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FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX People of the Virgin Islands, Plaintiff, Charles Hardcastle, Defendant. People of the Virgin Islands, Plaintiff, Omari Hardcastle, Defendant. Counsel: KYE WALKER, ESQ. Law Offices of K.G. Cameron 2006 Eastern Suburb, Suite 101 Christiansted, St. Croix U. S. Virgin Islands 00820 Attorney for Defendant, Omari Hardcastle KIPPY ROBERSON, ESQ. Assistant Attorney General Department of Justice 6040 Estate Castle Coakley Christiansted. St. Croix U.S. Virgin Islands 00820 Attorney for Plaintiff W1LLOCKS, HAROLD W. L., Judge SX-10-CR-404 CHARGES: UNAUTHORIZED POSSESSION OF A FIREARM/ PRINCIPAL; FAILURE TO REPORT FIREARMS OBTAINED OUTSIDE OR BROUGHT INTO VIRGIN ISLANDS/ PRINCIPAL; POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE/PRINCIPAL SX-10-CR-405 CHARGES: UNAUTHORIZED POSSESSION OF A FIREARM/ PRINCIPAL; FAILURE TO REPORT FIREARMS OBTAINED OUTSIDE OR BROUGHT INTO VIRGIN ISLANDS/ PRINCIPAL; POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE/PRINCIPAL ERNEST E. MORRIS, JR. ESQ. Territorial Public Defender ,nd No. 1-B Clifton Hill, 2n Kingshill, St. Croix U. S. Virgin Islands 00850 Attorney for Defendant. Charles Hardcastle Floor MEMORANDUM OPINION (Filed: April 7,2011) People v. Charles Hardcastle and OmariHardcastle, Criminal Nos. SX-10-CR-404 and 405 MEMORANDUM OPINION on The People's Motion to Compel Saliva Specimens This Matter is before the Court on the People's Motions to Compel Saliva Specimens from Defendants Charles Hardcastle (hereafter "C. Hardcastle") and Omari Hardcastle (hereafter "O. Hardcastle"). For the reasons set forth below, the People's motions will be denied. FACTUAL AND PROCEDURAL BACKGROUND C. Hardcastle and O. Ilardcastle are charged with possession of a controlled substance with intent to distribute and various firearm charges. The People filed a motion requesting the defendants to give saliva buccal samples. The People suggest that it is requested "in conformity with the cases cited compelling suspects to submit to non-communicative tests so as to aid in the clarification of the contrary contentions at bar." In support of its position the People cite to Doe v. United States. 487 U.S. 201 (1988) and Schmerber v. California. 384 U.S. 757 (1966). Defendants oppose on grounds that the People have failed to articulate any reason or purpose for seeking a sample of the saliva. In failing to do so. Defendants assert that "the People have failed to satisfy its heavy burden imposed under the Fourth Amendment to support its request for saliva buccal samples." Defendants propose that the decisive issue for this Court to determine is whether an examination and analysis of the saliva would be of probative value to the prosecution. ANALYSIS It is firmly established in the roots of jurisprudence that the Fourth Amendment protects citizens against unreasonable searches and seizures by imposing a warrant requirement and further requiring that such warrant shall not issue but upon probable cause. U.S. Const, amend. IV. ). In Schmerber v. California, 384 U.S. 757, 770 (S.Ct.1966), a case involving blood testing for alcoholic content in connection with driving under the influence, the Supreme Court held that "search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned." In reaching its People v. Charles Hardcastle and Omari Hardcastle, Criminal Nos. SX-10-CR-404 and 405 MEMORANDUM OPINION on The People's Motion to Compel Saliva Specimens decision, the Supreme Court determined that "once the privilege against self-incrimination has been found not to bar compelled intrusions into the body...the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Schmerber, at 769. It was made crystal clear that "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." Most critically, the Schmerber Court pointed out that the judgment was reached only on the facts of record. Id. at 772. It emphasized that the integrity of an individual's person is a cherished value of society. Accordingly, even though it was decided that the Constitution does not forbid States minor intrusions into an individual's body under stringently limited conditions, [this] in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. Id. In sum, Schmerber established that use of bodily identification evidence does not violate the privilege against self incrimination