Jersey City, New Jersey – On March 15, 2020, the Superior Court of New Jersey, Appellate Division, in State of New Jersey v. Trey Lentz, held the warrantless swabbing of a suspect’s hands for gunshot residue was lawful and the results of the test could be used in the prosecution of the arrestee.

The facts of the case are: Lentz was the subject of an arrest warrant issued by the Superior Court. Police were called to the scene of a shooting in Asbury Park, and were told by witnesses that the suspected shooters had run off. Police located the suspects, including Lentz, and arrested them. Lentz was under arrest both on the warrant and as a suspect in the shooting. Police handcuffed Lentz and secured plastic bags over his hands to prevent the loss of gunshot residue evidence that could dissipate or be rubbed off the hands. After arriving to police headquarters, police swabbed Lentz’s hands for gunshot residue. The swabbing process is quick, non-invasive, has no negative consequences and causes no pain or discomfort. Ultimately, the testing returned a positive result indicating gunpowder residue on Lentz’s hands, which police testified is an indication he had recently fired a gun.

During the prosecution, the defense moved to suppress the results of the gunshot residue test as the results of an unlawful search in violation of the Fourth Amendment of the United States Constitution. The trial court granted the motion, finding the search was conducted without a warrant and not soon enough after the arrest to satisfy the search incident to lawful arrest exception to the requirement for a search warrant. The State appealed, and the Appellate Division reversed the trial court, finding the search was reasonable and satisfied the search incident to lawful arrest exception to the warrant requirement because the delay in time and location were reasonable and because the search was minimally invasive and limited in purpose.

This means most gunshot residue tests conducted under similar circumstances will be admissible at trial, but it does not mean that all such tests will be admissible. Longer delays, deviant testing procedures, multiple location changes, failure to take the necessary preservative measures before the test, and many other alternative facts could lead to different outcomes in future motions to suppress. Gunpowder residue evidence is very powerful evidence in a firearms prosecution, so it is imperative upon defense counsel not to simply accept the admissibility, but to look for different facts that could help suppress the results.

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