Before suspects are indicted or even arrested, they can find themselves at the beginning of the DNA pipeline, otherwise known as DNA sampling. The U.S. Supreme Court recently declined to hear a case directly addressing the constitutionality of test-on-arrest laws,1 leaving federal and state courts to reach their own conclusions about the lawfulness of this practice.2 Thirty years ago, New York’s highest court set limits on how far police and prosecutors could go to obtain someone’s biological information, which laid the groundwork for DNA sampling challenges today.

Probable Cause

Writing for the majority of the Court of Appeals in In re Abe A., 56 N.Y.2d 288, 291 (1982), Justice Jacob Fuchsberg reasoned that before a trial judge could issue an order to draw blood, the prosecution had to establish:

(1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other.

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