oos E-Newsletter #163 – DNA Sampling for Motorists: The Latest Threat to Privacy


Drivers face all kinds of threats to their privacy, and one area sure to garner increasing scrutiny is the collection of DNA samples during traffic stops.

A recent example comes from California with the case of People v. Thomas. Motorist Troy Corsby Thomas, a suspect in a string of burglaries, was stopped under the guise of a DUI check. Thomas submitted to a breathalyzer test, which he passed. He was then free to go. However, a sample of Thomas’ DNA from the breathalyzer mouthpiece was submitted for testing, without his knowledge or consent.

At trial, Thomas moved to have the DNA evidence suppressed because it was seized and tested without a search warrant. The court denied the motion saying that Thomas did not have an expectation of privacy since he abandoned the evidence. It ruled that the sample was voluntarily given, and subsequent testing was not a search within the meaning of the Fourth Amendment.

Motorists in other states have been targeted for DNA sampling as well. In 2008, Florida police looking for a serial killer made headlines after taking DNA from “persons of interest” during traffic stops.

About half the states and the federal government have laws allowing DNA collection from individuals upon arrest for certain offenses. Some states collect DNA for all felony arrests while others only do so for those arrested for serious or violent felonies. The DNA data from all of these efforts ends up in a national database where it is ostensibly available to help solve future crimes.

Civil rights groups object to such practices saying they violate Fourth Amendment protections against “unreasonable searches and seizures.” But supporters argue that DNA extraction is no different than lifting a fingerprint: an accepted routine even for those not convicted of a crime.

This specious argument is reminiscent of another case we covered last year in which the California Supreme Court allowed evidence from a cell phone that had been seized without a warrant. The court likened the cell phone to a piece of clothing or a pack of cigarettes and not subject to Fourth Amendment protections. But cell-phone data tells so much more about a person than if they smoke menthols or regulars.

Likewise, DNA reveals so much more about a person than just their identity. Their appearance, ancestry, propensity for disease, addictive tendencies, character traits-all laid bare and accessible for who knows what purposes. A technique called familial searching can match unidentified DNA samples to existing samples in order to establish familial relationships and aid in apprehending suspects.

Given the complex legal, moral and scientific issues raised by this topic, there are no easy answers or quick fixes. We do know that-as with other motorists’ rights-we are on the proverbial slippery slope again. First, we were assured that DNA would only be taken from those convicted of serious crimes. Next, it would only be taken from those arrested for serious crimes. Now, DNA can be taken from targeted motorists without their knowledge or consent.

According to legal experts, motorists have lost their expectations of privacy on many fronts. Motorists need to be knowledgeable and assertive in order to stop further encroachment on their constitutional right to privacy. Otherwise, it’s not hard to envision mandatory DNA sampling as part of routine traffic stops.

In a future newsletter, we will explore ways motorists can protect themselves should this scenario come to pass. Stay tuned.

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