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Originally Posted by Bokken Regarding the taking of DNA samples...
The law requires police to get a warrant before taking a DNA sample from you. I don't know the exact legalese, but this is what my initial research indicates. Probable cause must be shown, or consent must be given, or a sample must be in plain sight (thinking of CSI episode with a cigarette butt in the videogame ashtray). |
The taking of DNA is subject to the Fourth Amendment rules, just like any other physical evidence: a warrant is ordinarily required, but there are many exceptions to the warrant requirement. If one's Fourth Amendment rights were violated, the remedy is that the government may not use evidence unlawfully obtained against you in its direct case at trial.
There is no Fifth Amendment self-incrimination issue, however (as explained above). That's a totally different issue.
Exceptions to the Fourth Amendment warrant requirement include such things as:
Consent -- you voluntarily consent to the search, the cops can search. (but can you voluntarily consent while in custody? or if coerced by the police? deceived by the police? what if a third party gives consent to search your stuff?)
Urgency -- in certain exceptional circumstances, the cops can search if they have probable cause, but getting a search warrant would take too long and the evidence would be lost. examples include cases where the evidence is about to be destroyed (you're flushing the coke down the toilet), or the evidence is changing (blood alcohol levels), or there's an emergency and the cops need to protect people from harm (you left a loaded gun in an apartment with a 6-year-old, or they think your luggage has a bomb in it), etc.
Hot pursuit -- the cops can chase you into your house (or anywhere else). this can be when they're chasing you and you slam the door in their face and they bust it down. or it could be when they follow a trail of bloodstains to your door and bust it down, though they hadn't been really "chasing" you.
Protective sweeps -- the cops can do a security check following certain kinds of arrests or other situations, to make sure there's no continuing danger to them or destruction of evidence.
Plain view -- if the police are where they are lawfully, which includes not just public places but also private places pursuant to a warrant or any of the above exceptions, and they happen to see evidence, then they are allowed to conduct a search and seizure. If he's on the fire escape or in an apartment bulding's hallway, and from there happens to see your crack stash in your apartment, he can bust in and seize it.
Arrest searches -- the cops are allowed to search you and the area within your immediate control following an arrest, to ensure their safety and to preserve evidence within your reach. this includes most of your car, if you were arrested in a car stop.
Administrative searches -- Administrative searches are conducted pursuant to regulations, and can be conducted
without probable cause. These are allowed when privacy interests are fairly minimal, the government's interest is fairly substantial, and the inspecting agency has rules to make sure it doesn't go overboard. Heavily-regulated industries, occupations and things like public building security and public schools fall under this exception to the warrant requirement.
Airport and border searches -- these have been exceptions to the warrant requirement for a long time. Anyone crossing the border can be stopped and searched for no other reason than they're crossing the border (and airports count as border crossings).
Prisoners/parolees/probationers -- these people still have 4th Amendment rights, but they are diminished as a result of their status. So some searches without a warrant will be permissible here but wouldn't be okay if done against a typical citizen.
There are several more exceptions to the Fourth Amendment warrant requirement, but this post is rapidly turning into a treatise and you get the idea.
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