Fri 04 Nov, 2022 Criminal Defense

Can the Police Take Your DNA?

The police are legally allowed to take your DNA, but they will need to obtain a court order to force you to provide it. The police obtain DNA from a person primarily through two methods: when they collect an “abandoned” sample and when they obtain an order from the court that requires you to provide a DNA sample. 

Abandoned DNA Samples

The police are allowed to collect DNA from anywhere so long as they have the legal right to be in that area. So, for instance, in a case involving a murder scene, the police can go to the scene and swab the location for DNA samples. The police have the right to keep the DNA samples they collect. 

The police may be able to find a DNA match between the DNA sample collected and other DNA profiles they keep in their data systems. Most police departments have access to both state and federal DNA databases. A person’s DNA will be in one of these databases primarily when that person has previously been convicted of a crime. Most criminal convictions require that a DNA sample be taken for the government to keep on file.

A very shady tactic used by the police to obtain DNA is the secret collection of items touched and abandoned by a defendant during his interrogation. The most commonly used items are water bottles and cigarettes.

Imagine this scenario: A detective calls a suspect and asks him to come to the precinct to discuss an alleged sex crime. At the precinct, the police ask the suspect if he will waive his Miranda rights and speak with them. Although a person should never agree to speak to the police without first retaining a lawyer, let’s say in this example that the person decides to speak with the police. They want the person to talk as much as possible, so they do everything they can do to make the suspect feel comfortable. The police will often offer a bottle of water and cigarettes. Officers will even sometimes offer to get the suspect a burger and fries. On top of all these offerings, the police will often also try to ingratiate themselves with the suspect by acting like they care. For instance, the officers may say things like “I just want to understand your side of the story,” or “if you are honest with us now, I’ll ask the prosecution to give you a break.”

What most suspects don’t realize, however, is that when the police offer drinks or cigarettes, they are not only doing that to get them to feel comfortable and talk — they are also trying to secretly obtain the person’s DNA. When the suspect leaves the interrogation room, the cigarette butts and water bottles are often not put in the trash. Instead, the police put those items in an evidence bag. They then send those items to the lab for DNA analysis to be performed. 

Although this practice of secretly taking a person’s DNA is very shady, courts allow the police to get away with it. Since the suspects have “abandoned” the cigarette butts and water bottles, they no longer have any privacy interest in those items—according to the courts at least.

If the police match your DNA that was taken from a secretly obtained water bottle to the DNA recovered at a crime scene, the prosecution can use that DNA match against you at trial. This alarming fact should make it clear that you should never speak with the police if they ask you to talk. In addition to using anything you say against you, the police may also be doing things in secret — like taking your abandoned DNA samples. However, if you were falsely arrested and the secret DNA sample wouldn’t have been recovered but for your unlawful arrest, you may be able to get the DNA suppressed from evidence.

Court-Ordered DNA Samples

The court may order you to provide a sample of your DNA. When the court orders you to provide a DNA sample, typically the police will take a “buccal swab” from the inside of your cheek. This is essentially a cotton swab on the end of a long stick. The process is not painful, but it is obviously a big invasion of your privacy and dignity.

For the court to order that you provide your DNA, the prosecution generally needs to provide the court with probable cause as to why it believes your DNA is relevant to the case and consequently why the intrusion into your liberty is justified.

For example, say a person is charged with a gun crime after the police enter a home with a search warrant and find a gun in a kitchen cabinet. Multiple people live in the home, so its unclear whose gun was found in the kitchen. However, the prosecution has reason to believe that resident John Smith is the owner of the gun because he posted photos on social media of him holding the gun. The government collects the gun as evidence from the home and sends it to the crime lab, which is able to retrieve a DNA sample from it.

In that scenario, the prosecution might submit an affidavit to the court asking the judge to sign an order that requires John Smith to submit a DNA sample to the government. In their affidavit, the prosecution will argue that they have probable cause to believe that John Smith’s DNA is on the gun because he posted photos on social media of him holding the exact model of gun that was recovered from the home in which John Smith lives. If the judge signs the order, John Smith will be legally obligated to have his DNA taken by the government. In the event that his DNA matches the DNA profile of the sample taken from the gun, then the government may be able to successfully prove that John Smith possessed the gun. Even then, there may be problems with the prosecution’s case, such as the search warrant being improperly issued, the DNA results being tainted, and so on.

Get the Help You Need From an NYC Criminal Defense Attorney

If you have been been charged with a crime where the government took your DNA, Cody Warner can help. He is an experienced NYC criminal defense attorney who has extensive experience litigating DNA evidence. Contact Cody today for a free consultation.