Indiana Court: No Warrant Needed To Force DNA Testing

(AP / CBS)

An Indiana appeals court has ruled that police do not need to obtain a search warrant before forcing someone to submit to a DNA test, a move that raises important privacy questions.

The Indiana Court of Appeals ruled on September 30 that no court order was necessary to force a suspect to allow the inside of his cheek to be scraped and a sample of cells to be collected and the DNA analyzed.

The case arose out charges filed against Arturo Garcia-Torres, who was convicted of rape and attempted rape in two cases involving female Valparaiso University students. A police detective collected a DNA sample from Garcia-Torres's cheek without obtaining a warrant, and the defense subsequently argued that a court order was required under the Fourth Amendment, which prohibits "unreasonable" searches and seizures.

In a 26-page opinion, a 2-1 majority of the appeals court disagreed, saying:

We conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion... A cheek swab takes even less time than a pat-down or field sobriety tests and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect's body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares.

Translation: If the police believe they have a "reasonable suspicion" that an American committed a crime, they can, at least in Indiana, forcibly extract a DNA sample.

This is an unresolved -- and important -- topic that touches on personal and family privacy rights, individual autonomy, and the right to avoid self-incrimination. Courts have had no problems upholding laws that require the forcible collection of DNA after a conviction (here's one example I wrote about in 2007), but what about forcible collection after a mere arrest?

Courts have split on whether this is constitutional. A Minnesota state appeals court ruled that such laws "violate the Fourth Amendment to the United States Constitution," while a Virginia state court concluded the practice is "no different in character than acquiring fingerprints upon arrest."

The only federal court to address this, which I wrote about in May, adopted something of a compromise, saying that if a judge or grand jury has determined there is probable cause, a swab test upon a felony arrest is permissible. That's narrower than the all-we-need-is-suspicion-of-wrongdoing rule, apparently applying even to even misdemeanor cases, that the Indiana court has invented.

This question is not going away. A Justice Department regulation that took effect in January 2009 orders federal agencies to "collect DNA samples from individuals who are arrested." One difference, though, is that in the federal system, the FBI is required by law to delete DNA information upon request (if arrestees bother to make the request) if the "charge has been dismissed or has resulted in an acquittal."

One difference between fingerprinting and DNA sampling -- which doubles as an argument for why the Indiana majority opinion got it wrong -- is that DNA samples are far more intrusive. The court called it "minimally invasive," which is true physically, but not in terms of how much information it conveys about your (and your family's) genetic makeup.

As the Electronic Privacy Information Center points out: "Genetic data poses significant privacy issues because it can serve as an identifier and can also convey sensitive personal information about the individual and his or her family. As genetic science develops, genetic information provides a growing amount of information about diseases, traits, and predispositions." Depending on exactly what's stored and how it's made available, the information could affect future employment and insurance decisions.

In other words, DNA conveys far more personal information than a fingerprint does. After all, if physical intrusiveness were the only privacy worry, there would be no reason why police shouldn't routinely wiretap your phone calls and intercept your e-mail from afar. The reason wiretap laws exist, and the reason the Supreme Court said a warrant is required to use infrared surveillance, is not physical inconvenience but the information obtained through the search.

A January 2009 analysis from the non-partisan Congressional Research Service concludes: "It would be premature to assume that all compulsory DNA collection laws would survive Fourth Amendment scrutiny. First, amid quickly expanding authority for DNA collection, constitutional analyses might change when judicial challengers include people merely arrested, rather than convicted, for criminal behavior. Second, in light of rapidly developing science regarding junk DNA, courts might find that DNA collection implicates greater privacy concerns than currently assumed. Finally, courts have not yet addressed the constitutionality of ongoing storage of DNA."

The dissenting opinion in the Indiana case makes that point even more directly:

A cheek swab may reveal not only whether the suspect has committed the crime at issue, but also whether he has committed other crimes for which DNA evidence has been collected. Moreover, a cheek swab may reveal legally significant information regarding paternity or maternity, as well as information regarding genetically influenced diseases, conditions, and behaviors, none of which are relevant to a law enforcement purpose. Under these circumstances, I believe that a cheek swab of a custodial suspect is reasonable under the Fourth Amendment only if probable cause exists to conduct such a search.

In this case, Arturo Garcia-Torres was already in custody with significant evidence (including a discarded shoe) linking him to the crimes. Requiring the Indiana cops to get a search warrant for a DNA sample would still have allowed them to obtain a conviction -- while protecting the privacy rights of everyone else.

Update 9:17pm ET Thurs: EPIC's Marc Rotenberg reminds me of the Fifth Circuit Kohler v. Englade case, which he argued, which concluded that a DNA seizure-with-warrant is impermissible if probable cause turns out to be lacking.

---

Declan McCullagh is a correspondent for CBSNews.com. He can be reached at [e-mail]. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

[billards53]

In a police state any and all actions taken by the police are justified .To speak against police tactics is considered anti-governmental and anti-police .The constitution calls for equal protection under the law . ( period )The right to bear arms is a constitutionally protected right . ( ? ) Is there any thing left in the U S constitution that the courts still back . The political crisis in this country is even greater than the economic crisis .

[bobnjersey]

[I understand this is a privacy issue but please..if you didn't do it then what's the problem? ]

so you're ok w/ cameras in your house ... audio recordings of all your conversations ... a subcataneous chip implanted to monitor your movements?

since you're not doing anything wrong ... what's the problem, right?

it will help in predicting and prosecuting your potentially incorrect actions ... whatever someone decides is incorrect.

