{"id":1233,"date":"2008-02-16T06:23:38","date_gmt":"2007-08-11T08:23:21","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-08-11T08:23:21","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1233","title":{"rendered":"Warrantless penis swabbing for DNA in a sexual assault case was based on exigent circumstances; handcuffing alone was insufficient"},"content":{"rendered":"

The defendant was arrested for sexual assault, and he was subjected to a penis swabbing by an evidence technician in a private room. Exigent circumstances supported the search because handcuffing alone would not protect the evidence; all the defendant had to do was urinate in his pants and compromise the evidence [like the defendant would know that]. Ontiveros v. State<\/a>, 240 S.W.3d 369 (Tex. App.\u2013Austin 2007), petition for discretionary review dismd In re Ontiveros, 2008 Tex. Crim. App. LEXIS 57 (Tex. Crim. App., Jan. 16, 2008):<\/p>\n

In the instant case, appellant had been lawfully arrested on outstanding warrants. The police had probable cause to believe that he had committed a sexual assault involving penile penetration only a few hours before his arrest and thus to believe that DNA evidence might be found on his penis. The challenged search consisted of simply rubbing a swab across appellant’s penis. To spare appellant embarrassment, this procedure was performed in a private room. Appellant’s testimony to the contrary notwithstanding, the evidence supports a finding that no force was used and that the only other person in the room was the evidence technician. Appellant argues that even though he knew that he had been accused of the sexual assault, any risk that he might attempt to destroy the evidence could have been eliminated by simply handcuffing him and forbidding him from going to the restroom while the officers waited for a search warrant. But even while handcuffed, appellant could have urinated in his pants and thereby damaged the fragile DNA evidence. Considering the factors discussed in Wolfish<\/em> and applied in Murphy<\/em> and McGee<\/em>, we conclude that the warrantless swabbing of appellant’s penis to obtain DNA evidence was, under the circumstances, a reasonable search under the Fourth Amendment.<\/p><\/blockquote>\n

Police officer testified that defendant did not consent to a search of his motel room, and defendant moved for a mistrial as soon as it came out. At a hearing at the bench, the judge sustained the objection and offered a cautionary instruction, but refused a mistrial. The way it occurred here, it was not so inflammatory as to require a mistrial. Huffman v. State<\/a>, 234 S.W.3d 185 (Tex. App.\u2013-San Antonio 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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