“Surreptitious sampling” by police to gather DNA evidence is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy, reports the New York Times. Critics argue that covertly collecting DNA contained in the minute amounts of saliva, sweat, and skin that everyone sheds in the course of daily life, exploits an unforeseen loophole in the requirement to show probable cause a suspect has committed a crime before conducting a search.
“Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court,” said Elizabeth Joh, a law professor at University of California, Davis, who studies the intersection of genetics and privacy law. “I don't think a lot of people understand that.” Law enforcement officials say they are just trying to solve crimes. Over the last few years, several hundred suspects have been implicated by the traces of DNA they unwittingly shed well after the crime was committed. Many more have been eliminated from suspicion without ever knowing that their coffee cups, tissues, straws, utensils, and cigarette butts were subject to DNA analysis by the police. Sometimes the police dupe suspects into relinquishing their genetic identity by offering them a Coke during a routine interview and picking up the can. Some experts advocate curbs on surreptitious sampling. Prof. Albert Scherr of Franklin Pierce Law Center, who has a grant from the National Institutes of Health to study the practice, suggests that the police be required to meet the “reasonable suspicion” standard before secretly collecting DNA.