In general, the Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. This means that the government, including law enforcement agencies, cannot search an individual or their property without a warrant or probable cause. However, there are certain exceptions to this rule. One exception is the "plain view" doctrine, which allows law enforcement officers to seize evidence without a warrant if the evidence is in plain view and the officer has a right to be in the location where the evidence is found. Additionally, if an individual voluntarily consents to a search, then a warrant is not required.

DNA evidence can be seized without a warrant in certain circumstances, such as if it is discovered in plain view or if an individual voluntarily consents to a search. However, the prosecution would still have to establish that the DNA evidence was obtained legally in order to use it in court. If the DNA evidence was obtained in violation of an individual's Fourth Amendment rights, it may be considered "fruit of the poisonous tree" and therefore be excluded from evidence in court.

The Short answer: Generally NO, but under some circumstances yes.

This case addresses the following issue: State v. Gammill, 2 Kan App. 2d 627, 585 P.2d 1074 (1978).

  1. Can the prosecution use hairs taken from an arrestee without a warrant, as part of a search incident to arrest?

In this case, the Kansas Court of Appeals ultimately overturned the conviction of the defendant based on the violation of three separate Constitutional Amendments. Id. at 633. First, hairs were plucked from the defendant by arresting officers without a warrant, in violation of the Fourth Amendment. Id. Second, a portion of the trial transcript was read back to the jury outside the presence of the defendant and his legal counsel, in violation of the Sixth Amendment’s right to confront accusers. Id. Finally, the prosecution was allowed to make several impermissible comments in closing arguments, including commenting on inadmissible evidence, in violation of the Fourteenth Amendment’s Due Process Clause. Id. Each of these errors required a new trial for the defendant. Id.

In this case, the defendant—a juvenile ultimately tried as an adult—was convicted of robbery and rape. Id. at 627-28. He was arrested and held in custody at a juvenile detention center. Id. at 627. While in custody, the officers at the center plucked between 20 and 25 pubic hairs from the defendant. Id. at 628. Neither the defendant nor his parents consented to action. Id. At trial, the prosecution attempted to admit a report showing that these hairs matched hairs found at the scene of the crime, but that report was properly held inadmissible. Id. at 632. Despite this, the prosecution commented on the report in closing arguments and suggested that it showed the hair found at the scene belonged to the defendant. Id. Also during closing arguments, the prosecution referred to the defendant as an “animal” and remarked on the credibility of witnesses. Id. Following closing arguments, the jury asked to have a portion of the testimony read back. Id. at 630. The judge allowed for the court reporter to enter the jury room and read the transcript, outside of the presence of the judge, the attorneys, and the defendant himself. Id. at 631.

The first issue to address was whether or not the hairs collected without a warrant could be used without violating the Fourth Amendment. Id. at 628. The court first noted that the number of hairs taken (20 to 25), the way they were taken (by being plucked, follicle and all), and the area of the body from where they were taken (pubic region) each indicated “needless indignity visited upon the defendant.” Id. These activities violate “the interests in human dignitary and privacy which the Fourth Amendment protects.” Id. The court found no exigency or urgency to forgive the lack of a warrant. Id. This included the search incident to arrest exception, because the hairs were in no danger of being destroyed. Id.