In re an Investigation into the Death of Abe A.

81 A.D.2d 362, 440 N.Y.S.2d 928, 1981 N.Y. App. Div. LEXIS 10920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 1981
• Status: Published

Opinions

OPINION OF THE COURT

ROSS, J.

Can a citizen who is a suspect in an ongoing homicide investigation, and against whom no criminal proceeding has been instituted, be compelled to provide a sample of his blood for analysis? A majority of this court concludes that it was error to require this blood extraction.

Jon L., the appellant herein, was the business partner of Abe A., the decedent. Deceased was last seen alive while parking his car at approximately 6:30 p.m. on January 15,1980, in the garage of his apartment building located at 1385 York Avenue. Decedent was found by the police, bludgeoned to death, the following day in his tenth-floor apartment. The cause of death was multiple lacerations of the scalp with contusions of the face and fractures of the larynx.

When decedent failed to arrive at work on the morning of January 16, appellant allegedly became concerned and attempted to contact his partner by telephone but received no answer. Appellant then called deceased’s son-in-law to voice his concern. The latter proceeded to Jon L.’s office, at which time the police were informed of these circumstances and were requested to examine deceased’s apartment. Appellant and deceased’s son-in-law proceeded to the apartment where the police had already arrived. During the course of their investigation, the police found evidence of a violent struggle; blood was splattered throughout the apartment and a number of deceased’s teeth were observed on the floor. In addition, there was no sign of forced entry 'into the apartment.

While at deceased’s apartment, the investigating officer, Detective Acosta, noticed that appellant had abrasions on his face, that there were teeth marks on his hands and that his hands were swollen and bruised. This detective was of the opinion that the injuries sustained by appellant were consistent with the kinds of injuries he would have suffered had he engaged in a struggle with the deceased that resulted in the latter’s death. Appellant explained that he received these injuries as the result of a mugging in the Chambers Street subway station at approximately 4:30 P.M. on January 15. Appellant claimed that an unidentified man approached him, asked him for the time of day and then grabbed for his watch. In an ensuing struggle the assailant clawed at appellant and grabbed his hand and bit it. Appellant, it is alleged, then blacked out for approximately one hour. No property was stolen from appellant and he failed to report this incident to the authorities. Although this crime took place at a busy subway station during the evening rush hours, the police could find no one who witnessed this incident.

The blood found in the apartment of deceased was analyzed by the office of the chief medical examiner. This sample was found to consist of two different types of blood, one of which matched the blood type of the deceased and the other was a very rare type which is found in less than 1 % of the population. It is the belief of the authorities that this blood sample is the blood of the assailant.

The District Attorney requested that appellant submit to a physician for the taking of blood samples. This request was rejected. Accordingly, on June 3, 1980, the District Attorney moved in Supreme Court, New York County, for an order compelling appellant to submit to the taking of blood samples. In support of this application, the People stated that “[inhere is probable cause to believe that Jon L. caused the death of the deceased” (emphasis supplied) and the People, therefore, contend that samples of appellant’s blood are necessary for their investigation. Jon. L. opposed this application on the grounds that he was not charged with a crime and that he had not been subpoenaed to appear before any Grand Jury. Subsequently, on August 1, 1980, the hearing court directed appellant to submit to the taking of blood samples from his body. Upon appelr lant’s refusal to comply with this court order, a second order was then entered finding him in contempt of court pursuant to section 750 of the Judiciary Law, and sentencing him to 30 days in jail. However, this sentence was stayed pending determination of this appeal.

The Justice presiding made a finding that the People had made a sufficient showing that there was reasonable cause to assume that the decedent had been murdered by appellant. The Justice concluded that “case law supports both the general proposition that it is proper to enter an order involving an intrusion upon the rights of a person not yet charged with a crime and the specific proposition that, in a proper case, such a person may be compelled to submit to the extraction of a blood sample”. The court in support of its order cited, inter alia, Cupp v Murphy (412 US 291), where the United States Supreme Court held that the police may properly extract scrapings from a suspect’s fingernails by a court order, and Schmerber v California (384 US 757), where the court upheld the extraction of blood from a suspect without a court order. In addition, the court found that the blood type discovered at the scene of the crime was rare and, therefore, would have probative value. The intrusion into the body of appellant was termed “trifling” and the application of the District Attorney was granted “[b]ased upon the probable cause shown and probative value of the evidence”.

Appellant advances three reasons why the order should be reversed. Initially, he asserts that the court lacked the requisite jurisdiction to compel him to submit to the taking of blood samples. Secondly, he argues that the court improperly issued the order as there is insufficient cause to believe that the evidence which the District Attorney seeks will actually be found, and thirdly, that, even if such evidence were to be obtained it would not have any substantial evidentiary value.

The People rely heavily on Schmerber v California (supra) where the United States Supreme Court held that a defendant’s Fourth, Fifth, Sixth and Fourteenth Amendment rights had not been violated when blood was withdrawn from his body after he had been properly arrested for drunk driving, and where the blood had been taken at the direction of a police officer without a court order (emphasis supplied). It is significant to note that in Schmerber what the police were seeking was evidence of alcohol in the blood system. It is common knowledge that with the passage of time the availability of such evidence diniinishes until a point approaches when all traces of alcohol vanish from the blood system. Thereafter, a blood/alcohol ratio cannot be determined by means of any modern blood test. Accordingly, in Schmerber, time was truly of the essence from the viewpoint of the police investigation.

Even though the police had probable cause to arrest the drunken driver, Schmerber, this alone was deemed not sufficient to justify the taking of the blood sample. Rather the court held, that under those circumstances, there had to be a clear indication that the desired evidence would be found. Here, the trial court concluded that since appellant had been given adequate notice, had an opportunity to be heard and since the court issued an order compelling appellant to submit to the blood test, the clear indication standard is not required.