of the Fifth Amendment; nor does it violate the Due Process clause of the Fifth Amendment or the Search and Seizure clause of the Fourth Amendment for the government to obtain it, so long as lawful proceduresfor its production are followed. The question is. can this Court order the defendants to submit to the requested sampling on the basis of the motion before it. Courts have held that no provision of the Federal Rules of Criminal Procedure supports such an order pursuant to a government motion in a criminal case, and instead that Schmerber instructs that the proper procedure should be by application for a warrant under Rule 41. United States v. Allen. 337 F.Supp. 1041, 1043 (E.D.Pa.1972). Under Virgin Islands law, 5 V.I. CODE ANN. §3901(b)1. makes Rule 41 ofthe Federal Rules ofCriminal Procedure governing requests *5 V.I.C. §3901 provides: People v. Charles Hardcastle and Omari Hardcastle, Criminal Nos. SX-10-CR-404 and 405 MEMORANDUM OPINION on The People's Motion to Compel Saliva Specimens for warrants generally applicable to search warrant proceedings in the Superior Court for any property in the Virgin Islands. It follows, therefore, in keeping with the instruction of Schmerber, that before seeking saliva specimens from a defendant that the People must first apply for a search warrant following the procedures of Rule 41. An application for a search warrant to obtain saliva specimens under Rule 41 requires a showing of probable cause. Probable cause for issuance of a search warrant simply requires more than mere suspicion, but less than evidence that would justify a conviction. Government of the Virgin Islands v. Rijos. 285 F.Supp. 126, 6 V.l. 475. 1968 U.S. Dist. LEXIS 9171 (D.C.V.I.1968). Moreover, probable cause is satisfied only when facts or circumstances, rather than mere affirmance of belief or suspicion, are submitted to issuing officer. Id. Before continuing the analysis under the facts of this case, however, the Court finds the District Court's decision in United States v. Flanders, 2010 WL 3702512, at *2 (D.Virgin Islands), highly instructive. The District Court in Flanders held that the issuance of a search warrant for DNA is only proper where the affidavit supporting the application provides a basis for believing that the individual's DNA can link the individual to a criminal act."' Id. (citing as an e.g., United States v. Bonds. 12 F.3d 540. 549 (6th Cir.1993) (affirming magistrate finding of probable cause to issue a search warrant for blood and hair samples when affidavit established that DNA could link the suspect to blood stains found in a car used in connection with a homicide). In Flanders, Defendants Flanders and Haiper had been charged with first degree murder and various firearm charges. The Government had filed a motion to require the defendants to supply an oral saliva sample. Flanders opposed the motion on grounds that the Government had not 3901. Authority to issue warrant; application of Federal Rule (a) A search warrant authorized by this chapter may be issued by a judge of a court of record, directed to a peace officer. (b) Rule 41 of the Federal Rules of Criminal Procedure shall apply to proceedings under this chapter. People v. Charles Hardcastle and Omari Hardcastle, Criminal Nos. SX-10-CR-404 and 405 MEMORANDUM OPINION on The People's Motion to Compel Saliva Specimens established sufficient connection between the saliva sample and the crimes charged, as required by the Fourth Amendment. The Magistrate entered an order requiring Flanders to provide a saliva sample for testing. On appeal, the District Court noted at the outset that the Government had not citedto any recognized exception to the warrant requirement but instead sought to secure a saliva sample from Defendants through a court order. Following U.S. v. Allen, supra the District Court held that the request for the order was procedurally improper and that "the 'proper and lawful procedure' for establishing the government's right to the saliva samples is by- applying for a warrant under Rule 41." Id. (citing Rule 41 of the Federal Rules of Criminal Procedure); see also United Slates v. Felix, 2007 WL 173892. at *8 (S.D.Cal.2007)(denying government's motion for an order compelling defendant to provide a new DNA sample and directing government to apply for a search warrant). The District Court vacated the order to provide saliva