Kara Sears
DNA is the most powerful form of identification available, as it is both highly complex and unique to each individual. Due to its widespread presence in the human body, it is relatively easy for law enforcement to collect DNA samples from suspects and former suspects. However, the question of whether law enforcement can take DNA samples from unconscious individuals is complex and depends on various factors, including the laws and regulations of the specific jurisdiction. While some countries and states may have laws authorizing the collection of DNA samples from unconscious individuals, others may require a warrant or consent.
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What You'll Learn
DNA collection without a warrant
In the United States, the Fourth Amendment establishes protections against warrantless searches and unconstitutional intrusion. Despite this, law enforcement officers have been known to collect DNA evidence without a warrant, raising concerns about civil liberties and privacy. This is particularly true in the case of "unavoidably shed DNA", where police may collect and test DNA that individuals have discarded without their knowledge or consent.
In one notable case, State v. Bentaas, South Dakota police sent a DNA sample to a lab which created a genetic profile and ran it against a database of over one million genetic profiles. This led to the identification of the defendant, Ms. Bentaas, as a possible suspect. Without a warrant, investigators then collected and tested her DNA from trash left outside her residence.
The American Civil Liberties Union (ACLU) has actively advocated for the requirement of a warrant before police can collect and analyze DNA, particularly in cases where individuals are not aware they are providing genetic material. In addition, the ACLU of Massachusetts has filed suit to enforce the expungement of exculpatory DNA evidence, demonstrating the ongoing legal battles surrounding this issue.
While the collection of DNA evidence can aid in criminal investigations and bring closure to victim families, the lack of judicial oversight and protection of genetic privacy remains a significant concern. As technology improves and more sensitive information can be extracted from DNA, the need for stronger privacy laws and protections against warrantless DNA collection becomes increasingly crucial.
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DNA collection with consent
In the United States, DNA collection laws vary from state to state. Many states allow DNA collection at booking, while others allow it upon charging, prior to release, or after a probable cause hearing. For example, in Colorado, DNA can be collected at booking, but it is only filed and maintained in the state index when the offender is charged with a felony. On the other hand, Ohio requires that the sample be processed within 15 days of collection.
The collection of DNA samples at arrest has proven valuable in criminal investigations. In the 2012 case of Sierra LaMar, a 15-year-old who was abducted on her way to school, DNA from the crime scene matched a sample taken from Antolin Garcia-Torres at a prior felony arrest, leading to the primary investigative lead in the case.
While DNA collection can aid in solving crimes, it also raises civil liberties and privacy concerns. The American Civil Liberties Union (ACLU) argues that law enforcement must obtain a warrant before extracting and analyzing DNA, even when it is unavoidably shed, such as from discarded items. Without a warrant, there are limited restrictions on law enforcement's ability to collect and analyze DNA, potentially leading to the creation of massive databases containing sensitive genetic information.
To address privacy concerns, individuals may consider providing a DNA sample voluntarily to law enforcement with certain conditions. For instance, the police could agree not to retain the sample or use it for any other purpose beyond the current investigation. Such an agreement could be formalized in a contract, providing some assurance that the individual's genetic privacy will be protected. However, it is important to note that even without a signed agreement, the mere offer of cooperation demonstrates a willingness to assist while also prioritizing genetic privacy.
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DNA collection without consent
In the United States, the Fourth Amendment provides some protection against the warrantless search and seizure of DNA. The American Civil Liberties Union (ACLU) has argued that law enforcement must obtain a warrant before extracting and analysing DNA that individuals have shed, for example, on a spoon or a napkin.
In California, DNA samples are collected from adult felony arrestees at booking, along with fingerprints, photographs, and palm prints. This is to aid in identifying the arrestee and has been shown to be valuable in solving cold cases.
According to the American Bar Association, a DNA sample should not be collected from a person without their consent unless authorized by a search warrant or judicial order. The judicial order should only be issued after notice and an opportunity for a hearing, where the person has a right to counsel. When consent is sought, each person should be informed of the reason for the request and their right to refuse, and the consent should be obtained in writing.
