               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4554-18T4

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                 March 16, 2020

v.                                          APPELLATE DIVISION

TREY I. LENTZ,

     Defendant-Respondent.
__________________________

           Argued November 20, 2019 – Decided March 16, 2020

           Before Judges Koblitz, Gooden Brown and Mawla.

           On appeal from an interlocutory order of the Superior
           Court of New Jersey, Law Division, Monmouth
           County, Indictment No. 18-07-0971.

           Monica Lucinda do Outeiro, Assistant Prosecutor,
           argued the cause for appellant (Christopher J.
           Gramiccioni, Monmouth County Prosecutor, attorney;
           Monica Lucinda do Outeiro, of counsel and on the
           brief).

           Margaret Ruth McLane, Assistant Deputy Public
           Defender, argued the cause for respondent (Joseph E.
           Krakora, Public Defender, attorney; Margaret Ruth
           McLane, of counsel and on the brief).

     The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
      By leave granted, the State appeals from the May 14, 2019 Law Division

order granting defendant's motion to suppress gunshot residue (GSR) evidence

swabbed from his hands without a warrant following his arrest. We reverse.

                                      I.

      Defendant was charged in a six-count indictment with first-degree

attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree aggravated assault by pointing a

firearm, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of

a weapon, N.J.S.A. 2C:39-5(b); and fourth-degree obstruction, N.J.S.A. 2C:29-

1. The State's proofs included GSR swabbed from defendant's hands during a

warrantless search following his arrest on an unrelated arrest warrant

preliminarily indicating he recently fired a gun.    Prior to trial, defendant

moved to suppress the GSR evidence. At the ensuing testimonial hearing,

Monmouth County Sheriff's Officer Jason Simeone and Monmouth County

Crime Scene Unit Detective Steven Vogt testified for the State.

      Simeone, a member of the Warrant Fugitive Unit, testified that on May

6, 2018, he had an "active case" open for defendant based on an outstanding

"Superior Court" arrest warrant issued on April 2, 2018. Although Simeone

previously received "information . . . that [defendant] was staying" at a



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                                      2
residence on Ridge Avenue in Asbury Park (the Ridge Avenue residence),

Simeone was waiting for the "right amount of man[]power" before acting on

the information because of concerns that "[defendant] was an active gang

member," and "might have a weapon." That opportunity presented itself when

Simeone received a "mutual aid call" for assistance at approximately 1:00 p.m.

on May 6, stemming from an "anonymous" 911 call that there were "shots

fired" and the suspected shooter was seen running into the Ridge Avenue

residence. Simeone, his partner, and three other sheriff's officers promptly

responded to the call.

      Upon arriving at the scene at about 1:10 p.m., Simeone and the other

responding officers, including officers from both Asbury Park and Neptune

Police Departments, learned that three males possibly involved in the shooting

had entered the Ridge Avenue residence, prompting the officers to "set up a

perimeter" and "secure[]" the residence. After receiving consent to enter from

one of the occupants of the residence, the officers entered and apprehended

two individuals on the first floor, and a third who had climbed out onto the

roof from an upstairs window but returned inside upon the officers' commands.

Once he climbed back into the residence, Simeone identified the male as

defendant from the photograph in "[the arrest] warrant packet," "handcuffed"

him, and placed him under arrest at approximately 2:40 p.m.



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                                      3
      Although defendant was arrested pursuant to the arrest warrant, "he was

[also] a suspect in the shooting" because "[a]s he was being led away from the

scene," an officer was informed by "another witness . . . that defendant was the

shooter."   As a result, in addition to being handcuffed "behind his back,"

"plastic bags" were placed "over his hands," and "taped at the wrist" to

preserve GSR evidence and "keep [defendant] from essentially rubbing his

hands." Defendant did however have "the ability to grasp things" because the

bags were only partially "inflated" and the taping of his wrists "was [not]

particularly tight."   Defendant was then transported to Asbury Park police

headquarters "for processing." 1

      Vogt, who had been trained in "crime scene investigation," "shooting

analysis and reconstruction," as well as "collection, [and] documentation of

evidence," first became involved in the shooting investigation when he

"responded to the Jersey Shore University Medical Center" at approximately

2:43 p.m. "to document and recover evidence [from] the [shooting] victim"

who was being treated for three gunshot wounds. At 3:58 p.m., Vogt arrived

at the Ridge Avenue residence "in order to photographically document the

scene as well as . . . collect[] . . . any potential evidence." Based upon his


1
   At headquarters, two other occupants of the Ridge Avenue residence also
identified defendant as the shooter during questioning.


