People Rusauo

Opinion

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5 IN THE SUPERIOR COURT OF GUAM 6

7 THE PEOPLE OF GUAM CRIMiNAL CASE NO. CF0606-19 8 vs.

9 RUSTY RUSAUO, DECISION AND ORDER 10 DOB: 10/30/1989 11 Defendant.

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13 INTRODUCTION 14 This matter came before the Honorable Arthur R. Barcinas on October 22, 2020, upon

15 the People’s Motion to Compel a DNA Sample (“Motion”) filed June 15, 2020. Defendant

16 Rusty Rusauo (“Defendant”) was represented by Assistant Alternate Public Defender Heather

17 M. Zona. Assistant Attorney General Sean Brown represented the People of Guam (“the

18 People”). Having reviewed the pleadings and having heard oral arguments in this matter, the

19 Court issues the following Decision and Order.

20 BACKGROUND 21 On December 20, 2019, the Defendant was charged via Superseding Indictment with: 1)

22 Murder (as a First Degree Felony) with Special Allegation: Possession or Use of a Deadly

23 Weapon in the Commission of a Felony. According to the Declaration attached to the

24 Magistrate’s Complaint filed November 8, 2019, the charges against the Defendant arise from

25 an altercation between the Defendant and the Victim whereby the Defendant allegedly stabbed

26 the Victim in the leg with a machete, subsequently resulting in the Victim’s death.’

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28 The original Indictment in this matter was filed on November 18, 2019, charging the Defendant with Aggravated Assault (as a Second Degree Felony) with Special Allegation: Possession or Use of a Deadly Weapon in the Commission of a Felony.

Decision and Order (Motion to Compel DNA Sample) Criminal Case No. CF0606-19; People vs. Rusty Rusauo

1 On June 15, 2020, the People filed the instant motion, requesting that the Court order the 2 Defendant to submit to a buccal swab or similar sample, pursuant to Title 8 GCA § 7025(a)(7), 3 to determine whether the Defendant’s DNA can be matched to or excluded from the evidence 4 collected by the Guam Police Department (“GPD”). Specifically, the People assert: 1) the DNA 5 sample is needed for the Forensic Sciences Division of GPD to determine if there is human 6 blood on the confiscated evidence; 2) the DNA sample is necessary for the Forensic Sciences 7 Division of GPD to determine whether there is a match between the Defendant’s blood type and 8 that of the victim’s and the confiscated evidence; and 3) the DNA sample is needed to 9 determine whether there is a DNA match between the Defendants’ DNA and that found within 10 the potential fluids found on the confiscated items. Thus, the People maintain there is a 11 reasonable basis for the Court to order the Defendant’s DNA sample. 12 In his Opposition filed October 20, 2020, the Defendant argues that the People have not 13 justified the violation of his Fourth Amendment rights a DNA sample would require. 14 Specifically, the Defendant argues that the instant motion is premature as the government has 15 yet to test the confiscated items for blood or DNA, or determine whether more than one 16 person’s blood or DNA is present. Further, the Defendant maintains that the there is no 17 indication DNA will be an issue in this case by either the People or the defense. Thus, given the 18 state of the People’s evidence, the defense contends there is no reason to subject the Defendant 19 to DNA testing. 20 On October 22, 2020, a hearing was held on the instant motion. Counsel for both parties 21 appeared via Zoom. At the conclusion of the hearing, the Court took the matter under 22 advisement. 23 DISCUSSION 24 As a preliminary matter, the Fourth Amendment of the United States Constitution 25 prohibits the government from conducting an “unreasonable search and seizure” against a 26 person. U.S. Const. amend. IV. In order to justify a governmental search under the Fourth 27 Amendment, the search must be reasonable. Id.; see also Pennsylvania v. Mimms, 434 U.S. 106, 28 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1997) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct.

Decision and Order (Motion to Compel DNA Sample) Criminal Case No. CF0606-19; People vs. Rusty Rusauo

1 1868, 20 L.Ed.2d 889 (1968)) (“The touchstone of our analysis under the Fourth Amendment is 2 always ‘the reasonableness in all the circumstances of the particular governmental invasion of a 3 citizen’s personal security.”). “It is undisputed that a compelled DNA extraction is a ‘search’ 4 for Fourth Amendment purposes.” United States v. Kincade, 379 F.3d 813, 821 n.15 (9th Cir. 5 2004) (categorizing blood extraction for DNA as a search); Maryland v. King, 569 U.S. 435 6 (2013) (categorizing buccal swab collection of saliva for DNA as a search). Thus, the question 7 before the Court is whether compelling the Defendant to submit a DNA sample pursuant to 8 Title 8 GCA § 70.25(a)(7) is reasonable under the circumstances. In assessing reasonableness, 9 a court must weigh both the significant government interest at stake and an individual’s 10 legitimate expectations of privacy. See King, 569 U.S. at 461 (“The government interest must 11 outweigh the degree to which the search invades an individual’s legitimate expectations of 12 privacy.”). The Court will now examine and weigh these two competing factors. 13 A) The Defendant’s expectation of privacy. 14 - As aforementioned, the Supreme Court of the United States has held that for the 15 purposes of the Fourth Amendment, “using a ‘buccal swab’ on the inner tissue of a person’s 16 cheek in order to obtain DNA samples is a search.” King, 569 U.S. 435, 446 (2013). However, 17 in King, the Supreme Court held, 18 “[ijn light of the context of a valid arrest supported by probable cause 19 respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to 20 significant state interests in identifying respondent not only so that the proper 21 name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody When officers make 22 an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek 23 swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate 24 police booking procedure that is reasonable under the Fourth Amendment.” 25 King, 569 U.S. at 465-66. Courtsciting to King have held that once an individual is indicted the 26 probable cause necessary to conduct a search is “established definitively.” See US. v. Schreiber, 27 866 F.3d 776, 780 (2017).

