The court addressed two issues of first impression in New Jersey: (1) whether the swabbing of a defendant's hands for gunshot residue (GSR) constitutes a search under applicable constitutional doctrines, and if so, (2) whether such a search is valid under the search incident to arrest exception to the warrant requirement. The court held that the swabbing of a defendant's hands for GSR is 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. Balancing the intrusion of GSR testing on an individual's privacy against promoting vital governmental interests, the court further concluded that if an individual is lawfully arrested and in police custody, a delayed search of the arrestee's person for GSR evidence after the arrestee is transported to police headquarters 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. In this case, given the existence of probable cause, the timeline, location, and limited intrusion involved in the testing, as well as the ready destructibility of GSR evidence, the court was satisfied that the search was objectively reasonable in time and scope to pass constitutional muster. Accordingly, the court reversed the Law Division's order suppressing the GSR evidence and remanded for further proceedings.
