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“Surreptitious sampling” may be police officers’ trump card in cracking otherwise unsolvable crimes as serious as murder, arson and rape. Law enforcement officers engage in surreptitious sampling when they covertly collect DNAsamples from unsuspecting people, who inadvertently leave behind hair, skin cells, saliva or other biological materials.Surreptitious sampling is a terrific crime-resolution tool. It allows diligent law enforcement officers to collect proof-positive evidence of guilt or innocence without the hassle of obtaining a warrant and absent probable cause or reasonable suspicion to believe that the contributor of the biological evidence committed a crime. Provided an officer has the energy and savvy to gather a hair or other biological sample for testing, she can gather information with the potential to definitively link someone to a crime. Not even a hunch is necessary to justify the quest; yet, DNA processing technology “lets crime laboratories derive a full profile from a minute amount of biological material at relatively low cost.”Perhaps because of its effectiveness and the lack of legislative or judicial regulation of the practice, surreptitious sampling is growing in popularity. Recently, the New York Times highlighted this evidence-gathering method. According to the article, “Over the last few years, several hundred suspects have been implicated by the traces of DNA they unwittingly shed well after the crime was committed[.]"

Although great for solving crime, some contend that surreptitious sampling is a tragedy for personal privacy and freedom because it threatens to expose significant amounts of intensely private information about citizens’ health, gender, race and lineage to the government. One federal district court judge remarked, “[T]he relative ease with which a DNA sample may be obtained renders questionable the ability to realistically protect any genetic privacy interest . . . .”

This essay argues a middle position—that the well-established Fourth Amendment rule of “abandonment” can strike an appropriate, “reasonable” balance to serve law enforcement needs for surreptitious sampling, while simultaneously protecting citizen privacy.



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