DNA evidence linking a defendant to the near-fatal shooting of a pizzeria manager was improperly collected by police and should be suppressed, the Appellate Division, Third Department determined.

The panel said police were not authorized to swab the mouth of Paul Walker Jr. for a DNA sample under the no-knock search warrant they executed at his home in April 2010.

Among other problems with the warrant, the panel agreed in People v. Walker, 104040, is that it did not follow procedures recognized under People v. Fomby, 103 AD3d 28 (2012), and other precedents for obtaining DNA through intrusive procedures.

Justice John Lahtinen (See Profile) wrote that an “elementary” tenet of due process guarantees that if no exigent circumstances exist, suspects must be “afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed.” Lahtinen rejected the prosecution’s argument that exigent circumstances justified the taking of the DNA sample.

“He [Walker] could not destroy or dispose of his own DNA, and the People’s speculation in their brief that he might have fled was not alleged or supported by facts in the [warrant's] application,” Lahtinen wrote. Presiding Justice Karen Peters (See Profile) and Justices William McCarthy (See Profile) and Elizabeth Garry (See Profile) joined in the ruling.

Walker, 26, is serving a 25-year sentence for attempted murder in connection with a Domino’s Pizza robbery in Rensselaer County in 2009 in which the store manager was shot several times. Police said they found DNA on a Yankees baseball cap left behind by one of the two assailants, which was linked to Walker’s DNA found on a cell phone discovered at the scene of an uncharged crime in Queens.

Eugene Grimmick of Troy represented Walker. Assistant Rensselaer County District Attorney Kelly Egan argued for the prosecution.