Swabbing defendant’s face for GSR 16 hours after shooting was reasonable warrantless search considering the evanescent nature of GSR. Sen v. State, 2013 WY 47, 301 P.3d 106 (2013):
[*P27] During the suppression hearing, the DCI agent who administered the test explained that evidence of gunshot residue was obtained by swabbing a two-inch applicator on Sen's hands and face. He stated that the residue is usually invisible to the naked eye, and that it can be wiped or rubbed away on surfaces contacting the skin. In light of the evanescent nature of gunshot residue, many courts have held that a warrantless search for such evidence does not violate constitutional protections against unreasonable searches. For example, in United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006), the court stated that "Because the presence of gun powder on his hands was relevant evidence that Johnson (or merely time) could have eventually removed or destroyed, if his arrest was valid, the performance of the gun powder residue test was lawful, and the admission of the results at trial was proper." After finding that the defendant's arrest was lawful, the court concluded that the gunpowder residue test was a lawful warrantless search incident to his arrest. Id., 445 F.3d at 796. Similarly, in State v. Riley, 201 W. Va. 708, 717 (W. Va. 1997), West Virginia's highest court determined that the admission of evidence obtained from a swab of the defendant's face and hands for gunpowder residue was "consistent with the general recognition that superficial examination of a lawfully arrested individual for evidence of gunpowder residue is not violative of the Fourth Amendment prohibition against unreasonable searches and seizures." See also Lawler v. State, 276 Ga. 229, 234 (Ga. 2003) ("The search of Lawler at the police station was a lawful search incident to his arrest. Swabbing for blood or gunshot residue at that time was not an unconstitutional search.") (citation omitted).
[*P28] Sen does not contend that his arrest was unlawful. Rather, he contends that, because 16 hours had passed between the shooting and his arrest, "[t]he danger of the trace evidence wiping off [his] hands had already passed." However, the validity of this argument is belied by the fact that gunshot residue was, in fact, found on Sen 16 hours after his arrest. Additionally, we are not persuaded that justification for the search was eliminated by the mere possibility that the evidence had already been destroyed. Consistent with the conclusions reached in cases set forth above, we find that, in light of the minimal intrusion caused by the swab for gunshot residue and the easy destructibility of such evidence, administration of the gunshot residue test was a valid search incident to arrest. The district court did not err in denying Sen's motion to suppress the gunshot residue evidence.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
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or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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But if you try sometimes / You just might find / You get what you need."
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"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
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—Martin Niemöller (1945) [he served seven years in a concentration camp]
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—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)