J-A13002-16


                                 2016 PA Super 207

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RONALD SIMONSON,

                            Appellant                   No. 598 WDA 2015


            Appeal from the Judgment of Sentence of October 29, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0004237-2010


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

OPINION BY OLSON, J.:                              FILED SEPTEMBER 12, 2016

        Appellant, Ronald Simonson, appeals from the judgment of sentence

entered on October 29, 2014, as made final by the denial of Appellant’s

post-sentence motion on March 12, 2015. We affirm.

        In February 2010, Appellant was arrested and charged with attempted

homicide, aggravated assault, and firearms not to be carried without a

license.1    On March 21, 2011, Appellant filed an omnibus pre-trial motion.

Within this motion, Appellant claimed that, following his arrest, the police

performed a warrantless gunshot residue test on his hands. Appellant’s First

Suppression Motion, 3/21/11, at 1-5.           Appellant claimed that the Fourth

Amendment to the United States Constitution and Article I, Section 8 of the
____________________________________________


1
    18 Pa.C.S.A. §§ 901(a), 2702(a)(1), and 6106(a)(1), respectively.
J-A13002-16



Pennsylvania Constitution mandated that the results of the gunshot residue

test be suppressed, as “there was no search warrant and no exigency

existed that would enable a warrantless search” for gunshot residue on his

hands. Id.

     On March 31, 2011, the trial court held a hearing on Appellant’s

motion to suppress. During this hearing, City of Pittsburgh Police Detective

Harry Lutton testified that, at approximately 8:30 p.m. on February 9, 2010,

he received a call that shots had been fired in the Greenway housing project.

N.T. Suppression Hearing, 3/31/11, at 4-5.            Uniformed police officers

informed Detective Lutton that they apprehended Appellant “a matter of

blocks away from the scene” and that Appellant matched the description of

the shooter. Id. at 5. Detective Lutton also learned that the victim, Bradley

Cohen, was shot twice, was taken to the hospital, and was in critical

condition and that “a shell casing and a bullet fragment” were recovered

from the scene. Id. at 6.

     That night, detectives in the homicide unit presented a photographic

array to the victim and to two witnesses at the scene; all individuals

identified Appellant as the shooter.    Id. at 6-7.   Detective Lutton testified

that, after the victim and the witnesses identified Appellant as the shooter,

Appellant was placed under arrest. Id. at 7.

     City of Pittsburgh Police Detective Blase Kraeer testified that, following

Appellant’s arrest, he performed a gunshot residue test on Appellant’s

hands. Id. at 11. As Detective Kraeer testified, to perform the post-arrest

                                       -2-
J-A13002-16



gunshot residue test upon Appellant, the detective “[took] a swab[] and [he]

swab[bed] four different parts of the two hands.”       Id.   Detective Kraeer

testified that the swab had a “sticky substance” that he just “brush[ed]

against the hand” and that the test did not “use any liquid.”      Id.    Daniel

Wolfe, an employee of the Allegheny County Medical Examiner’s Office,

testified that a gunshot residue test is generally necessary to detect such

residue because gunshot residue particles are “the size of a micron” and are

not “readily apparent to the naked eye.” Id. at 19.

      Detective Kraeer testified that, after he swabbed Appellant’s hands, he

forwarded the kit to the Allegheny County Crime Lab – and the crime lab

then performed “the actual [laboratory] testing” for gunshot residue. Id. at

15.   As Mr. Wolfe testified, he analyzed the kit that Detective Kraeer

submitted and the analysis demonstrated a “positive result for gunshot

residue.” Id. at 18.

      Regarding temporal considerations surrounding gunshot residue tests,

Mr. Wolfe testified that a gunshot residue swab must be performed “[a]s

quickly as possible” following the suspected discharge of the firearm

because:

        the particulate material, when it exits the firearm, is not
        adhesive by nature. It lands on the surface. You start to
        slough those materials off through activity, interaction with
        your hands, pants, placing your hands in your pockets. If
        you wash your hands, all of that – the more activity that
        takes place after the incident, the less likely you are to find
        particles.



                                     -3-
J-A13002-16



Id.

       Mr. Wolfe testified that “bagging the hands” of a living individual2

would not necessarily preserve gunshot residue on that person’s hands.     Mr.

Wolfe testified:

         there is still activity. The bag could interact with the
         surface of the individual’s hands, and that acts the same as
         a pocket or your trouser pants would. The more interaction
         with the surface, the more obstruction you have.