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                                       4
"recovery of ballistics" at the scene, including "a .25 caliber casing," Vogt

determined that "a semi[-]automatic pistol was used." 2

      At 5:10 p.m., Vogt arrived at Asbury Park police headquarters to test

defendant's hands for potential traces of GSR. Vogt confirmed that the plastic

bags placed over defendant's hands would preserve any GSR evidence either

on defendant's hands or in the bags themselves. Vogt explained that GSR is

"essentially . . . unburnt gunpowder" consisting of "minute amounts of metal"

"comprised of lead, antimony and barium." According to Vogt,

            when a firearm is fired, that explosion . . . within the
            gun will expel [GSR] in a couple different areas. One
            would be out [of] the barrel, which is going to exit the
            barrel at somewhat of a cone shape. Two would be
            the ejection port of the handgun, as the casing is
            ejected out of the handgun. . . . And lastly, . . . out [of]
            the slide. So as the slide comes backwards, [GSR] is
            also going to basically come back as well towards the
            shooter.

      Vogt stated that GSR emitted from the slide of the gun was "particularly

relevant in this case" because that was the part "of a semi[-]automatic

handgun" where the GSR "would come backwards." However, Vogt explained

that GSR "is extremely fragile," "can dissipate very easily," and can simply be

"wash[ed]" or "wip[ed]" away. According to Vogt, ninety percent of GSR will


2
  Subsequently, a weapon was recovered from the basement of the Ridge
Avenue residence.


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                                         5
"dissipate within the first hour" after a shooter fires a gun, and, when dealing

with "a small caliber casing" as here, which produces "less [GSR]" to begin

with, there was potentially even less evidence of GSR on the shooter's hands

"several hours later."

      To administer the test on defendant's hands, Vogt used "a binary [GSR]

test kit," involving "two aspects," neither of which was "very invasive"

because it was performed "[o]nly on the surface [of] the hands" and required

no "piercing of the skin." Vogt explained that "[t]he first [component] entails

stubbing the hands using a plastic vial . . . with a cap on it. Upon removal of

the cap, there is an adhesive surface, similar to . . . Scotch tape." Once the cap

is removed, the vial is "dabb[ed] . . . on the webs of [the] hands, on the front

and back of [the] hands." This process is repeated "a total of six [times] . . . ,

three on one hand and three on the other," after which the vial is "preserved"

for subsequent laboratory testing.

      According to Vogt, "the second component . . . of the test kit is a

presumptive field test" whereby a "gauze pad is . . . wiped very gently over the

hands and placed in a small . . . clear plastic container, [at] which time a liquid

reagent is dropped onto it." The purpose of the liquid reagent is to reveal the

presence of "nitrates[,] specifically, nitrocellulose." Vogt explained that if

"blue or black specks" appear on the gauze pad "within about five minutes or



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                                        6
so," as occurred here, it is considered "a positive test," indicating that a "gun

was recently fired" by the person whose hands were swabbed.            However,

because this type of test was not definitive, in order to obtain confirmatory lab

results, typically, "the stubs" from the first component of the test would be

"sent out to the lab for further testing." 3

      Prior to administering the test on defendant, Vogt learned from another

detective that defendant would not consent to the test.          Vogt called a

Monmouth County assistant prosecutor for "advice" on whether to conduct the

test without a search warrant over defendant's objection. Given the dissipation

rate of GSR and the time that had already elapsed since the shooting, the

assistant prosecutor advised Vogt not "to wait . . . to get a search war rant"

because "there were sufficient exigent circumstances" to "justify[] proceeding

without a warrant." Accordingly, Vogt conducted the test in accordance with

his testing protocol at approximately 5:40 p.m.

      Following the hearing, in a written decision, the judge granted the

suppression motion. Preliminarily, finding Vogt's and Simeone's testimony

"honest and straightforward," and the facts "in large part uncontested," the

judge made factual findings consistent with their testimony. The judge "noted

3
   Because the New Jersey State Police Lab does not perform the requisite
confirmatory testing, the State deferred the expense involved in utilizing a
private lab pending the outcome of the appeal.


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                                           7
that no New Jersey authority [had] addresse[d] the specific issues presented in

th[e] case," and posited that the issues were whether "swabbing a suspect's

hands for [GSR was] considered a search," and if so, whether such a search

"may . . . be permissibly conducted during a search incident to a valid arrest."

      Ultimately, "guided by prior analogous authority," the judge determined

that "the taking of exemplars from a suspect's body for subsequent testing

constitutes a search under the Fourth Amendment of the United States

Constitution and Article [I], Paragraph 7 of the New Jersey Constitution."

