D.Mont.: Warrantless taking of penile swabs from def in custody lacked exigency

Warrantless collection of penile swabs from defendant in custody lacked exigent circumstances and was suppressed. United States v. Birdsbill, 2020 U.S. Dist. LEXIS 196612 (D. Mont. Oct. 20, 2020):

Birdsbill admittedly left the scene after the alleged sexual assault occurred, but he was apprehended by Wolf Point law enforcement shortly thereafter. Officer K. Wehbe testified to the successful administration of a breathalyzer test upon Birdsbill’s consent, a revelation that undermines the Government’s arguments that Birdsbill allegedly “attempt[ed] to influence the breathalyzer results.” Unlike the suspect in Cupp, Birdsbill never gave law enforcement any indication of an attempt to destroy DNA evidence on his penis. Birdsbill remained handcuffed, and was seated in a booking room with at least three other officers, when Investigator Red Boy collected the swabs.

The Government has failed to show that sufficient exigent circumstances required the warrantless collection of the penile swabs. The Court grants Birdsbill’s Motion to Suppress Penile Swabs (Doc. 51). Any evidence obtained as a result of the collection of the penile swabs, and conclusions drawn from testing the swabs, will be inadmissible at trial as fruits of the poisonous tree. The Court recognizes the impact that its finding may have on the December 3, 2018 and May 24, 2019 interviews, wherein Agent Murphy briefly referenced the DNA report. Agent Murphy’s references to the DNA report in the interviews, despite the report’s connection to an unconstitutional search, were permissible so long as Agent Murphy’s mentions of the DNA report were not coercive in conjunction with the remaining circumstances. The Court already has discussed the voluntariness of Birdsbill’s statements and the reasonableness of Agent Murphy’s interview techniques. The Court directs the government to produce a redacted recording of the interviews at trial with all references to the penile swabs and subsequent DNA report removed.

One could disagree with that finding because exigency might still exist in jail. Still, however, it is a body search with a heightened standard of reasonableness.

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