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The Disturbing Trends Series- Part 6: Taking Your DNA

In what can be a landmark ruling from the Supreme Court regarding the Fourth Amendment, a case out of Maryland regarding the collection of DNA samples is likely to land on the docket for consideration soon. First, some background. Every state and the federal government requires that those convicted of felonies or sex crimes submit a DNA sample to the government for placement in a database. As everyone is well aware from the news and fictional television crime dramas, DNA has revolutionized forensic science and crime detection. It is used not only to find wrong-doers, but also to exonerate those wrongfully accused or, in some cases, convicted. And no one disagrees with the practice of collecting DNA samples from those convicted by a jury trial or as part of a plea agreement of guilt.

The Fourth Amendment protects individuals from unreasonable search and seizure absent probable cause. Also, most agree that one’s constitutional rights are somewhat diminished once one is convicted of a crime. For example, prisoners, parolees and those on probation surrender certain constitutional guarantees by virtue of their guilt. Simply put, they violated the social contract implicit in the Constitution by violating the law and being found guilty. But what about those simply arrested for a crime, but not adjudicated yet? Do they surrender these rights in whole or part by virtue of being arrested? A very good case can be made that many listed Constitutional guarantees instilled in the Bill of Rights specifically address the rights of the accused. And by being arrested, one is simply accused.

All 50 states have laws requiring the collection of DNA from convicted criminals. Lately, many states have extended the collection of DNA samples from persons arrested for certain crimes. All of these states list felonies as one class of crimes. Texas requires the collection of DNA from people arrested for sex crimes only while Arizona lists burglary as crime. Some states have even extended the practice to people arrested for misdemeanors, or for all cases where a juvenile is adjudicated a delinquent.

The case at issue originates in Maryland. There, Alonzo King, Jr. was convicted of a 2003 rape based on DNA collected during a 2009 arrest on assault charges. The DNA collected during the 2009 arrest matched DNA collected from the 2003 rape and held in a state database. His conviction was overturned on the grounds that DNA collected as part of an arrest for an unrelated crime violated his Fourth Amendment guarantee against unreasonable search and seizure. In fact, the only thing linking him to the 2003 rape was the DNA collected in 2009. The Maryland Court of Appeals refused to side with the state and reinstate the rape conviction and the state intends to appeal to the US Supreme Court.

The Court stands a decent chance of actually taking this case. Although most of the litigation has been in state courts, just this year the Ninth Circuit Court of Appeals- not exactly a bastion of conservative thought- agreed that California’s law requiring submission of DNA samples from arrestees was constitutional. Specifically, they found that the state’s interest in solving cold cases, identifying suspects and exonerating innocent ones outweighed the privacy concerns of those arrested. Last year, the Third Circuit Court of Appeals ruled that collection of DNA samples of those not yet convicted was constitutional. Yet other state supreme courts, like Maryland’s, have found that the practice does indeed violate the Fourth Amendment. The fact that there is such disagreement in the lower courts is usually an indication the case will be taken by the Supreme Court.

Obviously, no one objects to the practice of fingerprinting upon arrest. One does not need to be convicted to be fingerprinted. Likewise, police do not need a court-issued warrant to fingerprint someone arrested. In a way, submission of a DNA sample is akin to being fingerprinted and the Supreme Court would, should they find in favor of Maryland, likely use that line of argument. Additionally, they can use the recent Florence strip search decision as justification for these laws. In that case, an arrestee was strip searched. If strip searching, absent probable cause for that strip search, is constitutional during an arrest and before introduction to a jail, then something less intrusive than a strip search- providing a hair or cheek cell sample- would certainly be constitutional. Taken to its logical extreme, would taking a DNA sample for use in a database when one is born be unconstitutional? Surely that practice would create an even larger and more accurate database that would aid law enforcement efforts down the line.

In previous articles, I argued against the strip search practice, especially given the details of the Florence case. Here, a person arrested for a “crime” later found to be a state computer error, was subjected to a demeaning strip search not once, but twice. Yet this very term, the Court determined that law enforcement must obtain a warrant from a court to place a GPS monitoring device on a motor vehicle operating on a public street. To me, it would appear that motor vehicles have greater constitutional rights than persons.

Obviously, no one could have anticipated DNA collection, or even fingerprinting, when the Fourth Amendment was ratified. One has to ask what the Founders would think about this. There are numerous protections in the Bill of Rights regarding those accused of crimes. The onus of responsibility falls not on the accused, but on the accuser. The Fourth Amendment guards against unreasonable search and seizures. Is it reasonable to conduct a search and seizure without a warrant of a person simply because they were arrested? As stated, many of the protections in the Bill of Rights specifically protect the accused. It is intentional and by design and underscores the basis of American law: that anyone is innocent until proven guilty.

One fully understands the reasons for collection of DNA samples. DNA technology has created a powerful forensic tool in law enforcement. Certainly, the states have compelling interests here. But, should those interests take center stage and subjugate personal privacy rights. It is interesting to note that many who argue that we possess a general right to be left alone- for example, you cannot compel me to buy health insurance- are also the ones who would, in knee jerk fashion, stand on the side of the state here and allow blanket DNA collection simply because you were arrested be it for a sex crime, a felony, a burglary, certain misdemeanors, or even juvenile delinquency. These are also the same people who decry TSA pat downs at airports and those who oppose national ID cards and biometrics. The right to be “secure in one’s person, papers and effects” without probable cause is sacrosanct. The act of being arrested does not create “probable cause” in and of itself. And what can be more “personable” than one’s DNA?

Alonzo King, Jr. may very well be guilty of the 2003 rape. But, if his conviction needs to be reversed and the Maryland Court of Appeals decision upheld in order to protect the rights of the many, then that is the price we pay for our constitutional protections. Many here will argue with this line of thought and assert that for too many years, Court decisions have tipped too heavily in favor of criminals. Those same cries were heard when Miranda was decided, yet law enforcement has adapted admirably. Ironically in this case, if the State of Maryland had waited to collect the DNA sample after his conviction on the assault charges, there would be no constitutional questions involved and life would go on.

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