Thus, the judge concluded that "Vogt indeed conducted a search when he

swabbed defendant's hands for [GSR]." The judge reasoned that "[t]he act of

collecting a sample from defendant's hands for purposes of testing clearly

amount[ed] to an intrusion – no matter how minimal" and "without the

subject's consent, that intrusion involved some degree of force."

      Next, the judge determined that because "defendant was validly arrested

on the outstanding arrest warrant," it would have been permissible for officers

to "conduct[] a valid search incident to arrest at or near the scene when they

arrested defendant at [the Ridge Avenue residence]."          However, because

"defendant was transported away from the [site] of his arrest to . . . [p]olice

[h]eadquarters before his hands were swabbed for [GSR]," and "[a] significant

amount of time [had] passed, over two and one half . . . hours, between the



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                                        8
time . . . defendant was arrested and when his hands were swabbed," "the State

. . . failed to establish by a preponderance of the evidence that the search of

defendant's hands for [GSR] was sufficiently contemporaneous and proximate

to his arrest . . . to qualify as a search incident to arrest."

      The judge also stressed "that the police had ample opportunity to obtain

a warrant before taking exemplars from defendant's hands," noting "there was

no threat posed by defendant once he was in custody, and there was minimal,

if any risk that evidence would be lost or destroyed in the time it would take to

get a warrant" given the "steps [taken by police] to preserve any evidence." In

that regard, the judge distinguished State v. Oyenusi, 387 N.J. Super. 146

(App. Div. 2006).       The judge reasoned that "[i]n Oyenusi, police were

arguably unsure what evidence was contained in the luggage seized, and what

steps were required to preserve whatever was present," but in this case, "police

knew what kind of evidence they sought and they knew how to preserve it."

The judge expounded that "[h]aving taken the time to telephone an assistant

prosecutor, there was ample time . . . to obtain a telephonic warrant as there

arguably existed probable cause to have a warrant issued."

      The judge concluded that while "[GSR] may very well be lawfully

collected during a search incident to a valid arrest," "the totality of the




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                                           9
circumstances present here remove[d] this search from within the bounds of

that exception to the warrant requirement." The judge stated

            Here, the warrantless search of defendant was
            unlawful where no threat to officer safety existed[,] . .
            . the evidence sought was being preserved, and the
            search took place at a time and place apart from that
            of defendant's arrest. . . .

                  Therefore, because detectives did not obtain a
            warrant and no exception to the warrant requirement
            applie[d],[4] the search of defendant's hands was
            unreasonable. . . . Suppression of the [GSR] evidence
            is warranted because police and the assistant
            prosecutor could have and should have obtained a
            warrant before searching defendant. They clearly had
            the opportunity and the obligation to so do in the
            absence of circumstances that would have justified a
            warrantless search.

                                        II.

      On appeal, the State argues the judge made "two fatal errors" in granting

defendant's suppression motion. First, the judge "fail[ed] to apply the entirety

of [our] decision in Oyenusi to the facts of this case." The State submits in

Oyenusi, we "adopted the rule of United States v. Edwards, 415 U.S. 800, 807


4
   Although the State did not rely on "the exigent circumstances exception to
the warrant requirement," for the sake "of completeness," the judge rejected its
applicability, explaining that there were no exigent circumstances because
"police waited over two and one half . . . hours to collect the sample from
defendant's hands," and once defendant was "handcuffed" with his hands
"behind his back and . . . plastic bags [placed] over [his] hands . . . , the threat
that evidence of [GSR] would be lost was all but eliminated."


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                                        10
(1974)[], which upholds as valid a search incident to arrest that 'is not

conducted contemporaneously with the arrest.'" The State contends that the

judge's "finding – that the passage of two and a half hours and change in

location was too long and too remote to sustain the hand swabbing as a search

incident to arrest – stands in direct conflict with Oyenusi and Edwards."

Secondly, the State asserts the judge impermissibly "engraft[ed]" an additional

"requirement onto the test for a valid search incident to arrest: the inability to

obtain a search warrant." According to the State, "[n]o requirement of such

exigency has ever been applied to the search incident to arrest exception in this

State." The State submits the judge "fell into the trap of evaluating not the

reasonableness of what the police did here, but instead evaluating what [he]

believed the police could have, [and] should have done."

