State v. Evans

2021 UT 63

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Respondent,
v.
DOUGLAS DWAYNE EVANS,
Petitioner.

No. 20190739
Heard April 21, 2021
Filed November 4, 2021

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Ann Boyden
No. 141906586

Attorneys:
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,
Salt Lake City, for respondent
Herschel Bullen, Salt Lake City, for petitioner

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUDGE DIREDA joined.
Having recused himself, JUSTICE HIMONAS does not participate
herein; JUDGE MICHAEL D. DIREDA sat.

JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Two days after Ted Kelbach was shot in his home by an
intruder, police arrested Douglas Evans for the murder. They got
a search warrant to obtain a sample of Evans’s DNA through a
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“buccal swab” of his cheek. 1 But when a lab technician attempted
to take the swab, Evans physically resisted. Officers had to
restrain his limbs and force open his mouth so the technician
could safely obtain the DNA sample. Testing showed that Evans
was a genetic match for DNA found on a baseball cap left at the
crime scene. And Evans was a possible contributor to DNA found
on a broken piece of fence leading to Kelbach’s back door, where
Kelbach had been shot.
¶2 Prior to trial, Evans moved to suppress the DNA
evidence on the grounds that the forcible collection of the sample
had violated his Fourth Amendment rights. The district court
denied the motion, and the evidence was admitted at trial. The
jury convicted Evans of murder, aggravated burglary, and
possession of a weapon by a restricted person.
¶3 Evans appealed. Relevant here, he asserted that the force
used by officers was excessive and therefore unconstitutional, and
that even if the force was reasonable, the officers were not
statutorily authorized to use any force whatsoever in executing
the warrant. The court of appeals rejected these and Evans’s other
claims and affirmed.
¶4 On certiorari, Evans argues that the court of appeals
wrongly affirmed the district court’s dismissal of his motion to
suppress. We affirm.

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1 A buccal swab is a routine method for obtaining a DNA
sample that “involves wiping a small piece of filter paper or a
cotton swab similar to a Q-tip against the inside cheek of an
individual’s mouth to collect some skin cells.” Maryland v. King,
569 U.S. 435, 444 (2013) (citation omitted). “The procedure is quick
and painless.” Id.

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BACKGROUND 2
¶5 A few days prior to Kelbach’s murder, Evans accused his
fiancée of cheating on him with Kelbach and sent her a series of
explicit text messages. In them, Evans wrote that he knew it was
Kelbach’s “old ass u been going to see sneaky” and that he was
“going on ah ram page I know where dat old fuck live.” Evans
also warned his fiancée, “I told u u cheat u die it was ur choice u
chose.” His fiancée did not respond.
¶6 On the day of Kelbach’s murder, Evans returned to Salt
Lake City from an overnight trip to Wendover, Nevada with a
female friend. Evans and the friend traveled to and from
Wendover in Evans’s silver Infiniti sedan, notable for its oversized
rims. During the trip, Evans wore a red, “59FIFTY,”3 flat-brimmed
L.A. Angels baseball cap.
¶7 Upon returning from Wendover, Evans dropped off his
friend at another friend’s house. He then texted his fiancée a
picture of a black handgun and a message asking her to “just
please be honest wit me for once, please.”
¶8 Later that day, one of Kelbach’s neighbors noticed a silver
sedan with “really large” rims parked in front of Kelbach’s house.
The neighbor observed a man matching Evans’s description and
wearing jeans and a red t-shirt emerge from the vehicle and start
walking toward Kelbach’s house.

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2 Because “[t]he legal analysis of search and seizure cases is
highly fact dependent,” State v. Brake, 2004 UT 95, ¶ 2, 103 P.3d
699, we begin with a detailed recitation of the facts. In doing so,
“we construe the record facts in a light most favorable to the
jury’s verdict,” State v. Maestas, 2012 UT 46, ¶ 3, 299 P.3d 892
(citation omitted) (internal quotation marks omitted), and present
conflicting evidence “only as necessary to understand issues
raised on appeal.” State v. Jeffs, 2010 UT 49, ¶ 3, 243 P.3d 1250
(citation omitted).
3 “59FIFTY” is the “flagship style” of the New Era cap
company and is advertised as “an icon in sport and street
culture.” 59FIFTY Fitted Hats & Caps, NEW ERA CAP,
https://www.neweracap.com/All-Headwear/59FIFTY/c/AHE59F (last
visited Aug. 27, 2021). The style is distinctive for its fitted cap, flat
brim, and gold-sizing sticker. See id.

