People v Serges

Michigan Supreme Court Lansing, Michigan Syllabus Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kimberly K. Muschong PEOPLE v SERGES Docket No. 167154. Argued on application for leave to appeal January 21, 2026. Decided July 30, 2026. David H. Serges was convicted following a jury trial in the Genesee Circuit Court of first- degree murder, MCL 750.316, in connection with the death of an elderly woman in her home; an earlier trial on the same charge had resulted in a hung jury. The victim, who died from multiple blunt force traumas to her head, was discovered by a neighbor; a window of several days was identified between when she was last seen and when her body was found. Although no information from the crime scene was found that identified defendant as a potential suspect, several individuals mentioned that they had seen defendant in the neighborhood during the period of time when the victim might have been killed, and defendant had previously done housework and yardwork for the victim. When taken into custody and questioned, defendant denied any involvement in the victim’s murder. Defendant was arrested on November 29, 2017; later, there was a question whether he had been arrested for a 2016 unrelated misdemeanor charge, as the police report stated, or on suspicion of homicide, as a detective later testified. On November 30, defendant was arraigned on the misdemeanor charge, and the detective collected defendant’s pants and other effects from the jail property room and took them into police custody. More than a month later, and without first seeking a search warrant or defendant’s consent, the police department submitted defendant’s pants for deoxyribonucleic acid (DNA) testing. The lab determined that a small amount of blood found on the pants was consistent with the victim’s DNA. At the second trial, the defense theory was that the minuscule amount of blood found on defendant’s pants did not logically connect him to the bloody crime scene; defense counsel did not move to suppress the DNA test results. After he was convicted and sentenced, defendant moved for a new trial or an evidentiary hearing, arguing in relevant part that the DNA evidence from his pants should have been suppressed on grounds that the DNA testing constituted an unconstitutional search and seizure and that trial counsel was ineffective for failing to move to suppress this evidence. The court, Elizabeth A. Kelly, J., denied the motion. Defendant appealed by right in the Court of Appeals and filed a motion to remand for an evidentiary hearing to develop his claim that trial counsel was ineffective, which the Court granted. After the hearing, the trial court denied the motion for new trial, holding that trial counsel had provided effective assistance; relevant to the issues here, the court found that defendant initially had been arrested and detained on the unrelated misdemeanor charge. The Court of Appeals, N. P. HOOD, P.J., and REDFORD, J. (SWARTZLE, J., concurring dubitante), affirmed defendant’s conviction and sentence. 351 Mich App 88 (2024). Defendant sought leave to appeal in the Supreme Court, which ordered and heard oral argument on the application. ___ Mich ___; 20 NW3d 864 (2025). In an opinion by Justice BERNSTEIN, joined by Chief Justice CAVANAGH and Justices WELCH, BOLDEN, and THOMAS, the Supreme Court, in lieu of granting leave to appeal, held: The DNA testing of defendant’s effects without a warrant or defendant’s consent constituted an unreasonable search under Article 1, § 11 of Michigan’s 1963 Constitution. The DNA testing of defendant’s pants without a warrant was not part of a reasonable inventory search, nor was it justified under the search-incident-to-arrest exception to the warrant requirement, especially when the arrest was for a charge unrelated to the reason for the search. Trial counsel was ineffective because he failed to move to suppress the fruits of this unconstitutional search; defendant was prejudiced by counsel’s errors because the DNA evidence was the only physical evidence that connected defendant to the scene of the crime. 1. The DNA testing of defendant’s effects constituted a search under the trespass approach, and it was an unreasonable search in violation of Const 1963, art 1, § 11, because it took place without defendant’s consent or a warrant. Under the trespass approach, a search occurs when the government occupies private property for the purpose of obtaining information. In other words, courts consider whether there was a physical trespass on a constitutionally protected area and whether there was an attempt to obtain information. The DNA testing of defendant’s pants was a search under both the Fourth Amendment and Article 1, § 11. Defendant’s effects or possessions were no less constitutionally protected than his own person, and the DNA testing was ordered by the police to obtain information. Because the DNA testing was a search under the trespass approach, it was unnecessary to consider whether and to what degree defendant had a reasonable expectation of privacy either in his own pants that were worn in public or any blood found on those pants. 