Just the Facts, Ma’am: Removing the Drama from Dna Dragnets

• Publication year: 2009

Jennifer K. Wagner⁰

Law enforcement is increasingly turning to "genetic witnesses" to solve crimes. The incorporation of genetic technologies like DNA ancestry tests and indirect molecular photofitting has drawn criticism as high-tech "racial profiling." In cases where law enforcement has requested voluntary DNA samples to assist with criminal investigations, critics have quickly labeled the conduct "DNA dragnets." To facilitate a constructive debate over whether and how law enforcement uses these genetic technologies, the loaded language is removed and the legal framework and scientific technologies are examined.

I. Introduction

Current discussions on the criminal law implications of deoxyribonucleic acid ("DNA") ancestry technologies are fraught with loaded language and patent political agendas.¹ When scholars frame the debate as a matter of the legality of "DNA dragnets" or "racial profiling," they effectively stifle any legitimate intellectual arguments relevant to law enforcement's use of DNA technologies that are vital to a democratic society. As United States President Barack Obama recently acknowledged, American society thrives on "free and open inquiry;"² yet distortions of the science or the law—intentionally or otherwise—push the discussion down treacherous and unnecessarily divisive tangents. Debating the constitutional merits of non-testamentary identification orders, routinization of DNA sampling upon arrest, and the appropriateness of forensic applications of DNA ancestry testing and indirect molecular photofitting in criminal investigations requires not only a "free and open inquiry" but also a nuanced understanding of genetics and law.

The following discussion first provides an introduction to the relevant legal context of criminal procedure. Because the technologies discussed here (DNA ancestry testing and indirect molecular photofitting) are not intended to serve as accusatory evidence against a defendant,³ but rather as investigative tools to identify criminal suspects, the legal discussion is properly focused on the investigatory phase prior to any arrest or prosecution. Second, an introduction to the scientific method and theory of DNA ancestry testing and indirect molecular photofitting is provided. Third, law enforcement's application of DNA ancestry testing and indirect molecular photofitting is analyzed within the parameters of the Fourth Amendment. Finally, some concluding remarks provide consideration about whether the use of DNA ancestry testing and indirect molecular photofitting by law enforcement is ethically justifiable, legally valid, or socially sensible.

II. Search and Seizure

in order for a police practice to be valid, it not only must conform to the baseline of protections provided by the United States Constitution, but it also must conform to state constitutional protections and statutory provisions. The following discussion first explores federal search and seizure jurisprudence⁴ and subsequently examines a sample of state search and seizure laws. Non-testimonial identification orders ("NIOs"), which are court orders based on a level of suspicion lower than probable cause and compel individuals to provide identification evidence to law enforcement, will also be examined, as well as other basic methods for collecting DNA samples.

A. Federal Constitutional Requirements

The Fourth Amendment⁵ provides that:

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.⁶

Whether a search and seizure conforms to the requirements of the Fourth Amendment requires a two-pronged inquiry into the appropriateness of "the 'seizure' of the 'person' necessary to bring him into contact with the government agents, and the subsequent search for and seizure of the evidence."⁷ Each prong of that inquiry will be discussed here.

1. The Seizure of the Person

Not every encounter between the police and the public is a seizure under the Fourth Amendment. Police interactions with the public can be categorized as three basic types: mere encounters, investigatory stops, and custodial stops.⁸ The first—"the mere encounter"—does not implicate the Fourth Amendment.⁹ Police officers, for example, do not violate the Fourth Amendment when they ask questions of individuals who are willing to listen.¹⁰ However, the Fourth Amendment is implicated by both the investigatory stop and the accusatory (or custodial) detention.¹¹ DNA ancestry testing and indirect molecular photofitting are tools with limited capabilities,¹² and, as such, are useful to law enforcement during the investigatory but not the accusatory phase of criminal procedure.¹³ Thus, the remaining discussion focuses on the constitutional requirements during the search for a suspect in a criminal investigation.

The Supreme Court has addressed when police conduct crosses the line between a mere encounter to an investigatory stop, subject to limitations and requirements of the Fourth Amendment. in Florida v. Bostick, the Court stated:

[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions . . . . only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.¹⁴

Police may, for example, ask to examine an individual's identification "even when officers have no basis for suspecting a particular individual" of any wrongdoing.¹⁵ An individual may refuse to answer questions posed by the police, and it is well-established that an individual's refusal to cooperate alone is not a sufficient basis to justify seizure.¹⁶ Whether a mere encounter or an investigatory stop has occurred is determined by both considering all of the circumstances and inquiring if "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter."¹⁷ Furthermore, it must be noted that "the potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person" in that position.¹⁸

The Court has explained that investigative stops, when reasonable, do not violate the Fourth Amendment, stating that:¹⁹

The reasonableness of a stop turns on the facts and circumstances of each case. in particular, the Court has emphasized (i) the public interest served by the seizure, (ii) the nature and scope of the intrusion, and (iii) the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise.²⁰

In determining reasonableness, the Court has acknowledged that "there is no ready test,"²¹ and the Court must balance the need for the seizure with the privacy invasion the seizure entails.²² The basis for a police officer's seizure that invades an individual's privacy must be "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."²³ The Court has long held that an "inchoate and unparticularized suspicion or 'hunch,' " is insufficient to justify an investigatory stop.²⁴

2. The Search and Subsequent Seizure of Evidence

In Terry v. Ohio, the Court reiterated that "police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure" unless exigent circumstances excuse police from complying with the warrant requirement.²⁵ Probable cause is necessary to justify a search and seizure pursuant to a search warrant.²⁶ General warrants authorizing blanket searches²⁷ are unreasonable and have been considered by the Court to be invalid for at least 130 years.²⁸ As the Court has explained, "indiscriminate searches and seizures conducted under the authority of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment."²⁹ General searches—conducted with or without a warrant—are therefore unconstitutional, and it is this type of search that the Court has referred to as "dragnet-style"³⁰ or "lawless wholesale roundup."³¹

Police may conduct a constitutionally valid search and seizure of evidence, like a DNA sample, when the suspect provides voluntary consent.³² Not only has the Court condoned voluntary consent as a means to collect evidence, but the Court has also encouraged cooperation, explaining that "it is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement."³³ Society has a significant interest in encouraging citizens to consent to searches, since "the resulting search may yield necessary evidence . . . that may insure that a wholly innocent person is not wrongly charged with a criminal offense."³⁴

The test of voluntariness of consent was adopted over thirty years ago by the Court in Schneckloth v. Bustamonte:

[w]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all of the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.³⁵

Notably, the Court explained that voluntariness "has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights."³⁶ Accordingly, the Court specifically rejected the criticism that Fourth Amendment...