The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable search and seizure. Protection also applies to DNA samples. The American Bar Association notes that collecting DNA for evidence requires due process.
If law enforcement officials have reason to believe you committed a crime, they must obtain your consent before collecting DNA. With probable cause, however, officials may obtain a court order or search warrant to collect DNA samples.
What is due process during DNA collection?
Only trained and certified law enforcement or forensic investigators may collect DNA samples. They may identify, gather and preserve DNA when a sample relates to evidence connected to an alleged crime. Officials may not collect DNA to determine if you committed an unrelated offense.
With reasonable suspicion, officials may collect a “physically noninvasive” sample. If officials have probable cause that you engaged in a crime and believe they could prove it with DNA, an officer may use an invasive collection method. Before consenting, you may request that your legal counsel be present. If officials deny your attorney access, you may obtain a court order for a legal representative to be present.
Unlawful DNA collection may violate the Fourth Amendment
DNA storage requires packaging and labeling to identify its contents and collection date. Officials may preserve DNA samples until charging defendants with offenses and their trials have ended. Retrieving and storing DNA unlawfully may reflect misconduct.
As reported by ABCNews.com, almost 32,000 NYC residents filed a lawsuit against the city’s police department for collecting DNA without warrants. Officials allegedly used a growing library of genetic material collected without due process as potential evidence to charge NYC residents in open crime cases.
Failure to follow the lawful process for collecting and storing DNA may result in legal action. Plaintiffs may hold officials accountable for violating their civil rights under the Fourth Amendment.