Leslie v. City of New York Brief: NYC's "Suspect Index" of Secretly Harvested DNA Is Unconstitutional

Matthew Cavedon

When Appellant Shakira Leslie declined an offer of water seven hours after being arrested, jail officers insisted that “it would be some time before she had another opportunity to drink.” She took a sip from the disposable cup, then officers told her to “keep drinking.” They pulled her DNA from that cup, developed a profile from the sample, and entered it into New York City’s “Suspect Index.”

Leslie is far from the only person on it. For more than a decade, New York City has been amassing the DNA samples of New Yorkers without their consent or any court involvement, as a routine matter, specifically for inclusion in its “Suspect Index,” a rogue database not authorized by law. Defendants regularly include samples from people who, as in this case, have been expressly excluded as suspects in a crime, as well as missing persons and their relatives, suspects who have never been charged with a crime, arrestees who have never been convicted of a crime, and exonerated or acquitted individuals.

The Suspect Index currently contains 54,105 profiles, many from people who have never been convicted of, much less charged with or even suspected of, a crime. The New York Police Department’s (NYPD) collection methodologies for the Suspect Index have long been reported to be racially discriminatory. Further, the NYPD routinely collects DNA samples in an orchestrated surreptitious manner through ruses involving straws, bottles, or even cigarettes, without the knowledge or consent of the searched individual and without a court order. 

The NYPD harvests DNA not only from adults who are charged with crimes—it also surreptitiously takes DNA from those who are merely brought in for questioning and even from children it tricks. These DNA samples are then processed into profiles and entered into the Suspect Index without individuals’ knowledge, much less their consent.

The consequences of having one’s DNA profile in the Suspect Index are enormous. The Suspect Index provides search capacity for half or more of all the criminal investigations in New York implicating DNA. And, because it is not subject to any statutory restrictions, it could be searched or shared for any number of purposes.

Cato joined an amicus brief filed by the American Civil Liberties Union and New York Civil Liberties Union urging the Second Circuit to protect New Yorkers’ genetic privacy rights by holding that such collection, analysis, and indexing require a warrant. DNA contains some of a person’s most private and sensitive information—ancestry, family relationships, propensities for serious medical conditions, and more. When combined with other public data, it can expose previously unknown family histories of adoptions, misattributed paternity, early mortality, or substance abuse disorders. Because DNA reveals so much about every individual, collecting, analyzing, and indexing it constitutes a search under the Fourth Amendment. The government must therefore obtain a warrant for the practices challenged here.

Upholding these practices would allow the defendants to continue expanding their DNA repository, constrained only by the size of the population of New Yorkers whose genetic information they can surreptitiously harvest. The law demands better from the government.