In Schmerber v. California, 384 U.S. 757; 86 S.Ct. 1826; 16 L. Ed.2d 908 (1966), superseded by statute, 625 ILL. COMP. STAT. 5/11-501.2 (1995), as recognized in People v. Jones, 800 N.E.2d 1227; 344 Ill. App.3d 684; 279 Ill. Dec. 644 (Ill App. Ct. 2003), the Court established that the 4th Amendment applies to removing material from a suspect's body. Generally, in order to obtain a search warrant to collect a DNA sample from a suspect, a judge must be persuaded that probable cause exists and that the sought-after DNA sample will produce evidence linking the suspect to the crime being investigated.

The extent of the intrusion needed to secure the biological sample must be considered. Typically, collecting blood, hair, or body swabs will not violate an individual's constitutional rights since the nature of the collection is not substantially invasive. However, if law enforcement believes a suspect will be uncooperative in providing a sample, a judge may authorize the use of a reasonable amount of force to extract the biological material U.S. v. Bullock, 71 F.3d 171 (5th Cir. 1995)].

In some jurisdictions (See Ariz. Rev. Stat. Ann. 13-3905), and based on dicta in Davis v. Mississippi (394 U.S. 721; 89 S.Ct. 1394; 22 L.Ed. 2d 676 (1969)) and Hayes v. Florida ((1985)), an order may be issued on reasonable suspicion. Other states have used a process called "investigative detention," which allows a warrant to be issued on a "reasonable and well-grounded basis" to believe a person "may have" committed a crime.

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