• Attorney Denise M. Buswa

The present state of DNA and the Fourth Amendment

Although in 2015 SCOTUS denied to hear Raynor v State of Maryland, a case where DNA was used to link Mr. Raynor to a rape, cases involving the use of DNA that is not obtained through a search warrant, consent, or with adequate probable cause, but rather through inadvertently shed trace DNA provides for many interesting legal issues.


The Fourth Amendment is one of the most widely known Constitutional Amendments. The Fourth Amendment provides for, "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". The purpose of the Fourth Amendment is to protect the privacy of people unless there is a legal reason to invade a person's privacy. A person's DNA contains some of the most intimate, private information.


The use of DNA voluntarily submitted to determine a person's heritage or trace DNA inadvertently shed can provide much more information than linking a person to a crime. DNA holds a multitude of information such as where a person's ancestors came from, who the person is related to, the person's physical characteristics, and the person's likelihood of getting certain diseases and medical conditions. DNA may also shed light into a person's race, intelligence, criminality, sexual orientation, and more. When the police analyze this DNA, the intrusion is great. The amount of personal information -- not only of the person whose DNA was obtained, but also their relatives -- that can be learned through DNA should receive significant protection under the law; however, this is not the case at the present time. Before submitting DNA to companies to be analyzed, the personal, sensitive information that can be so easily obtained by the police at the present time should be considered. Unfortunately, the distribution of trace DNA cannot be prevented. The use of such DNA will continue to highlighted in the news and in the courts and it will be interesting to see when the SCOTUS decides to hear a case to determine the scope of the use of inadvertent, trace DNA and the use of DNA submitted to companies voluntarily to discern a person's heritage.


Below are some related articles and an Amicus Brief that was filed in support of the SCOTUS to hear Raynor v State of Maryland, which as stated above, the Supreme Court declined to hear.


http://www.woodtv.com/news/national/use-of-dna-in-serial-killer-probe-sparks-privacy-concerns/1145936897


https://www.eff.org/document/amicus-brief-27


https://www.popsci.com/supreme-court-just-effectively-made-it-possible-your-dna-be-used-against-you-criminal-court-without


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