      While our review of the trial court's factual findings, informed by its

first-hand assessment of the credibility of the witnesses, is limited, "[w]e owe

no deference . . . to conclusions of law made by trial courts in deciding

suppression motions, which we instead review de novo." State v. Brown, 456

N.J. Super. 352, 358-59 (App. Div. 2018) (citing State v. Watts, 223 N.J. 503,

516 (2015)). See State v. Boone, 232 N.J. 417, 425-26 (2017) ("An appellate

court reviewing a motion to suppress evidence in a criminal case must uphold

the factual findings underlying the trial court's decision, provided that those



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                                       11
findings are 'supported by sufficient credible evidence in the record.'" (quoting

State v. Scriven, 226 N.J. 20, 40 (2016))); State v. Gamble, 218 N.J. 412, 424-

25 (2014) ("Deference to these factual findings is required because those

findings 'are substantially influenced by [an] opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing court cannot

enjoy.'" (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161

(1964))). Because the judge's factual findings, which are largely uncontested,

are supported by sufficient credible evidence in the record, we focus our

review on the judge's legal conclusions.

      Applying our de novo standard of review to those conclusions, "[w]e

review this appeal in accordance with familiar principles of constitutional

law." State v. Robinson, 228 N.J. 529, 543 (2017). As the motion judge

correctly pointed out, preliminarily, we must decide whether Vogt's swabbing

of defendant's hands for GSR constitutes a search under applicable

constitutional doctrines. "[W]here, as here, the [g]overnment seeks to obtain

physical evidence from a person, the Fourth Amendment may be relevant . . .

." Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616 (1989) (citing

United States v. Dionisio, 410 U.S. 1, 8 (1973)). Because "[t]he integrity of an

individual's person is a cherished value of our society," Schmerber v.

California, 384 U.S. 757, 772 (1966), "[o]btaining and examining . . . evidence



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                                       12
[from a person's body] may . . . be a search, if doing so infringes an

expectation of privacy that society is prepared to recognize as reasonable."

Skinner, 489 U.S. at 616 (internal citations omitted); see also State v. Linton,

356 N.J. Super. 255, 258 (App. Div. 2002) (explaining that "[a] search . . .

only 'occurs when an expectation of privacy that society is prepared to

consider reasonable is infringed.'" (quoting United States v. Jacobsen, 466

U.S. 109, 113 (1984))).

      In that regard, it is well settled that an intrusion into the body for a blood

sample for testing of alcohol content is a search, Schmerber, 384 U.S. at 766-

67, as is a "cheek swab for the purposes of obtaining a DNA sample." State v.

O'Hagen, 189 N.J. 140, 149 (2007) (quoting Skinner, 489 U.S. at 616-17).

Likewise, submitting a breath sample for chemical analysis to measure alcohol

level is a search. California v. Trombetta, 467 U.S. 479, 481 (1984). When it

comes to a person's hands, in Cupp v. Murphy, 412 U.S. 291 (1973), the Court

held that the police obtaining "fingernail scrapings" from a suspect was a

"search" that "went beyond mere physical characteristics . . . constantly

exposed to the public, and constituted the type of severe, though brief,

intrusion upon cherished personal security that is subject to constitutional

scrutiny." Id. at 294-95 (alteration in original) (citations and internal quotation

marks omitted). But see United States v. Richardson, 388 F.2d 842, 845 (6th



                                                                           A-4554-18T4
                                        13
Cir. 1968) (holding that examination of the defendant's hands for evidence of

incriminating fluorescent powder was not a search within Schmerber, 384 U.S.

at 772).

       Here, we agree with the motion judge that Vogt's swabbing of

defendant's hands for GSR was a search under the Fourth Amendment of the

United States Constitution and Article I, Paragraph 7 of the New Jersey

Constitution because it intruded upon a reasonable expectation of privacy.

Over his objection, defendant's hands were repeatedly "stubb[ed]" or touched

with a vial that had a slightly adhesive surface, and then swabbed with a gauze

pad.   Thus, the process "went beyond 'mere physical characteristics . . .

constantly exposed to the public'" and constituted a forceful "though brief

intrusion upon cherished personal security." Cupp, 412 U.S. at 295 (alteration

in original) (quoting Dionisio, 410 U.S. at 14).

       Next, we examine the validity of the search. "Both the United States

Constitution and the New Jersey Constitution guarantee an individual's right to

be secure against unreasonable searches or seizures." State v. Minitee, 210

N.J. 307, 318 (2012) (citing U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7).

"[S]earches and seizures conducted without warrants issued upon probable

cause are presumptively unreasonable and therefore invalid." State v. Elders,

192 N.J. 224, 246 (2007) (citing State v. Pineiro, 181 N.J. 13, 19 (2004)).



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                                       14
Exceptions exist to "the general requirement that a warrant be obtained prior to

a search, but if a warrantless search is challenged, the State bears the burden of

establishing by a preponderance of the credible evidence that the search fits

within the scope of one of those exceptions." Minitee, 210 N.J. at 318 (citing

State v. Wilson, 178 N.J. 7, 12-13 (2003)). The exception germane to this

appeal is the search incident to arrest exception.

