No, says the Indiana Court of Appeals in Garcia-Torres v. State:
After comparing cheek swabs with other searches requiring only reasonable suspicion, we conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion. As the United States Supreme Court has observed, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 24-25. And yet, it is universally understood that such a pat-down may be conducted upon reasonable suspicion.
In contrast, a cheek swab takes even less time than a pat-down or field sobriety tests (“FSTs”) and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect‘s body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares. As such, swabs are even less violative of the “[t]he interests in human dignity and privacy which the Fourth Amendment protects” than pat-downs or FSTs.
Maybe, but I’m not so sure. First, the rule allowing pat-downs is an exception to the usual rule to account for the specific interest in officer safety. The pat-down search can only be for weapons, not evidence: The reasonable suspicion is that the suspect is armed and dangerous, not that he has evidence on his person. In contrast, a DNA test is obviously for evidence, not for officer safety. If the general rule is that a search of a person requires probable cause and a warrant, I’m not sure why a DNA test isn’t part of the usual rule.
It’s true that some courts have permitted field sobriety tests and fingerprinting based on reasonable suspicion, but I have understood those cases to be about seizures, not searches. The Terry stop power allows a relatively broad authority to temporarily seize a person based on reasonable suspicion, but there’s a difference between allowing a seizure to control the scene and allowing a search of a person’s body.
I suspect that eventually the Supreme Court will have to decide this issue: There isn’t a circuit split on it yet, as far as I know, but my understanding is that district courts and intermediate state courts are divided. Eventually the issue will work its way up to the Supreme Court, although I think it’s hard to predict what the Court would do.
Thanks to FourthAmendment.com for the link.
Malvolio says:
That’s just terrible. Under what circumstances would a literally unwarranted DNA swab be legitimate? The results don’t come back for days; the information revealed can be intensely private; as you point out, there are no public safety concerns.
Plus, what if the subject refuses to open his mouth? Can they force him?
October 7, 2009, 4:20 pmanomdebus says:
I don’t see how you can distinguish between sobriety test/fingerprinting and a swab test for identity (or even sobriety).
The saliva itself is not what they are looking for (“He’s got spit! Take ‘em downtown!”)
Perhaps a spittoon is a reasonable compromise?
Malvolio, don’t you have the same problem if a person refuses a breathalizer (or other sobriety test) or refuses to unclench their hands for fingerprinting?
October 7, 2009, 4:41 pmBC says:
The court is, I think, wrong here. As Eugene points out, when the court says, “And yet, it is universally understood that [a Terry search] may be conducted upon reasonable suspicion,” that’s a half-truth; a Terry search may be conducted on reasonable suspicion that the suspect is armed and dangerous, and NOT merely that the suspect is in possession of evidence. The officer safety concerns that form the rationale for Terry do not ordinarily exist in a DNA swab situation.
October 7, 2009, 4:42 pmjosh says:
This was my first year legal writing moot court topic. Is it a search and is it reasonable were the issues, I think. One piece you may want to consider are the border-stop cases (Martinez-Fuerte, I think).
But this was in 1999. I honestly thought the issue had been decided by now. Maybe the question presented related to AFTER a suspect had been detained? I don’t recall …
October 7, 2009, 4:42 pmDavid Schwartz says:
This is absolutely and completely ridiculous. If this were the rule, then if police could easily and conveniently search an entire house molecule by molecule, no warrant would be required to do so.
October 7, 2009, 4:54 pmbyomtov says:
Malvolio makes a good point. The amount of information that can be obtained from a DNA analysis is vastly greater than what can be obtained by the other examples given. It is “minimally invasive” only in a physical sense, not in an “information gathering” sense. On the contrary, it is extremely intrusive. Surely that ought to be taken into account.
October 7, 2009, 5:02 pmAttractive Nuisance » Blog Archive » We Don’t Need No Stinking Fourth Amendment says:
[...] am pointed, by a post at the Volokh Conspiracy, to an Indiana Court of Appeals decision (Garcia-Torres v. State): After comparing cheek swabs with [...]
