Collection of Genetic Materials by a Search Warrant

I. Introduction

Acquiring fingerprint data has become crucial for the law enforcement when an Apple device is involved in a crime which is locked by Touch ID.

The investigators have sought search warrants that allow them to enforce persons at the subject premise to depress their fingerprints. It has been conducted since around 2014, and has become routine especially in California. Although in February 2017, a federal district court blocked the issuance of a search warrant allowing the law enforcement agency to compel individuals to provide fingerprints on the grounds of insufficient specificity and probable cause.[In re Application for a Search Warrant, No. 17M081, 2017 U.S. Dist. LEXIS 23861 (N.D. Ill. Feb. 16, 2017)]

Fingerprint data is one of the "nontestimonial identification" which identifies an individual other than testimony. It includes fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, handwriting exemplars, voice samples, photographs, and lineups.

Of these, fingerprints and DNA samples are the most important since either of them can be a dispositive factor for the individual identification and they contain many privacy information which can lead to privacy violation through their collection and storage in the government database.

Here, I would like to discuss whether a warrant is necessary for genetic material collection; whether it is prerequisite to attempt to obtain “testimonial identification”; does the Constitution allow special methods of search for evidence.

II. Genetic Material Collection

In June 2016, the Supreme Court held that the law enforcement needs a warrant to test the blood for drunk driving, unlike a breath test.[Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)] The court stated that direct blood testing “require piercing the skin” and is “significantly more intrusive than blowing into a tube” on privacy. The decision also pointed out that “A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested. “[p2164] This means that natural metabolism of alcohol alone cannot constitute the “exigent circumstances” for a warrantless search.

Maryland v. King, 133 S. Ct. 1958, 1980 (2013) decided that a statute forcing those in custody for serious offenses to a buccal swab to collect their DNA is reasonable without a warrant under the Fourth Amendment due to its “identification only” purpose.

Further, the courts have found that collecting DNA samples from garbage without a warrant (“surreptitious sampling”) is not a violation of the Fourth Amendment for the reason that there is no expectation of privacy in discarded genetic material.

The general criteria for all those above is “the reasonable expectation for privacy.” [Katz case] It is controversial whether it is appropriate to consider the expectation for privacy would be lost or decreased for those that are not even convicted but arrested. There is also an opposing opinion about breath testing which the Supreme Court allows without warrant for the reason that it is not too intrusive and is necessary for the investigation. However, the Constitution protects not only the right to privacy under the Fourth Amendment but the government’s authority to criminal investigation by providing criminal procedures [Part III, etc.], it can be construed that the breath test is allowed as an exigent circumstances exception [see Mincey v. Arizona].

III. Collection From Those Other than the Suspect

In May 2016, the District Columbia Court of Appeals decided that the Fourth Amendment permits a warrant requiring a witness or a victim to offer DNA samples. The reason is because the probable cause for a search warrant is to “believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense.” This was regarding a warrant specifically requiring an individual to offer a certain sample.

On the other hand, it should not be allowed to force individuals other than the suspect to offer his DNA samples just because he was at the search site since it is beyond one’s reasonable expectation of privacy. The law enforcement should obtain a separate warrant. IV. Testimonial Identification

The Fifth Amendment does not apply to non-testimonial evidence such as blood, hair, fingerprinting, measurements, handwriting. It solely prohibits the extortion of information by forcing a person “to disclose the contents of his own mind.” [Curci v. United States, 354 U.S. 118]

Accordingly, forcing a suspect to disclose the passcode to a smart phone by a warrant is against the provision.

This was the reason the FBI sought a search warrant to force Apple Inc. to provide technical assistance to unlock the phone in In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, 149 F. Supp. 3d 341 (E.D.N.Y. 2016). Note that the exhaustion of acquiring testimonial evidence is not necessarily a condition to issue a search warrant since the requirements for a search warrant is specificity (Rule 41) and “probable cause.” Having said that, the exhaustion is a factor to consider upon determining the “necessity” of imposing a burden of offering technical assistance on a third party [Brooklyn case, supra].

V. Special Treatments for Certain Samples

The question whether special treatments to acquire certain samples with a warrant should also be considered under the “reasonable expectation of privacy” test.

The Supreme Court allowed the law enforcement to extract bullet from involuntary suspects with surgical intrusions [Winston v. Lee, 105 S. Ct. 1611 (1985)].

Whereas forced catheterization for urine testing with a warrant has not yet been settled at the Supreme Court. Urine testing is usually conducted for drug or alcohol use and if blood test will suffice, such search warrants should not be permitted since blood test is physically and mentally less intrusive.

Contrarily, the copying of the data of a computer at the search site and making its duplication is allowed since making duplication is reasonable considering the possibility of the data loss from the original copy.

VI. Conclusion

All things having said, the criteria for the “reasonable expectation of privacy” changes as the people’s thoughts about privacy change. The more people know what is being and can be done with their data, especially personal data, with big data technology, the court might get to apply stricter test than today’s.

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