The Search & Seizure Show

Can police force a GSR test on someone who doesn't want their hand swabbed?


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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor for blue to gold Law enforcement and training during the roadside chat. All right, this question where's this officer read me see if it says it actually doesn't say because it came from a personal email, but no problem. Alright, this officer asks, Can police force a GSR test on someone who doesn't want their hat or their hand swapped. And a GSR test for the non-police watchers here is a gunshot residue test. So basically, you know, the Q tip type stuff to see if there's gunshot residue on their hand, which would indicate that they're the ones that fired the firearm? And the answer is yes. And here's why. So first of all, I want to kind of bring my book into the mix here. The search and seizures valve guide, best selling search and seizure book in America. Please check it out. It's on Amazon. It's also on our website bluetogold.com , just click on store and you'll see all the products that we have for you folks that do your job constitutionally. And the it's not directly on the GSR, but it is under a topic called fingernail scrapes. But it's the same kind of constitutional principle. And this issue actually went to the US Supreme Court in 1973. So it happened is a guy named I think his name was cup. But he went into to have an interview with police about the death of his wife. Now the police suspected that he was the perpetrator, he actually killed his wife. And he was saying no, was it me, you know, this is what happened. And so somebody else did it and so forth. Well, while talking to him, he you know, he made some emissions they had they actually had probable cause for him. And they looked at his fingernails, and they saw that there was debris, right blood and skin tissue, maybe even some material fabric material under his fingernails. And the wife was strangled, and so forth. And they then forced him, they forced the scrape of his fingernails, and they sent it to the lab. And that material under his fingernails was from her dress. And it was like DNA, if I got my facts straight. It's been a while since I've read the case. But the point was, was that evidence was used to convict him. Now the husband went to the US Supreme Court and said, Hey, that was an intrusion that you didn't have a warrant, and so forth. And the Supreme Court upheld it. Right, that this was, you know, basically, you know, where there was probable cause. It was they considered a limited intrusion. Right? It's not that intrusive. It's not like a cavity search, right? It's not that intrusive. And it was readily destructible. Right? The destructibility of it. So there is that that agency that kind of exists as well. So if he's not complying, if he's not, you know, cooperating and you know, he's holding his hands and so forth. Can you do a forced GSR swap? I would say the answer is yes. Especially if he's not being cooperative, because what is he going to try to do? While you're, if you're going to go the warrant route, if he's being non-compliant,..

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The Search & Seizure ShowBy Anthony Bandiero

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