Decision and Order (Motion to Compel DNA Sample) Criminal Case No. CF0606-19; People vs. Rusty Rusauo

1 Further, a defendant accused of a crime can be expected to undergo routine searches, 2 including fingerprinting and physical examinations. See Haskell V. Harris, 669 F.3d 1049, 1058 3 (9th Cir. 2012), aff’d en bane, 745 F.3d 1269 (9th Cir. 2014). In fact, the Fourth Amendment 4 permits police to take “routine administrative steps incident to. arrest, such as booking, 5 photographing and fingerprinting.” King, 569 U.s. at 461 (citing County of Riverside v. 6 McLaughlin, 500 U.S. 44, 58 (1991)). Indeed, Guam law goes further providing, in relevant 7 part:

Upon noticed motion by the prosecuting attorney, the Court may order the . . .

8 defendant to appear at a reasonable time and place and under such conditions as the court may provide to. . permit the taking of samples of his blood, hair, and .

other materials of his body which involve no unreasonable intrusion thereof.

10 8 GCA § 70.25(a)(7) (emphasis added).

11 DNA is often referred to as “other materials of a defendant’s body” and the testing of 12 DNA is considered far less intrusive than the extraction of one’s blood. See Haskell, 669 F.3d at 13 1059. A compelled DNA sample has been described as “minimally invasive — both in terms of 14 the bodily intrusion it occasions, and the information it lawfully produces.” See Kincade, 379 15 F.3d at 838. Notably, a “buccal swab cannot seriously be viewed as an unacceptable violation of 16 a person’s bodily integrity.” See Haskell, 669 F.3d at 1059.

17 Here, the Court is only constrained by the Defendant’s right to be free from 18 unreasonable searches under the Fourth Amendment. The Court however, finds that Title 8 19 GCA § 70.25(a)(7) permits reasonable searches of a defendant’s person, and authorizes the 20 Courts to order a defendant to submit to DNA testing as long as it is reasonable. Further, the 21 Court determines that a DNA test, which is minimally intrusive, constitutes a minor 22 infringement on the Defendant’s privacy, which has already been diminished given that a grand 23 jury returned a Superseding Indictment against the Defendant, finding probable cause to believe 24 that he committed first degree murder. Therefore, in light of the nature of the allegations, the 25 Court finds the evidence requested by the People potentially highly probative and its collection 26 ~ would not be an unreasonable intrusion upon the Defendant’s privacy.

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Decision and Order (Motion to Compel DNA Sample) Criminal Case No. CF0606- 19; People vs. Rusty Rusauo

1 B) Government Interest 2 Second, the Court must also consider the government interest at stake. See King, 569 3 U.S. at 461. The People have an interest in ensuring those accused of a crime are properly 4 identified. DNA testing may “significantly improve both the criminal justice system and police 5 investigative practices,” by making it “possible to determine whether a biological tissue 6 matches a suspect with near certainty.” Dist. Attorney’s Office for Third Judicial Dist. v. 7 Osborne, 577 U.S. 42, 55, 62 (2009). DNA collected from arrestees is “irrefutable identification 8 of the person” it was taken from. King, 569 U.S. at 54 1-42. 9 Here, the People have a legitimate interest in ensuring that the person accused of the 10, crime is properly brought forth for prosecution. The rationale behind Title 8 GCA § 70.25 ii allows the government to complete its investigation.2 Indeed, the test conducted here fulfills that 12 purpose. Therefore, based on the foregoing, the Court finds that the government interest in fully 13 testing the evidence collected, outweighs the minimal intrusion on the Defendant caused by a 14 compelled’DNA test. 15 Accordingly, the Court finds that a search, at this time, would not violate the 16 Defendant’s rights under the Fourth Amendment. Further, because the Defendant has been 17 accused of a crime, and such accusations are supported by probable cause, the Court finds the 18 Defendant should submit to a “buccal swab” to compare his DNA to DNA found at the scene of 19 the crime. Accordingly, the Court GRANTS the People’s Motion to Compel a DNA Sample. 20 / 21 / 22 / 23

24 2 to Title 8 GCA § 70.25 annotations,

25 Subsection (a) deals with matters that will often take place as part of investigations prior to a formal charge being rendered. However~ there is no. reason why these investigatoty procedures 26 will not take place later and this Section makes clear that the court has the power to order the defendant to cooperate in this regard.

27 See 8 GCA § 70.25, note (emphasis added).

Decision and Order (Motion to Compel DNA Sample) Criminal Case No. CF0606-19; People vs. Rusty Rusauo

1 CONCLUSION 2 For the reasons set forth above, the Court hereby GRANTS the People’s Motion to 3 Compel a DNA Sample. Thus, the Defendant is hereby ORDERED to permit the taking of a 4 DNA sample via buccal swab, at the place of detention or at a crime lab, at times to be agreed 5 upon by the parties, and as soon as reasonably possible. If necessary, the Defendant shall be 6 transported to the agreed upon location for the sample collection. 7

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9 IT IS SO ORDERED [‘~11~0

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14 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam 15

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24 SERVICE VIA E-MAIL

25 acknowledge that an electronic copy of the inal w S e-mailed to:

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27 Date:~ T~9ji~

28 Deputy Clerk, Superio7~urt of Guam