The Rock Ethics Institute

Home > Initiatives > Bioethics > Resources > Selected Works > Genetics and Criminal Law: Ethical Considerations


4th Amendment Issues

DNA analysis is now regularly incorporated as part of the forensic investigation of crime scenes. But the use of DNA analysis has raised a number of issues, including the appropriateness of scope, the potentiality of abuse, and the social inequities espoused by the legal system in regards to this information.
    1. The 4th Amendment of the United States Constitution protects
      1. 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.
    2. Unreasonable search and seizure
      1. Simply stated, this amendment is intended to protect individuals from unreasonable searches and seizures.  The 4th Amendment protects our general presumption regarding our expectations of both privacy and autonomy regarding our own bodies. We commonly assume that we will not, or at least should not be, detained or searched for logically irrelevant reasons.  For example, imagine that you’ve been stopped by a police officer because you’ve been jaywalking.  You’re polite, sober, psychologically sound, and completely compliant with the officer.  You’ve broken no other laws.  It wouldn’t be reasonable, or legally permissible for the officer to subsequently demand that he strip search you for the possession of cocaine and require that a sample of your blood be entered into a comprehensive DNA databank for criminals.
      2. The strip search, under these facts, would be among other things a violation of your 4th Amendment rights.  With certain invasive searches the police or governmental authority is required to have: 1) probable cause to search, and 2) specificity regarding the extent of the search as well.   Here, both prongs are violated.
    3. Status of DNA
      1. Does the taking of your DNA constitute an unreasonable search and seizure?  The general answer to this question depends on whether or not you, as an individual, are included within certain legal categories of persons.  We will focus on two cases: where one is 1) a criminal suspect within a presently ongoing criminal investigation or 2) a prior convict.
      2. Prior Convicts
        1. As a prior convict, the status of whether or not one must provide genetic samples to be entered into DNA databases is now in question.  In October of 2003, the 9th Circuit Court of Appeals ruled that requiring these samples “amounts to an illegal invasion of privacy because they are taken without legal suspicion that the convicts were involved in other crimes." Consequently, the court found the “3-year-old law that requires federal prisoners to give blood samples for the FBI's DNA database” to be unconstitutional (Id).  The 9th Circuit covers Arizona, California, Hawaii, Oregon, Idaho, Washington state, Montana, Nevada and Alaska – however this ruling could have national repercussions as well, as “the decision, if it survives appeal, could also nullify state laws that require the taking of blood from inmates” (Id).  According to Monica Knox, a deputy public defender of Los Angeles, "Most states have similar laws… this [ruling] could gut those" (Id).
      3. Criminal Suspect
        1. The application of 4th Amendment standards of search and seizure for most criminal suspects within a presently ongoing investigation is relatively straightforward – if there is probable cause and a valid warrant that fulfills the requirements of particularity and specificity regarding the search and seizure, then the search and seizure is permissible.  Thus, DNA samples from blood, hair, and other excretions can be taken involuntary from otherwise uncooperative criminal suspects in order to better determine an individual’s potential innocence or culpability.