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 email@example.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.