samples. Indoing so, the District Court reasoned than even viewing the motion as an application for a warrant under Rule 41, the Magistrate had applied an improper standard. The Government's motion had been erroneously granted bythe Magistrate onthe basis thatthere was probable cause to believe that Flanders and Harper had committed the crimes charged. In addition, and more importantly, the District Court found that even though the Government witness Smith testified as to the evidence recovered from the crime scene and other locations allegedly associated with the Defendants, there was no finding made at the hearing that the DNA samplescould link Flandersand Harperto the crimescharged. Having reviewed the District Court's decision in Flanders for insight, the Court now returns to its task of determining whether the People in the case at bar has met its burden under the Fourth Amendment in its request for salivabuccal samples from the defendants. In its request for saliva buccal samples from the defendants, the People in following the Supreme Court's instructions in Schmerber are required to provide sufficient evidentiary support People v. Charles Hardcastle and Omari Hardcastle, Criminal Nos. SX-10-CR-404 and 405 MEMORANDUM OPINION on The People's Motion to Compel Saliva Specimens for the Court to find probable cause that the saliva specimens could link C. Hardcastle and O. Hardcastle to the drug orfirearm chargesfiled against them. Even though the People obviously failed to apply for a search warrant, in considering the People's motion to compel saliva specimens from defendant as an application for a search warrant, the Court finds that the People have failed to articulate a single fact to support a finding that the saliva specimens requested could link either ofthe defendants to the drug orfirearm charges against them.2 Accordingly, it is clear that failing to provide such essential evidentiary nexus the People have failed to meet its probable cause burden under the Fourth Amendment. CONCLUSION For the foregoing reasons, the People's motions to compel saliva specimens from C. Hardcastle and O. Hardcastle will be denied without prejudice. Furthermore, should the People wish to obtain the defendants' saliva specimens, it may do so through the well-established procedure of a search warrant. Dated: V-?-// ATTEST: Venetia Harvey-Velazquez Clerk oiffiie Court By: Dated: Harold W.L. AVillocks Judge of the Superior Court CERPgfo TO 6 CLF~ wt Cleric. 2In People v. Jeffrey Carty.Jr.. No. 2010-299, slip. op. (V.I. August 17, 2010), the Superior Court held that the Police Officer's affidavit, filed in support of the People's motion to compel the blood, saliva, and hair specimens from Defendants, sufficiently demonstrates that there is probable cause for the People's request as required under the Fourth Amendment. People vJeffrey Carty, Jrisdistinguishable tothe case at bar in that the People herein have failed to present any evidentiary basis in support of theirrequest. IN THE SUPERIOR COURT OF THE VTRGIN ISLANDS DIVISION OF ST. CROIX SX-10-CR-404 CHARGES: UNAUTHORIZED POSSESSION OF A FIREARM/ PRINCIPAL; FAILURE TO REPORT FIREARMS OBTAINED OUTSIDE OR BROUGHT INTO VIRGIN ISLANDS/ PRINCIPAL; POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE/PRINCIPAL People of the Virgin Islands, Plaintiff, v. Charles Hardcastle, Defendant. People of the Virgin Islands, Plaintiff, v. Omari Hardcastle, Defendant. SX-10-CR-405 CHARGES: UNAUTHORIZED POSSESSION OF A FIREARM/ PRINCIPAL; FAILURE TO REPORT FIREARMS OBTAINED OUTSIDE OR BROUGHT INTO VIRGIN ISLANDS/ PRINCIPAL; POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE/PRINCIPAL ORDER This Matter is before the Court on the People's Motion to Compel Saliva Specimens for Defendants Charles Hardcastle and Omari Hardcastle. For the reasons elucidated in the Memorandum Opinion of even date, the People's motion shall be denied. Accordingly, it is hereby ORDERED that the People's Motion to Compel SalivaSpecimens is DENIED; and it is further ORDERED that should the People wish to obtain the defendants' saliva specimens, it may do so through the well-established procedure of a search warrant as outlined in United States v. Allen, 337 F.Supp. at 1043. j*- By: Dated: DONE and so ORDERED this_ _day of Ap/il 2011. ATTEST: Venetia Flarvey-Velazquez Clerk oj-vfe Court ocks Judge of the Superior Court TOBEAIRUftt -'/