DNA ruling leaves states to fill in the blanks

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.


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