J-A13002-16

 2016 PA Super 207

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RONALD SIMONSON,

Appellant No. 598 WDA 2015

Appeal from the Judgment of Sentence of October 29, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0004237-2010

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

OPINION BY OLSON, J.: FILED SEPTEMBER 12, 2016

Appellant, Ronald Simonson, appeals from the judgment of sentence 

entered on October 29, 2014, as made final by the denial of Appellant’s 

post-sentence motion on March 12, 2015. We affirm.

In February 2010, Appellant was arrested and charged with attempted 

homicide, aggravated assault, and firearms not to be carried without a 

license.1 On March 21, 2011, Appellant filed an omnibus pre-trial motion. 

Within this motion, Appellant claimed that, following his arrest, the police 

performed a warrantless gunshot residue test on his hands. Appellant’s First 

Suppression Motion, 3/21/11, at 1-5. Appellant claimed that the Fourth 

Amendment to the United States Constitution and Article I, Section 8 of the 

____________________________________________

1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), and 6106(a)(1), respectively.
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Pennsylvania Constitution mandated that the results of the gunshot residue 

test be suppressed, as “there was no search warrant and no exigency 

existed that would enable a warrantless search” for gunshot residue on his 

hands. Id. 

On March 31, 2011, the trial court held a hearing on Appellant’s 

motion to suppress. During this hearing, City of Pittsburgh Police Detective 

Harry Lutton testified that, at approximately 8:30 p.m. on February 9, 2010, 

he received a call that shots had been fired in the Greenway housing project. 

N.T. Suppression Hearing, 3/31/11, at 4-5. Uniformed police officers 

informed Detective Lutton that they apprehended Appellant “a matter of 

blocks away from the scene” and that Appellant matched the description of 

the shooter. Id. at 5. Detective Lutton also learned that the victim, Bradley 

Cohen, was shot twice, was taken to the hospital, and was in critical 

condition and that “a shell casing and a bullet fragment” were recovered 

from the scene. Id. at 6. 

That night, detectives in the homicide unit presented a photographic 

array to the victim and to two witnesses at the scene; all individuals 

identified Appellant as the shooter. Id. at 6-7. Detective Lutton testified 

that, after the victim and the witnesses identified Appellant as the shooter, 

Appellant was placed under arrest. Id. at 7.

City of Pittsburgh Police Detective Blase Kraeer testified that, following 

Appellant’s arrest, he performed a gunshot residue test on Appellant’s 

hands. Id. at 11. As Detective Kraeer testified, to perform the post-arrest 
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gunshot residue test upon Appellant, the detective “[took] a swab[] and [he] 

swab[bed] four different parts of the two hands.” Id. Detective Kraeer 

testified that the swab had a “sticky substance” that he just “brush[ed] 

against the hand” and that the test did not “use any liquid.” Id. Daniel 

Wolfe, an employee of the Allegheny County Medical Examiner’s Office, 

testified that a gunshot residue test is generally necessary to detect such 

residue because gunshot residue particles are “the size of a micron” and are 

not “readily apparent to the naked eye.” Id. at 19.

Detective Kraeer testified that, after he swabbed Appellant’s hands, he 

forwarded the kit to the Allegheny County Crime Lab – and the crime lab 

then performed “the actual [laboratory] testing” for gunshot residue. Id. at 

15. As Mr. Wolfe testified, he analyzed the kit that Detective Kraeer 

submitted and the analysis demonstrated a “positive result for gunshot 

residue.” Id. at 18.

Regarding temporal considerations surrounding gunshot residue tests, 

Mr. Wolfe testified that a gunshot residue swab must be performed “[a]s 

quickly as possible” following the suspected discharge of the firearm 

because:

the particulate material, when it exits the firearm, is not 

adhesive by nature. It lands on the surface. You start to 

slough those materials off through activity, interaction with 

your hands, pants, placing your hands in your pockets. If 

you wash your hands, all of that – the more activity that 

takes place after the incident, the less likely you are to find 

particles.
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Id. 

