The Supreme Court will likely hear a Maryland case this term regarding a law that allows law enforcement to take DNA samples of anyone arrested for a crime--before the individual has been convicted of a crime.
Many people may know or expect that individuals convicted of crimes are required to submit to DNA collection in Tennesee. Something most people are unaware of is that there is a Tennessee law that requires law enforcement to take a DNA sample once someone has been arrested for all violent felonies.
The collection law states: (1) When a person is arrested for the commission of a violent felony, the person shall have a biological specimen taken, for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a).
After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113, and shall be forwarded by the arresting authority to the bureau, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.
Tennessee law requires the Tennessee Bureau of Investigation to establish a DNA database. The database was established nationally by the Federal Bureau of Investigation to enable crime laboratories to exchange DNA profiles for unknown subjects and other offenders.
The law was championed as a tool to help law enforcement find and capture those who commit serious offenses in the state, but opponents of the law argue that it allows law enforcement to trample on the 4th Amendment rights of those who have been arrested but not yet convicted of anything. These opponents of the law argue that DNA samples represent an unreasonable search and seizure of private information when the person has been accused and not convicted of a serious offense.
DNA is a powerful tool that law enforcement can use to tie a person to a crime or crime scene when other evidence is lacking. Adding DNA to the state and national database is expected to help close multiple cases that have gone cold, often because the existing physical evidence, without DNA, was not enough to lead investigators to the perpetrator.
Prior to the implementation of the T.C.A. Section 40-35-321, police were required to obtain a warrant for DNA evidence before they were legally allowed to collect it. For those who are later acquitted or have their charges dismissed, the DNA information is supposed to be removed from the statewide database.
Read:
“California and the Fourth Amendment,” published at NYTimes.com.
(Lee Davis is a Chattanooga attorney who can be reached at lee@davis-hoss.com or at 266-0605.)