Shock and Seizure: Watt Evidence?
Niagara County Court, New York: People v. Ryan S. Smith
Tasers electrified the nation last year with the famous, “Don’t tase me, bro” incident out of the University of Florida. The device is back in another story that is electrifying court watchers.
Defendant Ryan Smith was a suspect in a kidnapping and an armed robbery. DNA evidence had been obtained from a can of soda the kidnapper had helped himself to during the course of the crime. Through good detective work and a series of procedural moves, the DA’s office had a court order to take a buccal swab for DNA from the defendant’s mouth, obtained and lost the sample, then applied for and received a second order to do it again.
Defendant declined to submit to the swab when cops approached him on the street, so they took him to police headquarters. Detectives tried to convince defendant to cooperate but Smith “firmly and obstinately objected to submitting to the authority of the Order. He said he had already given a sample and that they would have to ‘tase’ him to get another swab.”
Wrong thing to say.
The detective on the case called and conferred with the ADA in charge, who approved the use of necessary “minimum force” to obtain the sample. Considering their options, the cops ruled out holding the defendant down and forcing his mouth open, believing it potentially injurious to defendant and risky for them. So they set their taser on stun (“drive stun,” the least powerful setting) and asked Smith to reconsider. They told him it would be unpleasant, but he refused to allow them to take a swab. They told him they didn’t want to hurt him. He still refused. And after a final warning and refusal, they tasered as needed (four seconds), recorded the proceeding and got their swab. They then arrested Smith for Obstructing Governmental Administration (as if he didn’t have enough problems).
Citing cases which authorize the use of reasonable force in other circumstances, the court ruled that no Constitutional prohibitions were violated by use of the taser to obtain the swab. This was reasonable force (even if during their pre-taser conference with the DA’s office detectives neglected to mention that they were considering using the device). Now had the taser been used to cause pain to obtain the desired result, this would have drifted into unlawful use of torture. But as the court stated, “The defendant was forewarned, steps were taken to limit his risk of injury, and the device was used one time for a brief burst. There was no lasting damage or injury.”
For the court, defendant amped up the problem and was shocked by the solution.
As the court noted,
This case is perhaps best described as the “perfect storm” where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion required was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was not malice or desire to injure the defendant.
Accordingly, defendant’s motion to suppress was denied and the People could use the evidence obtained from the swab.
A stunning decision which will no doubt cause sparks to fly all over the political spectrum.
