SALT LAKE CITY (ABC4) – Utah police can obtain a DNA sample with a search warrant by force, if necessary, the state’s high court has ruled. This comes after the suspect in a 2014 Kearns murder challenged the legal statutes.
Two days after Ted Kelbach was found shot to death in his Kearns home by an intruder, Douglas Evans was arrested for murder. Police had a search warrant to take a DNA sample from Evans by swabbing his cheek but when a lab technician tried to take the swab, Evans physically resisted. One officer testified that in their 27-year career, they had never seen anything like it.
Officers had to hold Evans and force his mouth open to allow for the DNA sample to be collected. Testing showed Evans genetically matched DNA found on a baseball cap left at the crime scene. He was also identified as a possible contributor to DNA found on a broken piece of fence leading to Kelbach’s back door, where he had been shot.
Before the trial, Evans moved to suppress the DNA evidence, saying it was forcibly collected and violated his Fourth Amendment rights. The district court denied the motion, the evidence was submitted to the trial, and Evans was convicted by a jury of murder, aggravated burglary, and possession of a weapon by a restricted person.
Evans appealed and the court of appeals rejected his claims. Evans argued the court of appeals wrongly affirmed the district court’s dismissal of his motion to suppress the DNA evidence.
The Utah Supreme Court ruled Evans did not present evidence to show the officers’ use of force to get a DNA sample from his cheek was “unreasonable.” According to Justice Petersen, officers gave Evans the opportunity to comply voluntarily. When he refused, Petersen explains officers showed the warrant to Evans and read it to him. Until Evans resisted, officers did not use force, Petersen adds, including that Evans showed no evidence that he was restrained longer than necessary to obtain the DNA sample.
“Like the court of appeals, we find Evans’s statutory arguments unpersuasive. He gives no legal authority or analysis supporting his premise that statutory authority is required before officers may use reasonable force in executing a search warrant,” Petersen writes.
Petersen was joined by four other justices in the majority opinion.