{"id":7158,"date":"2012-07-01T09:52:54","date_gmt":"2012-05-20T08:17:16","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-05-20T08:17:16","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=7158","title":{"rendered":"Cal.3d: Warrantless penis swabbing at the jail was a Fourth Amendment violation, but harmless compared to other evidence"},"content":{"rendered":"

The penis swabbing of defendant in the jail after his arrest for rape as a search incident without a warrant violated the Fourth Amendment, but it was harmless beyond a reasonable doubt because of the DNA evidence found in the rape victim\u2019s underwear. People v. Fulton<\/a>, 205 Cal. App. 4th 1546, 141 Cal. Rptr. 3d 374 (3d Dist. 2012):<\/p>\n

Here, the seizure of the evidence from the defendant’s penis is problematic. It involved a major intrusion on the defendant’s dignity. There is a dispute in authority about the extent to which on proper showing the police can search intimate areas of an arrestee’s person. (3 LaFave, Search and Seizure (4th ed. 2004) Post-Arrest Detention, \u00a7 5.3(c), pp. 168-170 & fns. 114, 116; id. 2011-2012 Supp., p. 32.) Yet the prosecution, bearing the burden of justifying the warrantless seizure, made no attempt to establish that the evidence would have been destroyed absent the warrantless seizure. At best, the People want us to assume that such is the case. That is no way to justify a warrantless seizure of evidence.<\/p>\n

The stipulated facts established only what happened — evidence was taken from the defendant’s penis without a warrant. The prosecution did not put on evidence concerning the destructibility of the evidence or even that the police had a good-faith belief, or any kind of belief, that the evidence could be destroyed absent the warrantless seizure. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771 [reasonable belief that evidence would be destroyed may justify warrantless seizure].) It should go without saying that the attorneys’ arguments were not evidence. (See CALCRIM No. 222.) Therefore, we are left with a request by the Attorney General to condone a warrantless seizure based on speculation or supposition.<\/p>\n

The Attorney General’s argument that this was merely a search incident to arrest does not fare any better. Seizure of evidence from an arrestee’s genitalia is a major intrusion on the arrestee’s dignity. To seize evidence from a person’s genitalia, as part of a search incident to arrest and without a warrant, there must be an exigency justifying the seizure, such as officer safety or imminent destruction of evidence. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771; see also State v. Lussier (Minn.Ct.App. 2009) 770 N.W.2d 581, 589-590.) As noted, there was no such showing here.<\/p>\n

While we cannot agree with the Attorney General that the warrantless seizure of evidence from the defendant’s penis was justified, we also disagree with the defendant that this must result in reversal of the judgment against him. Any error in admitting the evidence obtained from the defendant’s penis was harmless beyond a reasonable doubt considering the credibility of the victim and the evidence obtained from the victim’s underwear.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-7158","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7158","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7158"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7158\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7158"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7158"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7158"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}