Id. at 19. However, Mr. Wolfe noted that, “[a]s far as the hands in the bag

thing, the gunpowder could come off, the particles could come off in the

bags” and that he would then “have to examine the entire bag in addition to

the hands.” Id. at 20.

       At the conclusion of the hearing, the trial court denied Appellant’s

suppression motion on the record. Id. at 24.

       Thereafter, as the trial court explained:

         [On April 4, 2011, a] jury was empaneled [and Appellant’s
         trial began. However,] on April 5, 2011, [the trial court]
         declared a mistrial. Appellant moved to bar retrial on the
         basis of double jeopardy, which [the trial court] denied on
         August 9, 2011.      The Superior Court of Pennsylvania
         affirmed [the trial court’s] order on June 21, 2012.
____________________________________________


2
  Detective Lutton testified that the police will routinely place bags over the
hands of “an individual that is [dead on arrival]. They do that so that the
[gunshot residue] doesn’t get knocked off, washed off while they place the
[deceased] person in a bag and then take them to the Coroner’s Office.”
N.T. Suppression Hearing, 3/31/11, at 9. However, as Detective Kraeer
testified, “the bagging of the hands . . . is not done with [living] suspects.”
Id. at 13-14.




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J-A13002-16


         [Commonwealth v. Simonson, 53 A.3d 937 (Pa. Super.
         2012) (unpublished memorandum) at 1-14].

Trial Court Opinion, 10/15/15, at 2.

       On remand, Appellant’s case was reassigned to a different trial court

judge and the case proceeded to trial.3          At the conclusion of the trial, the

jury found Appellant guilty of aggravated assault and carrying a firearm

without a license; the jury found Appellant not guilty of attempted homicide.

On October 29, 2014, the trial court sentenced Appellant to serve an

aggregate term of 72 to 160 months in prison, followed by three years of

probation.

       Following the denial of Appellant’s post-trial motion, Appellant filed a

timely notice of appeal. Appellant raises one issue on appeal:

         Whether the suppression court erred by failing to suppress
         the results of the gunshot residue evidence when the police
         without a warrant seized particles from Appellant’s hands?

Appellant’s Brief at 5.

       “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

____________________________________________


3
  On September 23, 2013, Appellant filed another pre-trial motion. The
motion claimed that the trial court must suppress certain statements he
made to law enforcement. Appellant’s Second Suppression Motion, 9/23/13,
at 1-3. Within his second suppression motion, Appellant did not reiterate his
earlier suppression claim that the gunshot residue test constituted an
unreasonable search of his person. See id.




                                           -5-
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rights.”    Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an

appeal from the denial of a motion to suppress, our Supreme Court has

declared:

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is whether the factual
           findings are supported by the record and whether the legal
           conclusions drawn from those facts are correct. When
           reviewing the ruling of a suppression court, we must
           consider only the evidence of the prosecution and so much
           of the evidence of the defense as remains uncontradicted
           when read in the context of the record. . . . Where the
           record supports the findings of the suppression court, we
           are bound by those facts and may reverse only if the legal
           conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal

citations omitted).      “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”     Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006).

       On appeal, Appellant claims that the trial court erred when it denied

his motion to suppress the results of the gunshot residue test.4 According to
____________________________________________


4
  As noted, prior to Appellant’s first trial, Appellant claimed that the results
of the gunshot residue test must be suppressed, as “there was no search
warrant and no exigency existed that would enable a warrantless search” for
gunshot residue on Appellant’s hands. Appellant’s First Suppression Motion,
3/21/11, at 1-5. Appellant did not repeat or renew this claim in the
suppression motion he filed prior to his second trial. See Appellant’s Second
Suppression Motion, 9/23/13, at 1-3. Nevertheless, by raising the “gunshot
residue test” claim in his first suppression motion, Appellant preserved the
(Footnote Continued Next Page)


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J-A13002-16



Appellant, the police committed an unreasonable search when they swabbed

his hands for gunshot residue. Specifically, Appellant claims, the search was

unreasonable because it was performed without a warrant and without

exigent circumstances. Appellant’s Brief at 19-24. Further, with respect to

the claim that the search was performed without exigent circumstances,

Appellant relies upon the United States Supreme Court’s recent opinion in

Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013), where the

High Court held that the natural metabolization of alcohol in the bloodstream

does not present a per se exigency and that, “consistent with Fourth

Amendment principles, [] exigency in [drunk-driving cases] must be

determined case by case based on the totality of the circumstances.” Id. at

1556 and 1558.
                       _______________________
(Footnote Continued)

