The ACLU-NJ, as a friend-of-the-court, reiterated the heightened protections due to criminal defendants when the State seeks to take a DNA sample. In this case, Mr. Gathers was in jail pending trial when the State sought to obtain his DNA through a buccal swab. Before the New Jersey Supreme Court, the ACLU-NJ argued, first, that the State failed to show probable cause at the time for why it was necessary to take the DNA sample and, second, that the evidence it did offer -- much later, in a belated attempt to make the probable cause showing it should have made initially -- did not demonstrate the government interest that necessitated taking a DNA sample. The ACLU-NJ thus argued that the buccal swab was an unreasonable -- and unconstitutional -- search.
The Supreme Court has yet to set a date for argument.