October 7, 2009, 5:05 pmhtom says:
Exceedingly and excruciatingly intrusive, and dangerous to consent to as well, given the recent press about the forging of DNA evidence. Now they want to take swabs without consent?
October 7, 2009, 5:09 pmSkyler says:
The sobriety test is based on the fiction that driving is a privilege. By that logic, a DNA swab is not permitted if you’re not driving. If you’re walking on the street or in your front yard, there is no privilege that the government thinks it’s granting you. At least we haven’t gotten that bad yet.
So this decision is out to lunch in every regard.
October 7, 2009, 5:11 pmpete says:
The other issue is that in a field sobriety test the information is time sensitive. It does no good to test the suspect 48 hours later. But his DNA is not going anywhere as long as you have access to him.
Would taking the swab, but having to get a warrant to actually run tests on it satisfy anyone?
October 7, 2009, 5:16 pmDavid Schwartz says:
All the other cases were based on special circumstances. Perishable evidence, officer safety, and so on. This is an absolutely routine evidence-gathering search that is not special or unusual in any way. Nothing whatsoever prevented the police from getting a warrant. To find that it doesn’t require a warrant is to simply ignore the fourth amendment.
“Would taking the swab, but having to get a warrant to actually run tests on it satisfy anyone?”
No. The we have a legitimate privacy interest in every barrier we place between ourselves and others. Opening my blinds breaches a legitimate privacy interest whether you look through them or not. (And there’s case law on point.)
October 7, 2009, 5:23 pmhtom says:
pete — did you forget the /sarcasm tag?
October 7, 2009, 5:24 pmJohn Jenkins says:
Not quite. Sobriety tests are premised on “implied consent.” See, e.g.,47 Okla. Stat. § 751(A)(1). By driving you are “deemed to have given consent.” Id.
October 7, 2009, 5:25 pmSuperSkeptic says:
Yes quite John. Unless you have personally given your consent, anything that says you have is fictional.
As we pick up speed down the slippery slope of Fourth Amendment violations…
October 7, 2009, 5:28 pmPersonFromPorlock says:
Orin, you’re confused: the Constitution enables, not limits, government. It’s just a matter of them finding the right form of words (usually LA-LA-LA…) to hallow any official action.
October 7, 2009, 5:29 pmVisitor Again says:
An oral swab is not minimally intrusive. Unlike pat down searches, it is an intrusion into the body. A warrant based on probable cause to believe the search will produce evidence of a crime is required. If the swab is sought to determine a person’s identity, then the searching authorities ought to be required to show that they have probable cause to believe that person’s identity is evidence of that person’s guilt of a crime. They ought not to have license to go around trying to identify people willy-nilly in an effort to build a DNA database that they hope will eventually include all of us.
October 7, 2009, 5:35 pmpete says:
I think that answer my question. I do not see why the officers can’t just wait for a warrant.
October 7, 2009, 5:36 pmSuperSkeptic says:
Btw, Terry was an awful decision, as it’s led to the near eviseration of P.C. in so many situations (“exceptions”) and replaced it with the much, much lower standard of Reasonable Suspicion. Now, everything that Majorities or Courts view as important enough to search for only requires R.S.
October 7, 2009, 5:37 pmVisitor Again says:
Exactly right. Terry has led to rampant invasions of liberty, particularly in poorer communities. It was and is an abomination, probably the most anti-libertarian decision of the past 50 years.
October 7, 2009, 5:40 pmOrin Kerr says:
David Schwartz writes:
David, I recall that you have strong opinions about the Fourth Amendment. But this strikes me as an “absolutely and completely ridiculous” comment. There is nothing in the Court’s rule that suggests that the police could do that: That the rule would apply to the home, or allow such a thing, etc. Plus, if there were reas susp for each and every individual molecule in a house, then there would plainly be probable cause for the house as a whole.
October 7, 2009, 5:55 pmsecond history says:
This is really a technological extension of Schmerber. Also, the defendant consented to the sample while being interrogated by the police (after being brought in for questioning, not during a traffic stop).
