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David Serges was labeled a person of interest in a homicide investigation after being seen in the victim鈥檚 neighborhood, where he sometimes did odd jobs for residents. He was soon arrested, but a judge denied the homicide arrest warrant for lack of evidence. Police nonetheless kept him in custody on an unrelated misdemeanor charge. Still seeking to investigate Mr. Serges for the homicide, police DNA tested many items from the crime scene. None matched Mr. Serges鈥檚 DNA. They eventually tested the clothes that they had seized when he was arrested and found a nearly invisible spot of blood. This spot contained a mixture of DNA, some of which matched the victim鈥檚. The prosecution described this DNA match as 鈥渢he central piece of evidence鈥� in the鈥痗ase, and Mr. Serges was convicted of the murder.

Both the state trial court鈥痑nd鈥疌ourt of Appeals鈥痟eld that Mr.鈥疭erges鈥痟ad no constitutionally protected privacy interest in the clothes that were taken鈥痜rom him once he was arrested.鈥疶he Michigan Supreme Court granted review and ordered briefing on whether testing Mr. Serges鈥檚 pants for DNA without a warrant violated his rights under the Fourth Amendment or the analogous search-and-seizure provision in the Michigan Constitution, Article I, section 11.

Our amicus brief argues that (1) Fourth Amendment principles require that law enforcement鈥痮btain鈥痑鈥痺arrant鈥痶o鈥痶est DNA,鈥痑nd (2) the Michigan Constitution independently requires鈥痑 warrant to鈥痑uthorize鈥疍NA tests.

On the federal question, our brief explains that a person鈥檚 DNA reveals extensive, highly sensitive information about them鈥攊ncluding their ancestry, family relationships, propensities for medical conditions, and more. Courts have accordingly recognized that extracting and analyzing DNA is a Fourth Amendment search distinct from collecting the biological sample itself. Because DNA testing is a search, conducting that testing without a warrant is presumptively invalid. Our brief further explains that the search-incident-to-arrest exception鈥痵hould not apply. This exception allows officers to search someone and their surroundings when they are arrested, without a warrant, in order to protect officer safety and preserve evidence. But neither justification applies to DNA鈥痶esting, particularly鈥痝iven the weighty privacy interests at stake.

On the state question, our brief argues that Michigan鈥檚 Search-and-Seizure Clause independently requires warrants for DNA testing. Article I, section 11鈥檚 text and history support interpreting it to provide more protection than the Fourth Amendment provides. And a recent amendment to the clause, which clarifies its application to electronic data and was overwhelmingly approved by Michigan voters, reflects that its protections remain robust as technological advances increase the government鈥檚 capacity to intrude into our privacy. Our brief urges the court to consider the implications of this case: permitting warrantless DNA testing incentivizes pretextual arrests to obtain this genetic material.