claim for appeal, as the facts and law relevant to the suppression motion
were identical prior to both trials. Commonwealth v. Jones, 858 A.2d
1198, 1204 (Pa. Super. 2004) (defendant preserved his claim that the trial
court erred when it failed to sever the criminal charges filed against him
when defendant raised the claim in the pre-trial motion that he filed prior to
his second trial; although the second trial ended in a mistrial and the
defendant “did not raise the severance issue prior to his third trial,” the issue
was preserved for appellate review because “the ruling prior to the second
trial was binding on the [trial] court during the third trial;” specifically, this
Court held: “[t]he [severance] ruling was determinative of the law of the
case[, as] . . . the facts warranting severance of the charges were identical
prior to both the second and third trials . . . [and] there [had not] been a
change in legal authority”); see also Commonwealth v. Henderson, 520
A.2d 1372 (Pa. 1987) (holding that the denial of a pre-trial suppression
motion was entitled to collateral estoppel effect, where the motion was
raised again during the defendant’s retrial and the defendant did not
“allege[] new evidence not previously available”).




                                            -7-
J-A13002-16



         In Appellant’s view, McNeely demands that we vacate his conviction

because, in this case, the trial court simply applied a “categorical rule” that

the warrantless, post-arrest gunshot residue test constituted a reasonable

search under the Fourth Amendment.           See Appellant’s Brief at 23-24.

According to Appellant, the police had time to secure a warrant in this case

and, if the police feared the destruction of evidence, the police could have

“bagged” his hands until they obtained the warrant. Id. Appellant’s claim

fails.

         “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.”        Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is

deemed to be unreasonable and therefore constitutionally impermissible,

unless an established exception applies.”      Commonwealth v. Strickler,

757 A.2d 884, 888 (Pa. 2000).        “Exceptions to the warrant requirement

include the consent exception, the plain view exception, the inventory search

exception, the exigent circumstances exception, the automobile exception . .

. , the stop and frisk exception, and the search incident to arrest exception.”

Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa. Super.

2013).

         In the case at bar, the Commonwealth does not dispute Appellant’s

claim that a search occurred when the police performed the post-arrest

gunshot residue test upon Appellant’s hands. See Commonwealth’s Brief at

                                      -8-
J-A13002-16



16-26; see also Commonwealth v. Blasioli, 685 A.2d 151, 156 (Pa.

Super. 1996) (“the taking of saliva from an individual by a police officer

constitutes a search under the Fourth Amendment of the United States

Constitution and Article I, § 8 of the Pennsylvania Constitution”); Cupp v.

Murphy, 412 U.S. 291, 295 (1973) (taking a “fingernail scraping” from an

individual constitutes a search under the Fourth Amendment); Skinner v.

Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-617 (1989) (subjecting a

person to a breathalyzer test constitutes a search under the Fourth

Amendment); but see Commonwealth v. DeWitt, 314 A.2d 27, 31 (Pa.

Super. 1973) (en banc) (“the use of [an] ultraviolet light to examine

defendants’ hands [to determine the presence of fluorescent grease] did not

amount to a search”). As such, for purposes of this appeal, we will assume

that the gunshot residue test constituted a search. The current appeal thus

centers around one question:     whether the search was constitutionally

reasonable. See Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2482

(2014) (“[a]s the text [of the Fourth Amendment] makes clear, the ultimate

touchstone of the Fourth Amendment is ‘reasonableness’”) (some internal

quotations omitted).   The answer to this question is dependent upon

whether the search falls within a specific exception to the warrant

requirement. Strickler, 757 A.2d at 888.

     On appeal, Appellant bases much of his claim for relief upon the United

States Supreme Court’s opinion in McNeely. See Appellant’s Brief at 20-24.

McNeely was solely concerned with the exigent circumstances exception to

                                   -9-
J-A13002-16



the warrant requirement.         McNeely, 133 S.Ct. at 1556.   We express no

opinion on whether the search in this case falls under the exigent

circumstances exception because, as we will explain below, the search was

reasonable as a search incident to arrest.5

       As the United States Supreme Court has explained:

         The search-incident-to-arrest doctrine has an ancient
         pedigree.    Well before the Nation’s founding, it was
         recognized that officers carrying out a lawful arrest had the
         authority to make a warrantless search of the arrestee’s
         person. An 18th-century manual for justices of the peace
         provides a representative picture of usual practice shortly
         before the Fourth Amendment's adoption:

              “[A] thorough search of the felon is of the utmost
              consequence to your own safety, and the benefit of the
              public, as by this means he will be deprived of
              instruments of mischief, and evidence may probably be
              found on him sufficient to convict him, of which, if he
              has either time or opportunity allowed him, he will
              besure [sic] to find some means to get rid of.” The
              Conductor Generalis 117 (J. Parker ed. 1788) (reprinting
              S. Welch, Observations on the Office of Constable 19
              (1754)).

