In New York, it takes a so ordered subpoena and a good tasing to get a DNA swab.  Not so in Indiana, where the Court of Appeals in Garcia-Torres v. State, where the court demonstrated the ease with which they can remember the rubric and forget the rationale.  

Via Orin Kerr at Volokh :

After comparing cheek swabs with other searches requiring only reasonable suspicion, we conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion. As the United States Supreme Court has observed, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 24-25. And yet, it is universally understood that such a pat-down may be conducted upon reasonable suspicion.

Notice anything missing from this analysis?  That’s right.  The pat down, or frisk, is permissible primarily because of the issue of safety for police officers,  Notice how the court forgot all about that part?  If the officers have a reasonable suspicion that a person may be armed, they are allowed a cursory pat down to make sure that there are no weapons because, in the balancing of rights and interests, the minimal intrusion is worth the protection a pat down offers cops.

But the Indiana Court of Appeals discarded the fundamental rationale for a pat down, and instead only remembered the minimal intrusion part.  This is a prime example of the slippery slope at work.

Taking a suspect’s DNA is not merely intrusive, without even getting into the deeper discussion of the amount of private information involved, but purely an evidentiary search.  There’s no exigency implicated, as it’s highly unlikely that the suspect’s DNA is going anywhere.  There’s no threat to the officer, aside from the potential that the suspect may spit at him, and taking DNA won’t stop a suspect inclined to do so.  The Indiana court simply decided to make it easier for police, at will, to seize DNA from a person without a warrant, or even probable cause.  It simply chose to make it easier.

There is no per se exception to the Fourth Amendment allowing searches that the court deems “minimally intrusive.”  Mind you, “minimally” is a relative term to begin with, such that it requires something like a frisk to compare it with in order to reach the conclusion that it’s not much worse.  That’s how the constitutional rights fall into the toilet, in baby steps.  Each new step is just minimally more intrusive than the one before it, pushing the envelope just a little bit further, a little bit more intrusive, until they’re allowed to shove a catheter up a man’s penis to collect evidence when the magic black box doesn’t give them what they seek.

Many argue that these “technicalities” make it too difficult, if not impossible, to gather the evidence necessary to ascertain and prosecute criminals.  Since crimes are bad, and they are, these rights unduly inhibit law enforcement from achieving their societally beneficial goal of protecting us from criminals.  Guys like me, harping on constitutional rights all the time as I do, are just obstructionists trying to make the police officers’ job too difficult.

All too true.  Adherence to the Constitution does indeed put a substantial burden on law enforcement to play by the rules.  It would be far easier to clean up crime if police would just be allowed to do whatever they please without the interference of having to obtain judicial approval before they search our bodies for evidence to be used against us.  Probable cause is a long way from basic suspicion, the measure that most cops use to justify a search (if they were being truthful about it) and assuming they weren’t doing it just to hassle the person or teach them who’s boss.

But this is a political choice.  If one prefers the authority of police to do their job, and wishes to facilitate the collection of evidence despite the limitations of the Constitution, that’s one thing. But it finds no justification in the caselaw, logic or the extension of the reasoning from a frisk to a DNA swab.  The Indiana Court of Appeals’ decision in Garcia-Torres is sheer nonsense, and merely serves to demonstrate why we need to be ever-vigilant of the rubric without the rationale.

Orin suggests that this decision will be heading for the Supreme Court.  God help us.