May DNA be taken via search incident to an arrest, at least for a violent crime? Virginia appears to hold that it does.
Virginia permits DNA samples on arrest for violent felonies incident to arrest. Va. “Code § 19.2-310.2:1 authorizes law enforcement officers to obtain a sample of ‘saliva or tissue’ for DNA testing from anyone arrested for certain violent felonies. The testing is meant to isolate genetic ‘identification characteristics specific to the person.’ Code § 19.2-310.2:1. After a magistrate or grand jury confirms that probable cause exists for the arrest, id., the sampling logistics are coordinated by the ‘law-enforcement agency responsible for arrest booking in the jurisdiction.’ Code § 19.2-310.3:1(A).” A taking incident to an arrest was not shown to be a violation of the Fourth Amendment. Anderson v. Commonwealth, 634 S.E.2d 372 (Va. App. September 12, 2006):
On appeal, Anderson argues that the statute violates the Fourth Amendment because it authorizes what amounts to a “suspicionless search” unrelated to any effort by law enforcement to obtain evidence for the specific charge justifying the arrest. We disagree.
A search of an arrestee requires no independent legal justification apart from the arrest itself. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). “It is the fact of the lawful arrest which establishes the authority to search.” Id. Upon a “lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id. “With the person’s loss of liberty upon arrest comes the loss of at least some, if not all, rights to personal privacy otherwise protected by the Fourth Amendment.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).
That is particularly true when the search merely seeks to identify the arrestee. When a person is “arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Id.; see also Smith v. United States, 117 U.S. App. D.C. 1, 324 F.2d 879, 882 (D.C. Cir. 1963) (recognizing as “elementary” the proposition that arrestees may be fingerprinted and photographed “as part of routine identification processes”). The state’s interest in the arrestee’s identity, moreover, “is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes.” Jones, 962 F.2d at 306.
Though the probable cause justifying an arrest likewise justifies a search incident to an arrest, it does not follow that the Fourth Amendment has no further role in limiting the manner of the incidental search. In this case, however, Anderson does not challenge the specific manner in which his DNA sample was taken or the nominal degree of physical invasiveness it may have involved. See id. at 307 (finding that even the DNA blood test sampling procedure involves “virtually no risk, trauma, or pain” (citation omitted)). Thus, this case does not require us to determine at what point a search incident to an arrest becomes unreasonable due to the manner in which it is performed.
For these reasons, we hold that the collection of a DNA sample from Anderson under Code § 19.2-310.2:1 did not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The procedure involved a permissible application of law enforcement’s authority to search an arrestee incident to an arrest.
There is no such thing as a due process claim under the “Fourth and Fourteenth Amendments.” The complaint is construed solely under the Fourteenth Amendment. Croom v. Wagner, 2006 U.S. Dist. LEXIS 64915 (E.D. Pa. September 11, 2006)* (pro se prisoner complaint).
Having considered the merits of the stop and arrest claim, “We conclude defendant was not prejudiced by his attorney’s failure to file a motion to quash arrest and suppress evidence because it would not have had a reasonable likelihood of success.” People v. Morrison, 367 Ill. App. 3d 581, 305 Ill. Dec. 362, 855 N.E.2d 253 (2d Dist. September 12, 2006, released for publication October 19, 2006).*
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
