Taser not unreasonable search and seizure

This is troubling.

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June 04, 2009 06:05 pm

NIAGARA COURTS RULING: Taser use to obtain DNA not unconstitutional

By Rick Pfeiffer
rick.pfeiffer@niagara-gazette.com


A decision by Falls Police to use a Taser to obtain a DNA sample from a suspect in an armed robbery, shooting and kidnapping is not unconstitutional.

Niagara County Court Judge Sara Sheldon Sperrazza reached that conclusion in a 16 page decision handed down Wednesday that refused to dismiss an indictment against Ryan Smith and denied his request to have DNA evidence that links him to two separate criminal cases thrown out.

The ruling left Smith’s attorney, Patrick Balkin, stunned and requesting additional time to prepare for a trial that had been scheduled to begin later this month.

“Your honor, I was not expecting this ruling,” Balkin said. “I have not begun to have the DNA evidence analyzed and will need time to do that.”

Sperrazza set a new trial date of Aug. 10.

“I was not surprised. I was confident the judge would rule in our favor,” Assistant District Attorney Doreen Hoffmann said. “Clearly, we are satisfied that the judge heard all the evidence at the hearing and made the correct decision.”

Balkin sharply questioned the ruling.

“She’s the first judge in western civilization to say you can use a Taser to enforce a court order,” Balkin said.

Smith, standing next to his attorney as the decision was announced, showed no reaction. He faces charges of first-degree robbery, burglary, second-degree kidnapping and other crimes stemming from a pair of incidents in 2006.

In July 2006, Smith is accused of being one of four suspects who staged a home invasion in the Falls that involved tying up two children with duct tape and forcing their mother to go to another home where a man was shot in a robbery attempt.

Then on Christmas Eve 2006, Smith is accused of staging the armed hold-up of a gas station and convenience store on Hyde Park Boulevard and Ontario Avenue.

Detectives recovered DNA evidence from a pop can at the home invasion scene and from a glove left behind at the robbery scene and a search of the state’s DNA data base matched that evidence to Smith. Prosecutors asked Sperrazza for an order to get a DNA sample from Smith in August 2008 and he voluntarily gave that sample to police.

In September 2008, prosecutors asked for another DNA sample because the first one had been sent to the wrong laboratory and could not be used. Sperrazza signed the second request and Falls Police went looking for Smith.

When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.

Balkin had argued that the use of the Taser to get Smith to give up the DNA sample violated his constitutional right against an unreasonable search and seizure. Sperrazza ruled that the police action was reasonable.