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DNA - A Prosecutor’s Practice Notebook Inventory

Exigent Circumstances

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Exigent circumstances may also justify a seizure without a warrant, similar to that cited in Schmerber v. California 384 U.S. 757 (1966) (blood alcohol) or Cupp v. Murphy, 412 U.S. 291; 93 S. Ct. 2000; 36 L. Ed. 2d 900 (1973) (fingernail scrapings for blood under nails), due to the limited intrusion involved and the evanescent nature of the evidence. This reasoning may not apply to DNA samples which are collected to type for permanent identifying markers. Alternatively, if the DNA sample desired is from a penile swabbing soon after a suspected sexual assault, then the destructibility of the sample may arise. At present, the better practice is to obtain a court order or warrant for a suspect’s DNA sample.

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