Mr. Wolfe testified that “bagging the hands” of a living individual2

would not necessarily preserve gunshot residue on that person’s hands. Mr. 

Wolfe testified:

there is still activity. The bag could interact with the 

surface of the individual’s hands, and that acts the same as 

a pocket or your trouser pants would. The more interaction 

with the surface, the more obstruction you have.

Id. at 19. However, Mr. Wolfe noted that, “[a]s far as the hands in the bag 

thing, the gunpowder could come off, the particles could come off in the 

bags” and that he would then “have to examine the entire bag in addition to 

the hands.” Id. at 20.

At the conclusion of the hearing, the trial court denied Appellant’s 

suppression motion on the record. Id. at 24. 

Thereafter, as the trial court explained:

[On April 4, 2011, a] jury was empaneled [and Appellant’s 

trial began. However,] on April 5, 2011, [the trial court] 

declared a mistrial. Appellant moved to bar retrial on the 

basis of double jeopardy, which [the trial court] denied on 

August 9, 2011. The Superior Court of Pennsylvania 

affirmed [the trial court’s] order on June 21, 2012. 

____________________________________________

2 Detective Lutton testified that the police will routinely place bags over the 

hands of “an individual that is [dead on arrival]. They do that so that the 

[gunshot residue] doesn’t get knocked off, washed off while they place the 

[deceased] person in a bag and then take them to the Coroner’s Office.” 

N.T. Suppression Hearing, 3/31/11, at 9. However, as Detective Kraeer 

testified, “the bagging of the hands . . . is not done with [living] suspects.” 

Id. at 13-14. 
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[Commonwealth v. Simonson, 53 A.3d 937 (Pa. Super. 

2012) (unpublished memorandum) at 1-14].

Trial Court Opinion, 10/15/15, at 2. 

On remand, Appellant’s case was reassigned to a different trial court 

judge and the case proceeded to trial.3 At the conclusion of the trial, the 

jury found Appellant guilty of aggravated assault and carrying a firearm 

without a license; the jury found Appellant not guilty of attempted homicide. 

On October 29, 2014, the trial court sentenced Appellant to serve an 

aggregate term of 72 to 160 months in prison, followed by three years of 

probation. 

Following the denial of Appellant’s post-trial motion, Appellant filed a 

timely notice of appeal. Appellant raises one issue on appeal:

Whether the suppression court erred by failing to suppress 

the results of the gunshot residue evidence when the police 

without a warrant seized particles from Appellant’s hands?

Appellant’s Brief at 5. 

“Once a motion to suppress evidence has been filed, it is the 

Commonwealth’s burden to prove, by a preponderance of the evidence, that 

the challenged evidence was not obtained in violation of the defendant’s 

____________________________________________

3 On September 23, 2013, Appellant filed another pre-trial motion. The 

motion claimed that the trial court must suppress certain statements he 

made to law enforcement. Appellant’s Second Suppression Motion, 9/23/13, 

at 1-3. Within his second suppression motion, Appellant did not reiterate his 

earlier suppression claim that the gunshot residue test constituted an 

unreasonable search of his person. See id.
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rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an 

appeal from the denial of a motion to suppress, our Supreme Court has 

declared:

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When 

reviewing the ruling of a suppression court, we must 

consider only the evidence of the prosecution and so much 

of the evidence of the defense as remains uncontradicted 

when read in the context of the record. . . . Where the 

record supports the findings of the suppression court, we 

are bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal 

citations omitted). “It is within the suppression court’s sole province as 

factfinder to pass on the credibility of witnesses and the weight to be given 

their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. 

Super. 2006).