2. The warrantless search of defendant’s pants was not reasonable under the inventory- search exception. It is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. DNA testing, however, is not part of established inventory procedure, and the police in this case collected defendant’s effects for an investigative search for which they had neither consent nor a warrant. DNA testing is also not necessary for the protection of the owner’s property while it remains in police custody, for the protection of the police against claims or disputes over lost or stolen property, or for the protection of the police from potential danger. Here, there was no indication in the record that DNA testing of defendant’s effects was a standardized procedure when an individual is arrested and detained in jail. Further, the DNA testing of defendant’s effects weeks later by the police department did not contribute to any interests in safeguarding defendant’s property or protecting the police from danger.  3. The warrantless search of defendant’s pants was not reasonable under the search- incident-to-arrest exception. The exception permits warrantless searches incident to custodial arrests, and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. DNA testing of a defendant’s effects does nothing to further the interests of public safety. Under People v Carr, 370 Mich 251 (1963), and People v Trudeau, 385 Mich 276 (1971), where a defendant has been arrested and incarcerated for one crime, the search-incident- to-arrest exception does not apply under Const 1963, art 1, § 11, when the defendant is then searched for evidence of another crime. Here, defendant was arrested with respect to one crime, and his effects were then searched without a warrant in connection with another crime, contrary to the holding in Carr and in violation of Const 1963, art 1, § 11. The Court of Appeals necessarily erred when it substituted its judgment for that of the trial court and concluded that defendant was initially arrested on suspicion of homicide rather than the unrelated misdemeanor charge. 4. Defendant was denied effective assistance of counsel. Trial counsel’s failure to move to suppress the fruits of the DNA testing, when existing caselaw would have supported the motion, was an unreasonable decision. Defendant was prejudiced by trial counsel’s errors; but for the admission of the fruits of the DNA test, there was almost nothing tying defendant to the victim’s murder other than a neighbor’s insistence that defendant may have been in the area during that time period. Court of Appeals’ judgment reversed; case remanded to the trial court for further proceedings. Justice ZAHRA, dissenting, disagreed with the majority’s conclusions that the DNA testing of defendant’s pants constituted an unconstitutional search and that defendant’s trial counsel was ineffective. Defendant did not have a reasonable expectation of privacy in his pants because they were lawfully in police custody pursuant to routine inventory procedures. As a result, the police did not conduct a “search” within the meaning of the Fourth Amendment of the federal Constitution when they forensically tested defendant’s pants. Justice ZAHRA disagreed with the majority’s suggestion that Const 1963, art 1, § 11, provides broader protection than the Fourth Amendment under these circumstances, finding no compelling reason to interpret the two provisions differently. Accordingly, Justice ZAHRA looked to extensive caselaw interpreting the Fourth Amendment to guide application of Const 1963, art 1, § 11, to this case, determining that the diminished privacy expectations of prisoners leads to the conclusion that defendant had no reasonable expectation of privacy in this instance. Justice ZAHRA did not agree with the majority’s application of the trespass theory of the Fourth Amendment because it misconstrued the concept of trespass by holding that the police “trespassed” on an article of clothing that was already lawfully in their possession. Justice ZAHRA would have held that no search occurred, that the evidence was properly admitted, and that because defendant failed to demonstrate constitutional error, his claim of ineffective assistance of counsel also failed. Justice HOOD did not participate because he was on the Court of Appeals panel that issued the decision under review.  