E.D.La.: Motion for buccal swabs for DNA a search, and warrant required

Government’s motion to compel buccal swabs is seeking a search, and reasonableness should be presented by the government through a search warrant application, not a motion for samples. United States v. Hardrick, 2012 U.S. Dist. LEXIS 125559 (E.D. La. September 5, 2012):

Because obtaining a saliva sample is a search, the Government must first request a search warrant. See Terry v. Ohio, 392 U.S. 1, 20 (1968)(“[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.”); Schmerber v. California, 384 U.S. 757, 770 (1966) (“Search warrants are ordinarily required for searches of dwellings, and, absent emergency, no less could be required where intrusions into the human body are concerned.”). The Government has not identified any exigency that would permit dispensing with the warrant requirement. A warrant is therefore required before the Government may obtain saliva samples from the defendant. Accordingly, Government’s motion to compel is premature and will not be granted by this Court.