Can Prosecutors Use DNA Taken Without Consent or a Warrant?

In general, no, the prosecution cannot use DNA taken from an arrestee without their consent or a warrant, as it typically constitutes a search under the Fourth Amendment, which protects individuals from unreasonable searches and seizures. However, under certain circumstances, DNA can be collected without a warrant or consent, such as when it falls under established exceptions to the warrant requirement, like a search incident to arrest or when DNA collection is mandated by state or federal law as part of routine booking procedures for certain serious crimes.

The landmark case Maryland v. King, 569 U.S. 435 (2013), addressed the issue of whether DNA collection from an arrestee without a warrant is permissible under the Fourth Amendment. The U.S. Supreme Court ruled that collecting DNA via a cheek swab as part of routine booking procedures for serious crimes (such as felonies) was constitutional under the Fourth Amendment because it serves a legitimate government interest in identifying individuals arrested for serious offenses, similar to fingerprinting.

However, DNA collection outside routine booking procedures or without consent can face significant legal challenges, as seen in the Kansas case State v. Gammill, where the court ruled that the warrantless seizure of hair from an arrestee violated the Fourth Amendment.

Analysis from State v. Gammill

In State v. Gammill, the Kansas Court of Appeals ruled that plucking hairs from an arrestee without a warrant violated the Fourth Amendment. In this case, the defendant was a juvenile accused of serious crimes (robbery and rape). While in custody, police officers plucked 20 to 25 pubic hairs from the defendant without a warrant or consent. The court found that this act constituted a highly invasive search that violated the defendant’s Fourth Amendment rights.

1. Violation of Fourth Amendment:
   The court emphasized that forcibly plucking hairs, especially from a sensitive area like the pubic region, involves a significant invasion of personal privacy and bodily integrity. Such searches require a warrant, absent exigent circumstances, because of the invasive nature of the procedure and the location of the body from which the hairs were taken.

2. No Exigent Circumstances:
   The court ruled that there were no exigent circumstances that justified bypassing the warrant requirement. The hairs were not in immediate danger of being destroyed, and there was no urgency that would have allowed officers to seize them without prior judicial authorization.

3. Search Incident to Arrest:
   The court rejected the application of the search incident to arrest exception, which allows police to search the arrestee and the area within their immediate control to ensure officer safety and preserve evidence. The court noted that the search incident to arrest doctrine does not permit highly invasive searches like forcibly plucking hair unless there is a specific need tied to the arrest (such as preventing the destruction of evidence, which was not a concern in this case).

As a result, the court ruled that the evidence obtained from the warrantless seizure of hairs had to be excluded as "fruit of the poisonous tree," meaning it was tainted by the initial violation of the defendant's Fourth Amendment rights.

The Maryland v. King Decision: DNA Collection in Serious Crimes

In contrast, the U.S. Supreme Court in Maryland v. King held that DNA collection via cheek swab during booking procedures for serious crimes is reasonable under the Fourth Amendment. The Court found that DNA collection served the legitimate purpose of identifying the arrestee, similar to fingerprinting or photographing. The following factors contributed to the Court's decision:

1. Reasonable Government Interest:
   The Court emphasized that there is a strong government interest in accurately identifying individuals arrested for serious crimes, as this helps prevent recidivism and ties individuals to previous unsolved crimes.

2. Minimal Intrusion:
   The Court held that the method of DNA collection (a cheek swab) was minimally intrusive compared to more invasive methods, such as blood tests or the plucking of hairs, which involve a greater invasion of bodily integrity.

3. Routine Booking Procedures:
   DNA collection during routine booking for serious crimes is permissible because it is analogous to taking fingerprints or mugshots. The Court noted that individuals have a reduced expectation of privacy once they are arrested and brought into custody for a serious crime.

However, this ruling does not mean that DNA can be collected in all circumstances without a warrant or consent. The decision in Maryland v. King applies narrowly to routine, minimally invasive procedures during the booking process for serious crimes, and more invasive procedures—like the warrantless plucking of hairs in Gammill—can still violate the Fourth Amendment.

Key Differences Between DNA Collection Methods

1. Cheek Swabs vs. Hair Plucking:
   Cheek swabs (as in Maryland v. King) are considered minimally intrusive, while plucking hairs (as in Gammill)—especially pubic hairs—constitutes a significantly invasive search. The level of intrusion affects whether the search is considered reasonable under the Fourth Amendment.

2. Routine Booking vs. Specific Investigations:
   DNA collection as part of routine booking procedures for serious crimes is generally permissible without a warrant, but targeted collection of DNA, such as forcibly plucking hairs from specific areas of the body, typically requires a warrant or exigent circumstances.

Conclusion: Use of DNA in Court Without Consent or a Warrant

In most cases, DNA cannot be collected from an arrestee without a warrant or consent unless it falls under specific exceptions, such as routine booking procedures for serious crimes. The U.S. Supreme Court has ruled that minimally intrusive DNA collection during booking is permissible under the Fourth Amendment. However, more invasive procedures—like the forcible removal of hairs, as in State v. Gammill—generally require a warrant and cannot be justified under standard exceptions to the warrant requirement.

If DNA is collected in violation of the Fourth Amendment, it is considered "fruit of the poisonous tree" and may be excluded from use in court.

Frequently Asked Questions (FAQs)

1. Can police collect DNA without a warrant during booking for a minor offense?
   No, the Supreme Court’s ruling in Maryland v. King only applies to serious crimes such as felonies. DNA collection for minor offenses without a warrant or consent would likely be unconstitutional.

2. Is collecting DNA via a cheek swab considered invasive?
   No, the Supreme Court has ruled that cheek swabs are minimally invasive, and thus they can be collected during the booking process for serious crimes without violating the Fourth Amendment.

3. What happens if DNA is taken without consent or a warrant in an invasive manner?
   If DNA is taken in an invasive manner, such as plucking hairs without a warrant or consent, the evidence may be excluded from court as it would likely violate the Fourth Amendment.

4. Can the prosecution use DNA obtained through an unlawful search?
   Generally, no. DNA obtained through an unlawful search (such as one conducted without a warrant, consent, or a valid exception) would likely be excluded as "fruit of the poisonous tree."

5. Are there any circumstances where DNA can be taken without a warrant?
   Yes, DNA can be taken without a warrant during routine booking procedures for serious crimes, provided the collection is minimally invasive and in line with procedures established in Maryland v. King.