      "[T]he search incident to arrest exception to the warrant requirement was

limned for two specific purposes—the protection of the police and the

preservation of evidence . . . ." State v. Eckel, 185 N.J. 523, 524 (2006). To

that end, the exception allows "the arresting officer to search" both "the

arrestee's person and the area 'within his immediate control'" in order to

prevent the arrestee from obtaining a weapon or destroying evidence. Chimel

v. California, 395 U.S. 752, 763 (1969). While questions abound about the

permissible geographical area beyond the person of an arrestee that may be

lawfully searched, "no doubt has been expressed as to the unqualified authority

of the arresting authority to search the person of the arrestee." United States v.

Robinson, 414 U.S. 218, 225 (1973).

      Indeed, "[t]he authority to search the person incident to a lawful

custodial arrest," although "based upon the need to disarm and to discover

evidence, does not depend on what a court may later decide was the



                                                                         A-4554-18T4
                                        15
probability in a particular arrest situation that weapons or evidence would in

fact be found upon the person of the suspect." Id. at 235. Instead, because a

lawful "custodial arrest of a suspect based on probable cause is a reasonable

intrusion under the Fourth Amendment[,] . . . a search incident to the arrest

requires no additional justification," and the mere "fact of the lawful arrest

which establishes the authority to search" justifies "a full search of the

person." Ibid.

      While a search incident to a lawful arrest is permissible, the "exception

. . . is not limitless in terms of purpose or scope." State v. Dangerfield, 171

N.J. 446, 461 (2002). First and foremost, ordinarily, "[a] search incident to an

arrest must be contemporaneous with that arrest." State v. Bradley, 291 N.J.

Super. 501, 510 (App. Div. 1996). An arrest and search are deemed to be

"reasonably contemporaneous" if "they occur as parts of a single transaction,

as connected units of an integrated incident." State v. Doyle, 42 N.J. 334, 343

(1964).   Further, as with all searches, a search incident to arrest must be

reasonable. Fundamentally, "[w]hether a search is reasonable under the Fourth

Amendment 'depends on [the totality] of the circumstances surrounding the

search . . . and the nature of the search . . . itself.'" O'Hagen, 189 N.J. at 149

(quoting Skinner, 489 U.S. at 619). "In making that determination, the [c]ourt

balances the 'intrusion on the individual's Fourth Amendment interests against



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                                       16
[the] promotion of legitimate governmental interests.'" Ibid. (second alteration

in original) (quoting Skinner, 489 U.S. at 619).

      In Oyenusi, although we acknowledged the "requirement that the search

be 'substantially contemporaneous' with the arrest," we noted that " a search

incident to an arrest may be valid under some circumstances even though it is

not conducted contemporaneously with the arrest." 387 N.J. Super. at 155-56.

In that regard, we relied on Edwards, 415 U.S. at 807, where the United States

Supreme Court "upheld the validity of the seizure and subsequent search of

clothing taken from an arrestee in jail approximately ten hours after his arrest."

Oyenusi, 387 N.J. Super. at 156 (emphasis added).            We acknowledged,

however, that "such a delayed search incident to an arrest may be made only of

items that are 'immediately associated with the person,' such as a purse or

wallet," or "clothing" as was the case in Edwards. Oyenusi, 387 N.J. Super. at

156 (quoting Curd v. City Court, 141 F.3d 839, 842-44 (8th Cir. 1998)).5


5
   In Oyenusi, we applied the search incident to arrest exception to "the
contents of a container in the possession of an arrestee" notwithstanding the
fact that "the arrestee no longer ha[d] access to the container when the search
[was] conducted." Id. at 150. The arrestee, the defendant's brother and co-
defendant in a Medicaid fraud indictment, was arrested pursuant to an
unrelated arrest warrant while "carrying two white plastic bags." Id. at 151.
Upon executing the warrant, the arresting officers "took the bags . . . and then
looked inside." Ibid. One of the bags contained "a notebook, blank
prescription pads, Medicaid eligibility cards under various names, and some
prescriptions ostensibly written by doctors," evidence that was "subsequently


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                                       17
      In Edwards, the Court recognized as settled law 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." 415 U.S.

at 803. There, the defendant was lawfully arrested and in custody in a jail cell

"[w]hen it became apparent that the articles of clothing [he was wearing] were

evidence of the crime for which [he] was being held." Id. at 806. The Court

found it was "reasonable to take and examine [his clothing] as the police did,

particularly in view of the existence of probable cause linking the clothes to

the crime." Ibid.