         One Fourth Amendment historian has observed that, prior
         to American independence, “[a]nyone arrested could expect
         that not only his surface clothing but his body, luggage, and
         saddlebags would be searched and, perhaps, his shoes,
         socks, and mouth as well.” W. Cuddihy, The Fourth
         Amendment: Origins and Original Meaning: 602–1791, p.
         420 (2009).

____________________________________________


5
 Given our disposition, McNeely does not control the outcome of this case
and, as such, we will not discuss McNeely further.




                                          - 10 -
J-A13002-16


         No historical evidence suggests that the Fourth Amendment
         altered the permissible bounds of arrestee searches. On the
         contrary, legal scholars agree that “the legitimacy of body
         searches as an adjunct to the arrest process had been
         thoroughly established in colonial times, so much so that
         their constitutionality in 1789 can not be doubted.” Id. at
         752.

Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 2174-2175

(2016) (some internal quotations and citations omitted).6

       The search incident to arrest exception allows “arresting officers, in

order to prevent the arrestee from obtaining a weapon or destroying

evidence, [to] search both the person arrested and the area within his

immediate control.”7 Id. at 2175 (internal quotations omitted); Chimel v.

California, 395 U.S. 752, 763 (1969). Moreover, in contrast to the exigent
____________________________________________


6
  Appellant does not claim that Article I, Section 8 of the Pennsylvania
Constitution affords him greater protection than that provided under the
Fourth Amendment to the United States Constitution. Appellant’s Brief at
12-24. Moreover, both the Pennsylvania and United States Constitutions
permit “a police officer [to] search the arrestee’s person and the area in
which the person is detained in order to prevent the arrestee from obtaining
weapons or destroying evidence.” Commonwealth v. White, 669 A.2d
896, 902 (Pa. 1995).
7
  We note that “[a] warrantless search incident to an arrest is valid ‘only if it
is substantially contemporaneous with the arrest.’” Commonwealth v.
Wright, 742 A.2d 661, 665 (Pa. 1999), quoting Shipley v. California, 395
U.S. 818, 819 (1969); see also United States v. Edwards, 415 U.S. 800,
803 (1974) (“it is also plain that searches and seizures that could be made
on the spot at the time of arrest may legally be conducted later when the
accused arrives at the place of detention”). In the case at bar, Appellant
never claimed that the challenged search occurred at a time that was too
remote to constitute a search incident to arrest. As such, we will not discuss
the temporal limits to the exception.




                                          - 11 -
J-A13002-16



circumstances exception, the search incident to arrest exception applies

categorically.     In other words, the search incident to arrest exception

permits a search of the arrestee’s person as a matter of course – and

without a “case-by-case adjudication . . . [of] whether a search of a

particular arrestee is likely to protect officer safety or evidence.” Birchfield,

136 S.Ct. at 2176 (internal quotations and emphasis omitted).

       Review of United States Supreme Court and Pennsylvania case law

reveals no opinion that passes upon the question of whether the particular

gunshot residue test employed in this case – or, indeed, any type of gunshot

residue test – constitutes a reasonable search incident to arrest. Therefore,

as the United States Supreme Court has held:

         [a]bsent more precise guidance from the founding era, we
         generally determine whether to exempt a given type of
         search from the warrant requirement by assessing, on the
         one hand, the degree to which it intrudes upon an
         individual’s privacy and, on the other, the degree to which it
         is needed for the promotion of legitimate governmental
         interests.

Riley, 134 S.Ct. at 2484 (internal quotations and citations omitted).

       The founding era provides this Court with no guidance on whether the

gunshot residue swab test, as employed in the case at bar, is exempted

from the warrant requirement.8 Therefore, this Court must “assess[], on the

____________________________________________


8
  Within Pennsylvania case law, the earliest reference to a gunshot residue
test that this Court was able to discover was in the 1936 Pennsylvania
Supreme Court opinion Commonwealth v. Westwood, 188 A. 304 (Pa.
(Footnote Continued Next Page)


                                          - 12 -
J-A13002-16



one hand, the degree to which [the test] intrudes upon an individual’s

privacy and, on the other, the degree to which it is needed for the promotion

of legitimate governmental interests.” Id. (internal quotations and citations

omitted).

