Upheld: Warrantless Swab of Defendant’s Hands Two Hours After Finding His Stepfather in a Pool of Blood

State v. Torres

Appellate Docket No.: A-1005-18

Decided March 1, 2022

Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Division of New Jersey upheld a warrantless swab of defendant’s hands two hours after finding his step father in a pool of blood.

In State v. Torres, On January 4, 2017, at 12:30 p.m., Middlesex County Prosecutor’s Office Detective Craig Marchak was assigned to investigate a homicide at a Monroe Township residence where officers responded to a 9-1-1 call and reported large amounts of blood in a bedroom. Police located the body of defendant’s stepfather Christopher Ernst, Sr., wrapped in a blanket and a garbage bag secured by duct tape in the residence’s garage. Detectives learned defendant and Ernst were home the night before. Ernst’s truck and defendant were missing.

Police located defendant and the truck in a nearby wooded area. He was in a structure on the property, and when he exited, he ignored police commands to stop and entered the woods. Defendant was later discovered in the rear storage of a disabled mulch truck and placed under arrest on an outstanding traffic warrant. Marchak testified at that point defendant was a suspect in the murder. Defendant was transported to the police department, Mirandized, 1 and Marchak and Monroe Township Police Detective Joseph Silvestri began interviewing him at 4:26 p.m. The video recording of the interview was played at the suppression hearing.

Marchak informed defendant they were interviewing him about the blood in the house and the discovery of Ernst’s body. Marchak told defendant police “talked to a lot of people already” and defendant responded: “I’m always the [scapegoat] in the family so go ahead.” Later during the interview, Silvestri described more of the evidence police found and said: “We know what happened.” Defendant then invoked his right to remain silent and his right to counsel. Marchak noted defendant never asked what happened to Ernst.

Marchak testified he decided to take defendant’s clothing following his statement because “[t]hroughout the interview” he noticed a substance on defendant’s hands. Marchak explained defendant “was picking at his hands, looking at his hands. . . . I could see him . . . rubbing his fingers when his hands are crossed. He then put his hands into his pockets. And you could see movement within that. That’s when [defendant asks] why I’m staring at him.” The prosecutor paused the video at the 4:51 p.m. time stamp to show the judge an example of defendant’s conduct.

Defendant was charged and made a motion to suppress the fingertip swab. The Court denied the motion, finding the officer’s conduct reasonable under the circumstances. Defendant appealed and the Appellate Division also found that the officer’s conduct was objectively reasonable under the circumstances, after finding Defendant’s step father in blood, the Defendant’s statement, and the fact that Defendant was playing with his hands. The officers were concerned about the destruction of evidence and there was probable cause for a search incident to arrest, even though the swab occurred two hours after.

This case is important to understand there are three types of interactions with law enforcement, each involving different constitutional implications depending on the event’s impact on an individual’s freedom to leave the scene. First, a “field inquiry is essentially a voluntary encounter between the police and a member of the public in which the police ask questions and do not compel an individual to answer.” State v. Rosario, 229 N.J. 263, 271 (2017). The individual is free to leave, therefore field inquiries do not require a well-grounded suspicion of criminal activity before commencement. Id. at 271-72; see also Elders, 192 N.J. at 246. Second, an investigatory stop or detention, sometimes referred to as a Terry stop, involves a temporary seizure that restricts a person’s movement. A Terry stop implicates a constitutional requirement that there be “‘specific and articulable facts which, taken together with rational inferences from those facts,’ give rise to a reasonable suspicion of criminal activity.” Elders, 192 N.J. at 247 (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)); see also Rosario, 229 N.J. at 272. Third, an arrest requires “probable cause and generally [are] supported by an arrest warrant or by demonstration of grounds that would have justified one.” Rosario, 229 N.J. at 272. Here, there was a search incident to arrest, an exception to the warrant requirement.

If you or someone you know have been charged with any indictable offense or disorderly persons involving a search and/or questioning of police, or you have questions regarding probable cause and warrantless searches, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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