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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA v. JORGE AVILA TORREZ, Defendant. ) ) ) ) ) ) ) CRIMINAL NO. 1:11-cr-115 Hon. Liam O'Grady

GOVERNMENTS MOTION FOR BUCCAL SWAB AND HAIR SAMPLE COMES NOW the United States of America, by and through its attorneys, Neil H. MacBride, United States Attorney for the Eastern District of Virginia, Michael E. Rich, Jonathan L. Fahey

and James L. Trump, Assistant United States Attorneys, and moves the Court to issue an order compelling the defendant to submit to the taking of saliva samples through buccal swabs and submitting a hair sample. In support of its motion, the government relies The defendant opposes

on the following points and authorities. this motion. A. 1. Background

On May 27, 2011, the defendant was charged with murder,

in violation of Title 18 United States Code, Section 1111, for the July 2009, murder of Amanda Snell. In the indictment

returned by the grand jury, several aggravating factors were found, potentially making this a capital case. 2. Illinois. In May of 2005, two young girls were murdered in Zion, One was eight years old and the other was nine. Semen

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was recovered from one of the victims and a DNA profile was developed from it by the state laboratory in Illinois. A private

laboratory also analyzed the forensic material and developed a YDNA profile from several places, including the same location of the semen on the victims body where the state laboratory developed a DNA profile. In 2010, a Combined DNA Index System

(CODIS) hit linked the DNA recovered from that victim in Zion, Illinois, to the defendant, who was pending trial in Arlington County for rape, sodomy, abduction, robbery and related firearms offenses. CODIS is a national system that stores DNA profiles

submitted by law enforcement. 3. The CODIS hit only compared the DNA from the defendant

to the forensic DNA found by the state laboratory in the Illinois case. Because CODIS did not have a Y-profile of the defendant in

its data base, it did not compare Torrez' Y-profile to the Yprofile found by the private laboratory. 4. The Government would like to obtain an additional DNA

sample from the defendant in order to have an independent laboratory develop the defendant's Y-DNA profile in order to compare it to the Y-profile obtained from the forensic evidence in the Illinois murders. This can be done in the presence of the

defendant's counsel by simply having government agents use a buccal swab to obtain saliva from the inside of the defendant's cheek.

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5.

In addition, an unknown hair was found in the barracks The Government would like In order to make

room where Amanda Snell was murdered.

to compare this hair to the defendants hair.

the comparison, the Government needs a known sample of the defendants hair. This can be also be obtained in the presence

of the defendants attorney by removing hairs from the defendants head. B. 1. Legal Discussion The Court should grant the governments motion because

there is probable cause to believe that a buccal swab/saliva sample from the defendant will produce evidence of the defendant involvement in the Illinois murder. Further, the taking of a

buccal swab/saliva sample involves only a minimal personal intrusion of the defendant. The Court should also grant the

governments motion to compel the defendant to submit to the taking of a hair sample to compare it to forensic evidence recovered from the crime scene in the charged offense. 2. The leading case on the authority of the government to

obtain samples of bodily fluids from criminal defendants is Schmerber v. California, 384 U.S. 757 (1966). There, the Supreme

Court upheld the taking of a blood sample from a suspected drunk driver without a warrant. The Court found that probable cause

supported the search and seizure of the suspects blood and that the test was reasonable in light of the routine nature of blood test procedures. Id. at 1835-1836. 3

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3.

Subsequent cases have addressed the permissibility of

compelling the production of other types of evidence under the Fourth Amendment. See, e.g., Brooks v. United States, 494 A.2d

922, 924 (D.C. 1984) (citations omitted) (citing litany of cases and noting that [c]ases since Schmerber have repeatedly upheld the principle that a man is not protected by constitutional privilege from being compelled to stand up, sit down, walk, speak or submit to photography or fingerprinting so long as these disclose nothing about his knowledge.); In re Rosahn, 671 F.2d 690 (2d Cir.1982) (upholding requirement for defendant to submit to photographing and to provide hair samples); United States v. Dionisio, 410 U.S. 1, 7, 15 (1973) (upholding use of grand jury subpoena to obtain voice sample; no minimal requirement of reasonableness); United States v. Mara, 410 U.S. 19, 21-22 (1973) (upholding use of grand jury subpoena to obtain handwriting sample); United States v. Nicolosi, 885 F. Supp. 50, 55-56 (E.D.N.Y. 1995) (holding that the government must apply to a judicial officer for a court order directing the defendant to provide a saliva sample); S.A. v. M.A., 531 A.2d 1246, 1254 (D.C. 1987) (finding that under reasonable circumstances, which must involve more than mere suspicion of nonpaternity, a wife and child can be compelled to submit to testing upon request by a husband contesting paternity in the context of a divorce or support proceeding).

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4.

Here, there is more than ample basis supporting the

governments request for an order compelling the defendant to produce a saliva sample for DNA comparison through the use of buccal swabs and to submit to the taking of a hair sample. WHEREFORE, the government respectfully requests that the Court issue the attached proposed Order, which requires the defendant to submit to the taking of buccal swabs and a hair sample from his person. Respectfully submitted, Neil H. MacBride United States Attorney \s\ Michael E. Rich James L. Trump Jonathan L. Fahey Assistant United States Attorney VSB: 33808 Attorney for the United States United States Attorneys Office 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: (703) 299-3758 Fax: (703) 299-3982 mike.rich@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that on the ____ day of June 2011, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Joseph J. McCarthy, Esq. Delaney, McCarthy & Colton, P.C. 510 King Street, Suite 400 Alexandria, Virginia 22314 Tel: (703) 549-9701 or 836-8989 Fax: (703) 836-4285 Cel: (571) 331-1740 McCarthy@lawdmc.com Michael S. Nachmanoff, Esq. Federal Public Defender 1650 King Street, Suite 500 Alexandria, Virginia 22314 Tel: (703) 600-0860 Fax: (703) 600-0880 michael_nachmanoff@fd.org \s\ Michael E. Rich Assistant United States Attorney VSB: 33808 Attorney for the United States United States Attorneys Office 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: (703) 299-3758 Fax: (703) 299-3982 mike.rich@usdoj.gov