The People, in support of their position, also rely upon Cupp v Murphy (supra) wherein the defendant’s wife was strangled to death, there were no signs of forced entry and the defendant had been at his wife’s home the night of the crime. The police were aware that evidence of a strangulation was often found under the fingernails. In addition, the authorities noticed a spot on defendant’s finger which could have been blood, so they forcibly took scrapings from defendant without a judicial order. The Supreme Court held that this search was appropriate since the police had probable cause to believe that defendant had murdered his wife, the intrusion was limited and the evidence could have been easily destroyed.

The question becomes, as is apparently conceded by both sides, whether the trial court had the authority to direct appellant, who had not been charged with any offense and who had not been arrested, to submit to the extraction of a blood sample from his body for the purpose of matching this sample to that blood found at the murder scene.

Pursuant to CPL 240.40 (subd 2, par [v]), the court in which an indictment or information is pending may require a defendant to provide nontestimonial evidence including, inter alia, blood samples as long as the evidence obtained is gathered “in a manner not involving an unreasonable intrusion” of his body. A second limiting factor imposed by this section is that the application of the People is subject to constitutional limitations. In addition, it is important to note that this statute applies only to a postarrest situation. There does not appear to be any provision in the CPL which authorizes the taking of blood prior to arrest. Subdivision 1 of section 1195 of the Vehicle and Traffic Law also authorizes the taking of blood samples to determine the alcohol level in blood only after an arrest has been made. However, this is not to suggest that courts are totally without prearrest authority. Suspects may be required to provide examples of their handwriting (Matter of District Attorney of Kings County v Angelo G., 48 AD2d 576, app dsmd 38 NY2d 923). In the above case, the court balanced the governmental interest against that degree of intrusion upon the suspect to determine if the governmental action was reasonable. In that case the evidence sought was exposed, on a daily basis, to the public. In the facts before this court, this element is lacking.

Here the evidence sought is entitled to, and indeed has been afforded, constitutional protection. The Fourth Amendment specifically provides: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (emphasis supplied). As the United States Supreme Court stated in Katz v United States (389 US 347, 351-352) : “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” As compared to a suspect’s physical characteristics or his handwriting, which an individual “knowingly exposes to the public”, what is more private than that which is beneath the outer layer of each person’s skin?

When the Supreme Court was considering the intrusion upon a suspect to obtain fingernail scrapings, the court noted: “Unlike the fingerprinting in Davis [Davis v Mississippi, 394 US 721], the voice exemplar obtained in United States v. Dionisio [410 US 1], or the handwriting exemplar obtained in United States v. Mara, 410 U.S. 19, the search of respondent’s fingernails went beyond mere ‘physical characteristics . . . constantly exposed to the public,’ United States v. Dionisio, supra, at 14, and constituted the type of ‘severe, though brief, intrusion upon cherished personal security’ that is subject to constitutional scrutiny” (Cupp v Murphy, supra, at p 295). Since the Supreme Court has characterized the intrusion upon a suspect to obtain fingernail scrapings as severe, how much more intrusive is it to obtain a blood sample from a suspect? That portion of the body discussed in Cupp (412 US 291, supra) and invaded by the authorities is exposed to the public more often than the blood of a suspect. The latter should then be entitled to greater protection than fingernails.

The compulsory extraction of a blood sample is clearly a process entitled to Fourth Amendment protection. “But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment * * * Such testing procedures plainly constitute searches of ‘persons’, and depend antecedently upon seizures of ‘persons’, within the meaning of that Amendment” (Schmerber v California, supra, at p 767). Under the facts as presented by the record before us, there has been no seizure of the appellant and the means now utilized to obtain a sample of appellant’s blood is unreasonable. In Schmerber (384 US 757, supra) the blood was removed without a court order, only after it was determined that the authorities had probable cause to arrest and did make a valid arrest. Here the District Attorney alleges he has probable cause to arrest but inexplicably has not detained appellant or commenced criminal proceedings against him.

In both Cupp (supra) and Schmerber (supra) the Supreme Court was dealing with evidence that was easily destroyed (fingernail scrapings) and evidence that was evanescent (alcohol in the blood system). In view of the nature of this evidence, the procedures employed by the police £0 secure and maintain its viability justified the intrusion. Here, where the evidence is not capable of destruction or transformation, but rather is permanent and not transitory, the means sought to be utilized are unreasonable. To permit such a “severe” intrusion would do injustice to the protections afforded each person by the Fourth Amendment. If this process were authorized, no individual would be secure in his or her person, and this we are not prepared to sanction.

Our dissenting colleague would classify this intrusion as “trivial”, “ ‘a minor [intrusion] into an individual’s body’ ” (citing Schmerber, at p 772). However, the Supreme Court clearly authorized the intrusion in Schmerber based only on the facts of that particular record. In concluding that court stated: “It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” (Schmerber v California, supra, at p 772.) The record before us is bare of the “stringently limited conditions” which were present in Schmerber. The appellant has not been arrested; the evidence is permanent and will not dissipate with time. “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” (Schmerber v California, supra, at pp 769-770). If the police have probable cause to arrest, they should effect the arrest. However, if this is lacking, then the individual should be free from the intrusion which the People seek to impose upon him.

Accordingly, the order of the Supreme Court, New York County (Altman, J.), entered on November 3, 1980, holding appellant in contempt of court for failure to comply with a prior order of August 1, 1980, directing the extraction of blood samples, should be reversed, on the law and on the facts, without costs and without disbursements, the contempt citation vacated and the order of August 1, 1980, dismissed as academic.