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¶9 At the time, Kelbach was in his bedroom with a female
guest. The guest and Kelbach heard several loud knocks at
Kelbach’s back door. Kelbach left the bedroom to answer the door
and after a couple of minutes, the guest heard Kelbach say, “I
haven’t seen her, I swear.” Immediately thereafter, the guest
heard a “loud crack,” followed by silence. She went to investigate
and saw the backside of “a darker man with longer hair” wearing
“jeans and a red tank top” walk down the driveway and get in a
silver sedan and drive off. The guest found Kelbach lying face
down next to the door with “blood everywhere.” Kelbach’s face
was swollen, and he did not appear to be breathing. The guest
could smell gunpowder.
¶10 When detectives arrived at the crime scene, they
discovered a red, “59FIFTY,” flat-brimmed L.A. Angels baseball
cap on the ground next to Kelbach. Later that day, Evans picked
up his friend in a Cadillac Escalade, and they drove back to
Wendover. When Evans picked up his friend, he was no longer
wearing his red L.A. Angels hat.
¶11 Two days later, police arrested Evans. Evans denied any
involvement in the shooting and claimed to have been in
Wendover at the time. In a subsequent police interview, Evans
told several lies, including denying having access to his Infiniti on
the day of the murder and denying owning a red L.A. Angels hat.
Police eventually recovered the Infiniti, finding a cell phone inside
and blood on the driver’s side door. Police also recovered four
more cell phones from Evans’s Escalade. They later obtained cell-
site location information for all five phones, which placed Evans
within 200 meters of Kelbach’s home at the time of the shooting.
The Buccal Swab
¶12 The day after Evans’s arrest, a judge signed a search
warrant authorizing investigating officers to take a sample of
Evans’s DNA using a buccal swab. Officers first asked Evans if he
would submit voluntarily to the swab. Evans refused, stating he
wanted his attorney present before giving a DNA sample. Officers
then advised Evans that they had a warrant and “it was up to
[Evans] on how that process went,” but they “preferred it went
voluntar[il]y.” Evans again refused to comply and asked for his
attorney, so officers showed Evans the warrant, read it to him,
and let him look at it.
¶13 Despite being presented with the warrant, Evans forcibly
resisted having his cheek swabbed. He refused to open his mouth
and thrashed and kicked at the officers. In response, officers called
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in additional law enforcement to help. They handcuffed Evans
and placed him in leg irons and a belly chain. The officers applied
“control holds” 4 to control Evans’s thrashing. One officer placed
his foot over Evans’s foot to prevent Evans from kicking the
technician who was attempting to administer the swab. Another
officer pried open Evans’s mouth. It ultimately took “four or five
pretty large detectives” 5 to hold Evans still so that the technician
could reach into his mouth to perform the swab.
¶14 The results of the DNA test showed that the odds of the
recovered baseball cap having been worn by someone other than
Evans were 1 in 227,000. The results also showed that Evans was a
possible contributor to DNA found on a broken piece of fence
leading to Kelbach’s back door.
The Trial
¶15 The State charged Evans with murder, aggravated
burglary, and possession of a weapon by a restricted person. Prior
to trial, Evans moved to suppress the DNA evidence obtained
from the buccal swab on the grounds that the officers had used
unreasonable force in obtaining it. He did not contest the validity
of the search warrant itself. The district court denied Evans’s
motion, concluding that the force used by the officers “was
reasonable because it was no more than was necessary” to counter
Evans’s resistance.
¶16 The case proceeded to trial. In addition to the DNA
evidence, the State’s evidence included, among other things,
surveillance videos and cell-site location information confirming
Evans had driven from Wendover to Salt Lake City on the day of
the murder; testimony from two witnesses placing a man
matching Evans’s description at Kelbach’s home around the time
of the murder; testimony from two of Evans’s cellmates that
Evans had confessed to the murder; the presence of the red
baseball cap—in Evans’s size and matching one he wore in a

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4 The record contains no information describing the control
holds, other than the district court’s finding that they were “used
to control the thrashing of [Evans] as he resisted the buccal swab.”
5 Witness testimony alternatively described the number of
officers required to hold Evans down as “four or five” and “five
or six.”

