I am pointed, by a post at the Volokh Conspiracy, to a really terrible Indiana Court of Appeals decision (Garcia-Torres v. State):
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.
In contrast, a cheek swab takes even less time than a pat-down or field sobriety tests (”FSTs”) and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect‘s body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares. As such, swabs are even less violative of the “[t]he interests in human dignity and privacy which the Fourth Amendment protects” than pat-downs or FSTs.
For the sake of non-lawyers, the Fourth Amendment generally requires officers to obtain a warrant based on probable cause in order to search a person’s body. The Supreme Court has identified several exceptions to this rule, among which is the so-called “stop and frisk”, or Terry search, that the Indiana court refers to above. However, when the Indiana court says that, “it is universally understood that [a Terry search] may be conducted on reasonable suspicion,” that’s a half-truth. A Terry search, consisting of a patdown of a suspect’s outer clothing, may be conducted on reasonable suspicion that the suspect is armed and dangerous, and not merely that the suspect is in possession of evidence. In other words, Terry searches are justified by a special concern for officer safety, and are undertaken with the specific object of divesting the suspect of weapons (though any evidence or contraband found along the way is, of course, admissible). Officers can’t conduct a Terry search just to collect evidence, where there’s no reasonable suspicion that the suspect is armed.
Granted, a cheek-swab is arguably less intrusive than a Terry search — but the concerns that justify Terry searches do not exist in the typical cheek-swab situation. The Indiana court’s decision thus strikes me as pretty unambiguously wrong.
UPDATE: Comments to the Volokh post point out something else I hadn’t considered. The cheek-swab search is “minimally invasive” only in the physical sense, not in terms of how much information it can reveal about the swabee. In that sense, it’s extremely invasive, and that ought to be taken into account.
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