[toldyouso21]

There is another glaring problem with this practice--already evidence exists that some DNA samples are manipulated to get certain convictions or lost. If information is gathered without warrant or permission, who or what will safeguard and check the procedures under which such samples are taken, guarded, tested and then maintained? Who will ensure the integrity of the samples?

Anyone remember how many identity theft issues the government has recently had with computers holding sensitive data being lost or stolen? Imagine such information getting out or imagine a mandate from the government to gather DNA evidence on all citizens--(they need to only claim a reasonable cause) then imagine after acquittal, that the information is not actually deleted though it is sequestered from public view...then imagine cloning or another activity taking place--imagine an important person needing a transplant and the knowledge exists of who is a match--will they "disappear" or be forced to contribute? it is so unheard of?

10 years ago, America openly torturing, conducting rendition or having concentration camps was unheard of too. This is beyond a slippery slope and should go to the SCOTUS-this is far more scary and invasive and all it requires is manufactured "reasonable cause" Can something get more private than someone removing anything from your own body without your consent? If they want DNA samples, let them get it from sheet if they cannot take pee samples without cause and a warrant then no spit samples either. This country is becoming more and more totalitarian every day.


For those who say, that if you have nothing to hide you should not worry--have very limited imaginations and cannot begin to imagine how such a simple act could be used in negative ways against any one of us or all of us.

[jaslet101]

Of course it's unconstitutional. And it is not the same as giving a thumbprint, because a thumbprint is not a transfer of your actual property; it is in essence a photo. Your dna, on the other hand, is your only real property- you are born with it and you die with it. Last time I checked, we are considered innocent until PROVEN guilty. Just as a potential suspect is not forced to talk to police, they should not be FORCED to give over DNA without a warrant. The Law should not change just because of scientific advances; if it was unlawful before dna advancements made dna more effecively used to implicate guilt, it should be unlawful now. The law was not written for the purpose of justifying the ends; it was written to be the basis of what defines an end lawfully arrived at.

[KHLady7]

I understand this is a privacy issue but please..if you didn't do it then what's the problem? I think this could help out a lot of victims. Just submit your DNA. Why do I care if they know what diseases and other stuff I have? I never understood why someone would refuse a DNA test if they were innocent. It just makes you look guilty if you do.

[toldyouso21]

CARE about this: Your information is taken, analyzed then when you appear to have molecular factors needed for an experiment, you are "visited by government officials who deem your rights as an individual are not as important as national interests. Or imagine your DNA being cloned or banked for whatever nefarious purpose any government might want to use--or imagine it being stolen. A good movie to watch "Cronus" find out what happens when humans are farmed for body parts--how'd you like to find out your tissue has been matched for transplant without you volunteering the information?

Then how'd you like to learn that you have no choice in donating because the government has decided that you should help--never just look at the uses someone makes for an act today--THINK how that one act or one use could be exploited or extrapolated in the wrong hands--all it takes to get nearing the abyss are tiny steps and apathetic people with no imagination....

[bubbadubba]

"First of all, it's spelled "constitutional". (At least get that right!!)"

C'mon let's don't be silly, that's obviously a typo.
Other than that the breathalyzer argument you made is the best in that you CAN refuse to take it. In fact many top attorneys and politicians (including prosecutors and police chiefs) in my state have been pulled over for suspected DUI and they ALL refuse to take the breathalyzer, so I have learned from that. I never drink and drive but that means nothing these days as far as being charged with DUI.
So if the Supreme Court has ruled that you cannot be forced to give a "breath sample", blood sample, or urine sample, then how can a lower court rule you CAN be forced to give a "DNA sample"?
That's just plain stupid thinking by idiots in a robe.
Who ever said the courts have any sense?
That WILL be overturned by higher courts.

[bajajohn1]

This case is about evidence gathering. In light of the language of the 4th Amendment, that no search warrant shall issue but upon probable cause; the right of citizens to be secure in their....persons....conveys a clear prohibition against unreasonable searches and seizures in collecting evidence. The man was in custody and no exigent circumstances were present whereby he could destroy evidence as his DNA was not going anywhere. Why the mad rush to obtain the DNA evidence, when by a properly sworn affidavit to obtain a sample of his DNA, to be approved by a judge, this controversy would not give rise to such a freedom-chilling ruling from this court? If this ruling on this constitutional issue is upheld upon appeal to the Supreme Court, I am afraid that what we lost is our freedom from the police power of the state. This is what all you right wingers should really be angry about, not the contrived issues the Republican Party uses to divide Americans.

[pollroller1]

So if this proves to be unconstitutional and someone rapes lets say a small child, you mean that you can't check this guys DNA to see if he did it or not? I'm not so sure about this.

[bajajohn1]

Please read the 4th Amendment in the Bill of Rights.

[toldyouso21]

There will be ***** or hair or skin cells--they don't need a sample of this person's DNA--and if they refuse--this will work against them in front of a jury, anyway.

[hungry1968-16]

by bradkt1 October 8, 2009 7:34 PM EDT
If this ever goes to the U.S. Supreme Court, I suspect that they would rule that it is consitutional.







First of all, it's spelled "constitutional". (At least get that right!!)

Secondly, if you refuse to give a "breathalyzer" or blood test if you're suspected of drinking and driving, they can't physically hold you down and TAKE it, so why do you think that this would be legal?

They can't physically take your finger prints without your permission or a warrant, so why do you think this should fly?

[SHEETPAN]

I can't believe it, I agree with Sturt-j. Don't let one stupid ruling sour you on Virginia as a whole. I,ve spent alot time there, and alot of time in N.Y. I prefer VA.