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photograph—at the crime scene; and the text messages and other
communications about Kelbach that Evans sent to his fiancée.
After a five-day trial, a jury found Evans guilty on all charges.
The Appeal
¶17 Evans appealed. Alongside multiple other claims, Evans
argued that the district court erred in denying his motion to
suppress the DNA evidence. Specifically, Evans contended that
the search warrant did not—either expressly or implicitly—give
police officers the authority to obtain his DNA by means of force,
and that even if it did, the force that police officers used to collect
the sample was excessive and in violation of his rights under the
Fourth Amendment of the United States Constitution and Article
I, section 14 of the Utah Constitution. Evans also made a statutory
claim, arguing that the Utah Legislature did not intend for any
force to be used to obtain a DNA sample under these
circumstances because no applicable rule or statute explicitly
authorized its use.
¶18 The court of appeals found Evans’s arguments
unpersuasive and affirmed. State v. Evans, 2019 UT App 145,
¶¶ 39–40, 449 P.3d 958. It held that the district court had not erred
in denying Evans’s motion to suppress the DNA evidence because
a search warrant implicitly authorizes executing officers to use
reasonable force if necessary, and the force used here was
reasonable. Id. ¶¶ 13–29. The court of appeals also rejected
Evans’s contention that the officers’ use of force was unlawful
because it was not expressly authorized by statute, noting that
any alleged lack of statutory authority had no bearing on whether
the officers’ actions were constitutionally permissible. Id. ¶ 17 n.6.
¶19 Evans petitioned for certiorari, which we granted. We
exercise jurisdiction under Utah Code section 78A-3-102(3)(a).
STANDARDS OF REVIEW
¶20 “On certiorari, this court reviews the decision of the court
of appeals for correctness, giving no deference to its conclusions
of law.” State v. Marquina, 2020 UT 66, ¶ 24, 478 P.3d 37 (citation
omitted). “The correctness of the court of appeals’ decision turns,
in part, on whether it accurately reviewed the trial court’s
decision under the appropriate standard of review.” State v. Levin,
2006 UT 50, ¶ 15, 144 P.3d 1096. “[A] trial court’s decision to grant
or deny a motion to suppress for an alleged Fourth Amendment
violation [is] a mixed question of law and fact.” State v. Fuller,
2014 UT 29, ¶ 17, 332 P.3d 937. Factual findings are reviewed for

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clear error, but legal conclusions are reviewed for correctness. Id.
And “[i]n search and seizure cases, no deference is granted to
either the court of appeals or the district court regarding the
application of law to underlying factual findings.” State v. Alverez,
2006 UT 61, ¶ 8, 147 P.3d 425. Finally, the interpretation of a
statute presents a question of law that we review for correctness.
Castro v. Lemus, 2019 UT 71, ¶ 11, 456 P.3d 750.
ANALYSIS
¶21 We granted certiorari to consider the following issues:
(1) whether the court of appeals erred in affirming the district
court’s denial of Evans’s motion to suppress evidence based on
his Fourth Amendment argument that the police officers lacked
authority to use force,6 and used unreasonable force, in obtaining
a DNA sample pursuant to a warrant; and (2) whether the court of
appeals erred in rejecting Evans’s argument that police officers
must have statutory authorization to use force to obtain a DNA
sample pursuant to a warrant.
¶22 We address Evans’s constitutional argument first.
I. FOURTH AMENDMENT
¶23 Because Evans no longer challenges the court of appeals’
holding that a validly issued search warrant implicitly authorizes
officers to use reasonable force when necessary to execute it, see
supra ¶ 21 n.6, the sole constitutional question before us is
whether the use of force here was reasonable. We conclude that
Evans has not met his burden of showing the force used here was
unreasonable and affirm the court of appeals.
¶24 Evans argues that the detectives employed “excessive
and unreasonable” force to obtain his DNA in contravention of his
rights under the Fourth Amendment of the United States
Constitution and Article I, section 14 of the Utah Constitution. The
Fourth Amendment guarantees the “right of the people to be

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6 On appeal, Evans appeared to contest whether a search
warrant that is silent as to the method of its execution includes
implicit authorization to employ reasonable force when necessary.
The court of appeals held that it does, State v. Evans, 2019 UT App
145, ¶ 19, 449 P.3d 958, and Evans has abandoned this argument
on certiorari. So that part of the court of appeals’ opinion is not
before us.

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secure in their persons . . . against unreasonable searches and
seizures.” U.S. CONST. amend. IV. Our state constitution is
phrased in terms that mirror the text of the Fourth Amendment.
See UTAH CONST. art. I, § 14 (“The right of the people to be secure
in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated . . . .”). Neither party,
however, has argued for a separate analysis under the Utah
Constitution, and we therefore address the issue solely under the
Fourth Amendment. 7
¶25 It is axiomatic that “the ‘touchstone of the Fourth
Amendment is reasonableness.’” Ohio v. Robinette, 519 U.S. 33, 39
(1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)).
“Reasonableness, in turn, is measured in objective terms by
examining the totality of the circumstances,” id., and depends “on
a balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law officers,”
State v. Warren, 2003 UT 36, ¶ 31, 78 P.3d 590 (quoting United
States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
¶26 To be reasonable, a search must be (1) “lawful at its
inception,” and (2) “executed in a reasonable manner.” Illinois v.
Caballes, 543 U.S. 405, 407–08 (2005). When challenged, the
government “bears the burden of proving that its warrantless
actions were justified.” United States v. Carhee, 27 F.3d 1493, 1496
(10th Cir. 1994). But a “search pursuant to a warrant . . . is
presumed reasonable because such warrants may issue only upon
a showing of probable cause.” Walczyk v. Rio, 496 F.3d 139, 155–56
(2d Cir. 2007) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978));
see also United States v. Leon, 468 U.S. 897, 913–14 (1984) (noting
that a warrant issued by an impartial magistrate provides a
“reliable safeguard against improper searches”).
¶27 Accordingly, in instances like the one here, where the
challenged search was lawful at its inception, the burden of proof
shifts to the defendant to show its execution was unreasonable.
See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978) (“The proponent of
a motion to suppress has the burden of establishing that his own
Fourth Amendment rights were violated by the challenged search
or seizure.”); Carhee, 27 F.3d at 1496 (“[I]f the search or seizure

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7 The court of appeals likewise rejected Evans’s state
constitutional claims as inadequately briefed. Id. ¶ 17 n.5.

