Lee Davis: Supreme Court To Hear DNA Collection Challenge

Tuesday, February 5, 2013 - by Lee Davis
Lee Davis
Lee Davis

Later this month the U.S. Supreme Court will hear oral arguments in a case involving a challenge by privacy rights advocates to the practice of taking DNA from people who have been arrested, but not yet convicted of a crime. The case is an important one, as many legal experts believe the decision will either end the practice or make it the new national norm.

In 2003, Virginia became the first state to pass such a law, requiring that anyone arrested for a serious crime have a DNA sample taken by a mouth swab. The law was passed in an attempt for law enforcement officials to quickly identify possible violent criminals and obtain DNA to help tie them to other crimes.

Since Virginia made the first move a decade ago, 27 other states and the federal government now collect DNA samples from some or all those who are arrested but not yet convicted of serious crimes.

Beyond taking fingerprints, most jail bookings now involve taking an oral DNA swab. The practice is set to become even more widespread given that President Obama signed the Katie Sepich Enhanced DNA Collection Act just last month. The new law will help pay the initial costs associated with starting a DNA collection program for other states.

Some states don’t stop at swabbing those arrested for violent crimes. California, for instance, takes DNA samples from those arrested for nonviolent matters, including drug crimes, credit card fraud and burglary. They say taking DNA samples from a wider pool of arrestees has led to the capture and conviction of rapists and murderers.

The issue before the Supreme Court is not how effective the matter is from a law enforcement perspective, but whether such DNA collection practices are constitutional given that the person has not yet been convicted of having committed any crime. It is more of a question in cases where DNA evidence has nothing to do with the crime, such as in drug cases or property crimes.

The case before the Supreme Court is Maryland v. King. The issue presented is whether requiring DNA samples from someone not yet convicted amounts to an unreasonable search under the Fourth Amendment. Back in 2009, Alonzo King was arrested for waiving a shotgun in public. This was a felony in Maryland and resulted in a DNA test. King later pled guilty to a reduced charge, something that would not have required a DNA sample be taken. However, it was too late, as the DNA sample returned a match for a case several years before that identified him as the man who broke into a house a raped a woman. King was ultimately convicted and sentenced to life behind bars.

The Maryland Supreme Court later threw out his conviction and said that police should not be allowed to take a DNA sample without a search warrant and a reasonable belief that the suspect had committed another crime justifying such a DNA sample. The Court reasoned that DNA samples contain a massive amount of incredibly personal information, vastly more than is contained in a fingerprint, and thus deserve protection. Here is the Maryland full opinion.

Several important cases are currently on hold as judges across the country wait to hear from the Supreme Court. A significant DNA case is pending before the California Supreme Court as well as the 9th Circuit Court of Appeals, both of which have said they will wait to hear how the Supreme Court decides the matter before issuing their opinions.

Read: “Supreme Court to hear fight over taking DNA from arrested people,” by David Savage, published at LATimes.com.

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(Lee Davis is a Chattanooga attorney who can be reached at lee@davis-hoss.com or at 266-0605.)


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