On appeal, Appellant claims that the trial court erred when it denied 

his motion to suppress the results of the gunshot residue test.4 According to 

____________________________________________

4 As noted, prior to Appellant’s first trial, Appellant claimed that the results 

of the gunshot residue test must be suppressed, as “there was no search 

warrant and no exigency existed that would enable a warrantless search” for 

gunshot residue on Appellant’s hands. Appellant’s First Suppression Motion, 

3/21/11, at 1-5. Appellant did not repeat or renew this claim in the 

suppression motion he filed prior to his second trial. See Appellant’s Second 

Suppression Motion, 9/23/13, at 1-3. Nevertheless, by raising the “gunshot 

residue test” claim in his first suppression motion, Appellant preserved the 

(Footnote Continued Next Page)
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Appellant, the police committed an unreasonable search when they swabbed 

his hands for gunshot residue. Specifically, Appellant claims, the search was 

unreasonable because it was performed without a warrant and without 

exigent circumstances. Appellant’s Brief at 19-24. Further, with respect to 

the claim that the search was performed without exigent circumstances, 

Appellant relies upon the United States Supreme Court’s recent opinion in 

Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013), where the 

High Court held that the natural metabolization of alcohol in the bloodstream 

does not present a per se exigency and that, “consistent with Fourth 

Amendment principles, [] exigency in [drunk-driving cases] must be 

determined case by case based on the totality of the circumstances.” Id. at 

1556 and 1558. 

(Footnote Continued) _______________________

claim for appeal, as the facts and law relevant to the suppression motion 

were identical prior to both trials. Commonwealth v. Jones, 858 A.2d 

1198, 1204 (Pa. Super. 2004) (defendant preserved his claim that the trial 

court erred when it failed to sever the criminal charges filed against him 

when defendant raised the claim in the pre-trial motion that he filed prior to 

his second trial; although the second trial ended in a mistrial and the 

defendant “did not raise the severance issue prior to his third trial,” the issue 

was preserved for appellate review because “the ruling prior to the second 

trial was binding on the [trial] court during the third trial;” specifically, this 

Court held: “[t]he [severance] ruling was determinative of the law of the 

case[, as] . . . the facts warranting severance of the charges were identical 

prior to both the second and third trials . . . [and] there [had not] been a 

change in legal authority”); see also Commonwealth v. Henderson, 520 

A.2d 1372 (Pa. 1987) (holding that the denial of a pre-trial suppression 

motion was entitled to collateral estoppel effect, where the motion was 

raised again during the defendant’s retrial and the defendant did not 

“allege[] new evidence not previously available”).
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In Appellant’s view, McNeely demands that we vacate his conviction 

because, in this case, the trial court simply applied a “categorical rule” that 

the warrantless, post-arrest gunshot residue test constituted a reasonable 

search under the Fourth Amendment. See Appellant’s Brief at 23-24. 

According to Appellant, the police had time to secure a warrant in this case 

and, if the police feared the destruction of evidence, the police could have 

“bagged” his hands until they obtained the warrant. Id. Appellant’s claim 

fails. 

“The Fourth Amendment to the [United States] Constitution and Article 

I, Section 8 of [the Pennsylvania] Constitution protect citizens from 

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is 

deemed to be unreasonable and therefore constitutionally impermissible, 

unless an established exception applies.” Commonwealth v. Strickler, 

757 A.2d 884, 888 (Pa. 2000). “Exceptions to the warrant requirement 

include the consent exception, the plain view exception, the inventory search 

exception, the exigent circumstances exception, the automobile exception . . 

. , the stop and frisk exception, and the search incident to arrest exception.” 

Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa. Super. 

2013).

In the case at bar, the Commonwealth does not dispute Appellant’s 

claim that a search occurred when the police performed the post-arrest 

gunshot residue test upon Appellant’s hands. See Commonwealth’s Brief at 
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16-26; see also Commonwealth v. Blasioli, 685 A.2d 151, 156 (Pa. 

Super. 1996) (“the taking of saliva from an individual by a police officer 

constitutes a search under the Fourth Amendment of the United States 

Constitution and Article I, § 8 of the Pennsylvania Constitution”); Cupp v. 

