In a case of first impression in the state, the state sought a subpoena duces tecum for a DNA sample, and it was approved by a judge. That made it valid. State v. Lee, 964 So. 2d 967 (La. App. 1st Cir. 2007):
Because the validity of the use of an LSA-C.Cr.P. art. 66 subpoena duces tecum to acquire a DNA sample appears to be a case of first impression in Louisiana, we adopt the rationale set forth in In re Shabazz, 200 F.Supp.2d 578, 581 (D.S.C. 2002). Although Shabazz involved a subpoena duces tecum issued by a grand jury, we find the reasoning employed by that court in finding the subpoena a valid means of obtaining a saliva sample equally applicable to an LSA-C.Cr.P. art. 66 subpoena duces tecum authorized by a trial court judge. In both instances an intervening authority (either a grand jury or a trial judge) passes on the reasonableness of the individualized suspicion that the subject of the subpoena has been involved in the alleged crime, thereby reducing the possibility of prosecutorial abuse.
The obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels–the “seizure” of the “person” necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence. It is well-established that “a physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.” In re Shabazz, 200 F. Supp. 2d at 581, citing Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) (drug and alcohol testing of railroad employees), Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood test for alcohol), and Winston v. Lee, 470 U.S. 753, 760-61, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (order to compel surgical operation to remove a bullet). However, what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection; accordingly, subpoenas compelling voice samples, handwriting samples, fingerprints, and hair samples are not “searches” and therefore do not implicate the Fourth Amendment. [citations omitted]
Nevertheless, as pointed out by the Shabazz court, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Thus, under certain circumstances, searches and seizures may be permissible under the Fourth Amendment “based on suspicions that, although ‘reasonable,’ do not rise to the level of probable cause.” In re Shabazz, 200 F.Supp.2d at 583, citing New Jersey v. T.L.O, 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Shabazz court reasoned that probable cause need not be a prerequisite for the issuance of a grand jury subpoena ordering a DNA saliva test because the very purpose of requesting the information is to ascertain whether probable cause exists.
The Shabazz court concluded that the privacy concerns that led the Supreme Court to require probable cause in other cases are not as pronounced with a saliva swab because it is not as intrusive as a blood test or a surgical bullet-removal procedure. Although the saliva swab involves a slight invasion of a person’s bodily integrity, it is not a “surgical procedure” and therefore does not fall within Schmerber’s threshold requirement of probable cause, so no showing of probable cause is needed before the issuance of a subpoena duces tecum requiring a saliva sample. In re Shabazz, 200 F.Supp.2d at 584.
Nexus for search of defendant’s house was shown for the drugs he had been selling, and this is established by normal inferences that judges draw. Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 866 N.E.2d 930 (2007):
A magistrate may draw “‘normal inferences as to where a criminal would be likely to hide’ the drugs he sells.” Id. at 302, quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S. Ct. 186, 78 L. Ed. 2d 165 (1983). “An inference drawn from circumstantial evidence ‘need only be reasonable and possible; it need not be necessary or inescapable.'” Commonwealth v. Gilbert, 423 Mass. 863, 868, 673 N.E.2d 46 (1996), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). See Smith, Criminal Practice & Procedure § 179 (2d ed. 1983 & Supp. 2006).
. . .
These inferences were reinforced by evidence indicating that after Luthy left his residence, he entered his vehicle, drove away, and soon thereafter arrived at the location appointed for the second controlled buy. Although there may have been some ambiguity in the affidavit as to whether Luthy drove directly from his residence to the buy location, it was reasonable for the magistrate to infer that Luthy likely took drugs from a cache stored in his residence and then proceeded directly to his destination.
Request for consent to search a car within first minute of a traffic stop for window tinting was valid. State v. Watts, 2007 Ohio 2411, 2007 Ohio App. LEXIS 2231 (2d Dist. May 18, 2007)*:
The mere fact that Defendant was detained by police pending issuance of a traffic citation, standing alone, does not render Defendant incapable of voluntarily giving consent for the search. [¶] Because Defendant’s consent to search his vehicle was obtained during his lawful detention for a traffic violation, and Defendant had voluntarily consented to that search, his Fourth Amendment rights were not violated. Therefore, the trial court erred in suppressing the evidence discovered in the course of that search.