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was pursuant to a warrant, the defendant has the burden of
proof.” (citation omitted)).
¶28 While “it is generally left to the discretion of the
executing officers to determine the details of how best to proceed
with the performance of a search authorized by warrant,” Dalia v.
United States, 441 U.S. 238, 257 (1979), a lawful search may become
unreasonable if the force used to conduct it is excessive, see
Caballes, 543 U.S. at 407 (“[A search] lawful at its inception can
violate the Fourth Amendment if its manner of execution
unreasonably infringes interests protected by the Constitution.”);
Dalia, 441 U.S. at 258 (“[T]he manner in which a warrant is
executed is subject to later judicial review as to its
reasonableness.”). And although “officers may take reasonable
action to secure the premises and to ensure their own safety and
the efficacy of the search” when executing a warrant, “the use of
excessive force or restraints that cause unnecessary pain or are
imposed for a prolonged and unnecessary period of time” are
unreasonable. Los Angeles Cnty., California v. Rettele, 550 U.S. 609,
614 (2007).
¶29 In their briefing to the court of appeals, both parties
applied factors articulated by the United States Supreme Court in
Winston v. Lee, 470 U.S. 753 (1985), to assess whether the search
here was executed reasonably. In Winston, the Supreme Court
evaluated the reasonableness of a search warrant application
seeking to surgically remove a bullet from a suspect’s body. Id. at
755–58. But the court of appeals held that the Winston “test,”
which focuses primarily on the search procedure itself, “is more
properly used to assess the reasonableness of a search procedure
that is either proposed to be used pursuant to a requested warrant
or that has been used already, without judicial pre-approval, in an
exigent situation.” State v. Evans, 2019 UT App 145, ¶ 22 n.7, 449
P.3d 958.
¶30 The court of appeals then relied on factors articulated in
Graham v. Connor, 490 U.S. 386 (1989), in which the Supreme Court
evaluated a claim that officers had used excessive force during an
investigatory stop, to assess the reasonableness of the force used
here. See Evans, 2019 UT App 145, ¶¶ 22–29. In doing so, the court
of appeals concluded that Graham is “the better test” with which
to evaluate circumstances where “a warrant has already been
properly obtained, and the propriety of the search procedure (e.g.,
a buccal swab) authorized by that warrant is uncontested.” Id.
¶ 22 n.7.

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¶31 On certiorari, Evans argues that the court of appeals
applied the wrong standard. He urges us to employ instead the
factors enumerated in Winston and find the force used to obtain
his DNA unreasonable. We therefore begin by analyzing which
standard should be applied to the use of force in this case, before
turning to whether such force violated Evans’s Fourth
Amendment rights.
A. Reasonableness Standard
¶32 Evans argues that the court of appeals’ reliance on
Graham was improper because that case involved the use of force
during an investigative stop (a seizure) without an arrest warrant,
and the force at issue in this case was used to obtain DNA (a
search) pursuant to a warrant. The circumstances here, Evans
reasons, are better analyzed under the Winston factors.
¶33 In Winston, the Supreme Court evaluated the
reasonableness of a proposed surgical intrusion into a suspect’s
body to recover likely evidence of a crime. 470 U.S. at 755–58; see
supra ¶ 29. In doing so, the Court emphasized that “[t]he
overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by
the State.” Winston, 470 U.S. at 760 (alteration in original) (quoting
Schmerber v. California, 384 U.S. 757, 767 (1966)). And it stated that
“[t]he reasonableness of surgical intrusions beneath the skin
depends on a case-by-case approach, in which the individual’s
interests in privacy and security are weighed against society’s
interests in conducting the procedure.” Id. The Winston Court then
identified as relevant to “analyzing the magnitude of the
intrusion”: (1) “the extent to which the procedure may threaten
the safety or health of the individual” and (2) “the extent of
intrusion upon the individual’s dignitary interests in personal
privacy and bodily integrity,” to be weighed against (3) “the
community’s interest in fairly and accurately determining guilt or
innocence.” Id. at 761–62. 8

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8 The Supreme Court ultimately held that the surgery
proposed in Winston was unreasonable under the Fourth
Amendment, noting that it required the suspect to be put under
general anesthesia, entailed medical risks subject to considerable
dispute, and was sought despite the existence of other evidence.
Winston v. Lee, 470 U.S. 753, 763–66 (1985).