Murphy, 412 U.S. 291, 295 (1973) (taking a “fingernail scraping” from an 

individual constitutes a search under the Fourth Amendment); Skinner v. 

Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-617 (1989) (subjecting a 

person to a breathalyzer test constitutes a search under the Fourth 

Amendment); but see Commonwealth v. DeWitt, 314 A.2d 27, 31 (Pa. 

Super. 1973) (en banc) (“the use of [an] ultraviolet light to examine 

defendants’ hands [to determine the presence of fluorescent grease] did not 

amount to a search”). As such, for purposes of this appeal, we will assume 

that the gunshot residue test constituted a search. The current appeal thus 

centers around one question: whether the search was constitutionally 

reasonable. See Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2482 

(2014) (“[a]s the text [of the Fourth Amendment] makes clear, the ultimate 

touchstone of the Fourth Amendment is ‘reasonableness’”) (some internal 

quotations omitted). The answer to this question is dependent upon 

whether the search falls within a specific exception to the warrant 

requirement. Strickler, 757 A.2d at 888.

On appeal, Appellant bases much of his claim for relief upon the United 

States Supreme Court’s opinion in McNeely. See Appellant’s Brief at 20-24. 

McNeely was solely concerned with the exigent circumstances exception to 
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the warrant requirement. McNeely, 133 S.Ct. at 1556. We express no 

opinion on whether the search in this case falls under the exigent 

circumstances exception because, as we will explain below, the search was 

reasonable as a search incident to arrest.5 

As the United States Supreme Court has explained:

The search-incident-to-arrest doctrine has an ancient 

pedigree. Well before the Nation’s founding, it was 

recognized that officers carrying out a lawful arrest had the 

authority to make a warrantless search of the arrestee’s 

person. An 18th-century manual for justices of the peace 

provides a representative picture of usual practice shortly 

before the Fourth Amendment's adoption:

“[A] thorough search of the felon is of the utmost 

consequence to your own safety, and the benefit of the 

public, as by this means he will be deprived of 

instruments of mischief, and evidence may probably be 

found on him sufficient to convict him, of which, if he 

has either time or opportunity allowed him, he will 

besure [sic] to find some means to get rid of.” The 

Conductor Generalis 117 (J. Parker ed. 1788) (reprinting 

S. Welch, Observations on the Office of Constable 19 

(1754)).

One Fourth Amendment historian has observed that, prior 

to American independence, “[a]nyone arrested could expect 

that not only his surface clothing but his body, luggage, and 

saddlebags would be searched and, perhaps, his shoes, 

socks, and mouth as well.” W. Cuddihy, The Fourth 

Amendment: Origins and Original Meaning: 602–1791, p. 

420 (2009).

____________________________________________

5 Given our disposition, McNeely does not control the outcome of this case 

and, as such, we will not discuss McNeely further.
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No historical evidence suggests that the Fourth Amendment 

altered the permissible bounds of arrestee searches. On the 

contrary, legal scholars agree that “the legitimacy of body 

searches as an adjunct to the arrest process had been 

thoroughly established in colonial times, so much so that 

their constitutionality in 1789 can not be doubted.” Id. at 

752.

Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 2174-2175 

(2016) (some internal quotations and citations omitted).6

The search incident to arrest exception allows “arresting officers, in 

order to prevent the arrestee from obtaining a weapon or destroying 

evidence, [to] search both the person arrested and the area within his 

immediate control.”7Id. at 2175 (internal quotations omitted); Chimel v. 

California, 395 U.S. 752, 763 (1969). Moreover, in contrast to the exigent 

____________________________________________

6 Appellant does not claim that Article I, Section 8 of the Pennsylvania 

Constitution affords him greater protection than that provided under the 

Fourth Amendment to the United States Constitution. Appellant’s Brief at 

12-24. Moreover, both the Pennsylvania and United States Constitutions 

permit “a police officer [to] search the arrestee’s person and the area in 

which the person is detained in order to prevent the arrestee from obtaining 

weapons or destroying evidence.” Commonwealth v. White, 669 A.2d 

896, 902 (Pa. 1995). 

