WY: GSR swabbing of defendant’s face was reasonable search

Swabbing defendant’s face for GSR 16 hours after shooting was reasonable warrantless search considering the evanescent nature of GSR. Sen v. State, 2013 WY 47, 301 P.3d 106 (2013):

[*P27] During the suppression hearing, the DCI agent who administered the test explained that evidence of gunshot residue was obtained by swabbing a two-inch applicator on Sen’s hands and face. He stated that the residue is usually invisible to the naked eye, and that it can be wiped or rubbed away on surfaces contacting the skin. In light of the evanescent nature of gunshot residue, many courts have held that a warrantless search for such evidence does not violate constitutional protections against unreasonable searches. For example, in United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006), the court stated that “Because the presence of gun powder on his hands was relevant evidence that Johnson (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.” After finding that the defendant’s arrest was lawful, the court concluded that the gunpowder residue test was a lawful warrantless search incident to his arrest. Id., 445 F.3d at 796. Similarly, in State v. Riley, 201 W. Va. 708, 717 (W. Va. 1997), West Virginia’s highest court determined that the admission of evidence obtained from a swab of the defendant’s face and hands for gunpowder residue was “consistent with the general recognition that superficial examination of a lawfully arrested individual for evidence of gunpowder residue is not violative of the Fourth Amendment prohibition against unreasonable searches and seizures.” See also Lawler v. State, 276 Ga. 229, 234 (Ga. 2003) (“The search of Lawler at the police station was a lawful search incident to his arrest. Swabbing for blood or gunshot residue at that time was not an unconstitutional search.”) (citation omitted).

[*P28] Sen does not contend that his arrest was unlawful. Rather, he contends that, because 16 hours had passed between the shooting and his arrest, “[t]he danger of the trace evidence wiping off [his] hands had already passed.” However, the validity of this argument is belied by the fact that gunshot residue was, in fact, found on Sen 16 hours after his arrest. Additionally, we are not persuaded that justification for the search was eliminated by the mere possibility that the evidence had already been destroyed. Consistent with the conclusions reached in cases set forth above, we find that, in light of the minimal intrusion caused by the swab for gunshot residue and the easy destructibility of such evidence, administration of the gunshot residue test was a valid search incident to arrest. The district court did not err in denying Sen’s motion to suppress the gunshot residue evidence.