Michigan Supreme Court Lansing, Michigan OPINION Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood FILED July 30, 2026 STATE OF MICHIGAN SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 167154 DAVID HENRY SERGES, Defendant-Appellant. BEFORE THE ENTIRE BENCH (except HOOD, J.) BERNSTEIN, J. In this case, we consider whether the deoxyribonucleic acid (DNA) testing of defendant’s pants, which occurred without either defendant’s consent or a warrant, was an unreasonable search that violated Article 1, § 11 of Michigan’s 1963 Constitution. We hold that the DNA testing constituted a search and that this search was an unreasonable one because none of the exceptions to the warrant requirement applied. Because we also hold that trial counsel was ineffective for failing to move to suppress the fruits of this search, we reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On November 27, 2017, a neighbor found an elderly widow dead in her home. Upon arrival, the police noted that there was a significant amount of blood at the scene of the crime; blood was found all over the furniture, fixtures, and floor, as well as on the door and in the garage. The medical examiner later determined that the victim had died from multiple blunt force traumas to her head. Given that the victim lived alone, a precise time and date of death could not be determined, although a window of several days was identified between when she was last seen and when her body was found. A single fingerprint was found at the crime scene, but no matches were found. Although no information from the crime scene was found that identified defendant as a potential suspect, in the course of the police investigation, several individuals mentioned that they had seen defendant in the neighborhood during the period of time when the victim might have been killed. Defendant was a heroin addict who had made money by working odd jobs in the neighborhood, including housework and yardwork for the victim. The police took defendant into custody and questioned him. Although defendant admitted to knowing the victim, he denied harming her. Despite denying any involvement in the victim’s murder, defendant was arrested on November 29. There is some debate as to what charges defendant was arrested on. Previously, in 2016, an unrelated misdemeanor charge had been filed against defendant, and later that same year, a bench warrant had been issued after defendant failed to appear for arraignment 2 on that charge. There is a question of whether defendant was arrested in November 2017 for the unrelated misdemeanor charge, as the police report stated, or on suspicion of homicide, as the lead investigator, Detective Eric Freeman, later testified. Following his arrest, defendant’s effects were processed and taken into possession by the jail pending his release. Defendant was arraigned on November 30, 2017, for the misdemeanor charge. On the same day, Detective Freeman collected defendant’s pants and other effects from the jail property room and took them into police custody. Detective Freeman did not seek either a search warrant or defendant’s consent before taking defendant’s effects into police custody. Following defendant’s arrest, Detective Freeman did seek an arrest warrant in connection with the victim’s murder, but the prosecutor denied the request for lack of evidence. Over a month after defendant was taken into custody, on January 19, 2018, the police department submitted a request to the Michigan State Police (MSP) to conduct a DNA test on defendant’s black denim pants. Although defendant had been in custody since the end of November, the police had not obtained either a search warrant or defendant’s consent before submitting the request for DNA testing. On March 8, 2018, the MSP issued a lab report finding that blood from a 15-millimeter by 3- millimeter stain on defendant’s right front pant leg was consistent with the victim’s DNA. On March 12, 2018, a first-degree murder arrest warrant was signed, and defendant was arraigned accordingly the next day. At trial, defense counsel did not move to suppress the results of the DNA test. The defense theory was that the minuscule amount of blood found on defendant’s pants did not logically connect him to the bloody crime scene; the spots on defendant’s pants, which the MSP tested, were so small that they could not be seen with the naked eye. Defense counsel 3 argued that the victim was an aging diabetic who often bled from her feet and that defendant could have brushed against some of the victim’s blood while doing chores inside the house. This first trial ended in a hung jury. The prosecution sought another trial. At the second trial, defense counsel proceeded along much the same lines as in the first trial and did not move to suppress the results of the DNA test. Further, defense counsel suggested that the victim could have died as a result of an accident. This time, the jury convicted defendant of first-degree murder, MCL 750.316(1)(a). The trial court imposed a sentence of life without the possibility of parole. Defendant then moved for a new trial or an evidentiary