      The Court determined

            once the accused is lawfully arrested and is in custody,
            the effects in his possession at the place of detention
            that were subject to search at the time and place of his
            arrest may lawfully be searched and seized without a
            warrant even though a substantial period of time has
            elapsed between the arrest and subsequent
            administrative processing, on the one hand, and the
            taking of the property for use as evidence, on the
            other.

            [Id. at 807.]



used by the State to prove [the] defendant's involvement in the Medicaid fraud
scheme" that was the subject of the indictment. Ibid. We concluded that the
search was "a valid search incident to an arrest under both the Fourth
Amendment to the United States Constitution and Article I, paragraph 7 of the
New Jersey Constitution." Id. at 150.


                                                                        A-4554-18T4
                                      18
      The Court explained "it is difficult to perceive what is unreasonable

about the police's examining and holding as evidence those personal effects of

the accused that they already have in their lawful custody as the result of a

lawful arrest." Id. at 806. The Court noted that "[w]hile the legal arrest of a

person should not destroy the privacy of his premises, it does—for at least a

reasonable time and to a reasonable extent—take his own privacy out of the

realm of protection from police interest in . . . evidence."     Id. at 808-09

(quoting United States v. DeLeo, 422 F.2d 487, 493 (1st Cir. 1970)). See

Oyenusi, 387 N.J. Super. at 159 ("[E]xcept for its rejection of the Belton

rule,[6] our Supreme Court generally has not 'afforded greater protection

regarding the scope of a search incident to a lawful arrest under our State

Constitution than that provided in Chimel's interpretation of the Fourth

Amendment.'" (quoting Dangerfield, 171 N.J. at 462)).

      Whether the delayed search exception promulgated in Edwards and

adopted in Oyenusi should be extended to permit the swabbing of an arrestee's

hands for GSR is an issue of first impression in New Jersey.        While not

binding on this court, other states have considered the admissibility of GSR


6
   New York v. Belton, 453 U.S. 454, 460 (1981) (holding "that when a
policeman has made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile.") (footnote omitted).


                                                                       A-4554-18T4
                                      19
evidence under the search incident to arrest exception to the warrant

requirement and have upheld its validity. In Jones v. State, 74 A.3d 802 (Md.

Ct. Spec. App. 2013), after analyzing numerous "[o]pinions of the appellate

courts of . . . sister States" as well as "Federal precedents," the Maryland Court

of Special Appeals held that "the warrantless collection of GSR evidence from

an individual whom the police have probable cause to believe has recently

fired a gun in the course of committing a crime, does not violate the Fourth

Amendment's prohibition against unreasonable searches and seizures." Id. at

501.

       In Jones, the arrestee's hands were swabbed at the police station forty-

five minutes after his arrest for attempted murder and weapons possession

related charges. Id. at 491. The court concluded "the GSR evidence was

properly collected in the course of a reasonable search incident to [the

defendant's] lawful arrest," id. at 503, and reasoned that given "[t]he limited

intrusion," id. at 501 "it [was] entirely reasonable for the arresting officer to

search for and seize any evidence on the arrestee's person in order to prevent

its concealment or destruction." Id. at 503 (quoting United States v. Johnson,

445 F.3d 793, 795 (5th Cir. 2006)).

       Likewise, in Commonwealth v. Simonson, 148 A.3d 792 (Pa. Super. Ct.

2016), the Pennsylvania Court of Appeals affirmed the trial court's denial of



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the defendant's motion to suppress GSR evidence seized from his hands

without a warrant following his arrest. Id. at 801. After assuming that the

seizure of GSR evidence from the defendant's hands constituted a search, the

court assessed "on the 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. at 799-800 (alteration

in original) (quoting Riley v. California, 573 U.S. 373, 385 (2014)).

      As to the privacy concerns, first, the court concluded that because the

GSR swab test was performed upon the defendant while "[he] was under a

lawful arrest," his "reasonable expectation of privacy was already curtailed."

Id. at 800.     "Second, the physical intrusion" which, as here, involved

"swab[ing] four different parts" of the defendant's "'two hands'" with "a 'sticky

substance'" that was "just 'brush[ed] against the hand,'" was "quick, non-

invasive, and innocuous — and far less intrusive than a breathalyzer test . . . , a

buccal swab test . . . , or a fingernail scrape."     Ibid. (second alteration in

original).

      Third, "in contrast to the DNA collection and testing at issue in

[Maryland v. King, 569 U.S. 435, 442-43 (2013)]," "the [GSR] test is 'capable

of revealing only one bit of information:' the presence of [GSR] on the swab."

Simonson, 148 A.3d at 800-01. "Finally, application of the [GSR] swab 'is not



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an experience that is likely to cause any great enhancement in the

embarrassment that is inherent in any arrest.'" Id. at 801 (quoting Birchfield v.