7 We note that “[a] warrantless search incident to an arrest is valid ‘only if it 

is substantially contemporaneous with the arrest.’” Commonwealth v. 

Wright, 742 A.2d 661, 665 (Pa. 1999), quoting Shipley v. California, 395 

U.S. 818, 819 (1969); see also United States v. Edwards, 415 U.S. 800, 

803 (1974) (“it is also plain that searches and seizures that could be made 

on the spot at the time of arrest may legally be conducted later when the 

accused arrives at the place of detention”). In the case at bar, Appellant 

never claimed that the challenged search occurred at a time that was too 

remote to constitute a search incident to arrest. As such, we will not discuss 

the temporal limits to the exception.
J-A13002-16

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circumstances exception, the search incident to arrest exception applies 

categorically. In other words, the search incident to arrest exception 

permits a search of the arrestee’s person as a matter of course – and 

without a “case-by-case adjudication . . . [of] whether a search of a 

particular arrestee is likely to protect officer safety or evidence.” Birchfield,

136 S.Ct. at 2176 (internal quotations and emphasis omitted). 

Review of United States Supreme Court and Pennsylvania case law 

reveals no opinion that passes upon the question of whether the particular 

gunshot residue test employed in this case – or, indeed, any type of gunshot 

residue test – constitutes a reasonable search incident to arrest. Therefore, 

as the United States Supreme Court has held:

[a]bsent more precise guidance from the founding era, we 

generally determine whether to exempt a given type of 

search from the warrant requirement by assessing, on the 

one hand, the degree to which it intrudes upon an 

individual’s privacy and, on the other, the degree to which it 

is needed for the promotion of legitimate governmental 

interests.

Riley, 134 S.Ct. at 2484 (internal quotations and citations omitted).

The founding era provides this Court with no guidance on whether the 

gunshot residue swab test, as employed in the case at bar, is exempted 

from the warrant requirement.8 Therefore, this Court must “assess[], on the 

____________________________________________

8 Within Pennsylvania case law, the earliest reference to a gunshot residue 

test that this Court was able to discover was in the 1936 Pennsylvania 

Supreme Court opinion Commonwealth v. Westwood, 188 A. 304 (Pa. 

(Footnote Continued Next Page)
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one hand, the degree to which [the test] intrudes upon an individual’s 

privacy and, on the other, the degree to which it is needed for the promotion 

of legitimate governmental interests.” Id. (internal quotations and citations 

omitted).

We first examine “the degree to which [the gunshot residue swab test] 

intrudes upon an individual’s privacy.” With respect to this concern, we 

initially note that, when the gunshot residue swab test was performed upon 

(Footnote Continued) _______________________

1936). In that opinion, the Westwood Court described a “paraffin test.” 

The Westwood Court described the paraffin test in the following manner:

[During the defendant’s murder trial, t]he Commonwealth 

offered expert testimony to the effect that there were 

particles of partially burned gunpowder on the defendant’s 

right hand near and back of his index and ring finger. 

Shortly after [the victim] was shot . . . Assistant County 

Detective Monaghan made a “paraffin test” of defendant’s 

right hand and his own right hand. . . . Hot paraffin was 

placed next to the skin. Cotton was placed on that and then 

another coat of paraffin added. The paraffin was then lifted. 

These “moulds” were labeled, wrapped up and taken to the 

district attorney’s office. They were later subjected by two 

chemists, Dr. Muehlberger and F. C. Buckmaster, to the 

“diphenylamine test” or so-called “lungee reaction.” This 

was described as “a reaction primarily for nitrates and 

[certain] other oxidized substances, a standard test known 

for possibly fifty to seventy-five years.”

