N.D.Va.: GSR test doesn’t need a separate warrant if it is done incident to arrest

GSR test doesn’t need a separate warrant if it is done incident to arrest. United States v. Williams, 2013 U.S. Dist. LEXIS 5943 (N.D. Va. January 15, 2013) (adopting R&R):

Although the defendant feels that [United States v. Simmons, 380 Fed. Appx. 323 (4th Cir. 2010),] only provided qualified approval regarding conducting a GSR search without a warrant incident to arrest, this Court believes that the only qualification the Fourth Circuit indicated was the requirement that it be conducted pursuant to a lawful arrest. As indicated, this Court finds that such arrest was in fact lawful, as the officers had probable cause to make the arrest and, therefore, the magistrate judge’s report and recommendation concerning the motion to suppress evidence is affirmed and adopted.

… The Fourth Circuit stated in Simmons, “the GSR test, a ‘very limited search,’ was appropriate as a search incident to arrest” after it found that Simmons did not contest the lawfulness of the arrest. 380 F. App’x at 330; see United States v. Allen, 358 F. App’x 697, 699 (7th Cir. 2009) (finding no Fourth Amendment violation concerning a GSR test conducted without a warrant as “the delicate nature of the gunshot residue required law enforcement to administer the test quickly before the evidence could be wiped off or destroyed”); see United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006) (finding no Fourth Amendment violation concerning a GSR test so long as the arrest was valid, as the “presence of gun powder on his hands was relevant” and the defendant “could have eventually removed or destroyed” the evidence).