North Dakota, 136 S. Ct. 2160, 2177, 195 L.Ed.2d 560, 579-80 (2016)). Thus,

the court concluded "that the [GSR] swab and test . . . did not 'implicate

significant privacy concerns.'" Ibid. (quoting Birchfield, 136 S. Ct. at 2178).

      Turning to the governmental interests, the court noted "the two

paramount interests of . . . ensuring the public safety and welfare" were

promoted "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." Ibid. Finding "that the [GSR] test has a

negligible intrusion upon an individual's privacy and that it serves an

important function in promoting vital governmental interests," the court

concluded "that the [GSR] test constitute[d] a reasonable search incident to

arrest," and rejected the defendant's "claims that the police 'had time' to obtain

a warrant and that the police 'could have "bagged" the [defendant's] hands . . .

until a warrant was obtained.'" Ibid.

      Similarly, in People v. Allen, 875 N.E.2d 1221 (Ill. App. Ct. 2007), the

Illinois Appeals Court affirmed the trial court's denial of the defendant's

motion to suppress the results of a GSR test administered by the police

following the defendant's arrest for an unrelated attempted robbery.        Id. at



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1223, 1228. There, on the same day that a detective planned to arrest the

defendant on an attempted robbery committed about one month earlier, the

detective learned of a second attempted robbery that occurred at the same

location. Id. at 1223-24. As a result, after arresting the defendant for the first

robbery as planned, the detective transported him to the police station where

"an atomic absorption [GSR] test [was] performed on [the] defendant's hands"

in connection with the second robbery, the results of which were later admitted

at the trial leading to the convictions that were the subject of the appeal. Id. at

1224-25.

      The court analyzed the warrantless search under the search incident to

arrest exception, and concluded that "a search warrant was not required to

justify the GSR test after defendant was in custody" for the first robbery, given

the fact that, at the time, "the arresting officers were assigned to investigate the

[second] attempt[ed] robbery." Id. at 1228. Finding that "the police were

authorized to detain [the] defendant," the court determined "[i]n light of the

circumstances . . . the hand swabbing was not an unreasonable search and

seizure." Id. at 1225, 1228. On the contrary, "[t]he hand swab . . . was a

minor intrusion, no more offensive than fingerprinting or photographing," and

for which the defendant "suffered no true humiliation or affront to his dignity."

Id. at 1228 (quoting United States v. D'Amico, 408 F.2d 331, 333 (2d Cir.



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1969)). See also Johnson, 445 F.3d at 795-96 (holding that the warrantless

administration of a GSR test performed following a warrantless arrest based on

probable cause was proper as incident to that arrest under Chimel, 395 U.S. at

763 "[b]ecause the presence of gun powder on [the defendant's] hands was

relevant evidence that [the defendant] (or merely time) could have eventually

removed or destroyed").

      Applying these principles, we balance the intrusion of GSR testing on an

individual's privacy against promoting vital governmental interests, and

conclude that if an individual is lawfully arrested and in police custody, a

delayed search of the arrestee's person for GSR evidence is constitutionally

permissible under the search incident to arrest exception as long as the delay

itself and the scope of the search are objectively reasonable. Here, given the

existence of probable cause, the limited intrusion involved in the testing, and

the ready destructibility of GSR evidence, we are satisfied the search was

objectively reasonable in time and scope to pass constitutional muster.

      An analysis of the timeline reveals that the 911 report of shots fired

occurred at approximately 1:00 p.m., defendant was arrested at 2:40 p.m.,

Vogt's crime scene investigation began at 2:43 p.m., and the administration of

the test occurred at approximately 5:40 p.m.      Although plastic bags were

placed over defendant's hands when he was arrested, by that time, over an hour



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and a half had already passed since the reported shooting and there was a

cognizable risk that GSR would "dissipate" on its own or be "wip[ed] . . .

away" by the shooter.     Thus, time was of the essence to preserve potential

evidence of the crime for which defendant was a suspect, notwithstanding the

fact that it was not the predicate for defendant's lawful arrest. "Pragmatic

necessity requires that we uphold the validity and reasonableness of a search

incident to arrest if the search is part of the specific law enforcement operation

during which the search occurs[,]" as was the case here. Oyenusi, 387 N.J.

Super. at 156 (quoting United States v. Nelson, 102 F.3d 1344, 1347 (4th Cir.

1996)). See also State v. Pierce, 136 N.J. 184, 213-14 (1994) (acknowledging

"the right of a police officer, following a valid custodial arrest . . . to conduct a

search of the person of the arrestee solely on the basis of the lawful arrest.").

