13-3905
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13-3905. Detention for obtaining evidence of identifying physical characteristics; definition A. A peace officer who is engaged, within the scope of the officer's authority, in the investigation of a felony may make written application upon oath or affirmation to a magistrate for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the magistrate presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. The magistrate may issue the order on a showing of all of the following: 1. Reasonable cause for belief that a felony has been committed. 2. Procurement of evidence of identifying physical characteristics from an identified or particularly described individual may contribute to the identification of the individual who committed such offense. 3. The evidence cannot otherwise be obtained by the investigating officer from either the law enforcement agency employing the affiant or the department of public safety. B. Any order issued pursuant to this section shall specify the following: 1. The alleged criminal offense that is the subject of the application. 2. The specific type of identifying physical characteristic evidence that is sought. 3. The relevance of the evidence to the particular investigation. 4. The identity or description of the individual who is to be detained for obtaining the evidence. 5. The name and official status of the investigative officer authorized to detain the individual and obtain the evidence. 6. The place at which the evidence will be obtained. 7. The time that the evidence shall be taken, except that no person may be detained for a period of more than three hours for the purpose of taking evidence. 8. The period of time, not exceeding fifteen days, during which the order shall continue in force and effect. If the order is not executed within fifteen days and is not extended by the magistrate, a new order may be issued pursuant to this section. The magistrate may extend the time for execution of the order for no longer than fifteen days. C. The order issued pursuant to this section shall be returned to the court not later than thirty days after its date of issuance and shall be accompanied by a sworn statement indicating the type of evidence taken. The court shall give to the person from whom the evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any. D. In lieu of, or in addition to, a written application as provided in subsection A, the magistrate may take an oral statement under oath which shall be recorded on tape or wire or by other comparable method. This statement may be given in person to a magistrate or by telephone, radio or other means of electronic communication. This statement is deemed an application for the purpose of issuance of an order authorizing the temporary detention for the purpose of obtaining evidence of identifying physical characteristics. If a recording of the sworn statement is made, the statement shall be transcribed at the request of the court or either party, certified by the magistrate and filed with the court. E. The magistrate may orally authorize a peace officer to sign the magistrate's name on an application if the peace officer applying for the application is not in the presence of the magistrate. The application shall be called a duplicate original application and shall be deemed an application for the purpose of this section. In such cases the magistrate shall cause to be made an original application and shall enter the exact time of the issuance of the duplicate application on the face of the original application. On the return of the duplicate original application, the magistrate shall file the original application and the duplicate original application as provided for in this section. F. A magistrate may affix the magistrate's signature on a fax of an original application. The fax of the original application is deemed to be an application for the purposes of this section. On return of the fax of the original application, the magistrate shall file the original application and the fax of the original application as provided in this section. G. For the purposes of this section, "identifying physical characteristics" includes, but is not limited to, the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance or photographs of an individual. |