Miles Cruz appears in court via video conference Dec. 9. PC: Fox 11 Online
GREEN BAY, WI (WTAQ-WLUK) – The man convicted for an attack on a recreational trail wants the Wisconsin Supreme Court to hear his challenge to how his DNA was collected in the case, but prosecutors oppose the request.
Miles Cruz, 20, was sentenced to 42.5 years in prison for the Oct. 5, 2021 attack on a woman and her baby in De Pere. Cruz was 17 at the time of the crime.
Last month, the state appeals court ruled police did not violate Cruz’s Fourth Amendment rights when they collected DNA samples from him.
Police took samples from under Cruz’s fingernails and the inside of his cheek. Though officers did not have a warrant, the court ruled Cruz “voluntarily consented” to the swabs by giving police ” affirmative words and gestures” when he was asked for them. He appealed, but the court ruled he had given consent.
Now, two court filings show the Wisconsin Supreme Court has been asked to review the case. The court does not have to take the case, however. It could let the lower courts’ rulings stand, or it could agree to review the issues. That decision is likely weeks or months away. If it hears the case, oral arguments would then be scheduled.
Defense attorney Stephanie Rock’s motion argues the court should hear it.
“This Court’s decision would provide guidance to courts below and the law enforcement community in determining when an individual lawfully consents to a seizing of swabs from the person. Such a question has a statewide impact and needs to be addressed by this Court,” she wrote.
The notion of inevitability – that the state would have gotten the evidence eventually anyway – shouldn’t apply, she contends.
“Here, the idea that the court should not suppress the DNA analysis because, even at this point, the state could get a warrant to obtain new DNA samples from Mr. Cruz, if nothing else, would substantially dilute the effect of the exclusionary rule. Why would a law enforcement officer ever get a warrant to seize DNA samples? It would be far more expeditious to just seize the DNA samples, whether the defendant consented or not, because, even if it were later determined to be an illegal seizure, the state could simply get a warrant at that point and seize new DNA samples,” Rock wrote.
But in its reply, filed Friday, the state Department of Justice argues against the high court taking up the case, saying it doesn’t present any novel issues for the court to decide.
“Cruz’s petition does not meet the criteria for review. In his section on reasons to accept review, Cruz argues that his case presents a question of law with statewide impact. Cruz’s case does not meet the statutory criteria. What Cruz really seeks is error correcting. Cruz’s petition primarily rehashes the arguments that he made in the court of appeals. He asks this Court to use its scarce resources to apply the same law to the same facts and reach a different conclusion. This Court should deny the petition Because error correcting is not a special or compelling reason for this Court to accept review,” wrote Asst. Attorney General Christine Reminger.
Cruz is currently housed at the Wisconsin Secure Program Facility in Boscobel, Dept. of Corrections records show.
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