Is it Constitutional for the Police to Seize and Test DNA Evidence?

An important constitutional right concerns the prohibition against the search and seizure of your property by law enforcement without due process of law. When we think of items police may search and seize, we often think of tangible items–phones, drugs, computer files, etc. But we do not often think of the most telling piece of evidence, that which we carry around with us every day, wherever we go–DNA.

Case Calls into Question Legality of Testing DNA Evidence

Our DNA is everywhere. It is in our hair, our saliva, and our sweat. It is not unusual for police to seize DNA for an investigation–blood samples or saliva swabs are often compelled by courts. But it is the DNA that we leave behind unknowingly that is causing a significant legal issue in one case.

A Maryland case is challenging just this issue. The defendant in the case was taken into police custody for questioning. After being questioned, the police asked if they could swab his DNA for testing. He refused. Despite this refusal, after leaving the interrogation, police swabbed his perspiration from a chair in which he was sitting. His DNA was tested, and he was later found guilty of rape based on that evidence.

The defense argued this was an illegal search and seizure of his DNA. The court disagreed, finding the defendant “abandoned” his DNA material by sweating on the chair, thus making it fair game for seizure and testing. The Defendant is now trying to get the Maryland Court of Appeals to overturn the decision.

The Defendant is relying upon a Supreme Court decision requiring police officers to obtain warrants before searching the cell phones of those they arrest. This argument makes sense. Certainly, something as private and personal as DNA should have a higher expectation of privacy than the contents of a cellphone, which are often broadcast for all to see anyway.

Probable Cause

The case may also hinge on probable cause issues. A search and seizure is permissible in situations where police have probable cause. Even if the random seizing of DNA is a violation of due process, such a seizure may be allowed if probable cause exists. Yet the line between reasonable suspicion and probable cause is often a gray one.

What makes the issue even more difficult is that police do not need probable cause to legally seize and test fingerprints that are left behind unintentionally. The professor argues there is a big difference between testing fingerprints, which society tends to accept as routine, and DNA, which it does not.

The case holds significant implications for the constitutional rights of those accused of crimes. It is presumed that consent to search and seizure must be knowing and voluntary–yet DNA is not always left behind knowingly and voluntarily. Allowing law enforcement to test any and all DNA would create significant privacy implications for everyone, and would severely weaken the Fourteenth Amendment’s protections.

Do you have questions about your rights, or whether the police obtained evidence in violation of the law? The criminal defense attorneys of Brassel Alexander, LLC have extensive experience with the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel Alexander, LLC today.

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