter, we must determine whether this State’s unsworn motion nevertheless amounts to the “functional equivalent” of a search warrant, especially concerning the underlying probable cause.

The prosecution contends that its un-sworn motion to obtain Mr. Franklin’s DNA provides a reasonable basis for a valid search because it is the “functional equivalent” of a search warrant. The State finds support for its position in language from State v. Lee, at 125-126, in which the Louisiana Supreme Court held that “a search warrant (or its functional equivalent)” is required before a DNA sample may be taken. The Fourth Amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV; see also La. Const, art. I, § 5. While the court in Lee did not 1 ¡¡specifically require that a search warrant be the precise procedural vehicle in every case where DNA is sought, the procedure used must still afford the defendant his Fourth Amendment protections to constitute the functional equivalent of a warrant.

This case entails a search involving an intrusion beyond the body’s surface. Discussing the constitutional implications of such a search, the United States Supreme Court explained in Schmerber v. California, 384 U.S. 757, 769-770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search, (emphasis supplied)

Here, the prosecution has not made a showing, beyond an unconfirmed guess, that evidence of the crime of first-degree murder will be found by obtaining the defendant’s DNA. The prosecution has not developed a DNA profile from the seized clothing and therefore has not established that the DNA to be seized from Mr. Franklin, standing alone, could “constitute evidence tending to prove the commission of an offense.” See La.C.Cr.P. art. 161 A(3).

At the motion hearing before the magistrate which resulted in the court order allowing the State to obtain the defendant’s saliva, the prosecuting attorney similarly denied the necessity of obtaining a search warrant. “[W]e don’t need a search warrant,” the prosecutor argued, “The form is immaterial. If it’s a court order, search warrant, whatever form you use is immaterial. It just happens to be a court order that we used.” As this case involves a defendant’s constitutional rights, particularly his right to be free of unreasonable searches and seizures under the Fourth Amendment and his right to due process of law under the Fifth Amendment, it is worth remembering that

14these Amendments should receive liberal construction, so as to prevent stealthy encroachment upon or “gradual depreciation” of the rights secured by them, by “imperceptible practice of courts or by well-intentioned, but mistakenly overzealous executive officers.”

Gouled v. United States, 255 U.S. 298, 303-304, 41 S.Ct. 261, 65 L.Ed. 647 (1921).

In Lee, the State filed a subpoena duces tecum for the defendant’s buccal swab rather than applying for a search warrant; consequently, the Lee Court noted that “we observe the subpoena in the present case did not include the sworn supporting affidavit a search warrant is required to contain.” Lee, 05-2098, p. 20, 976 So.2d at 125. (quoting La. Const, art. I, § 5 (“No warrant shall issue without probable cause supported by oath or affirmation ... ”)). Under any circumstance, a credible person reciting facts to establish probable cause for issuance of a warrant must swear to those facts. See La.C.Cr.P. arts. 162 and 162.1 (providing for sworn affidavits or sworn oral testimony, respectively). The formal requirements for a warrant (or its functional equivalent) have simply not been met here.

Further, because the possible evidentia-ry value of the defendant’s saliva pertains to his unchanging DNA, there exists no attendant risk that the desired evidence may disappear over time, as was a concern in Schmerber. Mr. Franklin’s DNA profile will stay the same. Moreover, because Mr. Franklin is charged with a capital crime, he will remain in jail without bail, lessening further any risk that evidence may be lost. Because the prosecution has not demonstrated, outside of its |fiown conjecture, that there “was a fair probability that contraband or evidence of a crime” would be found in Mr. Tucker’s DNA, I agree that the magistrate court erred in ordering the buccal swab. See Illinois v. Gates, 462 U.S. at 288. 
      
      . Dwayne Johnson is a co-defendant.
     
      
      . The brackets with the inserted "requiring a warrant" language are in the Louisiana Supreme Court's original opinion.
     
      
      . The Lee court also cited to cases in which a DNA sample had been found to constitute a search:
      
        [S]ee also Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir.2005) ("The Commissioner does not dispute that the statutorily required extraction of saliva for DNA profiling constitutes a ‘search’ within the meaning of the [Fourth] Amendment.”); Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413 (5th Cir.2004) ("The extraction of blood from a prisoner to collect a DNA sample implicates Fourth Amendment rights.”); Schlicher v.(NFN) Peters, I & I, 103 F.3d 940, 942-43 (10th Cir.1996) ("It is agreed that the collection, analysis and storage of blood and saliva ... is a search and seizure within the meaning of the Fourth Amendment.”); In Re Grand Jury Proceeding, 455 F.Supp.2d 1281, 1282 (D.N.M.2006) (saliva samples may not be compelled by a grand jury on the mere chance that desired evidence might be obtained).
      
        State v. Lee, 05-2098, p. 16 (La.1/16/08), 976 So.2d 109, 123.
     
      
      . The Court further noted that "[t]he State’s attempt to file a subpoena duces tecum through the use of La.Code Crim. Proc. art. 66 was a circumvention of the constitutional mandates for the issuance of a search warrant based upon probable cause.” State v. Lee, 05-2098, p. 30, 976 So.2d at 131 (emphasis added).
     
      
      . In Illinois v. Gates, the Court also noted that ”[a]n affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
     
      
      . In State v. Lee, 05-2098, pp. 15-16, 976 So.2d at 122-23, the Louisiana Supreme Court cited the premise in Schmerber v. California that a search warrant based upon probable cause was necessary for a body-invasion search, such as a saliva sample:
      In Schmerber v. California, 384 U.S. 757, 761-64, 86 S.Ct. 1826, 1830-32, 16 L.Ed.2d 908 (1966), the Supreme Court assumed that a search warrant resting on probable cause issued by a neutral magistrate would be required for all body-invasion searches; in that case a blood sample was used to determine blood-alcohol content. Id., 384 U.S. at 770, 86 S.Ct. at 1835 ("Search warrants are ordinarily required for dwellings and, absent an emergency, no less could be required where intrusions into the human body are concerned.”).
     
      
      . La.C.Cr.P. art. 161 pertains to searches conducted in connection with a valid search warrant. As previously noted, the State did not obtain a valid search warrant in this case.
     
      
      . Although Article 161 A begins with "[e]x-cept as authorized by Article 163.1,” we understand that the exception applies to the limitation of "any thing within the territorial jurisdiction of the court” as distinguished from the provision of Article 163.1 which allows for execution “any place the person is found.” (emphasis supplied)
     
      
      . Or, stated another way:
      It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
      
        Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564, quoting Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746.
     
      
      . As Mr. Franklin is charged with first-degree murder, see La. R.S. 14:30, he would not be admitted to bail unless he can show that proof is not evident or the presumption is not great that he is guilty of the offense. See La.C.Cr.P. art 331 A and C(2).
     