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Utah Supreme Court upholds police obtaining DNA by force, if necessary

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Posted at 12:00 PM, Nov 05, 2021
and last updated 2021-11-05 14:00:56-04

SALT LAKE CITY — The state's top court has upheld the ability of police to obtain a DNA sample under a search warrant by force, if necessary.

In a ruling issued late Thursday, the Utah Supreme Court unanimously rejected a challenge by Douglas Dwayne Evans, who was convicted of the 2014 murder of Ted Kelbach in Kearns.

Evans was challenging how police obtained a DNA sample from him to link him to the crime. Police had gotten a search warrant to get a "cheek swab" from Evans.

"Despite being presented with the warrant, Evans forcibly resisted having his cheek swabbed. He refused to open his mouth and thrashed and kicked at the officers. In response, officers called in additional law enforcement to help. They handcuffed Evans and placed him in leg irons and a belly chain," Justice Paige Petersen wrote. "The officers applied 'control holds' to control Evans’s thrashing. One officer placed his foot over Evans’s foot to prevent Evans from kicking the technician who was attempting to administer the swab. Another officer pried open Evans’s mouth. It ultimately took 'four or five pretty large detectives' to hold Evans still so that the technician could reach into his mouth to perform the swab."

Evans claimed that police used excessive force in violation of his Fourth Amendment rights to obtain the DNA sample. Lower courts had rejected his attempts to throw out the sample and he was convicted of murder, aggravated burglary and possession of a weapon by a restricted person.

In its ruling, the Utah Supreme Court said Evans had not presented evidence to show the use of force to get the DNA sample was "unreasonable."

"We also note that the officers gave Evans a chance to voluntarily comply. When he initially refused to do so, the officers showed him the warrant and read it to him. And they did not use force until Evans actively resisted," Justice Petersen wrote. "Evans has offered no evidence that the officers’ use of force posed any concrete risk to his health or safety."

The justices said that Evans also offered no evidence to show that he was restrained any longer than was necessary to get the swab.

"But while Evans has failed to meet his burden to prove a constitutional violation occurred here, we emphasize that any allegation of excessive force during the execution of a search warrant must be carefully examined under the Fourth Amendment to ensure that the individual’s right to be free from unreasonable force during a search has not been violated," Justice Peterson wrote. "Because, on the face of the record before us, we lack the information to find that a constitutional violation occurred in this case, we do not reach the question of whether any error would require reversal."

Read the ruling here: