IN RE GRAND JURY WITNESS G.B. v. UNITED STATES, 139 A.3d 885

Background

Victim G.B. was stabbed on Aug. 2, 2014; he identified an assailant name and gave the crime scene location but declined to cooperate further. Police recovered suspected blood at the scene and on the driver’s seat of the suspect’s rental vehicle.
The government sought G.B.’s DNA to compare to the suspected blood; G.B. refused to provide a voluntary sample and the government applied for a warrant to obtain a buccal swab.
A Superior Court judge found probable cause and issued a warrant; G.B. moved to quash, arguing a non-suspect victim cannot be compelled to give DNA by warrant. The trial court denied the motion and limited use, retention, and database entry of G.B.’s DNA.
G.B. appealed; the court of appeals accepted interlocutory review as collateral to the prosecution and because execution of a new ten‑day warrant could evade review.
The court considered (1) whether Rule 41(b) authorizes a warrant to seize a saliva/DNA sample from a non‑suspect victim, (2) whether the compelled seizure would require probable cause to arrest, and (3) whether the buccal swab would be an unreasonable Fourth Amendment intrusion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Authority under Rule 41(b) to issue a warrant for a non‑suspect’s DNA	Rule 41(b) does not authorize a warrant to seize a person or bodily material when the person is not suspected of a crime	DNA (saliva) is "property" constituting evidence of a crime within Rule 41(b)(1) because it can aid conviction	Rule 41(b) authorizes a warrant for tangible items (including saliva/DNA) that constitute evidence or will lead to evidence; saliva is a "tangible object" under the rule
Whether seizing the person for a buccal swab requires probable‑cause arrest standard	The seizure necessary to take DNA is effectively an arrest and thus invalid absent probable cause to believe G.B. committed a crime	Brief, incidental detention to obtain bodily evidence is a seizure incidental to a valid search warrant and need not meet arrest probable‑cause standard	A brief seizure incidental to a search warrant need not independently meet arrest probable‑cause; a warrant to search a person implicitly authorizes limited detention to effect the search
Fourth Amendment reasonableness of compelled buccal swab from non‑suspect victim	Forcible extraction of DNA from an innocent, non‑suspect victim is an unreasonable privacy intrusion	Buccal swab is minimally intrusive, likely to produce material evidence, can be performed reasonably, and is constrained by judicial limits on use/retention	Balancing privacy and government interest, the buccal swab (and incidental brief seizure) was reasonable given probable cause to locate the evidence, minimal intrusiveness, seriousness of the crime, and court‑imposed use/retention limits
Appellate jurisdiction over denial of motion to quash warrant	Interlocutory appeal unavailable because denial of motion to quash is generally non‑final	Denial implicated a third party and could be "capable of repetition yet evading review" if another short‑lived warrant issued	Court exercised jurisdiction as the order was collateral to the prosecution and the issue could evade later review

Key Cases Cited

United States v. Dionisio, 410 U.S. 1 (1973) (distinguishes voice exemplars and grand jury subpoenas from bodily intrusions requiring Fourth Amendment scrutiny)
Schmerber v. California, 384 U.S. 757 (1966) (bodily intrusions implicate dignity/privacy and require Fourth Amendment analysis)
Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (1989) (collection/analysis of biological samples are searches; limited seizure incidental to such searches need not be separately justified)
Michigan v. Summers, 452 U.S. 692 (1981) (valid search warrant implicitly authorizes limited detention of occupants during execution)
Maryland v. King, 569 U.S. 435 (2013) (cheek swab is minimally invasive and can be reasonable under the Fourth Amendment)
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (searches of third‑party property may issue when evidence aiding prosecution is likely to be found)
Warden v. Hayden, 387 U.S. 294 (1967) (Fourth Amendment protects privacy more than property; warrants may reach evidence that aids investigation)
Dalia v. United States, 441 U.S. 238 (1979) (warrant requirements: neutral magistrate, probable cause that evidence will aid prosecution for a particular offense, particularity)
Winston v. Lee, 470 U.S. 753 (1985) (forcible surgical intrusion requires strong balancing of invasion vs. government need)