hearing, arguing in relevant part that the DNA evidence from his pants should have been suppressed on grounds that the DNA testing constituted an unconstitutional search and seizure and that trial counsel was ineffective for failing to move to suppress this evidence. The trial court denied defendant’s motion in an order. Defendant appealed by right in the Court of Appeals and then moved to remand for an evidentiary hearing to develop his claim that trial counsel was ineffective. The Court of Appeals denied the motion “for failure to persuade the Court of the necessity of a remand at this time.” People v Serges, unpublished order of the Court of Appeals, entered February 2, 2022 (Docket No. 355554). Defendant then renewed his motion to remand for an evidentiary hearing. This time the Court of Appeals granted the motion and remanded for an evidentiary hearing, limited to the issues of (1) the admissibility of the results of the forensic analysis of defendant’s clothing worn when he was detained on or about November 30, 2017; and (2) whether trial counsel provided defendant effective assistance by not moving to suppress or exclude evidence of the forensic analysis of defendant’s clothing. [People v Serges, unpublished order of the Court of Appeals, entered December 21, 2022 (Docket No. 355554).] 4 The Court of Appeals retained jurisdiction of the case. The evidentiary hearing was held on February 1, 2023. Both trial counsel and Detective Freeman testified at the hearing. The trial court denied the motion for a new trial, finding that trial counsel had provided effective assistance, and the Court of Appeals affirmed defendant’s conviction and sentence in a published opinion. People v Serges, 351 Mich App 88; 34 NW3d 550 (2024). Judge SWARTZLE concurred dubitante to opine that Michigan’s jurisprudence on warrantless searches of property in the possession of the police was “unsettled.” Id. at 154-155 (SWARTZLE, J., concurring dubitante). Defendant sought leave to appeal in this Court. On May 30, 2025, we ordered oral argument on the application, directing the parties to address: (1) whether the defendant was unlawfully arrested such that his pants should be excluded as the result of an unreasonable seizure under US Const, Am IV or Mich Const 1963, art 1, § 11; (2) if the defendant was lawfully arrested, whether police violated the defendant’s rights under US Const, Am IV or Mich Const 1963, art 1, § 11, by having his pants tested for DNA without a warrant while in possession of the pants due to the defendant’s detention in jail, People v Trudeau, 385 Mich 276[; 187 NW2d 890] (1971); People v Carr, 370 Mich 251[; 121 NW2d 449] (1963); and (3) whether the defendant’s trial attorney rendered ineffective assistance of counsel by failing to file a motion to suppress the evidence obtained as a result of the seizure and testing of the clothing. [People v Serges, ___ Mich ___, ___; 20 NW3d 864, 864 (2025).] II. STANDARD OF REVIEW Defendant argues that trial counsel provided constitutionally ineffective assistance of counsel by not moving to suppress the results of the DNA test. “Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). While factual 5 findings are reviewed for clear error, questions of constitutional law are reviewed de novo. Id.; Johnson v VanderKooi, 509 Mich 524, 534; 983 NW2d 779 (2022). 1 III. UNREASONABLE SEARCH To determine whether defendant was denied the effective assistance of counsel, we must first consider whether the DNA test was an unreasonable search. The Fourth Amendment of the United States Constitution preserves the people’s right to be free from unreasonable searches and seizures. US Const, Am IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). The Michigan Constitution contains a similar provision. Const 1963, art 1, § 11 (“The person, houses, papers, [and] possessions . . . of every person shall be secure from unreasonable searches and seizures.”). “In interpreting our Constitution, we are not bound by the United States Supreme Court’s interpretation of the United States Constitution, even where the language is identical.” People v Goldston, 470 Mich 523, 534; 682 NW2d 479 (2004). 2 While this 1 Because defendant failed to object to the admission of the results of the DNA test at trial, the dissent argues that defendant’s claim of error is unpreserved and subject to plain-error review. However, this fails to take into consideration the fact that defendant also makes a claim of ineffective assistance of counsel. In other words, instead of simply assessing defendant’s unreasonable-search claim for plain error, we assess defendant’s unreasonable- search claim under the ineffective-assistance-of-counsel framework. We note that “[t]he standards for ‘plain error’ review and ineffective assistance of counsel are distinct, and therefore, a defendant can obtain relief for ineffective assistance of counsel even if he or she cannot demonstrate plain error.” People v Hughes, 506 Mich 512, 523; 958 NW2d 98 (2020). 