And he was not just dragged off the street in for questioning, the police had already developed evidence against him. So I see really little problem with the check swab, it merely confirmed the evidence the police already had.
October 7, 2009, 5:58 pmJust Dropping By says:
In contrast, a DNA test is obviously for evidence, not for officer safety.
I’m sure that the friends and family members of the many officers killed each year in the line of duty by mutant supervillains would strongly disagree.
October 7, 2009, 5:58 pmDilan Esper says:
Malvolio makes a good point. The amount of information that can be obtained from a DNA analysis is vastly greater than what can be obtained by the other examples given. It is “minimally invasive” only in a physical sense, not in an “information gathering” sense. On the contrary, it is extremely intrusive. Surely that ought to be taken into account.
This is a problem I have always had with the drug testing cases. Courts focus on the physical intrusion / sexual humiliation of peeing in a cup. But the real privacy interest is the interest in not having the police or anyone else know what is inside your body. Courts don’t want to go there because they don’t want to admit that it is presumptively none of the government’s business what your body contains and that the government should have to meet some strict standard to override it. But that’s the real issue.
And that’s why swabbing cases may come out with underprotective results too.
October 7, 2009, 6:14 pmAngus says:
I’ll bring this up only because conservatives like to fling such things about when “liberal” judges appointed by Democrats trample our rights.
Majority:
Judge Bradford – appointed by Mitch Daniels (R)
Judge Brown – appointed by Mitch Daniels (R)
Dissent:
Judge Crone – appointed by Joe Kernan (D)
Clearly I think that the “liberal, Democratic” dissent got it right in this case.
October 7, 2009, 6:17 pmBill says:
the human body sheds cells containing its DNA pretty darn continuously.
there’s a fundamental gap between physical reality and the law for a cheek swab to be a major invasion of privacy — anyone who wants a copy of your DNA can follow you around and pick up personal hygene items you throw away.
October 7, 2009, 6:26 pmJohn Jenkins says:
Doesn’t the argument generally run precisely the other way, with the complaints from liberals and libertarians that conservative judges are curtailing the Fourth Amendment?
If this were a Second or Fifth Amendment case, you might have a point, but I don’t think so here. I think that’s the precise ideological lineup you’d expect in a Fourth Amendment case.
October 7, 2009, 6:29 pmDilan Esper says:
Also, in recognition of Professor Kerr’s love of jazz as well as the subject of this post, here’s Satchmo and Ella singing “Cheek to Cheek”:
http://www.youtube.com/watch?v=GeisCvjwBMo&feature=related
October 7, 2009, 6:30 pmarbitraryaardvark says:
Garcia-Torres received ineffective counsel, and can move for post-conviction relief.
October 7, 2009, 6:48 pmCounsel was ineffective because he failed to raise a state constitutional search and seizure claim. Indiana’s search and seizure provision, section 11 of article I, is textually the same as the 4th Amendment, but has been construed differently. For example one of his strongest arguments was Pirtle, which is a state constitutional rule about right to counsel.
However, I think he’s guilty, and the state could argue inevitable discovery, so I don’t know if he would ultimately prevail.
Sugartits mcgillicutty says:
You’re putting an implement inside someone’s person.You’re putting an implement inside someone’s person. You’re putting an implement inside someone’s person. You’re putting an implement inside someone’s person.
I’m gonna say it again:
You’re putting an implement inside someone’s person.
October 7, 2009, 7:02 pmOrder of the Coif says:
Conservatives are willing to violate the Constitutional rights (if any are left), privacy, and personal sanctity of a million to make certain no one guilty person escapes. These Judges are run-of-the-mill. AMERICA is not supposed to be a European-style police state.
October 7, 2009, 7:20 pmsecond history says:
How is this different from Schmerber? Or do you think that blood, hair and other samples from a body require a warrant? Mindlessly repeating yourself is not a legal argument.
October 7, 2009, 7:45 pmSuperSkeptic says:
Schmerber was wrongly decided. how’s that for a legal argument?