      After conducting his investigation, Vogt arrived at police headquarters at

5:10 p.m. to administer the test.       However, upon learning that defendant

refused to consent, a further delay occurred when Vogt consulted an assistant

prosecutor for legal advice. As a result, the test was not administered until

three hours after defendant's arrest. There is no indication in the record that

anyone else in the agency was trained in administering the test. Given Vogt's

investigative responsibilities, we are satisfied the delay was not objectively

unreasonable. Accordingly, considering the timeline and the fragility of GSR,



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the search was conducted within a reasonable amount of time after defendant's

arrest and "occur[ed] as part[] of a single transaction, [and] as connected units

of an integrated incident." Doyle, 42 N.J. at 343.

      Unlike the motion judge, we do not conclude that the search taking place

at police headquarters, rather than "the sight of [defendant's] arrest,"

invalidates the search. A search for evidence incident to an arrest "may legally

be conducted later when the accused arrives at the place of detention."

Edwards, 415 U.S. at 803. Similarly, unlike the motion judge, we do not

require a finding of exigency to validate the search because "if the arrest . . . is

lawful the search . . . [is] not invalidated solely because the officers had

adequate time to procure a search . . . warrant." Doyle, 42 N.J. at 343. Indeed,

in Edwards, the defendant's clothing was not seized until ten hours after his

arrest. 415 U.S. at 801. The Court noted "[i]t was no answer to say that the

police could have obtained a search warrant, for the . . . test [is] not whether it

was reasonable to procure a search warrant, but whether the search itself was

reasonable, which it was." Id. at 807.

      Our Supreme Court has acknowledged that "the proper inquiry for

determining the constitutionality of a search-and-seizure is whether the

conduct of the law enforcement officer who undertook the search was

objectively reasonable." Watts, 223 N.J. at 514 (quoting State v. Bruzzese, 94



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                                         26
N.J. 210, 219 (1983)).      The Court has also recognized that "[t]here are

numerous situations that arise in law enforcement that are unique and call for a

special response." Ibid. (quoting Bruzzese, 94 N.J. at 228). Simply stated,

"[t]he test is not whether there were other reasonable or even better ways to

execute the search, for hindsight and considered reflection often permit more

inspired after-the-fact decision-making." Ibid. (citing State v. Hathaway, 222

N.J. 453, 469 (2015)). "For purposes of our Federal and State Constitutions, it

is enough that the police officers, in performing their duties, acted in an

objectively reasonable fashion," id. at 515, as they did here.

      Turning to the scope of the search, the GSR test involved only the

surface of the skin. The test was non-invasive, brief, and performed only to

recover evidence of GSR stemming from defendant's suspected involvement in

the shooting. See Birchfield, 136 S. Ct. at 2177 (contrasting blood tests and

DNA samples collected by law enforcement authorities with breath tests,

noting "breath tests are capable of revealing only one bit of information, the

amount of alcohol in the subject's breath."). There is no indication in the

record that the test caused undue harm, was unreasonably uncomfortable, or

was unduly intrusive. On the contrary, although defendant had to keep his

hands in bags for two and a half hours, he "had the ability to grasp things"

notwithstanding the fact that he was already handcuffed. See ibid. ("In prior



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                                       27
cases, we have upheld warrantless searches involving physical intrusions that

were at least as significant as that entailed in the administration of a breath

test."); O'Hagen, 189 N.J. at 162 (holding that a "cheek swab is a very minor

physical intrusion upon the person" and "is no more intrusive than the

fingerprint procedure . . . that a person must already undergo as part of the

normal arrest process"); State v. Ravotto, 169 N.J. 227, 238 (2001) (finding

that even the taking of a blood sample has been held to be "minimally

intrusive" (citing Schmerber, 384 U.S. at 771)). Thus, we are satisfied the

GSR test was objectively reasonable in scope.

      In sum, we conclude defendant was subjected to a search when his hands

were swabbed for GSR evidence following his lawful arrest. Although the

search did not occur at the same time or place as his arrest, under the totality

of the circumstances, the delay and proximate location were objectively

reasonable, and the search itself, which was minimally intrusive in nature and

limited in purpose, was objectively reasonable in scope. Thus, we conclude

the search was constitutionally permissible under the search incident to arrest

exception to the warrant requirement and the motion judge erred in ruling

otherwise. By tailoring our holding to warrantless searches for GSR evidence

following a lawful arrest, we neither untether the search incident to arrest

exception to the warrant requirement from its justification nor give police free



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reign to conduct warrantless searches without probable cause at any point after

a lawful arrest.

      Reversed and remanded for further proceedings.        We do not retain

jurisdiction.




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