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¶34 Because Winston involved a novel kind of search, the
Supreme Court’s focus in that case was the reasonableness of the
search procedure itself. And in this regard, we agree with our
court of appeals that some of the factors highlighted by the
Winston Court make more sense when determining whether a
proposed search procedure is reasonable, and do not precisely fit
the circumstances here, where we are asked to evaluate only the
reasonableness of the force used in executing the search.
¶35 In Graham, on the other hand, the Supreme Court
assessed whether law enforcement officers had used excessive
force during an investigative stop. 490 U.S. at 388–89; see supra
¶ 30. The Court held that “all claims that law enforcement officers
have used excessive force . . . in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’
standard.” Id. at 395. The Court then stated that an assessment of
reasonableness requires a balancing of “the nature and quality of
the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.” Id. at
396 (citation omitted) (internal quotation marks omitted). And it
went on to explain that because Fourth Amendment
reasonableness “is not capable of precise definition or mechanical
application,” a proper reasonableness determination “requires
careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or
others, and whether he [or she] is actively resisting arrest or
attempting to evade arrest by flight.” Id. (citation omitted).
¶36 The court of appeals found the factors identified in
Graham to be more relevant to the facts here. 9 Evans, 2019 UT App
145, ¶¶ 22–29. And its reliance on Graham was not erroneous.
Graham provides helpful guidance on how to assess claims of
excessive force under the Fourth Amendment. Indeed, the
Supreme Court has looked to Graham when evaluating whether

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9 In making this determination, however, the court of appeals
noted that because of “the similarity between the two Graham
factors and the latter two Winston factors,” the outcome here
would remain “the same under either analysis.” Evans, 2019 UT
App 145, ¶ 22 n.7.

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law enforcement officers executed a search warrant in an
unreasonable manner. See, e.g., Rettele, 550 U.S. at 614.
¶37 We conclude that both Winston and Graham provide
insight to the extent that they shed light on the general Fourth
Amendment reasonableness standard. But every specific factor
weighed in those cases is not necessarily relevant here, because
the circumstances in this case differ and because Fourth
Amendment reasonableness is fact-specific.
¶38 The Supreme Court has “consistently eschewed bright-
line rules” when assessing the reasonableness of official conduct
under the Fourth Amendment, “instead emphasizing the fact-
specific nature of the reasonableness inquiry.” Robinette, 519 U.S.
at 39. And we have likewise emphasized that “[i]n defining the
scope of Fourth Amendment rights, there is no ready test for
determining reasonableness other than by balancing the need to
search . . . against the invasion which the search . . . entails.” State
v. Harmon, 910 P.2d 1196, 1202 (1995) (citations omitted) (internal
quotation marks omitted).
¶39 Fundamentally, any determination of reasonableness
hinges on a balancing of the public interest on one hand and
personal liberty on the other. This balance necessarily depends on
context. New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). And a
variety of factors—including at times those articulated in Graham
and Winston—may be relevant to a reasonableness assessment.
¶40 Here, because the propriety of the search procedure itself
is not at issue, the only question before us is whether the search
was “executed in a reasonable manner.” Caballes, 543 U.S. at 408.
Considerations that are relevant under these circumstances
include:
• the nature and extent of the resistance officers faced,
see Graham, 490 U.S. at 396;
• whether the resistance jeopardized the safety of the
officers or others, see id.; Rettele, 550 U.S. at 614;
• whether the resistance prevented the officers from
conducting the search, see Rettele, 550 U.S. at 614
(officers may take action necessary to “ensure . . . the
efficacy of the search”);
• whether the force used endangered the suspect’s
health or safety or physically injured him or her, see

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Winston, 470 U.S. at 761; State v. Alverez, 2006 UT 61,
¶ 31, 147 P.3d 425; and
• whether the force used inflicted unnecessary pain,
was unnecessarily prolonged, or was otherwise out
of proportion to the resistance the officers faced, see
Rettele, 550 U.S. at 614.
¶41 But we emphasize that these considerations constitute
neither an exhaustive list nor a multi-pronged test. We simply
find them to be relevant to determining whether the officers used
reasonable force under these specific circumstances. The ultimate
barometer of Fourth Amendment reasonableness remains a
careful and objective weighing of the public interest on one hand
and the individual’s Fourth Amendment rights on the other, in
light of the totality of the circumstances. Warren, 2003 UT 36, ¶ 31.
B. Application
¶42 Because it is undisputed that the search in this case was
supported by a valid warrant and thus lawful at its inception, the
burden of proof falls on Evans. See supra ¶¶ 15, 27. Evans
contends that the officers’ use of force to obtain his DNA was
excessive and therefore unreasonable under the Fourth
Amendment. He points out that he was placed in handcuffs, leg
irons, and a belly chain; and that five or six “pretty large”
detectives held him down, pried his mouth open, and applied a
“control hold.” As the court of appeals observed, Evans “asserts,
no doubt accurately, that these actions caused him pain.” Evans,
2019 UT App 145, ¶ 21.
¶43 But the record also indicates that Evans’s active and
physical resistance both preceded and compelled the use of some
force to obtain his DNA. The record shows that when the officers
attempted to execute the warrant, Evans thrashed, kicked, and
clenched his mouth shut. And the testimony of one of the officers
indicates that Evans’s resistance posed a threat to the safety of
others in the room—including the officers and the technician
attempting to perform the buccal swab—and impeded their
ability to execute the warrant:
Q: And you indicated that the physical fight, at least,
that he put up was the worst you've ever
experienced; is that correct?
A: I’ve never had nobody so uncooperative in the 27
years. There’s been some that have said they want
an attorney. There’s some that have said, you know,

