While DNA technology is effective, courts and commentators have noted that the technology raises privacy concerns. In the recent case of People v. Buza, the California Court of Appeal held that a California law mandating the collection of felony arrestees' DNA violated the California Constitution. And commentators' critiques of DNA technology make frequent appearances in law journals (see here, here, and here for some examples of arguments about DNA technology's potential to invade privacy).
One aspect of DNA technology that concerns courts and commentators is "familial searching" of DNA samples. Through familial searching investigators may take one sample of DNA and compare its genetic markers to other samples they have on file in criminal cases. DNA profiles that are extremely similar to unknown DNA samples may indicate a familial relationship, and may prompt investigators to focus on the family members of a person whose DNA sample they have already collected.
For example: investigators may collect a DNA from one person - "Defendant" - as part of an arrest procedure or through an agreement with that person. Defendant's DNA may be extremely similar, but not identical, to a sample of DNA collected from the scene of an unrelated crime. This may mean that Defendant is related in some way to the unknown person who committed that crime - "Suspect" - and investigators may turn to Defendant's family members to determine whether one of them is the Suspect in the outstanding crime.
For those seeking further clarification, the first several paragraphs of this note by Amanda Pattock provides an engaging anecdote of how familial DNA searches may identify criminals.
In this post, I discuss whether people identified through familial DNA searches have grounds to challenge the DNA search under the Fourth Amendment. I argue that these people do not have a viable Fourth Amendment argument because they lack standing to challenge the search. While recent cases like Riley v. California and United States v. Jones suggest that government investigations obtain large amounts of information about a single person may constitute Fourth Amendment searches, the standing barrier is a significant, independent obstacle to Fourth Amendment claims.
Fourth Amendment Standing
The Fourth Amendment prohibits unreasonable searches and seizures. Generally, if the government carries out an unreasonable search or seizure, evidence obtained as a result of that search or seizure will be excluded from any trial that may result. For a person to have a viable Fourth Amendment argument that evidence should be excluded, that person must have had a reasonable expectation of privacy in whatever was searched or seized.
One aspect of whether an expectation of privacy is reasonable or not is whether a person has Fourth Amendment standing. A person does not have a reasonable expectation of privacy in property that they do not possess, or in houses in which they are not residing.
In Rakas v. Illinois, a passenger challenged the search of a glove compartment in the car the passenger was riding in. The passenger did not own the car. The passenger did not own the car, and was not driving the car at the time. The Court held that the passenger did not have a reasonable expectation of privacy in the car's glove compartment because the passenger lacked a possessory or property interest in the car.
In Minnesota v. Carter, a guest in a house raised a Fourth Amendment challenge when officers looked through the blinds of the house and saw the guest putting drugs in a bag. The Court held that the guest lacked Fourth Amendment standing to challenge the search because the guest was not the owner of the house and was not an overnight guest in the house. The guest therefore lacked a reasonable expectation of privacy in the house.
The upshot of these cases is that if somebody lacks a possessory or property interest in the area searched or seized, that person lacks Fourth Amendment standing to challenge the search or seizure. Any Fourth Amendment challenge to evidence obtained by that search or seizure will therefore most likely fail.
Applying Fourth Amendment Standing to Familial DNA Searches
People who are identified through familial DNA searches may argue that the search of the DNA that led investigators to them violates the Fourth Amendment. But this claim must somehow overcome the response that these people lack standing to challenge a familial DNA search. While the search of one person's DNA sample may reveal similarities with other, unknown DNA profiles, the DNA that is analyzed in familial DNA searches does not belong to the person challenging the search.
Return to my earlier example of Suspect who is identified as a result of a familial DNA search of Defendant's DNA. In this example, it is a given that the search of Defendant's DNA was done either with the Defendant's consent, or as a result of a conviction or arrest for violent felony (which would likely be found constitutional under the Supreme Court's holding in Maryland v. King). Additionally, assume for purposes of this example that the sample of Suspect's DNA that is on file was lawfully collected (say from a crime scene), but until the familial search, police did not know whose DNA they had.
Suspect may argue that a familial search of Defendant's DNA was not done with Suspect's consent, and was not done in circumstances where Suspect had been arrested for or convicted of a violent felony. Suspect, therefore, does not fall into categories of people who have a lowered expectation of privacy due to their giving consent or being arrested for or convicted of a violent crime.
But while investigators may end up drawing connections between the analyzed profile and Suspect's identity, the fact remains that the DNA being collected and analyzed in this case is that of Defendant, and not of Suspect. Even if Suspect has not been arrested or convicted of anything at the time of the search, Suspect has a decreased expectation of privacy in Defendant's DNA by virtue of that DNA belonging to a person other than Suspect. It therefore seems that Suspect does not have Fourth Amendment standing to challenge the familial DNA search because any search that has taken place is a search of Defendant's person and not of Suspect's person.
