Sunday, June 30, 2013

CAN POLICE USE YOUR BODY AGAINST YOU?: DNA SWABS, BLOOD DRAWS AND OTHER EVIDENCE

Recent U.S. Supreme Court decisions have spotlighted when police can force you to testify against yourself—through your own body. Here is some new and not so recent law:

1) DNA Swabs: Police may take a DNA swab from inside your cheek. While still an intrusion under your Fourth Amendment rights, the intrusion is minimal--no worse than taking fingerprints. (See Marilyn v King.)

2) Blood Draws: Police cannot force a blood draw before getting a warrant unless there are exigent circumstances, that is, a danger that the evidence will disappear. A DUI does not automatically provide the emergency circumstances necessary to permit police to have your blood drawn. A court must look at whether those emergency circumstances exist on a case by case basis. (See Missouri v McNeeley and see our related blog post ”Can They Take My Blood?”.)

3) Finger Nails: Older U.S. Supreme Court law permitted police to take fingernail samples when there was probable cause and the evidence would otherwise disappear. The police were concerned with preserving the scrapings from under the nail which the defendant was trying to rub off. (See: Cupp v Murphy)

4) Surgery to Remove Evidence: Older case law has held that surgery to remove evidence was unreasonable. The State sought to surgically remove a bullet from the defendant’s chest. The Court held that the intrusion to defendant’s body outweighed the state’s need for the evidence. (See: Winston v Lee)

5) Miscellaneous: The law has long allowed police to take fingerprints, voice samples, handwriting samples, photography and measurements. (See: U.S. v Wade).

If you have been charged with a crime and believe police took evidence from you improperly, contact an experienced criminal law attorney immediately. An attorney can review your case to present the best possible defense. If the police acted improperly, an attorney may ask the court to suppress the evidence and in limited circumstances may even get the case dismissed.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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