A search warrant was issued for defendant’s DNA, and he resisted efforts to take it by buccal swab. He doesn’t challenge the probable cause, only the method of execution. He carries the burden of proof on the question of unreasonableness of execution of the warrant, and the court concludes he failed. State v. Evans, 2021 UT 63, 2021 Utah LEXIS 145 (Nov. 4, 2021). As to the standard to be applied:
[*P23] Because Evans no longer challenges the court of appeals’ holding that a validly issued search warrant implicitly authorizes officers to use reasonable force when necessary to execute it, see supra ¶ 21 n.6, the sole constitutional question before us is whether the use of force here was reasonable. We conclude that Evans has not met his burden of showing the force used here was unreasonable and affirm the court of appeals.
[*P24] [Appellant doesn’t argue for a different standard under the state constitution.]
[*P25] It is axiomatic that “the ‘touchstone of the Fourth Amendment is reasonableness.'” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances,” id., and depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers,” State v. Warren, 2003 UT 36, ¶ 31, 78 P.3d 590 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
[*P26] To be reasonable, a search must be (1) “lawful at its inception,” and (2) “executed in a reasonable manner.” Illinois v. Caballes, 543 U.S. 405, 407-08 (2005). When challenged, the government “bears the burden of proving that its warrantless actions were justified.” United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994). But a “search pursuant to a warrant … is presumed reasonable because such warrants may issue only upon a showing of probable cause.” Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)); see also United States v. Leon, 468 U.S. 897, 913-14 (1984) (noting that a warrant issued by an impartial magistrate provides a “reliable safeguard against improper searches”).
[*P27] Accordingly, in instances like the one here, where the challenged search was lawful at its inception, the burden of proof shifts to the defendant to show its execution was unreasonable. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”); Carhee, 27 F.3d at 1496 (“[I]f the search or seizure was pursuant to a warrant, the defendant has the burden of proof.” (citation omitted)).
[*P28] While “it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant,” Dalia v. United States, 441 U.S. 238, 257 (1979), a lawful search may become unreasonable if the force used to conduct it is excessive, see Caballes, 543 U.S. at 407 (“[A search] lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.”); Dalia, 441 U.S. at 258 (“[T]he manner in which a warrant is executed is subject to later judicial review as to its reasonableness.”). And although “officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search” when executing a warrant, “the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time” are unreasonable. Los Angeles Cnty., California v. Rettele, 550 U.S. 609, 614 (2007).
. . .
[*P40] Here, because the propriety of the search procedure itself is not at issue, the only question before us is whether the search was “executed in a reasonable manner.” Caballes, 543 U.S. at 408. Considerations that are relevant under these circumstances include:
• the nature and extent of the resistance officers faced, see Graham, 490 U.S. at 396;
• whether the resistance jeopardized the safety of the officers or others, see id.; Rettele, 550 U.S. at 614;
• whether the resistance prevented the officers from conducting the search, see Rettele, 550 U.S. at 614 (officers may take action necessary to “ensure … the efficacy of the search”);
• whether the force used endangered the suspect’s health or safety or physically injured him or her, see Winston, 470 U.S. at 761; State v. Alverez, 2006 UT 61, ¶ 31, 147 P.3d 425; and
• whether the force used inflicted unnecessary pain, was unnecessarily prolonged, or was otherwise out of proportion to the resistance the officers faced, see Rettele, 550 U.S. at 614.
[*P41] But we emphasize that these considerations constitute neither an exhaustive list nor a multi-pronged test. We simply find them to be relevant to determining whether the officers used reasonable force under these specific circumstances. The ultimate barometer of Fourth Amendment reasonableness remains a careful and objective weighing of the public interest on one hand and the individual’s Fourth Amendment rights on the other, in light of the totality of the circumstances. Warren, 2003 UT 36, ¶ 31.
Fox 13 (Salt Lake City, UT): Utah Supreme Court upholds police obtaining DNA by force, if necessary (“The state’s top court has upheld the ability of police to obtain a DNA sample under a search warrant by force, if necessary. In a ruling issued late Thursday, the Utah Supreme Court unanimously rejected a challenge by Douglas Dwayne Evans, who was convicted of the 2014 murder of Ted Kelbach in Kearns. Evans was challenging how police obtained a DNA sample from him to link him to the crime. Police had gotten a search warrant to get a ‘cheek swab’ from Evans.”)