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they don’t want to cooperate. But to the point of
moving out tables and bringing in four or five pretty
large detectives to physically hold him down to
obtain that, I've never had that in my career before,
no.
¶44 Evans does not deny that the force used here was
deployed to keep him still in order to protect those around him
and permit the technician to perform the swab. Likewise, Evans
does not deny that the handcuffs, leg irons, and belly chain placed
on him were designed to restrain his limbs and body. And the
district court found that “[t]he control hold itself was used to
control the thrashing of [Evans] as he resisted the buccal swab.
The officer placing his foot on [Evans’s] foot did so specifically to
prevent [Evans] from kicking the technician who was trying to
obtain the swab.”
¶45 We also note that the officers gave Evans a chance to
voluntarily comply. When he initially refused to do so, the officers
showed him the warrant and read it to him. And they did not use
force until Evans actively resisted.
¶46 Evans has offered no evidence that the officers’ use of
force posed any concrete risk to his health or safety. He admits
that the control hold “is unfortunately not described [on the
record] either in the manner of its use or its effect.” And he offers
only speculation that the control hold could possibly “injure the
person’s wrist if it were continued with sufficient force for a
sufficient amount of time.” Cf. Winston, 470 U.S. at 761. But Evans
provides no supporting evidence for this statement, nor does he
indicate that the officers employed the hold for any longer than
necessary—much less for a “sufficient amount of time” or with
“sufficient force” to pose a risk of injury. Evans also concedes that
the officers did not, in fact, injure him.
¶47 Evans has similarly failed to demonstrate that any pain
caused by the officers’ efforts to restrain him was more painful or
prolonged than necessary to subdue him in order to perform a
minimally-intrusive and judicially-sanctioned buccal swab. Cf.
Rettele, 550 U.S. at 614; King, 569 U.S. at 465–66. Evans makes
speculative statements about the likely pain inflicted on him by
the officers’ use of force—the “handcuffs [were] no doubt tight
and painful”; “the whole reason for [the control hold] is to inflict
extreme pain”; he “could only have been in a state of extreme
discomfort” when the control hold was implemented, because he
was already handcuffed with his feet restrained and in a belly

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chain. But he fails to provide any record evidence supporting
these claims. And he has provided no evidence that the officers
restrained him for any longer than was necessary to perform the
buccal swab. 10
¶48 Again, the touchstone of the Fourth Amendment is
reasonableness. See Robinette, 519 U.S. at 39. And Evans—as the
proponent of the claim that a Fourth Amendment violation
occurred—has failed to provide sufficient information to show
that the force used to counter his physical resistance was
unreasonable. Accordingly, Evans has not met his burden of
demonstrating that the execution of the search in this instance
amounted to a constitutional violation.
¶49 But while Evans has failed to meet his burden to prove a
constitutional violation occurred here, we emphasize that any
allegation of excessive force during the execution of a search
warrant must be carefully examined under the Fourth
Amendment to ensure that the individual’s right to be free from
unreasonable force during a search has not been violated.
¶50 Because, on the face of the record before us, we lack the
information to find that a constitutional violation occurred in this
case, we do not reach the question of whether any error would
require reversal.
II. STATUTORY AUTHORIZATION
¶51 We next turn to Evans’s argument that the officers
executing the search warrant here required statutory
authorization to use any force to obtain a buccal swab, and that

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10 Evans does, however, argue that given his repeated requests
for the presence of an attorney, allowing him to confer with his
lawyer might have diffused the situation without a resort to force.
We do not disagree with this contention. But nothing in the
Fourth Amendment or our case law requires officers to accede to a
defendant where the presence of an attorney is not
constitutionally mandated and where a duly executed warrant
authorizes officers to act immediately. And while we agree with
Evans’s assessment that there was no extreme exigency to the
circumstances here, neither was there any indication that he
would be more compliant at a later date.