      We first examine “the degree to which [the gunshot residue swab test]

intrudes upon an individual’s privacy.”             With respect to this concern, we

initially note that, when the gunshot residue swab test was performed upon




                       _______________________
(Footnote Continued)

1936). In that opinion, the Westwood Court described a “paraffin test.”
The Westwood Court described the paraffin test in the following manner:

         [During the defendant’s murder trial, t]he Commonwealth
         offered expert testimony to the effect that there were
         particles of partially burned gunpowder on the defendant’s
         right hand near and back of his index and ring finger.
         Shortly after [the victim] was shot . . . Assistant County
         Detective Monaghan made a “paraffin test” of defendant’s
         right hand and his own right hand. . . . Hot paraffin was
         placed next to the skin. Cotton was placed on that and then
         another coat of paraffin added. The paraffin was then lifted.
         These “moulds” were labeled, wrapped up and taken to the
         district attorney’s office. They were later subjected by two
         chemists, Dr. Muehlberger and F. C. Buckmaster, to the
         “diphenylamine test” or so-called “lungee reaction.” This
         was described as “a reaction primarily for nitrates and
         [certain] other oxidized substances, a standard test known
         for possibly fifty to seventy-five years.”

Westwood, 188 A. at 307. However, Westwood Court did not consider
the question of whether application of the test subjected the defendant to an
unreasonable search.




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J-A13002-16



Appellant, Appellant was under a lawful arrest.9          As the United States

Supreme Court has held, “[t]he expectations of privacy of an individual

taken into police custody necessarily are of a diminished scope.” Maryland

v. King, ___ U.S. ___, 133 S.Ct. 1958, 1978 (2013) (internal quotations,

citations, and brackets omitted). Thus, at the time of the search, Appellant’s

reasonable expectation of privacy was already curtailed.

       Second, the physical intrusion in this case was negligible.         See

Birchfield, 136 S.Ct. at 2176. To be sure, Detective Kraeer testified that he

merely “[took] a swab[] and [he] swab[bed] four different parts of

[Appellant’s] two hands.”         As Detective Kraeer testified, the swab had a

“sticky substance” that he just “brush[ed] against the hand” and the test did

not “use any liquid.” The test was thus quick, non-invasive, and innocuous –

and far less intrusive than a breathalyzer test (which requires the defendant

to insert a “straw-like mouthpiece” into his mouth and “blow continuously for

[four] to 15 seconds”), a buccal swab test (which requires another individual

to rub a swab on the inside of a defendant’s cheek), or a fingernail scrape

(which requires another individual to scrape the inside of the defendant’s

fingernails). Moreover, with respect to the breathalyzer, buccal swab, and

fingernail scrape, the United States Supreme Court has characterized the


____________________________________________


9
  Appellant does not contest the fact that, when the gunshot residue test
was performed, he was under a lawful arrest that was supported by probable
cause.



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J-A13002-16



scope of the intrusions as, respectively:     an “almost negligible” physical

intrusion; a “negligible” physical intrusion; and, a “very limited intrusion.”

Birchfield, 136 S.Ct. at 2177; King, 133 S.Ct. at 1969; Cupp, 412 U.S. at

296; see also Commonwealth v. Cross, 496 A.2d 1144, 1150 (Pa. 1985)

(upholding the “warrantless seizure of [an arrestee’s] hair samples and []

fingernail clippings and scrapings” as valid incident to arrest because “their

seizure was so minor an imposition as to constitute only the slightest

intrusion, if indeed such constituted an intrusion”).

      Third, the gunshot residue test is “capable of revealing only one bit of

information:” the presence of gunshot residue on the swab. See Birchfield,

136 S.Ct. at 2177. To paraphrase the United States Supreme Court:

        In this respect, [the gunshot residue test] contrast[s]
        sharply with the sample of cells collected by the swab in
        Maryland v. King. Although the DNA obtained under the
        law at issue in that case could lawfully be used only for
        identification purposes, 133 S.Ct. at 1967-1968, the process
        put into the possession of law enforcement authorities a
        sample from which a wealth of additional, highly personal
        information could potentially be obtained.

Birchfield, 136 S.Ct. at 2177.

      In contrast to the DNA collection and testing at issue in King, here,

the gunshot residue swab merely allowed the police to “pick up particulate

material from the surface of the hands or whatever surface you are

collecting it from.” See N.T. Suppression Hearing, 3/31/11, at 17 and 18.

