Expanded DNA collection bills advance; Supreme Court decision minimizes debate

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By Correy E. Stephenson

Dolan Media Newswires

A trio of bills that would expand law enforcement's ability to collect DNA from arrestees has advanced to the full Senate and in light of a recent decision from the U.S. Supreme Court, has limited obstacles to passage.

Senate Bills 105, 106 and 107 would allow police to swab the inside of an individual's mouth upon arrest for a felony --including juveniles--to collect a DNA sample to be entered into both the state and federal databases.

The Criminal Defense Attorneys of Michigan remain strongly opposed to the bills.

Collecting DNA from people who haven't yet been convicted of a crime "violates the presumption of innocence and is an unwarranted government intrusion into the most private biological aspects of ourselves," argued John Shea of Ann Arbor, co-chair of the group's rules and laws committee. "There is plenty of time to collect if the person in fact gets convicted of something."

Shea expressed hope that citizens would express their concern to the legislature about the issue.

"If people are concerned about things like the federal government collecting hundreds of millions of data bits from telecommunications companies, you would think they would be concerned with these kinds of privacy intrusions as well," he said.

Sgt. Dwayne L. Gill, legislative liaison for the Michigan State Police, which supports the proposed laws, said the bills are one of the MSP's legislative priorities and that he had "a lot of confidence in the legislature" to recognize that passage would be good public policy.

"We feel that being able to collect DNA from all felony arrestees would add to judicial efficiency by helping to identify other suspects and finding matches with unknown samples," he said.

Initially, the ACLU of Michigan and the Michigan State Bar also opposed the legislation, but Newman said the Supreme Court's ruling made it difficult to continue to fight the bills on constitutional grounds.

The decision "is such an unwarranted expansion of the right of the police to investigate and it is one more step in the direction of a police state," said Detroit lawyer Margaret Sind Raben. Allowing law enforcement to take samples from all felony arrestees "would certainly encourage the police to arrest people just to take their samples and that is very troubling, particularly because there is no self-executing mechanism whereby the DNA samples get removed from the system," she said.

Raben recently had a client who was picked up and held over the weekend on a felony charge while police debated whether or not to charge him. Although he was released without being charged, under the proposed legislation, his DNA would now be in the state and federal databases "for something that calmer voices decided was something that should not be pursued," Raben said.

That this one episode should result in his DNA sample added to the state and federal databases "is very, very worrisome."

Similar to fingerprints

The high court case began with a Maryland man arrested on assault charges.

Under a law similar to Michigan's existing DNA collection law, Alonzo King's DNA was collected and entered into the state's database. It was subsequently matched to a sample from a rape kit in a separate case. After being convicted in the rape case, King challenged the warrantless collection and use of his DNA sample.

Maryland's highest court agreed with the defendant, reversing his conviction.

But the U.S. Supreme Court reversed.

Writing for the majority, Justice Anthony M. Kennedy minimized the invasiveness of the DNA collection procedure.

"[T]he only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides," he wrote. A cheek swab "does not increase the indignity already attendant to normal incidents of arrest."

In an unlikely coalition, Justice Antonin G. Scalia wrote for the minority, joined by Justices Ruth Bader Ginsburg, Sonia M. Sotomayor and Elena Kagan.

"The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for 'serious offense[s],'" he wrote. "I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will 'identify' someone arrested for assault, he must believe that it will 'identify' someone arrested for a traffic offense."

"I don't often agree with Justice Scalia but I do in this case," said Valerie Newman of the State Appellate Defender Office in Detroit. "Civil liberties are supposed to mean something and this really has the ability to be used as a pretext just to arrest somebody and take their DNA."

"Frankly, the majority opinion just got it wrong," Raben added. "Taking the DNA sample itself is not invasive testing but there has always been a 4th Amendment protection for the integrity of certain personal information."

Thousands more samples collected annually

The Maryland law at issue allowed law enforcement to collect DNA from those arrested on probable cause for certain serious crimes.

Currently, Michigan's DNA Identification Profiling System Act allows for the collection of DNA from those convicted of 23 types of felonies (including various assault offenses, first degree murder, second degree murder, manslaughter, kidnapping, hostage-taking by a prisoner, mayhem, first- through fourth-degree criminal sexual conduct, assault with intent to commit criminal sexual conduct, carjacking, and the use of force or violence or possession of a weapon during the course of committing larceny).

Senate Bill 105 would broaden the collection base to anyone arrested for committing or attempting to commit a felony, while SB106 would allow the collection and use for juveniles arrested for committing or attempting to commit a felony; SB 107 would amend the Penal Code to reflect the changes.

According to the fiscal impact analysis conducted by the Senate, the bills would have "an indeterminate, yet minor fiscal impact on State and locate law enforcement agencies."

In a given year, the current categories of felonies requiring collection of DNA result in about 3,000 samples. The Michigan State Police estimated that in 2012 roughly 12,000 individuals were arrested for all felonies who did not already have a DNA sample on file.

Subtracting those arrested more than once in a year and the 3,000 whose DNA was collected after conviction, the MSP arrived at an estimate of an additional 7,000 to 8,000 arrestees per year subject to DNA collection under the proposed laws.

The state police estimated that their costs would not be significantly increased (hoping to fund the additional $7.30 DNA collection kits from federal funds) and that the additional workload was manageable with current resources.

Published: Mon, Jul 15, 2013

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