Carol Kayser, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE,
A.L. Brown, CAPITOL CITY LAW GROUP, LLC,
and Caroline Durham, for Defendant.
REPORT & RECOMMENDATION
TONY N. LEUNG, Magistrate Judge.
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendant Jamillo Donte Spight's Motion to Suppress and Prohibit DNA Testing (ECF No. 34). The Court heard oral argument on the motion on December 5, 2013. Carol Kayser represented the United States. A.L. Brown and Caroline Durham represented Spight.
Defendant is charged with being an armed career criminal in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). (ECF No. 18.) The facts of his arrest are as follows:
Agent [Kylie] Williamson [of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF")] testified that on September 21, 2013, the Saint Paul police were called to Johnny Baby's bar at 981 University Avenue, in St. Paul, Minnesota, in response to a 911 call of gunshots inside the bar. Police arrived and spoke to the owner of the bar and learned that a man entered the bar carrying a gun in his hand. A bar security officer wrestled with the man. During the struggle, the man fired the gun two times inside the bar. The security officer was able to wrestle the gun away from the man. The security officer took the man into a separate area where the man was held for police. Police identified the man as Jamillo Donte Spight, the defendant herein. Police recovered the gun and two spent cartridges from the bar. The gun was identified as a Smith & Wesson, .40 caliber semi-automatic pistol.
(Order of Detention at 2, ECF No. 16.)
Defendant moves "to prohibit the search of [his] DNA until the Government identifies a usable DNA profile to compare it against." (Def.'s Motion to Suppress at 1, ECF No. 34.) On October 7, 2013, after Defendant had been arrested, law enforcement obtained a warrant to obtain a "Buccal (oral) DNA swab" from Defendant. (ECF No. 40.) A report from the Bureau of Criminal Apprehension ("BCA") provides that at least one testable DNA sample is retrievable from the firearm seized during Defendant's arrest. ( See ECF No. 42.)
A. United States v. Roberts and United States v. Robinson
Defendant argues that the Government should be required to produce a usable DNA profile off the evidence it has before it can analyze Defendant's DNA sample. For support, Defendant cites two decisions from this district: United States v. Robinson, Crim. No. 11-cr-325 (DWF/LIB), ECF No. 32 (Dec. 2, 2011), adopted, ECF No. 40 (Mar. 20, 2012); and United States v. Roberts, Case No. 10-mj-458 (LIB), ECF No. 15 (Nov. 29, 2010).
In Roberts, the Government moved to compel Roberts to provide fingerprint and DNA samples for investigatory purposes. Roberts was charged with being a felon in possession of a firearm. Roberts, Case No. 10-mj-458 (LIB), ECF No. 32 at 1. The Government moved for an order compelling Roberts to provide print and DNA samples to compare with any "fingerprints or DNA evidence that may be found on the firearm alleged to be possessed by [him]." Id. The Government moved for this order before it determined whether fingerprint or DNA samples existed on the firearm in question. Id. at 4, 5.
In denying the Government's motion, the Roberts court noted that "the Government had not yet, by its own admission, even tested the firearm at issue in this case to see whether there are any retrievable fingerprints or DNA evidence to which any comparison can be made." Id. at 7. The court determined that the Government could not compel Roberts to provide fingerprint and DNA samples without a demonstration of "some nexus between the bodily evidentiary items to be seized and the criminal activity." Id. The court was hesitant to "allow the Government to obtain [Roberts's prints and] DNA sample without any showing whatsoever at this early stage of the proceedings that it will be useful to any ongoing investigation and that the intrusion into [Roberts's] privacy is not fruitless." Id. (citation omitted). Such "suspicionless searches on ...