{"id":4236,"date":"2011-01-11T16:41:00","date_gmt":"2010-05-30T17:53:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-05-30T17:53:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4236","title":{"rendered":"CA4: GSR swab as SI justified by exigency of GSR easily disappearing"},"content":{"rendered":"

GSR test at the police station shortly after arrest was constitutionally valid because of exigent circumstances. United States v. Simmons<\/a>, 380 Fed. Appx. 323 (4th Cir. 2010) (unpublished), cert. denied 2010 U.S. LEXIS 7135 (U.S., Oct. 4, 2010):<\/p>\n

Recently, the Fifth Circuit concluded that a GSR test is a reasonable search incident to arrest. United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006). As the court explained, “[b]ecause the presence of gun powder on his hands was relevant evidence that [the defendant] (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.” Id. at 795-96. Such a result is dictated by Cupp v. Murphy<\/a>, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973), in which the Supreme Court concluded that police, consistent with the Fourth Amendment, could take fingernail samples incident to a lawful arrest. Id. at 295-96. In Cupp<\/a>, the Court explained the basis for the search incident to arrest doctrine was the belief that “it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. Id. at 295. Applying that rationale, the Court concluded that the police were justified in performing a “very limited search necessary to preserve the highly evanescent evidence they found under his fingernails.” Id.<\/p>\n

Likewise, the GSR test in this case was constitutional. Simmons does not contest the lawfulness of his arrest, and, given that concession, the GSR test, a “very limited search,” was appropriate as a search incident to arrest. In the alternative, exigent circumstances also justify the search because Simmons was requesting to use the bathroom and both parties agree that washing his hands could have removed any gun-shot residue. The district court did not err in denying the motion to suppress.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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