Friday, February 8, 2013

Identity Theft: Can the Government Take DNA Material Without a Warrant?

There have been 302 total DNA exonerations in the United States since the first one took place in 1989.  Since 2000, there have been 289 post-conviction exonerations. DNA evidence is one area of criminal law that is always in the news.  Last week, on January 29, 2013, a former Ohio police captain was released from prison after fifteen years, when new DNA tests proved he was innocent of his wife’s 1997 murder.[1]  The Governor of New York recently announced that he is expanding the state’s DNA database.[2]  DNA evidence is becoming one of the most useful tools for criminal law, but at the same time has some controversy around it.  While there are wonderful benefits to DNA testing and having a DNA database, there are serious concerns with the collection practices of the government.

The federal government has an extremely broad statute, known as the DNA Act, which allows for the warrantless collection of a DNA sample from anyone arrested or convicted (including non-citizens).[3]  The DNA samples are added to the FBI’s Combined DNA Index System (“CODIS”) and kept there indefinitely.  The same statute also allows the federal government to “use or authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.”[4]  Generally, most interested parties can accept the practice of collecting DNA from convicted offenders.  However, there has been much debate, and little resolution, over the collection of DNA from pre-convicted individuals.

Many argue that there are Fourth Amendment violations by collecting an individuals DNA without a warrant and without consent.  The Fourth Amendment provides that the government cannot perform a search or a seizure, without a warrant.[5]  Opponents of across the board DNA collection argue that the government’s practice of taking DNA samples from arrestees without a warrant and without consent is a violation of an individual’s Fourth Amendment rights.  The Supreme Court has affirmed many times that Fourth Amendment right to privacy attaches to individuals not places.  Surely a person has a right to privacy in their biological material.  

Courts nationwide have found that collecting DNA samples qualifies as a search.  While the Supreme Court has not ruled on the issue yet, the 3rd Circuit, in Mitchell v. U.S., has ruled that it is not a Fourth Amendment violation to take a DNA sample from a non-convicted person.[6]  Mitchell was arrested for possession of cocaine with intent to distribute.  After he was arrested, but not yet convicted, the Government attempted to get a DNA sample from him.  They cited the DNA Act as their authority to take a sample. Mitchell claimed that it violated his Fourth Amendment right.  Although the lower court agreed with him, the Circuit Court held that “arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests.”  Based on this reasoning they did not believe it violated his constitutional rights to force him to provide a sample of his DNA against his will.

While it may be true that there is a government interest in collecting data on arrested and convicted individuals, is it true that this interest is more important than the right a person has to their most precious possession, their identity?  Does the government’s interest in cataloguing biologic material trump your right to ownership over your body?  

Bethany J. Peak
Blogger, Criminal Law Brief

Image by: Micahb37

[1] Jim Kavanagh, Police captain exonerated in wife's murder, freed from Prison,, Jan. 30, 2013.
[3] 42 U.S.C.A. § 14135a, available at
[4] 42 U.S.C.A. § 14135a (4)(a)
[5] U.S. Constitution, 4th Amendment, available at
[6] The 3rd Circuit is the highest court in the nation to rule on this issue so far. U.S. v. Mitchell, 652 F.3d 387, 390 (3d Cir. 2011).,9&as_vis=1


  1. I certainly understand the concern about the right to ownership over your body. However, I also see the other side of the argument and how expanding the databases of DNA can certainly assist law enforcement with crimes of murder and rape...I suppose it depends how much of an intrusion one would feel is occurring when they swipe a cotton swab in one's mouth? Most processing units already take a picture and fingerprints when one is arrested as it is, and an argument could be made it is another form of identification for the individual arrested.

  2. Identity Theft can do any crime using another persons documents and it is really too much dangerous. People need strong protection and government have to make some more strict rules for this kind of theft.

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