Further, the later, laboratory testing was focused solely upon determining




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J-A13002-16



the presence or absence of one foreign substance: gunshot residue.        See

id.

      Finally, application of the gunshot residue swab “is not an experience

that is likely to cause any great enhancement in the embarrassment that is

inherent in any arrest.” Birchfield, 136 S.Ct. at 2177. Certainly, it cannot

be said that the limited application of a dry, sticky swab upon Appellant’s

hands enhanced Appellant’s embarrassment in any significant manner.

      Therefore, we conclude that the gunshot residue swab and test in this

case did not “implicate significant privacy concerns.” Id. at 2178 (internal

quotations, citations, and corrections omitted).

      We must next assess “the degree to which [the gunshot residue test]

is needed for the promotion of legitimate governmental interests.”      Riley,

134 S.Ct. at 2484 (internal quotations and citations omitted).      As to this

element, we need not engage in a long discussion on the Commonwealth’s

vital interests in identifying, arresting, and prosecuting individuals who have

unlawfully discharged a firearm, shot at another individual, or shot an

individual. Arguably, the two paramount interests of the Commonwealth are

ensuring the public safety and welfare. The gunshot residue test promotes

these interests by identifying individuals who might have unlawfully

discharged a firearm or who might have harmed or murdered another

person – and then preserving the evidence for trial.

      Therefore, we conclude that the gunshot residue test has a negligible

intrusion upon an individual’s privacy and that it serves an important

                                    - 16 -
J-A13002-16



function in promoting vital governmental interests.     As such, we conclude

that the gunshot residue test constitutes a reasonable search incident to

arrest.    Moreover, since the search incident to arrest exception applies

categorically – and not on a case-by-case basis – Appellant’s claims that the

police “had time” to obtain a warrant and that the police “could have

‘bagged’ the hands of Appellant until a warrant was obtained,” necessarily

fail.

        In the case at bar, the police validly subjected Appellant to a gunshot

residue test incident to his arrest. The search was thus reasonable and the

trial court properly denied Appellant’s motion to suppress.10
____________________________________________


10
   We note our decision aligns with those of our sister states and federal
courts that have considered the issue. See, e.g., Jones v. State, 74 A.3d
802, 813 (Md.App. 2013) (“we conclude that the [gunshot residue] evidence
was properly collected in the course of a reasonable search incident to [the
defendant’s] lawful arrest, for which no warrant was required”); Sen v.
State, 301 P.3d 106 (Wy. 2013) (“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”); People v. Allen, 875 N.E.2d 1221, 1228 (Ill.App. 2007)
(“[b]ecause the hand swabbing was so minor an imposition that the
defendant suffered no true humiliation or affront to his dignity, we find a
search warrant was not required to justify the [gun shot residue] test after
defendant was in custody”) (internal quotations omitted); United States v.
Johnson, 445 F.3d 793, 795-796 (5th Cir. 2006) (“[b]ecause 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”); State v. Beasley, 70 P.3d
463, 466 (Ariz. 2003) (“the search of the defendant’s person by swabbing
for gunshot residue after arrest was reasonable”); State v. Kyger, 787
S.W.2d 13, 21 (Tenn. Crim. App. 1989) (“[b]ecause officers had probable
cause for the warrantless arrest, there is no merit to the argument that
(Footnote Continued Next Page)


                                          - 17 -
J-A13002-16



      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2016




                       _______________________
(Footnote Continued)

officers could not gather the physical evidence acquired from [the
defendant’s] person[; h]andswabs, fingerprints and photographs are
admissible as evidence legally obtained pursuant to [the defendant’s]
arrest”); State v. Riley, 500 S.E.2d 524 (W.Va. 1997) (holding that the
warrantless “swabb[ing of the defendant’s] hands and face for traces of
gunpowder residue” constituted a reasonable search incident to arrest);
Strickland v. State, 275 S.E.2d 29 (Ga. 1981) (“[s]wabbing the hands of
an accused to lift gunshot residue does not constitute an unconstitutional
search or seizure”); State v. Parsons, 513 S.W.2d 430, 441 (Mo. 1974)
(swabbing the defendant’s hands for traces of nitroglycerine was reasonable
incident to his lawful arrest for the bombing death of his wife); see also
Ray v. State, 803 S.W.2d 894, 899 (Ark. 1991) (holding that the
warrantless gunpowder residue test was “reasonable in light of exigent
circumstances”).



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