I am preparing for trial in which the defendant some years ago left behind a DNA sample at the scene of an aggravated robbery. Skipping forward, the DPS lab informed us recently that the DNA sample from the robbery matched an individual in the CODIS database. Based on an affidavit supplied by the CODIS folks in Austin, law enforcement got a warrant and extracted a new sample from the suspect (a TDC prisoner). Of course, he matched to the crime scene.

I anticipate that the defendant is going to claim that the taking of a blood sample which was used to build the CODIS database when the defendant entered TDC was an illegal search and seizure which subsequently tainted the process. I disagree, but am interested in anybody else's thoughts. Have you had a CODIS match, and if so, have you had any challenges?

According the the 5th Circuit, taking a defendant's DNA during the diagnostic process of entering prison is no 4th Amendment violation. See Velasquez v. Woods, 329 F.3d 420 (5th Cir. 2003).

I think most other courts that have addressed the issue noted the defendant's rather large lack of privacy after conviction and the rather reasonable extraction of just a little bit of DNA (now often by mouth swab rather than blood).

I think there is an argument that buccal swab DNA collection is reasonable under any circumstance, not just custodial.