The U.S. Supreme Court seems to be taking a schizophrenic view of the Fourth Amendment lately. For the record, here’s the Fourth Amendment in its entirety:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In April, the court ruled (Missouri vs. McNeely) that police cannot force DUI suspects to surrender blood samples without a search warrant, saying that such drastic measures can only be invoked in emergency situations. State officials unsuccessfully argued that drunk driving cases present “exigent circumstances” which allow for the extraction of blood without a search warrant.
However, in a recent five to four decision (Maryland vs. King), the court ruled that police do not need a warrant to take DNA samples from people arrested for serious crimes. Note that those subjected to this warrantless search have not been convicted of a crime, only suspected.
About half the states and the federal government have laws allowing DNA collection from individuals upon arrest for certain offenses. Some states collect DNA for all felony arrests while others only do so for those arrested for serious or violent felonies. The DNA information from all of these efforts ends up in a national database where it is ostensibly available to help solve future crimes.
Civil rights groups object to such practices saying they violate Fourth Amendment protections against “unreasonable searches and seizures.” Supporters argue that DNA extraction is no different than lifting a fingerprint or taking a mug shot: an accepted routine even for those not convicted of a crime, used to establish identity.
But civil libertarians rightfully point out that DNA sampling can be used for much more than identity purposes and is far more intrusive than fingerprinting or photographing. They also argue that the King ruling will pave the way for widespread, intrusive, warrantless searches of the general public.
John Whitehead, founder and president of the Rutherford Institute, provides a stark and alarming assessment of Maryland vs. King: “Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip … searches simply because they’ve ‘done nothing wrong,’ needs to wake up to the new reality in which we’re now living.” (See his full commentary here.) Note the reference to roadside searches.
Whitehead calls out the potential impact on motorists again in a radio interview, in which he states that people will be subjected to DNA sampling in their vehicles. It’s already happened. In 2008, Florida police, looking for a serial killer, made headlines after taking DNA from “persons of interest” during traffic stops.
We’ve discussed DNA sampling of motorists in previous newsletters (here and here). We encourage you to go back and read these again to learn how to protect yourself, but here’s the gist of it:
The requirements for DNA sampling during a traffic stop are greater than those for conducting a search of your vehicle. Provided you have not given your permission for your DNA to be taken, the police must show probable cause and have a warrant to do so.
If you are stopped for a routine traffic violation you are under no obligation to surrender a DNA sample. If asked, state your objection to the intrusion (be civil but firm) and refuse to comply. By doing so, you have asserted your right to privacy. No reason must be given, but you could further assert your rights by saying something like, “I do not want to give you a sample because I want to protect my right to privacy.”
It comes back to the question of what kind of society do we want to live in? Some people may think, “No big deal. I haven’t done anything wrong so I have nothing to hide.” The answer is simple: A government that can violate your bodily integrity without cause can do anything it wants to you. Motorists’ rights are already routinely violated in myriad ways; it’s not a huge leap to think that drivers will be among the first targeted for more intrusive and illegal searches.