Decision could lead to a rash of legal challenges across the country
By Kimberly Atkins
The Daily Record Newswire
BOSTON — The U.S. Supreme Court ruling allowing police to collect DNA samples from arrestees before they are convicted, or even arraigned, could lead to a flood of legal challenges across the country as courts in states with differing laws on warrantless pre-conviction DNA sampling — or no laws at all — consider just how much constitutional leeway law enforcement officials have.
The court’s 5-4 ruling in Maryland v. King gives the advantage in these challenges to prosecutors, finding constitutional the practice of taking cheek swabs of those arrested for serious crimes to check against a collective database of DNA evidence from local and federal crime investigations.
Prosecutors, victims’ rights advocates and law enforcement officials hailed the decision as an important victory for efforts to bring suspects who have eluded authorities — often for years or even decades — to justice.
“We’ve been celebrating,” said Scott Burns, executive director of the National District Attorneys Association based in Alexandria, Va., one of many organizations that submitted amicus briefs in the case. “We truly believe this decision will lead to solving 20- and 30-year-old homicides and rapes and other violent crimes. We try to protect people who have been thrown in the trash and disregarded by picking them up and solving those cases.”
But defense attorneys, civil liberties organizations and other experts said the decision raises troubling privacy issues. The ruling, they said, leaves citizens vulnerable to searches of their most deeply personal information, without the Fourth Amendment protections that would be in place in other circumstances, simply because DNA evidence can be obtained via a mere swab of a cheek, a process the court has deemed “minimally invasive.”
“The Supreme Court essentially ruled that Americans’ homes and cars are more protected from warrantless searches than our bodies. How can this be?” said Steven D. Benjamin, a defense attorney in the Richmond, Va. firm Benjamin & DesPorte and president of the National Association of Criminal Defense Lawyers, who also filed an amicus brief in the case.
The case involves a Maryland law that limits DNA collection to people arrested on probable cause for certain serious crimes. But with myriad differences between the more than two dozen other state laws allowing DNA collection, the ultimate effect of the ruling still remains unknown. The lines will have be to drawn on a case-by-case basis in state and federal courts, considering whether laws allowing DNA collection for even minor crimes pass constitutional muster.
“Other state laws on DNA testing are even broader than Maryland’s and may present issues that were not resolved by today’s ruling,” said Steven R. Shapiro, legal director the American Civil Liberties Union in New York.
‘Minimally invasive’ search or ‘scary’ precedent?
Writing for the majority, Justice Anthony M. Kennedy focused on the simplicity of the process of collecting DNA evidence by swabbing the cheeks of those arrested and weighed it against the substantial interest of the state in identifying suspects of serious crimes. Likening the cheek-swabbing process to fingerprinting, Kennedy found the balance to tilt on the side of allowing DNA evidence collection, in part because of the accuracy of matches made with genetic material.
“DNA identification is an advanced technique superior to fingerprinting in many ways … and DNA is a markedly more accurate form of identifying arrestees,” Kennedy wrote.
Because the Fourth Amendment allows law enforcement officials to obtain identifying information of an arrestee as part of the normal administrative process, Kennedy concluded, “a [cheek] swab of this nature does not increase the indignity already attendant to normal incidents of arrest.”
In a scathing dissent, Justice Antonin G. Scalia called the potential scope of the decision “vast” and “scary.”
Dismissing the premise that the DNA is collected for the purpose of identifying the suspect — because it takes months for any match against the database to be made, and matches are often made to crime scene evidence, not to information regarding the suspect’s identity — Scalia wrote that the court essentially sanctioned a practice that has long been forbidden under search and seizure jurisprudence: collecting, without probable cause, evidence linking a suspect to a crime unrelated to the arrest.
“Make no mistake about it: As an entirely predictable consequence of [this] decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote in a dissent joined by Justices Ruth Bader Ginsburg, Sonia M. Sotomayor and Elena Kagan.
Some attorneys agreed.
“As Justice Scalia’s dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes,” Shapiro said. “While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime” without a warrant.
Burns disagreed, noting that DNA evidence is the “gold standard” for proving both guilt and innocence, and police have a strong interest in knowing if those arrested on suspicion of committing dangerous crimes have struck before.
Technology changing definition of ‘intrusiveness’
Some experts expressed concern about the Fourth Amendment analysis changing due to advances in technology that allow the government to obtain DNA information without the use of needles or other more physically invasive means.
“If the test is how much someone is being intruded upon physically, then we are on a very slippery slope because technology is certainly allowing the government to gather evidence much more easily,” said Stephen G. Huggard, a partner in the Boston office of Edwards Wildman Palmer LLP and a former U.S. attorney.
If the constitutionality of DNA collection hinges in part on the fact that collecting it “isn’t going to hurt much” because of technological advances, “then that is a dangerous standard,” Huggard said.
Sara Huston Katsanis, an associate in research at the Duke University Institute for Genome Sciences & Policy in Durham, N.C., and a former forensic DNA analyst, said that while the Maryland law allows only identifying markers from the DNA samples to be used by the government — not the more detailed genetic data that can hold far more detailed information — the fact that the samples are held indefinitely creates an ongoing risk that such deeply personal data could be accessed later.
“They are only holding the wallet, so they cannot clean the information inside of it,” said Katsanis. “That doesn’t mean that they cannot, in the future, get more information from inside.”