Westwood, 188 A. at 307. However, Westwood Court did not consider 

the question of whether application of the test subjected the defendant to an 

unreasonable search.
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Appellant, Appellant was under a lawful arrest.9 As the United States 

Supreme Court has held, “[t]he expectations of privacy of an individual 

taken into police custody necessarily are of a diminished scope.” Maryland 

v. King, ___ U.S. ___, 133 S.Ct. 1958, 1978 (2013) (internal quotations, 

citations, and brackets omitted). Thus, at the time of the search, Appellant’s 

reasonable expectation of privacy was already curtailed. 

Second, the physical intrusion in this case was negligible. See 

Birchfield, 136 S.Ct. at 2176. To be sure, Detective Kraeer testified that he 

merely “[took] a swab[] and [he] swab[bed] four different parts of 

[Appellant’s] two hands.” As Detective Kraeer testified, the swab had a 

“sticky substance” that he just “brush[ed] against the hand” and the test did 

not “use any liquid.” The test was thus quick, non-invasive, and innocuous –

and far less intrusive than a breathalyzer test (which requires the defendant 

to insert a “straw-like mouthpiece” into his mouth and “blow continuously for 

[four] to 15 seconds”), a buccal swab test (which requires another individual 

to rub a swab on the inside of a defendant’s cheek), or a fingernail scrape 

(which requires another individual to scrape the inside of the defendant’s 

fingernails). Moreover, with respect to the breathalyzer, buccal swab, and 

fingernail scrape, the United States Supreme Court has characterized the 

____________________________________________

9 Appellant does not contest the fact that, when the gunshot residue test 

was performed, he was under a lawful arrest that was supported by probable 

cause.
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scope of the intrusions as, respectively: an “almost negligible” physical 

intrusion; a “negligible” physical intrusion; and, a “very limited intrusion.” 

Birchfield, 136 S.Ct. at 2177; King, 133 S.Ct. at 1969; Cupp, 412 U.S. at 

296; see also Commonwealth v. Cross, 496 A.2d 1144, 1150 (Pa. 1985) 

(upholding the “warrantless seizure of [an arrestee’s] hair samples and [] 

fingernail clippings and scrapings” as valid incident to arrest because “their 

seizure was so minor an imposition as to constitute only the slightest 

intrusion, if indeed such constituted an intrusion”).

Third, the gunshot residue test is “capable of revealing only one bit of 

information:” the presence of gunshot residue on the swab. See Birchfield, 

136 S.Ct. at 2177. To paraphrase the United States Supreme Court: 

In this respect, [the gunshot residue test] contrast[s] 

sharply with the sample of cells collected by the swab in 

Maryland v. King. Although the DNA obtained under the 

law at issue in that case could lawfully be used only for 

identification purposes, 133 S.Ct. at 1967-1968, the process 

put into the possession of law enforcement authorities a 

sample from which a wealth of additional, highly personal 

information could potentially be obtained.

Birchfield, 136 S.Ct. at 2177.

In contrast to the DNA collection and testing at issue in King, here, 

the gunshot residue swab merely allowed the police to “pick up particulate 

material from the surface of the hands or whatever surface you are 

collecting it from.” See N.T. Suppression Hearing, 3/31/11, at 17 and 18. 

Further, the later, laboratory testing was focused solely upon determining 
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the presence or absence of one foreign substance: gunshot residue. See 

id.

Finally, application of the gunshot residue swab “is not an experience 

that is likely to cause any great enhancement in the embarrassment that is 

inherent in any arrest.” Birchfield, 136 S.Ct. at 2177. Certainly, it cannot 

be said that the limited application of a dry, sticky swab upon Appellant’s 

hands enhanced Appellant’s embarrassment in any significant manner.

Therefore, we conclude that the gunshot residue swab and test in this 

case did not “implicate significant privacy concerns.” Id. at 2178 (internal 

quotations, citations, and corrections omitted).

