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How surreptitious DNA sampling is knocking on the Supreme Court’s door

Know the issues so your investigative practices can shape the debate and not result in unintended consequences in the form of a SCOUTS ruling

In March 2015, the Supreme Court declined to hear the case of Raynor v. Maryland. In that case, Ms. J. was raped in her home and she couldn’t positively ID her assailant. Investigators collected DNA evidence from the scene, and Ms. J. did identify a number of men who could’ve been the attacker, including Raynor.

Raynor voluntarily went to the station to answer questions, but he refused to give a DNA sample. Investigators swabbed the armrest of the chair he sat in and DNA testing matched the evidence at the scene.

A trial court denied Raynor’s motion to suppress the DNA evidence, and he was convicted and sentenced to 100 years.

The Supreme Court’s decision not to hear this case isn’t approval of what the police call “surreptitious sampling.” It simply means four justices didn’t vote to hear the case, for any number of reasons. That occurs in nearly 97 percent of petitions from private parties.

It is settled law that:

1. Police may collect physical evidence at a crime scene without a warrant, test it, and try to match it to a lawfully-obtained sample.
2. Police may take DNA samples from people arrested, but not yet convicted, for a serious crime. Maryland v. King, U.S. Supreme Court (2013). And, because it is lawfully taken, police may use it in that and unrelated cases. All 50 states require collection of DNA from convicted felons.

Yet to be decided by the Supreme Court is whether the police “surreptitiously” collecting evidence left behind by free citizens and subjecting it to DNA testing without probable cause or a warrant violates the Fourth Amendment. To figure out how police might help shape the law to come [see sidebar], we need to understand the arguments for and against this practice.

DNA Left Behind is Abandoned Property
The Supreme Court held in California v. Greenwood (1988), that the Fourth Amendment does not prohibit a warrantless search and seizure of garbage left for collection outside the curtilage of the home because there’s no reasonable expectation of privacy in it.

So far, the vast majority of lower court decisions in which police seized “left behind” DNA evidence have held the targeted person had no reasonable expectation of privacy in such evidence, any more than they would a fingerprint, footprint, or observable physical trait.

Must We Wear Hazmat Suits?
Opponents of warrantless, surreptitious DNA collection and testing argue the abandoned property rationale ignores that most people don’t realize they’re surrendering their genetic identity by merely touching something. Even if they do, unlike garbage that can be withheld or destroyed, there’s no way to avoid leaving one’s DNA behind absent a hazmat suit.

This group also argues that the testing, which reveals much sensitive information beyond identity, goes way beyond earlier decisions regarding fingerprint or footprint comparison. To permit such technologically advanced intrusion by police with no judicial oversight or probable cause, they argue, violates the Constitution’s protection of citizens’ reasonable expectation of privacy against government intrusion.

Public Policy Considerations
Police say they’re just trying to solve crimes. Hundreds of suspects have been implicated by DNA they unwittingly shed after the crime was committed. Many more have been eliminated without ever knowing their DNA had been analyzed.

Some states that have enacted DNA theft crimes and civil causes of action against persons who knowingly collect a DNA sample from another have provided a law enforcement exception, thus resolving this policy consideration in favor of solving crimes and identifying missing or deceased persons. E.g., Alaska Statute 18.13.010(b)(2) (that doesn’t mean such statutes aren’t subject to constitutional challenges).

Recent Decisions on Police Technology
In 2013, in the case of Maryland v. King, the Supreme Court narrowly and contentiously split 5-4 in upholding a state law that permitted DNA collection from people arrested for but not convicted of a felony. The majority justified the law by comparing it to other booking procedures used to identify a suspect – like fingerprinting and photographing.

Justice Scalia was scathing in his dissent.

“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous. … Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law enforcement searches.”

This Supreme Court unanimously rejected the warrantless use of GPS tracking devices on the grounds that it only gathered evidence the police could permissibly get by warrantless surveillance. The same court also rejected 9-0 the notion that searching cell phones incident to arrest was the same as searching a wallet.

As a state and federal prosecutor, Val’s trial work was featured on ABC’S PRIMETIME LIVE, Discovery Channel’s Justice Files, in USA Today, The National Enquirer and REDBOOK. Described by Calibre Press as “the indisputable master of entertrainment,” Val is now an international law enforcement trainer and writer. She’s had hundreds of articles published online and in print. She appears in person and on TV, radio, and video productions. When she’s not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Contact Val at