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Opinion of the Court

the Utah Legislature has chosen to prohibit even reasonable force
in this context.
¶52 In the court of appeals, Evans argued that any use of
force to obtain the DNA sample in this case “would have to have
been authorized by an applicable rule or statute,” because “the
search warrant itself did not authorize the detectives to use
physical force.” He then directed that court’s attention to rule 40
of our rules of criminal procedure (governing the issuance of
search warrants) and two statutory provisions (authorizing
reasonable force under certain circumstances) and argued that
because “no such rule or statute” explicitly sanctioned the use of
force when performing a buccal swab pursuant to a warrant, any
force used here was necessarily unlawful.
¶53 The court of appeals rejected this argument, observing
that the United States Supreme Court has “made clear that search
warrants need not specify the ‘precise manner in which they are
to be executed’” and has “generally left to the discretion of the
executing officers . . . the details of how best to proceed with the
performance of a search authorized by warrant.” State v. Evans,
2019 UT App 145, ¶ 16, 449 P.3d 958 (quoting Dalia v. United
States, 441 U.S. 238, 257 (1979)). It then concluded that although
the statutes cited by Evans “do not provide independent
authorization for the officers’ use of force in collecting the DNA
sample” in this case, “winning this point does not help Evans in
the long run, because it does not follow from the officers’ lack of
statutory authority to use reasonable force that their actions were
constitutionally impermissible.” Id. ¶ 17 n.6.
¶54 Evans reiterates his statutory arguments here. He
references criminal rule 40 and the two statutes providing for the
use of reasonable force in specific contexts. And he again asserts
that this rule and these statutes do not permit law enforcement
officers to use any force when obtaining a buccal swab pursuant
to a warrant. He then invokes the inclusio unius est exclusio
alterius 11 canon of statutory construction to argue that, because the
two statutes he references authorize reasonable force in certain
contexts, the negative implication holds that these statutes

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11 Inclusio unius est exclusio alterius (inclusio unius) is more
commonly cited as expressio unius est exclusio alterius (expressio
unius), and we use the more commonly cited terminology herein.

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prohibit any use of force in other, unmentioned contexts—such as
the collection of a buccal swab pursuant to a warrant.
¶55 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.
And the language of the two statutes he identifies does not
support a negative inference that they implicitly prohibit the use
of reasonable force under the circumstances here.
A. Explicit Statutory Authority
¶56 We first address Evans’s argument that criminal rule 40
and Utah Code sections 53-10-404 and 77-23-210 do not explicitly
authorize the use of reasonable or excessive force in the execution
of a buccal swab warrant. 12
¶57 Rule 40 of our rules of criminal procedure governs the
issuance of search warrants. UTAH R. CRIM. P. 40. Evans states that
this rule “provides no helpful guidance as to the use of force in
[the] execution of a search warrant on a person.” He is correct, to
the extent that the rule simply does not address the matter. Our
discussion of the use of force in the execution of searches is
generally found in our case law, not in this rule. See, e.g., State v.
Alverez, 2006 UT 61, ¶ 32, 147 P.3d 425 (analyzing the force used to
prevent a suspect from swallowing evidence held in his mouth);
State v. Hodson, 907 P.2d 1155, 1157–58 (Utah 1995) (analyzing the
force used to compel a suspect to spit out the contents of his
mouth).
¶58 Evans next references Utah Code section 53-10-404. This
statute authorizes the administrative, warrantless collection of
DNA samples from individuals booked on or convicted of “any
violent felony” as defined by Utah Code section 53-10-403(2)(c)(i)

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12 We note that at several points in his brief, Evans refers to
instances of “excessive force” that might be countenanced by
“express authority” for its use. But “excessive force” by its very
terms can never be reasonable and is thus never authorized. See
Force, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
“excessive force” as “[u]nreasonable or unnecessary force under
the circumstances”).

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(2014). 13 And it permits “[t]he responsible agency [to] use
reasonable force . . . to collect the DNA sample if the person
refuses to cooperate with the collection.” Id. § 53-10-404(3)(c)
(2014). It does not, however, speak to the collection of DNA
samples pursuant to a warrant. So Evans’s assertion that this
statute does not authorize reasonable force in the execution of a
warrant for a buccal swab is accurate, in that the statute does not
address that circumstance.
¶59 Lastly, Evans cites to Utah Code section 77-23-210, which
relates to searches of physical structures or other enclosures
pursuant to a warrant. During the relevant period, the statute
provided that officers could use force “reasonably necessary to
enter” a “building, room, conveyance, compartment, or other
enclosure” under certain circumstances after the issuance of a
search warrant. UTAH CODE § 77-23-210 (2013). Evans observes
that these provisions do not authorize the use of force in executing
a warrant for a buccal swab. We agree. The statute pertains only
to the search of physical structures or other enclosures.
¶60 While we agree with Evans’s observation that criminal
rule 40 and Utah Code sections 53-10-404 and 77-23-210 do not
explicitly authorize the use of reasonable force in the execution of
a warrant for a buccal swab, we also agree with the court of
appeals that this reasoning does not get Evans where he wants to
go. See Evans, 2019 UT App 145, ¶ 17 n.6. Evans assumes a
necessary premise: that law enforcement officers must have
statutory authorization before resorting to reasonable force when
executing a warrant. But he has not provided any legal basis or
analysis for that proposition. The Supreme Court has explained
that “it is generally left to the discretion of the executing officers
to determine the details of how best to proceed with the
performance of a search authorized by warrant.” Dalia, 441 U.S. at
257. And importantly, Evans has not disputed the court of
appeals’ holding that “a validly issued search warrant carries with
it an implicit authorization for the use of reasonable force, when
necessary, in its execution.” Evans, 2019 UT App 145, ¶ 19.
Accordingly, we agree with the court of appeals that this statutory
argument “does not help Evans in the long run.” Id. ¶ 17 n.6.