2 Notably, the people of the state of Michigan recently approved a ballot proposal that amended our constitutional provision to clarify that it applies to “electronic data[] and electronic communications.” Proposal 20-2, effective December 19, 2020. Although we acknowledge that this amendment postdates the alleged conduct in this case, it is 6 Court has typically construed Const 1963, art 1, § 11, as providing the same protections as the Fourth Amendment, “[w]e have, on occasion, construed the Michigan Constitution in a manner which results in greater rights than those given by the federal constitution, . . . and where there is compelling reason, we will undoubtedly do so again.” People v Nash, 418 Mich 196, 214-215; 341 NW2d 439 (1983) (opinion by BRICKLEY, J.); see also People v Slaughter, 489 Mich 302, 311; 803 NW2d 171 (2011). Although Nash’s “compelling reason” language has sometimes been interpreted as a hurdle that must be cleared before interpreting the Michigan Constitution differently, we stressed in Sitz v Dep’t of State Police, 443 Mich 744, 758; 506 NW2d 209 (1993), that this language “should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law.” Rather, Nash “compels neither the acceptance of federal interpretation nor its rejection.” Id. at 758-759. Instead, we must “independently analyze our state Constitution to ensure that our citizens are receiving the measure of the protections that they created[.]” People v Tanner, 496 Mich 199, 222 n 15; 853 NW2d 653 (2014). In doing so, we acknowledge that “the history of our jurisprudence” and noteworthy that the language of Const 1963, art 1, § 11, has been explicitly broadened in recent years, as it means that many of the factors suggesting that our state Constitution confers greater protection than its federal counterpart are present here. See People v Tanner, 496 Mich 199, 223 n 17; 853 NW2d 653 (2014) (listing factors to consider when analyzing our state Constitution independently from the federal Constitution, including significant textual differences, state constitutional history, state law preexisting the adoption of the relevant state constitutional provision, and matters of peculiar state interest). While the dissent suggests that the recent amendment simply aligns Const 1963, art 1, § 11, with federal jurisprudence protecting electronic data, the adoption of this explicit language in our state constitutional provision does more than just that, as it ensures that even if federal jurisprudence changes, the rights of Michiganders remain protected. 7 circumstances surrounding the adoption of the provision can form a basis for extending greater protections under our constitutional provision. Sitz, 443 Mich at 776-777. 3 In determining whether an unreasonable search has occurred, the threshold question is whether a search has taken place, because neither the Fourth Amendment nor Const 1963, art 1, § 11, is implicated absent one. In Johnson, we reaffirmed the viability of the trespass approach for determining what constitutes a search. Under the trespass approach, “a search occurs when the government ‘occupie[s] private property for the purpose of obtaining information.’ ” Johnson, 509 Mich at 535 (alteration in Johnson), quoting United States v Jones, 565 US 400, 404; 132 S Ct 945; 8 L Ed 2d 911 (2012). In other words, “we consider whether there was a physical trespass on a constitutionally protected area and whether there was an attempt to obtain information.” Johnson, 509 Mich at 537. The trespass approach exists independently of and alongside the approach articulated in Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), under which “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v United States, 533 US 27, 33; 121 S Ct 2038; 150 L Ed 2d 94 (2001), citing Katz, 389 US at 361 (HARLAN, J., concurring). 3 The dissent worries that we have abandoned the historical analysis in Nash, 418 Mich 196 (opinion by BRICKLEY, J.), which the dissent understands as simply concluding that the readoption of Article 1, § 11, at the 1961 Constitutional Convention represented “no change,” id. at 213. However, this misunderstands the complicated history that Nash uncovered. As highlighted in Sitz, when read in full, Nash also stated that “this Court ‘created a body of state constitutional search and seizure law and adopted an exclusionary rule, all before either was subject to a federal floor,’ ” Sitz, 443 Mich at 758, quoting Nash, 418 Mich at 214, and the adoption of the 1961 Constitution did nothing to abrogate that evolving body of state law. 8  Applying the trespass approach leads us to the simple conclusion that the DNA testing of defendant’s pants was a search. A defendant’s effects or possessions, here his pants, are no less constitutionally protected than his own person, and the DNA testing was ordered by the police to obtain information. 