The standing obstacle objection seems to apply even if a familial search of Defendant's DNA is deemed to be more invasive than a non-familial search. The government may obtain more information about a person when a familial DNA search is done, since officers are able to draw conclusions that the person may have a familial relationship with other people who are the sources of other DNA samples in the government's database. And searches that tend to reveal a great deal of information require a heightened government interest or a lowered expectation of privacy in order for these searches to be deemed constitutional.
But even if the information gathered about the person giving the sample is so invasive as to render that search unconstitutional, the unconstitutionality of this search would only affect the admissibility of any resulting evidence in a later proceeding involving the person who gave the DNA sample. It would not seem to apply to those who are identified as a result of that familial search because of the standing barrier (See Wong Sun v. United States, 371 U.S. 471, 491-92 (1963)).
But even if the information gathered about the person giving the sample is so invasive as to render that search unconstitutional, the unconstitutionality of this search would only affect the admissibility of any resulting evidence in a later proceeding involving the person who gave the DNA sample. It would not seem to apply to those who are identified as a result of that familial search because of the standing barrier (See Wong Sun v. United States, 371 U.S. 471, 491-92 (1963)).
For example, say I leave incriminating evidence in my friend's car. My friend is later stopped by the police, who then obtain evidence against my friend, and the incriminating evidence against me as a result of that stop. If a court ends up finding that the stop of my friend was unconstitutional, the evidence found as a result of that stop would be excluded from further proceedings against my friend, but not in further proceedings against me. I do not own or possess my friend's car and I was not present in the car when it was stopped. The government has therefore not violated any of my Fourth Amendment interests, and the incriminating evidence obtained can be used against me in future proceedings.
People who challenge the constitutionality of familial DNA searches therefore face a significant obstacle. The DNA that is being searched in these cases does not belong to the person raising the challenge, and the challenger therefore lacks Fourth Amendment standing. Even if that search of the DNA was invasive for the person whose DNA was searched, the invasive nature of that search is only relevant to the exclusion of evidence against the person whose DNA was searched, since other people lack standing to challenge the collection and analysis of the DNA.
Addressing Potential Objections
One possible objection to the argument that people challenging familial DNA searches lack standing is that those challenging familial DNA standing have not voluntarily placed incriminating evidence in a place where it may be searched. In Rakas and Carter, the defendants both took voluntary actions that placed incriminating evidence in the possession of others. The defendant in Rakas (and I, in my previous hypothetical) placed incriminating evidence in somebody else's car. The defendant in Carter was carrying out illegal activity in somebody else's home. In both of those cases, the defendants placed evidence of their illegal activities in locations where they had a lesser expectation of privacy. Defendants challenging familial DNA searches may argue that familial DNA searches are distinguishable because defendants do not have a choice when it comes to similar DNA profiles. Because these defendants have taken no action that places incriminating evidence in a location where they do not have a reasonable expectation of privacy, their cases are distinguishable from other Fourth Amendment standing cases.
While the voluntariness distinction may indeed render familial DNA searches different from typical Fourth Amendment standing cases, this difference would not seem to apply to the issue of standing. Voluntarily placing personal information about oneself with a person who may hand it over to the government does indeed remove any reasonable expectation of privacy in that information, but this involves the Third Party Doctrine exception to Fourth Amendment protection rather than the standing exception. The crux of the standing exception seems to be whether a defendant has a possessory or property interest in what the government searches rather than the voluntariness of the defendant's actions. So while defendants challenging familial DNA searches may indeed be able to distinguish their challenges from traditional Fourth Amendment standing cases, this distinction may not have any meaningful impact on the underlying constitutional analysis.
Another potential objection to the argument that those challenging familial DNA searches lack standing is that people have a reasonable expectation that the government will not search the DNA of their relatives. Even if the person who is identified through a familial DNA search is not the person whose DNA was analyzed, that person may still argue that there is a reasonable expectation that the government will not search the DNA of their relatives, and that there is therefore a reasonable expectation that the person would not have been identified through a familial DNA search.
This argument will probably fail because the challenger's expectation of privacy would probably be deemed the result of ignorance of the potential for DNA searches, or irrelevant to the standing inquiry. I have already argued that even if a search is unconstitutional, evidence obtained about people who did not own or possess the property that was searched would lack standing to challenge the search. While those people may indeed expect that the government would not carry out an unlawful search, that expectation is not enough to render the search unconstitutional. And if a defendant does not expect the DNA of her family members to be searched and connect those family members to the defendant, that lack of expectation does not render the search unconstitutional. DNA is still an emerging technology, and a defendant's lack of knowledge about DNA technology's potential should not give that defendant an avenue for challenging advancements in DNA search methodology.
While familial DNA searches may give the government the power to obtain a great deal of information, people who are identified as a result of these searches seem to lack Fourth Amendment standing to challenge these searches. If somebody identified through a familial DNA search hopes to challenge the search, the standing obstacle will be a significant barrier to any Fourth Amendment motion to suppress evidence.
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