DNA Collection on Warrantless Arrests

DNA Collection on Warrantless Arrests: After Maryland v. King the U.S. Deserves neither Liberty nor Safety

Guest blog by Lindsey L. Jaeger, J.D., S.S.B.B.

Is the collection of DNA the same as collecting fingerprints and photographs, a legitimate police booking procedure under the Fourth Amendment? It is now. Yesterday, in a 5:4 decision the Supreme Court held that it is constitutional to collect DNA when officers make routine warrantless arrests supported by probable cause to hold the suspects for a serious offense.

Of course, we all want to live in a safer society. There is no doubt that DNA “may significantly improve the criminal justice system and police investigative practices…” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated.” The question is whether it is reasonable to make these intrusions. The Court seems satisfied that the Maryland DNA Collection Act meets this standard, because it takes the decision to collect DNA out of the hands of a magistrate or officer and instead requires all arrestees charged with serious crimes to be swabbed, and because the Act serves a number of legitimate governmental interests.

However, the Dissent penned by Justice Scalia, focuses on the unconstitutionality of suspicionless searches for the purpose of investigating crimes.  Justice Scalia provided a synopsis of the papers of the Founding Fathers and case history to support his point that “[n]o matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving.” See slip opinion page 36-37. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credibility of the credulous.” Id.at page 33.

All fifty states permit the collection of DNA from felony convicts.  Now, DNA samples are permitted to be taken after an arrest without a warrant. Obviously, an arrest does not equate to a conviction.

The Dissent doesn’t delve too deep into the invasion of privacy that a DNA test represents. Is there anything more personal than our DNA? The Electronic Frontier Foundation wrote in its amicus curiae in support of King:

Our DNA contains our entire genetic makeup – our most private information about who we are, where we come from and who we will be. DNA can be used to identify us in the narrow and proper sense of that word – “who is that?” – but it also tells the world who we are related to, what we look like, and how likely we are to get specific diseases.

Fortunately for Marylanders, the Act requires either consent or arraignment of the arrested individual before DNA can be processed or placed into a database. On its face, the Act also has a few other privacy saving graces, including a requirement that DNA samples be destroyed if there isn’t a conviction, or if the conviction is reversed or vacated and no new trial is permitted, or if the individual is granted an unconditional pardon. And fortunately for the rest of us, the Court’s holding limited the decoding of the DNA samples to identification purposes and any information collected about genetic traits are to be disregarded if discovered.

But do we trust that this is the main purpose of the Act?  Justice Scalia showed that “the entire point of [checking the DNA sample against the FBI’s] DNA database is to check crime scene evidence against the profiles of arrestees and convicts as they come in.”  After all, King was arrested in 2009 for “menacing a group of people with a shotgun”, but convicted of a rape that occurred in 2003 after his DNA matched the crime scene evidence from the John Doe aggressor. If King’s DNA was, in fact, to be used to protect the staff and the other detainees, then they would have rushed to identify King with his DNA as soon as possible, but as the Dissent points out under Maryland law, DNA cannot be processed until arraignment, which in King’s case was three days after his arrest.

So, how do you unring a bell? Can the government be trusted to destroy valuable information when it has significant interests in using it against the individual or in the aggregate against us all? We did just recently enact the Affordable Care Act. Do we have such a short memory that we don’t recall that free populaces once elected known supporters of eugenics? After Maryland v. King, we are just upstream of a “Gattaca”.

Benjamin Franklin once said, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The pendulum hasn’t just swung; it has swung off its axis.