The fourtenn year-old mentally challenged girl had been missing for 45 minutes. The police were searching her neighborhood when they found her. She pointed out the defendant driving his van about a block away. She related he had just abducted and raped her. After a brief car chase, the defendant was arrested. At the jail, during the book-in process, officers forcibly swabbed his penis. The injured party's DNA was present. Exigent circumstances, no? Any other ideas?

Assuming the victim's DNA would not stay where it was in an identifiable condition for very long Schmerber seems to justify dispensing with a warrant requirement. I assume the force used to obtain the sample did not approach that in Rochin. Perhaps it could also be argued the swabbing was not a search a la U.S. v. Jacobsen, 466 U.S. 109; U.S. v. Place, 462 U.S. 697. See also Cupp v. Murphy, 412 U.S. 291 (examination under the fingernails). U.S. v. Robinson, 414 U.S. at 235 also talks about a "full search of the individual's person" incident to a lawful arrest.

[This message was edited by Martin Peterson on 11-08-02 at .]

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At the jail, during the book-in process, officers forcibly swabbed his penis.

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NOW I remember why I decided to be a prosecutor instead of a cop ... those guys need a raise ...

We regularly photograph a defendant's tatoos, even when they include his privates. We have had a case in which the tatoo described by the victim was on the defendant's penis. We didn't think we needed a warrant because the defendant was already in custody. In jail, you have no right to privacy.

"Swabbing" doesn't sound too invasive to me, no matter how boldfaced the word is printed.

Maybe I'm wrong, but isn't a search incident to arrest pretty darn broad? Maybe it wouldn't allow you to get the defendant's blood, but I feel certain you could swab his penis, take a hair sample, and search, ahem, cavities under this exception to the warrant requirement.

If a defendant is already in custody, absent an invasive medical procedure, what privacy right is being violated by collecting physical evidence from the defendant's body? What could be more intrusive than putting handcuffs on a person, taking away his clothes, and putting him into a locked cell? And all of that can be done without a warrant if there is probable cause to believe a crime occurred (of course, wonderful Texas law may require more under some circumstances).

We found a 1967 case where pubic combings were deemed ok. Thanks for all the good advice...I understand that once the swabbing began the defendant requested "just a little more...just a little more..."

Shannon, perhaps the suspect would agree to pay the officers for "a little more" . . . . .

Good idea, Martin. If the revenue figures from the porn/sex industry are true, I bet some local jurisdictions could eliminate their budget shortfalls if they would only implement a "swabs for sawbacks" policy.

Well, not completely different, but in a more serious vein:

Considering the rapid advances in DNA technology and the ability of forensic science to do more analysis with less invasiveness, does anyone think we've reached the point at which the unobtrusiveness of gathering such evidence could justify a lesser standard for "taking" that evidence from a suspect? For instance, lowering the threshold from probable cause to reasonable suspicion, or less? I've heard that some states may have already started down that road, although I haven't done any research yet.

I'm curious to hear what everyone else thinks ...

Shannon, I like your theory, but the privacy NUTS are rabble-rousing on exactly the opposite path. They want to make it more difficult to collect any and every kind of evidence.

I personally like the idea of a stop-and-buccal-swab of folks around the scene of a murder or rape. Portable fingerprint scanners wirelessly linked to AFIS would sure be handy in patrol cars, too. It would cut down on the number of folks using fake d.o.b. or stolen info to avoid warrants. If the overall standard of the fourth amendment is "reasonability," it is not too unreasonable to put your finger on the scanner or swipe the swab in your mouth if an officer has some articulable suspicion you're involved in a crime.

I think the real hitch will be whether the person is seized rather than temporarily detained. Regardless of invasiveness, if you have to have probable cause for seizure of the person, you get nowhere fast. If you have to use force (and presumably you would to get someone's mouth open or even their finger in the right position) you may quickly cross a line. Certainly worth exploring, but there may not be a direct route to where you want to go.

If reasonable suspicion lets you seize a person and pat them down for weapons, why not arguably less intrusive buccal swabs or fingerprint scans? Or, how about digital photos of persons found in the vicinity of a "fresh" crime? "Reasonable" applies to searches and seizures, does it not?