Also, Schmerber was a Warren Court decision (for those of you discussing the D’s and R’s with regard to the Fourth. Hint: they’re both bad because they favor the state).
If I didn’t know better, I’d think Dilan was actually a libertarian after that comment
October 7, 2009, 8:00 pmsecond history says:
Schmerber may be wrongly decided but it has not been overruled. As we have seen here frequently, this is one of those is/ought w
October 7, 2009, 8:03 pmOrin Kerr says:
Schmerber was wrongly decided. how’s that for a legal argument?
I think you should add some citations to Nozick and Hayek to make it a really strong argument.
October 7, 2009, 8:06 pmSuperSkeptic says:
Thank you, Professor.
October 7, 2009, 8:34 pmDavid Schwartz says:
You certainly have a fair point. But the distinction between searching a house and taking a cheek swab is precisely the intrusiveness. Without that difference, why wouldn’t this reasoning apply to the home?
I think the focus on whether there is probable cause misses an important point. That you had probable cause is not a license to search without a warrant.
October 7, 2009, 9:09 pmOrin Kerr says:
David Schwartz:
Perhaps because the Supreme Court has specifically rejected that argument? The Supreme Court has taken a different view: Its view is that taking any information at all from inside the home, eve if it is entirely nonobtrusive on unrevealing, is still a full search that requires a warrant because it involves the home. See Kyllo v. United States.
So when you say that “the distinction between searching a house and taking a cheek swab is precisely the intrusiveness,” the Supreme Court has precisely rejected that precise kind of argument. More broadly,let me suggest that you might persuade a few more readers if you spoke with a bit more humility about this complicated body of law. But that is up to you, of course.
October 7, 2009, 9:27 pmArthurKirkland says:
I advocate collection of DNA and fingerprint information from every American, so long as the collection occurs in this order:
(1) all judges (Supreme Court first, district justices/magistrates last)
(2) all prosecutors (feds first, locals last)
(3) all police officers (narcotics first, locals last)
(4) all other law enforcement personnel (DEA first, locals last)
(5) all federal elected officials
(6) all state elected officials
(7) all rasslin’ and NASCAR fans
(8) all local elected officials
(9) all appointed government officials
(10)all immediate family members of anyone identified at (1)-(9)
(11)all other Americans
Any deviation from that order resets my position to ‘get a warrant, destroy the information unless the provider is convicted of a crime, and punish personally any government official who violates the rights of any citizen in this regard.’
October 7, 2009, 10:41 pmAnon says:
Is anyone going to mention the temporal significance here? It seems the court’s opinion is mainly concerned with the “impact on the subject”, which I believe them to mean a combination of time and intrusiveness. If time is a factor, it is hard to believe that rubbing the inside of someone’s cheek for a half a second is something that requires probable cause. Like some of you have pointed out, the suspect was in custody and the evidence was seemingly required to confirm or deny what the police already knew. With those facts taken into account, probable cause seems like a pretty heavy requirement for such a fleeting event.
October 7, 2009, 10:52 pmjccamp says:
I think this is an odd case, with poor facts for either side to make a test case out of. Garcia was a suspect in two sexual batteries. Cops developed info about his identity and brought him in for an interview. He waived per Miranda and confessed to both crimes. He then gave a voluntary DNA swab. At trial, the judge suppressed the statements because Garcia, although he conversed with one victim in English, and with both detectives in English, apparently lacked sufficient English language skills to form an intelligent and knowing waiver. There is an Indiana requirement for a warning similar to Miranda before a consent search. The Indiana court never considered whether this waiver was also tainted by Garcia’s lack of English. I think that the government could make, in this instance, a very compelling argument that the detectives indeed had PC sufficient for a warrant by the time they took the DNA, that they acted in good faith by taking the DNA sample via consent, and that they could have easily obtained the evidence via warrant if they had only suspected Garcia’s consent was somehow not valid. Under these very specific circumstances, and given that if Garcia’s only issue asking for a new trial is the DNA, and knowing that the state could easily obtain, even now, a search warrant and obtain another sample, test it, etc., what’s to be gained by making everyone re-do the original trial? The DNA evidence would not be suppressed for any new trial. It would just be from a new sample, which is not going to change.
