When Is DNA Collection a "Search or Seizure"?

In a brief opinion, the Supreme Court of Louisiana invoked the constitutionality of routine DNA sampling of custodial arrestees to uphold an order for a cheek swab to an indicted defendant. The case presents an unusual set of facts in that investigators were seeking, for no apparent reason, what the court assumed to be a second sample from the defendant.

After "a shooting in which three individuals were killed" and another wounded, "a witness informed [police] that he observed [Charles] Franklin and Dwayne Johnson changing out of their clothing and into clothing that was black." Franklin and Johnson then were arrested. At their preliminary examination, a detective "testified that, pursuant to a search warrant for a nearby residence, he recovered clothing similar to what Mr. Franklin was observed wearing and subsequently removing on the night of the offense." State v. Franklin, No. 2010-K-0564 (La. Ct. App. Aug. 11, 2010), rev'd, No. 2011-1909 (La. Dec. 16, 2011),

Rather than apply for a search warrant for a DNA sample, the state obtained a court order for Franklin to give a buccal swab. Id. Before the order could be enforced, however, the Court of Appeals held that this procedure constituted an unreasonable search or seizure because

The State has not developed a DNA profile from the seized clothing; therefore, the State has not established that the DNA to be seized from Mr. Franklin, standing alone, could 'constitute evidence tending to prove the commission of an offense.

The Louisiana Supreme Court reversed. At first, it seemed to maintain that judicial review and the equivalent of a warrant were superfluous. Louisiana was the first state to authorize DNA sampling as part of a custodial arrest, and the court was willing to "presume that the Louisiana State Police Crime Laboratory already possesses a sample of defendant's DNA to which its CODIS DNA section has access for testing as part of a cooperative effort between state and federal authorities to develop a comprehensive identification data base."

This observation is puzzling. If the state already had a sample for the state databank, why demand that defendant provide another before it had even recovered and analyzed any DNA from the clothing? More fundamentally, the court failed to articulate clearly why DNA sampling "as a routine incident of booking" supported later warrantless DNA sampling. Merely comparing a recorded profile to one developed from the clothes would not rise to the level of a "search" requiring constitutional justification (see DNA Database Trawls and the Definition of a Search in Boroian v. Mueller), but this fact does not explain why the state can compel a suspect to open his mouth to a scraping of cells from the inside of his cheek. Does the intrusion into the mouth fall short of a search in Louisiana?

The Louisiana Supreme Court came close to taking this position. It expressed some skepticism of the notion that

a warrant is required to take another buccal sample from defendant for purposes of testing by the Crime Lab's Forensic DNA Section as part of the effort to solve a particular crime . . . because collection of the sample, although minimally intrusive, nevertheless constitutes a search."

This skepticism seems difficult to square with Cupp v. Murphy, 412 U.S. 291 (1973). There, the U.S. Supreme Court described the extraction of material beneath a suspect's thumbnail to be a "'severe, though brief, intrusion upon cherished personal security' that is subject to constitutional scrutiny." The Louisiana court seemed to recognize the problem (although it did not mention Cupp), for it assumed arguendo that the cheek swabbing "constitutes a search." On that assumption, the court reasoned that

the state ... need only show a "fair probability" the sample may yield evidence to establish the requisite probable cause, not that the search will produce evidence probative one way or another on the question of guilt. Illinois v. Gates, 462 U.S. 213, 231 (1983) ("'The process does not deal with hard certainties, but with probabilities.'") ... . Given probable cause that defendant participated in the charged crimes, it suffices that the state has established that its evidence, removed from defendant's residence, contains recoverable biological samples that may, but not necessarily will, provide a DNA profile useful for forensic purposes.

This part of the opinion poses another puzzle or two. Why demand probable cause? In Cupp, Justice Stewart was quoting from Terry v. Ohio, 392 U.S. 1 (1968), to show that Fourth Amendment protections came into play. But the invasion in Terry was a stop-and-frisk rather than a prolonged arrest or a thorough search. The Court held the fourth amendment applied to the lesser invasion, but it was unwilling to demand probable cause. Instead, it countenanced pat downs on the basis of reasonable suspicion. Likewise, "nontestimonial orders" for blood, hair, fingerprints, voice exemplars, and the like, do not require probable cause.

In any event, both probable cause and reasonable suspicion involve probabilities, not certainties. The Franklin court is correct in that regard. But this tells us next to nothing about the level of probability that is required to justify a search under either standard. There is no obvious reason that investigators cannot analyze clothing from the vicinity of a crime before demanding a DNA sample from a suspect.

In this case, however, "the state refined its motion by presenting ... the trial judge with a crime lab report ... indicating that the evidence, clothing taken from defendant's residence in a prior search, contains blood and a single hair strand with follicle, which may be tested and which may yield a DNA profile ... ." Still, "may yield a DNA profile" is a rather weak promise from the laboratory. Any item of clothing "may yield" a profile.

References

• State v. Franklin, No. 2011-1909, 2011 WL 6312400 (La. Dec. 16, 2011)
• Cupp v. Murphy, 412 U.S. 291 (1973)
• Terry v. Ohio, 392 U.S. 1 (1968)
• David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)

Acknowledgments

• Thanks to Lisa Hurst for calling the opinion to my attention.
• Cross-posted from The Double Helix Law Blog.