We must next assess “the degree to which [the gunshot residue test] 

is needed for the promotion of legitimate governmental interests.” Riley, 

134 S.Ct. at 2484 (internal quotations and citations omitted). As to this 

element, we need not engage in a long discussion on the Commonwealth’s 

vital interests in identifying, arresting, and prosecuting individuals who have 

unlawfully discharged a firearm, shot at another individual, or shot an 

individual. Arguably, the two paramount interests of the Commonwealth are 

ensuring the public safety and welfare. The gunshot residue test promotes 

these interests by identifying individuals who might have unlawfully 

discharged a firearm or who might have harmed or murdered another 

person – and then preserving the evidence for trial. 

Therefore, we conclude that the gunshot residue test has a negligible 

intrusion upon an individual’s privacy and that it serves an important 
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function in promoting vital governmental interests. As such, we conclude 

that the gunshot residue test constitutes a reasonable search incident to 

arrest. Moreover, since the search incident to arrest exception applies 

categorically – and not on a case-by-case basis – Appellant’s claims that the 

police “had time” to obtain a warrant and that the police “could have 

‘bagged’ the hands of Appellant until a warrant was obtained,” necessarily 

fail. 

In the case at bar, the police validly subjected Appellant to a gunshot 

residue test incident to his arrest. The search was thus reasonable and the 

trial court properly denied Appellant’s motion to suppress.10 

____________________________________________

10 We note our decision aligns with those of our sister states and federal 

courts that have considered the issue. See, e.g., Jones v. State, 74 A.3d 

802, 813 (Md.App. 2013) (“we conclude that the [gunshot residue] evidence 

was properly collected in the course of a reasonable search incident to [the 

defendant’s] lawful arrest, for which no warrant was required”); Sen v. 

State, 301 P.3d 106 (Wy. 2013) (“in light of the minimal intrusion caused 

by the swab for gunshot residue and the easy destructibility of such 

evidence, administration of the gunshot residue test was a valid search 

incident to arrest”); People v. Allen, 875 N.E.2d 1221, 1228 (Ill.App. 2007) 

(“[b]ecause the hand swabbing was so minor an imposition that the 

defendant suffered no true humiliation or affront to his dignity, we find a 

search warrant was not required to justify the [gun shot residue] test after 

defendant was in custody”) (internal quotations omitted); United States v. 

Johnson, 445 F.3d 793, 795-796 (5th Cir. 2006) (“[b]ecause the presence 

of gun powder on his hands was relevant evidence that Johnson (or merely 

time) could have eventually removed or destroyed, if his arrest was valid, 

the performance of the gun powder residue test was lawful, and the 

admission of the results at trial was proper”); State v. Beasley, 70 P.3d 

463, 466 (Ariz. 2003) (“the search of the defendant’s person by swabbing 

for gunshot residue after arrest was reasonable”); State v. Kyger, 787 

S.W.2d 13, 21 (Tenn. Crim. App. 1989) (“[b]ecause officers had probable 

cause for the warrantless arrest, there is no merit to the argument that 

(Footnote Continued Next Page)
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Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/2016

(Footnote Continued) _______________________

officers could not gather the physical evidence acquired from [the 

defendant’s] person[; h]andswabs, fingerprints and photographs are 

admissible as evidence legally obtained pursuant to [the defendant’s] 

arrest”); State v. Riley, 500 S.E.2d 524 (W.Va. 1997) (holding that the 

warrantless “swabb[ing of the defendant’s] hands and face for traces of 

gunpowder residue” constituted a reasonable search incident to arrest); 

Strickland v. State, 275 S.E.2d 29 (Ga. 1981) (“[s]wabbing the hands of 

an accused to lift gunshot residue does not constitute an unconstitutional 

search or seizure”); State v. Parsons, 513 S.W.2d 430, 441 (Mo. 1974) 

(swabbing the defendant’s hands for traces of nitroglycerine was reasonable 

incident to his lawful arrest for the bombing death of his wife); see also 

Ray v. State, 803 S.W.2d 894, 899 (Ark. 1991) (holding that the 

warrantless gunpowder residue test was “reasonable in light of exigent

circumstances”).