Nature of the Case
This matter was referred to me by Order of Reference datedDecember 3, 2003 for determination of pre-trial proceedings. TheGovernment has filed a Motion For An Order Compelling TheProduction Of Fingerprints, Palm Prints And DNA Samples (DocketNo. 47). The Defendant, John Pakala ("Mr. Pakala"), has filedDefendant's Motion In Opposition To Government's Motion For AnOrder Compelling The Production Of Fingerprints, Palm Prints AndDNA Samples (Docket No. 51).1
Nature of Government's Motion
The Government has moved for an order requiring the Defendants,Mr. Pakala and Mr. Gonzales, to provide palm prints and DNA samples. The Government also requests that three otherindividuals, Angel Acevedo, James Davis-Sanon and KenchesterMartin (collectively, the "Third Party Individuals") be orderedto provide fingerprints, palm prints and DNA Samples. TheGovernment intends to use the fingerprints/palm prints/DNAsamples to determine if they match prints/DNA taken from two ofthe firearms at issue in this case.2
Both Defendants have filed oppositions to this motion: Mr.Pakala on the grounds that the Government has failed todemonstrate the likely success of such tests or that there existsprobable cause to believe that the tests/samples requested willproduce evidence that Mr. Pakala committed the crimes with whichhe has been charged; and Mr. Gonzales on the grounds that he isbeing charged as an aider and/or abettor and therefore, theelements of the crimes charged against him do not require that hehave come in contact with the firearms.
The Indictment charges Mr. Pakala with being a felon inpossession of a firearm, possession and sale of stolen firearmsand unlicensed dealing in firearms and aiding and abetting thesame. Mr. Gonzales is charged with possession and sale of stolenfirearms and unlicensed dealing in firearms and aiding andabetting the same.3 The charges involve four of fivefirearms which were stolen from a residence in Chelsea, Massachusetts where Mr. Pakala hadbeen staying for a few days. Coins were also take from two glassjars during the course of the robbery. Neither Defendant has beencharged with any offenses relating to the fifth firearm or thestolen coins. One of the firearms was recovered in Chelsea andtwo others were recovered in Fitchburg, Massachusetts. The twofirearms recovered in Fitchburg have been processed forfingerprints and swabbed for DNA. There appears to be potentiallyidentifiable prints on both firearms (probably all palm prints).Additionally, a palm print has been found on one of the coin jarsinvolved in the robbery. It is unclear at this time whether DNAprofiles can be obtained from the swabs taken from the firearms.
At Mr. Pakala's detention hearing held in connection with theunderlying Complaint which had issued against him, I found thatthe evidence against Mr. Pakala is substantial. In itsmemorandum, the Government has outlined the evidence which itexpects to introduce against Messrs. Pakala and Gonzales. TheGovernment's case as it currently stands includes additionalevidence to that presented at Mr. Pakala's detention hearing.Additionally, Mr Gonzales has given a statement which implicatesboth he and Mr. Pakala as well as the Third Party Individuals.The Third Party Individuals, who were not advised of theirMiranda rights, gave statements to the police in which theyadmitted that they purchased the firearms. 1. Fingerprints/Palm Prints
A defendant may be ordered to submit to the taking offingerprints. United States v. Kloepper, 725 F. Supp. 638(D.Mass. 1989). Likewise, the Defendants may be ordered to submitto the taking of their palm prints. The Government hasestablished that there is probable cause to believe that one orboth of the Defendants may have handled these firearms. TheGovernment has also established that there is probable cause tobelieve that whoever stole the firearms handled the coin jar.Under these cirucmstances, the palm print evidence would berelevant whether the Defendant is being charged as a principal oran aider/abettor. Therefore, the Government's motion requestingthat the Defendants be ordered to provide palm prints is allowed.
Although the Third Party Individuals do not have a legitimateexpectation of privacy in their fingerprints or palm prints,under the circumstances of this case, requiring them to providethe same may implicate their Fourth Amendment right to be freefrom unreasonable seizures. However, the Government hasestablished probable cause to believe that the Third PartyIndividuals purchased the firearms in question and, therefore,that any fingerprint(s) and/or palm print(s) found on suchfirearms could belong to them. Therefore, I am ordering that theThird Party Individuals provide their fingerprints and palmprints to the Government. 2. DNA Samples
Although the issue is not free from doubt, I will assume forpurposes of this Order that the DNA swab samples requested by theGovernment constitute a search under the Fourth Amendment. Giventhat the Defendants are under arrest, it is doubtful thatrequiring the Defendants to submit to a DNA swab would implicateany Fourth Amendment seizure concerns with respect to them.Nevertheless, I will also assume for purposes of this Order thatrequiring the Third Party Individuals and the Defendants toprovide a DNA sample would implicate their Fourth Amendment rightto be free from unreasonable seizures.
Under the circumstances of this case, I find that theGovernment has established probable cause to believe that any DNAfound on the guns could belong to either Defendant or any of theThird Party Individuals. I also find that a swab test involvesminimal intrusion and is appropriate and reasonable under thecircumstances. At the same time, I do not find that theDefendants or the Third Party Individuals should be subject toeven the minimal intrusion of a swab DNA test unless it is firstdetermined that any substance found on the firearm(s) has yieldeda sufficient DNA profile for comparison. Therefore, theDefendants and Third Party Individuals must submit to a DNA swabtest. However, that test shall not be performed unless it isdetermined by the laboratory to which the firearms have been sentthat either or both of them contain a substance which yields aDNA profile sufficient for comparison. 3. Service On The Third Party Individuals
I am concerned that the Government has not been able to serve acopy of its motion to compel on Angel Acevedo and JamesDavis-Sanon. Therefore, prior to any Third Party Individualproviding and fingerprints, palm prints or DNA samples, theGovernment shall ensure that both a copy of its motion and copyof this Order has been served on them. The Third PartyIndividuals shall then have twenty-one (21) days to file a motionfor reconsideration of this Order.4 If no such motion isfiled within twenty-one (21) days of any Third Party Individualbeing served, then such Third Party Individual shall providefingerprints, palm prints and DNA samples to the Government.
1. The Government's Motion For An Order Compelling TheProduction Of Fingerprints, Palm Prints And DNA Samples (DocketNo. 47) is allowed, as provided in this Order.
2. Defendant's Motion In Opposition To Government's Motion ForAn Order Compelling The Production Of Fingerprints, Palm PrintsAnd DNA Samples (Docket No. 51) is denied.
1. Since counsel captioned this document as a "motion", ratherthan simply as an opposition (which is how it should have beencaptioned), it must be treated as a motion requiring a ruling bythe court.
2. The Government has unsuccessfully attempted to serveMessrs. Acevedo and Davis-Sanon with copies of this motion.
3. The Government has made clear in its memorandum, that Mr.Gonzales is being charged with aiding and abetting Mr. Pakalarather than as a principal.
4. Within twenty-one (21) days of being served, any ThirdParty Individual may also request that counsel be appointed torepresent him with respect to this matter. If any Third PartyIndividual makes such a request, he will be provided with afinancial affidavit and then this Court will make a determinationas to whether counsel should be appointed.