Question: Can peace officers collect a suspect’s DNA after he has requested an attorney during questioning at the officers’ station?
Quick Answer: Yes, but only if the suspect voluntarily consents to providing the sample.
Facts: Police were called to survey a specific neighborhood for a burglary suspect: a man in a camouflage jacket and stocking hat whom the victim saw running in the opposite direction of her home. One officer saw David Frazier, a man matching the description, run out of a wooded area next to the victim’s neighborhood. Police later drove to Frazier’s house and asked him to come to the police station for questioning. After answering some questions, Frazier requested an attorney. The detective stopped questioning him about the burglaries but asked to collect a DNA sample from Frazier. Frazier consented. He was charged with burglary. He later moved to suppress the DNA sample based on a violation of his Fifth Amendment right against self-incrimination. He argued that the officers repeatedly questioned him after he requested an attorney and that he only provided a DNA sample because he didn’t believe they would let him leave without doing so.
Why this case is important: The court determined that Frazier wasn’t in custody when he was questioned at the police station. Just because a suspect is taken to the police station for questioning doesn’t mean that he is in police “custody.” And in some Ohio jurisdictions, a suspect’s right to an attorney doesn’t attach unless the person is in custody. Here, the trial court determined that no handcuffs were used to transport Frazier, he was told he was free to leave at any time, and the detectives thought Frazier’s behavior seemed relaxed. He was never in “custody,” so even when Frazier requested counsel, the officers didn’t have to stop questioning him as long as any persistent questioning didn’t provoke involuntary statements.
Also, other Ohio jurisdictions have found that physical evidence, such a DNA sample, is not discovered as a result of a suspect’s incriminating statement, so requesting a suspect’s consent to take a DNA sample isn’t an interrogation under
Miranda. A suspect’s consent to give the sample is valid as long as it’s voluntary.
Keep in mind: Two things are important here: (1) If a suspect isn’t under arrest or handcuffed, and he is told and made to feel that he is free to leave, he doesn’t have a Fifth Amendment right to counsel. (2) When a suspect voluntarily provides his DNA (even if he requests an attorney during a true custodial interrogation), it’s not a violation of his Fifth Amendment right against self-incrimination.
Visit the
Third District Court of Appeals website to view the entire opinion.