Unless police give up the practice of surreptitious DNA sampling, it will continue to be challenged in court and likely will be decided by the Supreme Court. Until then, what can cops do to help shape the argument and the Court’s ruling?
DISCLAIMER: The following is my opinion and is not intended to be nor should it be considered legal advice.
1. Get a warrant. If you’ve got probable cause, why wouldn’t you get a warrant except perhaps in the case of exigent circumstances? A warrant gives you a presumption of legality the defense must refute. If you don’t have probable cause, before you surreptitiously collect DNA without a warrant:
2. Be able to articulate a reasonable suspicion. This limitation is already being discussed as a possible compromise between the noble purpose of solving crimes and the fear of privacy advocates that unbridled police discretion is a nightmare the Fourth Amendment is intended to protect against. Show you have discretion. Besides, if you don’t have even reasonable suspicion, what are you doing checking out someone’s DNA?
3. Be judicious. In its recent decisions involving the search of a cell phone incident to arrest and GPS tracking, the Supreme Court expressed concern about the government overreaching into personal lives and information with technology simply because there was no specific prohibition against it.
Justice Sotomayor might have been talking about the book 1984 and Big Brother when she wrote in the GPS tracking case:
“[T]he Government’s unrestrained power to assemble data that reveal private aspects is susceptible to abuse.”
Don’t abuse the technology.
4. Be selective. Pick your cases carefully. I first heard a saying in law school that I heard repeated in my years as a prosecutor – “Bad facts make bad law.” If surreptitious DNA sampling hasn’t been decided in your jurisdiction, you don’t want your courts deciding it in a relatively minor criminal case.
Limiting the technology to serious crimes reassures the courts and law abiding citizens they needn’t be concerned they might be subject to such an intrusion on police whim, or worse, for a discriminatory purpose.
5. Don’t test for anything more than ID. Only test for what is called the 13 “junk” (inactive) loci that reveal identity only, not mental or physical traits, tendencies, or diseases.
6. Watch the deception. The ethical and legal parameters of police deception are beyond the scope of this sidebar but be careful if you decide to use a ruse to get a person’s DNA. This may undermine the argument that the evidence was “voluntarily” abandoned. It may also undermine public trust. Whatever ruse you think about using, be comfortable standing in front of TV cameras explaining how you used it on someone who turned out to be innocent.
7. Consult with others. Talk to your local prosecutor about the trial and appellate level judges, the case law, and any possibly applicable local, state, or federal regulations or laws in your jurisdiction.
Law enforcement should consider the above in the uncharted waters of surreptitious DNA sampling not just with a Supreme Court win in mind. We also need the trust and cooperation of our communities.
