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Should police be allowed to collect your ‘abandoned’ DNA without your consent or a warrant?

On Behalf of | Apr 19, 2021 | Challenging DNA Evidence

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures by government agents such as police. It is among our primary sources of constitutional protection against government overreach and surveillance.

This is because, in criminal cases, evidence obtained via unreasonable searches is not admissible. Unfortunately, it often takes an appeal to get a court to determine that a particular search was unreasonable.

There should be special protection from government searches of our DNA because DNA is uniquely revealing. The founding fathers could not have envisioned a more complete and thorough way for the government to surveil us. Our very identities and, some argue, our predilection toward criminal behavior, can be revealed by our DNA.

So shouldn’t the police need, at the least, a warrant before they collect DNA?

Police have evaded the warrant requirement in the past if they could prove the person “abandoned” property they wish to seize. The legal theory is that if one “voluntarily abandons” property then they no longer have a reasonable expectation of privacy in that property and the police can seize it.

This was often applied to a garbage can that a person sets out at their home for trash pickup. Police argued they could search the garbage can without a warrant for evidence, such as drug residue or paraphernalia. But courts placed limits on police searches of garbage cans because many people mistakenly put something in the garbage can only to retrieve it later. So, the rule was imposed that only after the garbage can is outside on regular pickup day in a place for trash pickup is it considered “abandoned” and can be searched by police without a warrant.

Police are now trying to apply the voluntary “abandonment” theory to collect one’s DNA from a public place or discarded item. One problem is that human beings are constantly shedding DNA, whether or not intended. We leave it behind when we eat or drink, when we shake hands, in our fallen hair, in our toothbrushes. We can do nothing to prevent our DNA being left behind unless we remain in our homes 24/7. In short, there is no “voluntary abandonment” of our DNA; it’s a function of living in our world.

Police around the country have been taking people’s “abandoned” DNA samples and comparing them to commercial genealogy databases in an effort to solve crimes. That happened around 200 times in 2018 alone, and law enforcement never once sought a warrant.

You don’t have to have uploaded your DNA to an ancestry database to be subject to this experiment. All that is needed is for a sufficient number of your close relatives to do so, and the police claim they can extrapolate the rest.

But the science behind matching “abandoned” DNA to commercial ancestry databases is not certain. DNA tends to be highly transferrable and can end up in places the person never went. Genetic genealogy searches have sometimes led to innocent people being suspect of serious crimes.

Iowa Supreme Court hearing case on ‘abandoned’ DNA

Currently, the Iowa Supreme Court is hearing this issue in a cold-case murder from 1979. After no leads for decades, advancing technology allowed the police to extract DNA from blood left at the crime scene.

They tested that DNA against a consumer genealogy database called GEDMatch. There, they found three brothers who might match their sample. The police then surveilled the brothers until they could collect “abandoned” DNA – in this case, a drinking straw left behind at a restaurant. The abandoned DNA came from Jerry Burns, who was charged in the case.

If we allow the police to surveil suspects, surreptitiously collect DNA samples from them, and compare those samples to commercial databases, the damage to our privacy rights could be immeasurable. The Fourth Amendment must ban this practice. And then Congress needs to act to prevent others, including private businesses who want to profit off our DNA, from using our DNA without express written consent.

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