The collection and preservation of DNA evidence should be done in a way that ensures its identity, integrity, and availability for testing and retesting. This includes proper handling, packaging, labelling, and storage, as well as documentation of the location, date, time, and manner of collection, and the identity of the person who collected the sample.
In the case of direct-to-consumer genetic testing companies, individuals now have the right to revoke their consent for the collection and use of their DNA, and they can seek civil penalties in cases where their DNA privacy was violated.
While there are valid and lawful reasons for collecting DNA, particularly in cases of serious felony arrests, individuals' DNA is protected by the Fourth Amendment and should only be used for the purpose for which consent was given.
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DNA collection for felonies
In the United States, DNA database laws are not uniform across the country but are a patchwork of laws that vary in when, why, and how DNA can be taken and what the qualifications are for labs that handle DNA samples. For example, in California, DNA samples are collected at booking, along with fingerprints, photographs, and palm prints, to identify adult felony arrestees. Similarly, in Ohio, a DNA sample must be processed within 15 days of collection.
Louisiana was the first state to pass legislation authorizing DNA sample collection from people arrested for felony sex offenses in 1997. As of 2021, 28 states and the federal government have passed legislation authorizing DNA collection following arrest or charging. Of these, about half collect DNA from all persons arrested for any felony crime, while the other half limit collection to a subset of violent felonies or sexual assaults. Some states, such as Florida, have phased in implementation over several months or years, with the scope of qualifying offenses becoming more inclusive until all felony arrests are eligible for DNA collection.
Some states' arrestee DNA collection laws specifically exclude juveniles, while others include them. States also vary in terms of when arrestee DNA can be collected and processed. Many allow DNA collection at booking, while others allow it upon charging, prior to release, or after a probable cause hearing.
The American Civil Liberties Union (ACLU) has argued that law enforcement must obtain a warrant before extracting and analyzing DNA, as the practice raises civil liberties and privacy concerns. They have also filed lawsuits to enforce Freedom of Information Act (FOIA) requests to federal agencies seeking transparency about access to and analysis of Americans' sensitive personal information.
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DNA collection for misdemeanours
In the United States, DNA database laws are not uniform across the country. The laws vary in when, why, and how DNA can be taken, as well as the qualifications for labs that handle the DNA.
In some states, DNA can be collected from individuals arrested or charged with select misdemeanour crimes. For example, Arizona collects DNA from individuals charged with misdemeanours such as indecent exposure, public sexual indecency, and prostitution. California collects DNA from individuals convicted of a misdemeanour but with a prior felony on record. The state also collects DNA from juveniles convicted of a misdemeanour sex offence who are required to register as sex offenders.
The process of DNA collection involves the use of a standard DNA collection kit provided by the Department of Justice to local and state law enforcement agencies. This kit includes new plastic gloves for handling the collector, and is used for each DNA sample collection. The individual themselves places the soft applicator stick in their mouth and gently drags the collector against the inner cheek lining. The sample is then placed in a sealed specimen pouch.
The collection of DNA by law enforcement agencies raises concerns about civil liberties and privacy. The American Civil Liberties Union (ACLU) has argued that law enforcement must obtain a warrant before extracting and analyzing DNA, as without this protection, there is little to stop them from building a massive database of sensitive genetic information.
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Frequently asked questions
While there is no specific mention of unconscious people, law enforcement officers can take DNA samples from individuals in custody or those arrested for a felony or serious misdemeanour.
In the US, the Fourth Amendment protects citizens against unwarranted DNA collection. The Genetic Information Nondiscrimination Act (California SB 41) also protects citizens by requiring companies to disclose their data collection policies. In the UK, the Criminal Justice Act 2003 allows police to take and retain DNA samples from anyone arrested for a recordable offence, regardless of whether they are charged or acquitted.
DNA can be collected from blood, skin cells, saliva, hair, and other sources. Collection methods include mouth swabs, blood samples, and buccal cell samples (where a person gently brushes the inside of their cheek with a soft applicator).