4 Because the trespass approach exists alongside the reasonable-expectation-of-privacy approach, once we have concluded that DNA testing is a search under the trespass approach, there is no need to consider whether and to what degree a defendant has a reasonable expectation of privacy either in his own pants that were worn in public or any blood found on those pants. As we have previously noted: “One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.” Johnson, 509 Mich at 537 (quotation marks omitted), quoting Florida v Jardines, 569 US 1, 11; 133 S Ct 1409; 185 L Ed 2d 495 (2013). Because we have held that the Michigan Constitution provides at least as much protection as the Fourth Amendment, Slaughter, 489 Mich at 311, the DNA testing of defendant’s pants was equally a search under Const 1963, art 1, § 11. Of course, that the DNA testing of defendant’s pants constituted a search does not end our inquiry. “The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v 4 The prosecution asserts that the DNA testing was not a search under the trespass approach because another person’s biological material located on the exterior of a personal effect is not a constitutionally protected area. But that argument gets the analysis backward. Whether something is a constitutionally protected area does not depend on the result of a subsequent inspection of that area. See People v LoCicero (After Remand), 453 Mich 496, 501; 556 NW2d 498 (1996) (“A search is not to be made legal by what it turns up.”) (quotation marks and citation omitted). In other words, what matters is that defendant’s personal effects are constitutionally protected, and the results of a search do not alter that conclusion. 9 Sharpe, 470 US 675, 682; 105 S Ct 1568; 84 L Ed 2d 605 (1985). By its plain language, the protections of Const 1963, art 1, § 11, likewise extend only to searches and seizures that are unreasonable. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” Katz, 389 US at 357 (citations omitted). These exceptions are “jealously and carefully drawn,” and “the burden is on those seeking the exemption to show the need for it.” Coolidge v New Hampshire, 403 US 443, 455; 91 S Ct 2022; 29 L Ed 2d 564 (1971) (quotation marks, citations, and alteration omitted). Here, the prosecution argues that either the inventory-search exception or the search-incident-to-arrest exception applies. Both are recognized by the Supreme Court of the United States and this Court as well-defined exceptions to the warrant requirement. South Dakota v Opperman, 428 US 364, 372; 96 S Ct 3092; 49 L Ed 2d 1000 (1976) (inventory-search exception); People v Toohey, 438 Mich 265, 281-284; 475 NW2d 16 (1991) (same); Virginia v Moore, 553 US 164, 176-177; 128 S Ct 1598; 170 L Ed 2d 559 (2008) (search-incident-to-arrest exception); People v Gonzales, 356 Mich 247, 253-254; 97 NW2d 16 (1959) (same). We address each exception in turn. An inventory search is “an incidental administrative step following arrest and preceding incarceration.” Illinois v Lafayette, 462 US 640, 644; 103 S Ct 2605; 77 L Ed 2d 65 (1983). The Supreme Court has explained the justification for allowing warrantless searches under these circumstances as follows: A range of governmental interests supports an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make 10  false claims regarding what was taken from their possession at the stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves—or others—with belts, knives, drugs, or other items on their person while being detained. . . . The bare recital of these mundane realities justifies reasonable measures by police to limit these risks . . . . Examining all the items removed from the arrestee’s person or possession and listing or inventorying them is an entirely reasonable administrative procedure. [Id. at 646.] The Supreme Court thus held that “it is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.” Id. at 648. 5 This 5 While the dissent cites several examples of the ways in which detainees’ privacy rights are curtailed, we find these examples inapt. Each case cited by the dissent involves an administrative or safety-related search, yet none suggests that officials may subject a lawfully seized object to additional scrutiny unrelated to institutional safety. In contrast, our caselaw establishes that an individual generally maintains a privacy interest in objects that are lawfully in the possession of police. Compare Hughes, 506 Mich at 530 (holding that the police, though lawfully in possession of a cell phone, may not search the phone beyond the scope of the existing warrant because “[t]he authority to seize an item does not necessarily eliminate one’s expectation of privacy in that item and therefore allow the police to search