October 8, 2009, 12:12 amI think the reasoning of the Indian high court a little strained, perhaps. Maybe they had a conclusion, and looked for the reasoning, so to speak.
I have another question. Suppose the detectives just swabbed the table (or the chair, or something similar) in the interrogation room where Garcia was sitting and had rested his arms? Has he abandoned this DNA, which we now are realizing is everywhere? For those worrying about the intrusiveness of a Q-tip inserted in your cheek for a few seconds, what about just wiping off, say, a police department doorknob you just touched? A handle on the faucet in the men’s room next to the detectives?
Prosecutorial Indiscretion says:
Exceedingly and excruciatingly intrusive
That seems to be radically overstating the issue. While I agree that this case was probably wrongly decided due to misreading Terry, “excruciatingly intrusive” brings to mind a careless and aggressive cavity search, and simply does not describe in any reasonable fashion a cheek swab.
As has been pointed out, we waive our right to privacy in our DNA on a constant basis through actions such as sneezing, leaving fingerprints, and shedding hair and skin. And it’s not as if we (most of us, anyway) know the content of our DNA – it’s not like the police are reading diaries, or downloading web histories, or performing strip searches. The police have a reasonable chance of securing the DNA in other ways, but I suspect the more creative the cops have to get to secure DNA, the more opportunity for error will arise.
October 8, 2009, 12:40 amDaily Pundit » Give the State Your Entire Genetic Makeup - On A Whim says:
[...] The Volokh Conspiracy » Blog Archive » Does a Cheek Swab for DNA Require a Warrant? No, says the Indiana Court of Appeals in Garcia-Torres v. State: [...]
October 8, 2009, 8:07 amSmooth, like a Rhapsody says:
Per Bill,
October 8, 2009, 9:05 amWhat if they had detained him for the offense for which he was suspected for 12-24 hours and then waited for him to leave his DNA on a coffee cup or a cigarette butt?
Snaphappy says:
The opinion is yet another example of the greater-lesser fallacy in legal reasoning. According to the opinion, the greater intrusion of a Terry frisk is justified by reasonable suspicion, so reasonable suspicion should also justify the lesser intrusion of a cheek swab. As Orin rightly points out, the reasonableness of a search isn’t measured on a facile scale upon which we can weigh intrustiveness on one side against level of suspicion on the other. By the same reasoning, on reasonable suspicion an officer should be free to read any papers a person he confronts might be carrying, since the intrusion of opening a folder and shuffling papers is less of a personal affront than the intrusion of a Terry frisk.
October 8, 2009, 9:22 amAnderson says:
According to the opinion, the greater intrusion of a Terry frisk is justified by reasonable suspicion, so reasonable suspicion should also justify the lesser intrusion of a cheek swab.
If the judges of the IN Ct. of App. think that having something placed in one’s mouth is less intrusive than having one’s pockets patted down, then they’re doing fellatio all wrong.
October 8, 2009, 9:46 amwhit says:
“You certainly have a fair point. But the distinction between searching a house and taking a cheek swab is precisely the intrusiveness. Without that difference, why wouldn’t this reasoning apply to the home?”
no, the difference is that “a man’s home is his castle” and that homes are thus given special protections vs. the inside of a man’s cheek, which is many things, but definitely not a castle. :)
October 8, 2009, 12:13 pmDavid Schwartz says:
I actually had this case specifically in mind. I was being unclear by what I meant by “intrusiveness”. I believe both your first reply and my reply to your reply were based on confusions arising from my poor choice of wording.
And you’re right.
October 8, 2009, 4:41 pmDavid Schwartz says:
whit: While I recognize that the home is legally unique, I would argue that a person has a greater privacy interest in his bodily integrity, and particular his DNA, than he does even in his home. And I would further argue that society generally recognizes and accepts both this specific privacy interest and its extreme significance.
October 9, 2009, 2:14 am