Reasonable Fourth Amendment Searches: When do state actors need a search warrant?

Cory Jamaul Jones v. State of Maryland.

The Court of Special Appeals of  Maryland affirmed the judgments of the Wicomico County circuit court holding that a search warrant does not have to be obtained before the collection of gun shot residue (“GSR”) from a suspect’s person.  On November 5, 2010, Appellant, along with an accomplice, shot a female driver eleven times in a robbery gone terribly wrong.  The driver suffered serious wounds to her lower back and abdomen, pubic area, right thigh, and left leg.  With the help of GSR[1] evidence, Appellant was tried and convicted of attempted first-degree murder, first-degree assault, use of a firearm in the commission of felony, and illegal possession of a regulated firearm, in addition to related convictions.  As a result, he was sentenced to life imprisonment on the charge of first-degree murder and two consecutive terms of five years for the firearms convictions.  Appellant appealed his conviction on three grounds, two of which are discussed here.

Here, the Maryland Court of Special Appeals held that the use of GSR evidence in Appellant’s trial did not violate his Fourth, Fifth, or Sixth Amendment rights.  Before being formally charged, while Appellant waited in the booking area, detectives took a GSR sample from Appellant’s left hand.  Although Appellant protested[2] to the swabs, samples were sent to a forensics lab for further analysis.  On appeal, Appellant asserted that taking the GSR constituted an unreasonable search under the Fourth Amendment.  In support of this contention, he argued that taking the samples was invasive and did not fall under any exceptions to the warrant requirement in violation of his Fourth Amendment rights.  The Maryland Court of Special Appeals found otherwise, reasoning that the search was minimally invasive (analogous to the taking of fingerprints or cheek swabs for which there is no warrant requirement)[3] and justified by exigent circumstances, qualifying as an exception to the warrant requirement.

Although Appellant did not properly preserve his right to argue a violation of his Fifth and Sixth Amendment rights, the court nonetheless addressed why these arguments lacked merit.  Regarding Appellant’s Fifth Amendment rights, the Court cited to several other jurisdictions that found GSR tests to be nontestimonial in nature[4] in support of its contention that Appellant was not entitled to relief under the Fifth Amendment.[5] Last, because Appellant’s right to counsel had not yet attached, he was not afforded the right to the presence of counsel, provided for under the Sixth Amendment, during the taking of the samples.

[1] During the trial, testimony was taken explaining that “a GSR kit consists of multiple small swabs that are rubbed on a suspect’s hands and the webbing of the fingers to collect any chemical residue given off by a discharged firearm.  The swabs are then sealed back into the kit and submitted to the crime lab for analysis.”

[2] During the collection of the GSR sample, Appellant indicated that “he wanted to make no statements without a lawyer present.” Appellant also questioned whether detectives had a warrant to conduct the GSR test.

[3] See Maryland v. King, 133 S. Ct. 1958, 1980, 186 L. Ed. 2d 1, 2013 U.S. LEXIS 4165 (U.S. 2013) (reversing the decision of the Maryland Court of Appeals by holding that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”) available at

[4] Appellant also conceded that GSR tests are nontestimonial.

[5] “The protections of the Fifth Amendment prohibiting the admission of compelled statements or physical communications that are self-incriminatory do not apply to physical characteristics such as the giving of a blood sample, voice sample, or handwriting exemplar. Pennsylvania v. Muniz, 496 U.S. 582, 595-98 (1990); United States v. Dionisio, 410 U.S. 1, 7 (1973); Gilbert v. California, 388 U.S. 263, 266-67 (1967).

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