DNA Collection of Arrestees: Spitting on the Fourth Amendment

By Edgar Palomino

Edgar Palomino is a rising senior at the University of Pennsylvania studying political science.

Many states require DNA collection from those convicted of felonies, and some states also collect for various misdemeanors. [1] This collection builds a genetic database that can be used to verify a convict’s identity should future crimes occur. However, DNA is also being collected from arrestees that are still presumed innocent. Additionally, there is a trend among states to use the DNA collected from arrestees to search existing databanks for DNA matches with other crimes. While the crime resolving benefits of this method are obvious, the seizure of DNA from arrestees and subsequent matching (and conviction) can be argued to be self- incrimination and thus a violation of the Fourth Amendment.   
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In 2009, Alonzo King was arrested on assault charges and had his inner cheek swabbed for DNA. The DNA was entered into a database and matched with that of a rape kit from years earlier, and King was subsequently convicted for the rape and sentenced to life in prison. King appealed, arguing that at the time of arrest he was presumed innocent of the rape and that the DNA swab thus constituted an unreasonable search and seizure, which violated his Fourth Amendment rights. In 2013, the Maryland Circuit Court of Appeals ruled in favor of King and overturned the previous ruling. This set a precedent for barring the state from collecting DNA when booking arrestees.

However, later that year, the Supreme Court overturned the Appeals ruling in a 5-4 vote. Justice Kennedy wrote the majority opinion, arguing that DNA collection was the same a fingerprinting in that it was decades old and a “reasonable” booking procedure that assisted in the identification of arrestees.  On the contrary, Justice Scalia wrote the dissenting opinion, arguing that the state did not need DNA in order to verify whom was in its custody, and that the practice of using an arrestee's DNA to search banks for other crimes did indeed violate the Fourth Amendment. Four out of nine Justices recognized the infringement of this practice. Nonetheless, the ruling upheld the warrantless collection of DNA from arrestees. [2]

The responses amongst the States were mixed. In the State v. Raynor case in 2014, the Maryland Court of Appeals expanded the state’s ability to collect DNA, ruling that the state could collect DNA without a warrant from someone who hadn’t  been arrested. [3] In contrast, some states argue that the practice of collecting DNA violates their State constitutions. For example, the California Court of Appeals ruled against DNA collection in the 2014 People v. Buza case and the Supreme Court of Vermont ruled similarly in the 2014 State v. Medina. [4] As these battles continue to progress across the states, it is useful to bear in mind that the collection of DNA from arrestees it is not only a battle over Fourth Amendment rights.                    
It is part of a larger struggle to define laws and policies regarding genetic privacy. The amount of information that can be gleaned from DNA is staggering. Current methods are able to track down individuals and close to fifty relatives from only DNA samples, the age, and the state of residence of an individual. Being in a large database offers no anonymity; geneticists have been able to locate an individual within a large database that had only .1% of their DNA in it. [5] There is naturally a gap between what a genetic lab can do and what the average forensics lab can do. However, the law can utilize the genetic lab and law enforcement is investing in specialized new technology that will increase its capabilities. It is therefore important not just in upholding the Fourth Amendment, but also for shaping the larger body of law concerning genetic privacy that the warrantless collection of DNA from arrestees ceases.

[1] National Conference of State Legislatures. Convicted Offenders Required to Submit
[2] Memmot, Mark. June 2013. “Supreme Court Upholds Warrantless Collection of DNA.” NPR.org. Accessed May 18th, 2016. http://www.npr.org/sections/thetwo- way/2013/06/03/188291914/supreme-court-upholds-warrantless-collection-of- dna
[3] Lynch, Jennifer. January 2015. “State Courts Strike Blows to Ciminal Collection Laws in 2014-What to Look for in 2015.” Electronic Frontier Foundation. Accessed May 18th, 2016. https://www.eff.org/deeplinks/2015/01/state-courts-strike- blows-criminal-dna-collection-laws-2014-what-look-2015
[4] Denver District Attorney. Opinion: People v. Buza. August 4, 2011. Accessed May 19th, 2016. Pg. 1 http://www.denverda.org/DNA_Documents/Arrestee_Database/Buza.pdf
Lynch, Jennifer. January 2015. “State Courts Strike Blows to Ciminal Collection Laws in 2014-What to Look for in 2015.” Electronic Frontier Foundation. Accessed May 18th, 2016. https://www.eff.org/deeplinks/2015/01/state-courts-strike-blows- criminal-dna-collection-laws-2014-what-look-2015
[5] Kolata, Gina. June 16, 2013. Poking Holes in Genetic Privacy. The New York Times. Accessed May 19th, 2016. http://www.nytimes.com/2013/06/18/science/poking- holes-in-the-privacy-of-dna.html?_r=0

Photo Credit: Flickr User Aaron Mott

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