Clark County Deputy District Attorney Elissa Luzaich wanted to put detainee Kenneth Friedman’s DNA sample in a cold case data bank, but she didn’t have a warrant or court order to do so. Even so, she authorized Las Vegas Metropolitan Police Detective Dolphus Boucher to forcibly extract Friedman’s DNA sample.
“Friedman declined to volunteer the DNA sample and asked to speak with his attorney. Boucher refused to allow Friedman to contact his attorney and told him that Deputy District Attorney Luzaich had authorized Boucher to obtain a DNA sample from Friedman, by force if necessary. Another detective told Friedman, ‘we can force you, we’re authorized and you can get hurt pretty bad.’ Boucher and the other detective also threatened to call in other officers to beat him. Friedman…was sitting on a bench in chains and shackles and chained to a metal bar on the bench.”
“After Friedman repeatedly refused to voluntarily provide a DNA sample, Boucher forced Friedman’s jaw open and forcefully took a buccal swab from the inside of Friedman’s mouth.” Friedman subsequently sued Boucher and Luzaich, but the district court dismissed, concluding that both were entitled to qualified immunity.
The Ninth Circuit reversed. The court first held that “there is no question that the buccal swab constitutes a search under the Fourth Amendment.” Additionally, “there is…no dispute that the search was conducted without a warrant.” The court then held that the government could not establish that the warrantless, suspicionless, forcible taking of a buccal sample satisfied any of the exceptions to the warrant requirements, and therefore, held that the search was unconstitutional.
Finally, the court held that “no reasonable detective or prosecutor could have thought that they could forcibly take a DNA sample from Friedman without violating his Fourth Amendment rights. Because Friedman’s rights were clearly established at the time that Defendants took the sample, the Defendants are not entitled to qualified immunity.” See: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009).
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Related legal case
Friedman v. Boucher
|Cite||580 F.3d 847 (9th Cir. 2009)|
|Level||Court of Appeals|