“Routine DNA” Swab Deemed Unconstitutional in State v. Steeprock
Cops, judges, probation officers, and the like often routinely get involved in obtaining bodily fluids from people. Sometimes, it is to test to for alcohol or drugs. Other times, they want your DNA. A common practice is for law enforcement to obtain a search warrant. They ask a judge for an order to present to a person to give up a desired bodily fluid.
In State v. Steeprock, the cops did just that. While investigating Steeprock in an attempted murder case, law enforcement obtained a search warrant for Steeprock’s DNA, including a buccal swab. At the trial court, defense counsel asked for a Franks Hearing challenging the validity of the warrant. The prosecution backed off and stipulated it would not use any evidence obtained from the challenged search warrant, including the buccal sample from Steeprock. The prosecution likely made that decision because it knew it could get Steeprock’s DNA through a buccal swab with a court order. And, it did just that.
Using Minnesota Rule of Criminal Procedure 9.02, subdivision 2(1)(f), the prosecutor asked the district court judge to order Steeprock to provide a saliva sample. Over defense counsel’s objection, the judge ordered Steeprock to provide a DNA sample. The cops then got a buccal swab from him; the prosecution used the results in trial; and Steeprock was eventually convicted.
Fortunately, the defense appealed and the Minnesota Court of Appeals agreed the buccal swab ordered by the district court resulted in an unconstitutional search in violation of the Fourth Amendment. The Minnesota Supreme Court agreed and that the warrantless collection of Steeprock’s buccal swab requires a new trial because no exception to the exclusionary rule applies and the error was not harmless beyond a reasonable doubt.
However, this will not slow down cops, judges, and probation officers from getting DNA samples from people. Rule 9.02 allows judges to order a defendant to “permit the taking of blood, hair, saliva, urine, or samples of other bodily materials that do not involve unreasonable intrusion.” Here, the Minnesota Supreme Court merely believed the buccal swab was too intrusive for a judge to order. A small victory for the defense, but overall may do little to slow down the taking of bodily fluids from people.
Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota and Wisconsin. Super Lawyers named him a Super Lawyer for the past four years and a Rising Star in the preceding six years. He is an adjunct professor at the University of Minnesota Law School. Criminal Defense Lawyer Woodbury, Criminal Defense Attorney Wisconsin, DWI Lawyer Minnesota.