that item without limitation”); People v Custer, 465 Mich 319, 342; 630 NW2d 870 (2001) (opinion by MARKMAN, J.) (“[W]e do not conclude that, once the police lawfully seize an object from an individual, that individual’s reasonable expectation of privacy in that object is altogether lost.”); and Gonzales, 356 Mich at 253 (holding that “the fact of a lawful arrest does not, in our view, automatically render constitutional any contemporaneous search and seizure”), with Hudson v Palmer, 468 US 517, 528; 104 S Ct 3194; 82 L Ed 2d 393 (1984) (“We are satisfied that society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.”) (emphasis added); Bell v Wolfish, 441 US 520, 559-560; 99 S Ct 1861; 60 L Ed 2d 447 (1979) (“A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. . . . Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can [strip- search detainees].”) (emphasis added); Florence v Bd of Chosen Freeholders of Co of Burlington, 566 US 318, 338-339; 132 S Ct 1510; 182 L Ed 2d 566 (2012) (allowing strip searches of low-level offenders who were to be released into the general population for the 11 Court has subsequently emphasized the administrative, as opposed to investigative, nature of these inventory searches. See Toohey, 438 Mich at 275-276. The difficulty with the prosecution’s argument in this case is that DNA testing is not part of established inventory procedure. Here, the police collected defendant’s effects for an investigative search for which they had no warrant. There is no indication in the record, and there could not be, that DNA testing of a defendant’s effects is standardized procedure when an individual is arrested and detained at jail. 6 DNA testing is also not necessary for “the protection of the owner’s property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger[.]” Opperman, 428 US at 369 (citations omitted). The prosecution does not claim otherwise. The DNA testing of defendant’s purpose of reducing “danger to everyone in the facility, including the less serious offenders themselves”); and Block v Rutherford, 468 US 576, 591; 104 S Ct 3227; 82 L Ed 2d 438 (1984) (“The security concerns that we held justified the same restriction in Wolfish . . . are no less compelling here.”). In short, though the cases cited by the dissent establish that jail and prison officials may search a detainee and lawfully seize and inventory possessions, nothing about these examples suggests that they may go beyond the limited ambit justified by the goals of institutional safety and administrative order. Simple procedures for inventory and impoundment do not justify invasive, investigative forensic DNA testing. Indeed, much like the prosecution, the dissent fails to cite any authority for the proposition that DNA testing is part of any established inventory procedure. Cf. People v Robinson, 388 Mich 630, 632-633; 202 NW2d 288 (1972). 6 Unlike in Maryland v King, 569 US 435, 441; 133 S Ct 1958; 186 L Ed 2d 1 (2013), there is no indication here that DNA testing was conducted as a matter of course by jail personnel when defendant was processed for detention. To the extent that the prosecution argues that the DNA testing here is analogous to fingerprinting, the latter is typically part of a routine booking process, whereas DNA testing is not. See id. at 458, 466 (describing fingerprinting as “an accepted means of processing an arrestee into custody” and “a legitimate booking procedure that is reasonable under the Fourth Amendment”). 12 effects weeks later by the police department did not and could not contribute to any interests in safeguarding defendant’s property or protecting the police from danger. Additionally, the record is clear that Detective Freeman moved defendant’s effects from the jail property room into police evidence, where they were later sent out to be tested by the MSP for the victim’s blood. Any inventory procedure was necessarily complete when defendant’s effects were taken from the jail property room. Accordingly, we conclude that the DNA testing of defendant’s pants could not have been justified under the inventory-search exception to the warrant requirement. With respect to the search-incident-to-arrest exception, some factual clarification is necessary at the outset. As an initial matter, the trial court found that defendant was initially arrested and detained on the unrelated misdemeanor charge. See Serges, 351 Mich App at 153 (SWARTZLE, J., concurring dubitante). We agree with the concurrence dubitante that we must accept this factual finding absent clear error. In initially denying defendant’s motion for a new trial or evidentiary hearing, the trial court noted that the prosecutor had stipulated to the facts as presented by defendant in his motion. Specifically, the trial court noted that “[d]efendant was arrested because of an outstanding warrant relating to a city ordinance violat