I need to secure a scent sample from a suspect in a capital case. We just need him to wipe his hands on a sterile gauze pad. He has not been arrested or indicted. He lawyered up and the lawyer doesn't want him to consent. What would be the best (and safest) method to get the scent sample? My thoughts are by grand jury subpoena (but I anticipate that he'll refuse and that will throw us into a contempt of grand jury motion and hearing), motion and hearing before a district judge (but I'm unsure about the amount of proof that the judge will require and I don't want to put my investigating officer(s) on the stand or put a lot of detail re our investigation in an affidavit), or through a search warrant (but my pc is a little slim and also I don't really want to expose all of our investigation in a pc affidavit). Any ideas? Thanks.

The new predicate manual added Smell ID by Dog under the Identification subsection. It was inspired by a case from a Houston court of appeals: Winston v. State, 78 SW3d 522. You might want to check it out, as it has a lengthy discusions of the manner in which smell samples were collected.

[This message was edited by John Bradley on 01-25-05 at .]

I've got that case but it just says that the defendant gave a scent sample "in court" in the presence of his atty. It doesn't mention the method of getting to that point. I don't think there would be a right of privacy involved in securing a scent sample. Do you think that's a safe assumption or would the better course be to get a warrant?

Is your scent the same one day to the next or does it change depending on your diet, stress, etc.? And don't different parts of the body have a different scent from others? Anyone who's ever done laundry, especially men's laundry knows that. Would you have a defendant give a swab from different parts (no, I didn't say orifices!)?

Where are Ted Wilson, Tom Bridges and Diane Beckham? They wrote the books (Warrant and Warrantless Searches). What do they think?

In Prater, 1996 Tex.App. LEXIS 3590, the court said squeezing of luggage to obtain a scent was not a search (that seems like a reasonable analogy). There are some problems with using your method to solve the crime. See Willis, 115 Cal.App.4th 379 and Gutierrez 2004 Cal.App. Unpub. LEXIS 3064. I just don't see much right to privacy in one's scent (possibly Jane was referring to odor instead of scent?). On the other hand, short of a court order to rub on the cloth (or use the necessary force) I am not sure how you actually accomplish what you are seeking. I would argue very little probable cause would be required to obtain a warrant in light of the very limited nature of the intrusion.

We recently took a scent patch from a suspect in a cold murder case. When he came to the courthouse for a pre-trial or some other non-trial matter, we rubbed his arm with a piece of cotton -- no intrusion, no forcing anything, just brushed past him. No permission, either. I guess that will make its way up the appellate line. That scent patch has resulted in positive "hits" by the Ft. Bend Co. bloodhounds.
Two different dogs, on two different "scent line-ups" with five fill-ins and the suspect's scent patch, sniffed the killing ligature, then hit on the suspect's patch. That was three-plus years after the killing. Then, we put the dogs through another test, and had them, separately, sniff the victim's clothing -- both dogs hit on the suspect's scent patch again, even after we switched the fill-ins around, to see if we could fool the hounds. Couldn't fool them.
BTW Jane, odor and scent aren't necessarily the same thing. Even in the laundry room, even in the locker room. Even in the massage parlor.
Now, of course throwing musk brings up a whole 'nother discourse.

scent

n 1: a distinctive odor that is pleasant [syn: aroma, fragrance, perfume] 2: an odor left in passing by which a person or animal can be traced 3: any property detected by the olfactory system [syn: olfactory property, smell, aroma, odor, odour] v 1: cause to smell or be smelly [syn: odorize, odourise] [ant: deodorize] 2: catch the scent of; get wind of; "The dog nosed out the drugs" [syn: nose, wind] 3: apply perfume to; "She perfumes herself every day" [syn: perfume]

odor

n 1: any property detected by the olfactory system [syn: olfactory property, smell, aroma, odour, scent] 2: the sensation that results when olfactory receptors in the nose are stimulated by particular chemicals in gaseous form; "she loved the smell of roses" [syn: smell, odour, olfactory sensation, olfactory perception]

Called out by Bradley... That's a fine way to start your morning. I think the short answer is that I haven't seen any definitive answer from the courts, but maybe A.P.'s case will help us make some law.

The brand-new (1-24-05) Supreme Court case on narcotics dog sniffs provides no help to law enforcement in obtaining scent samples, in my view. The Caballes case reiterates the idea that narcotics dog sniffs are not a violation of privacy because the dog will alert only on illegal drugs, and a person does not have the legal right to possess drugs. So the dog sniff in that case detects only illegal activity. A person's scent in general may carry some privacy interest. (Although I definitely could make an argument that some people smell so bad, it should be illegal.) (And Jane, if you think doing laundry for an adult male is trouble, I'd invite you to come over and have a go at my middle school boy's dirty clothes.)

Getting the scent sample to the dog in the first place requires an intrusion, even a minimal one. I'd argue that obtaining a scent sample is more like getting a suspect's fingerprint. The intrusion required to get it seems physically minimal, but there is an intrusion. Which leads me to think you need some sort of court directive to compel the suspect to turn over a useable sample.

But what about (like fingerprints left on an abandoned glass in a restaurant) abandonment by the suspect? Practically speaking, is it possible to get the suspect to "abandon" some of his scent on material that law enforcement could use? Instead of A.P.'s example of swabbing the suspect as he walked by, could you hand him something, ask, "Is this yours?" and then take it back? Can you obtain scent samples from abandoned paper towels in the public bathroom?

If not, then I think you're back at the warrant requirement.

Funk:

n. See odor, better yet, SMELL odor -- seeing odor just doesn't do funk justice, although some justice can be quite funky. See also B.O., and compare that to P.U.

Thanks for the feedback. Rather than write on why I didn't get one, I think I'll just go the search warrant route. And you never know when you need to explain the difference between "scent," "odor," "funk," B.O., and P.U. Good stuff... (-;