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13 We cite to the version of the Utah Code in effect at the time
of the crime.

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B. Negative Implication
¶61 Evans next relies on the expressio unius canon of statutory
construction to argue that the legislature’s explicit authorization
of reasonable force in the two specific contexts laid out in sections
53-10-404 and 77-23-210 should be read to prohibit the use of
reasonable force in circumstances that are not mentioned in those
statutes. This is a question of statutory interpretation. Our
primary objective when construing a statute is to evince the intent
of the legislature. Castro v. Lemus, 2019 UT 71, ¶ 17, 456 P.3d 750.
Accordingly, the function of canons of construction “is to assist in
ascertaining the true intent and purpose of the statute.” Salt Lake
City v. Salt Lake Cnty., 568 P.2d 738, 741 (Utah 1977).
¶62 The expressio unius canon holds that “the statutory
expression of one term or limitation is understood as an exclusion
of others.” Nevares v. M.L.S., 2015 UT 34, ¶ 31, 345 P.3d 719. This
canon “does not apply to every statutory listing or grouping.”
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Rather, “it
has force only when the items expressed are members of an
associated group or series, justifying the inference that items not
mentioned were excluded by deliberate choice [and] not
inadvertence.” Id. (citation omitted) (internal quotation marks
omitted). In this regard, expressio unius
depends on identifying a series of two or more terms
or things that should be understood to go hand in
hand, which is abridged in circumstances
supporting a sensible inference that the term left out
must have been meant to be excluded . . . [and]
properly applies only when in the natural
association of ideas in the mind of the reader that
which is expressed is so set over by way of strong
contrast to that which is omitted that the contrast
enforces the affirmative inference.
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (citations
omitted) (internal quotation marks omitted).
¶63 In other words, inferences from statutory silence
necessarily depend on context. Marx v. Gen. Revenue Corp., 568 U.S
371, 381 (2013). And sections 53-10-404 and 77-23-210 do not offer
a context that compels such an inference.
¶64 As discussed, section 53-10-404 and its associated
provisions establish an administrative procedure for collecting
DNA samples from certain persons without a warrant. The statute

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Opinion of the Court

contains no provisions related to obtaining DNA pursuant to a
warrant or the execution of search warrants more generally.
¶65 Evans provides no argument as to why the statutory
language here should be read to infer that by establishing an
administrative procedure for a search that does not require a
warrant, the legislature implicitly intended to reach and regulate
searches conducted pursuant to warrants. See N.L.R.B. v. SW Gen.,
Inc., 137 S. Ct. 929, 940 (2017) (“The expressio unius canon applies
only when circumstances support[] a sensible inference that the
term left out must have been meant to be excluded.” (alteration in
original) (citation omitted) (internal quotation marks omitted)).
Nowhere does section 53-10-404 purport to comprehensively
regulate when reasonable force is permissible in the execution of
search warrants. And the only thing we infer from the statute’s
silence on this matter is that the statute is simply about something
else.
¶66 The other statute Evans relies upon, section 77-23-210,
creates rules for a specific setting: the search of physical structures
and other enclosures. It contains no provisions about the
execution of search warrants or the use of force outside of this
context.
¶67 And again, Evans has provided no textual basis to
sensibly infer that the legislature intended this statute’s regulation
of the search of a building to implicitly limit the search of a
person. Like section 53-10-404, section 77-23-210 does not purport
to comprehensively address when reasonable force is permissible
in the execution of search warrants more generally. We infer from
this silence only that the legislature intended to limit the reach of
this statute to the search of physical structures and enclosures.
¶68 As the Supreme Court has made clear, expressio unius
“does not apply unless it is fair to suppose that [the legislature]
considered the unnamed possibility and meant to say no to it.”
Marx, 568 U.S. at 381 (citation omitted) (internal quotation marks
omitted). Sections 53-10-404 and 77-23-210 do not give rise to the
negative inference Evans advances.
¶69 Accordingly, we affirm the court of appeals’ rejection of
Evans’s statutory arguments.
CONCLUSION
¶70 We hold that the court of appeals did not err in affirming
the district court’s denial of Evans’s motion to suppress evidence

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Opinion of the Court

obtained from the buccal swab under the Fourth Amendment.
Nor did it err in rejecting Evans’s statutory arguments.
¶71 We affirm.

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