Supreme Court Signals Interest in DNA Collection from Arrestees

There are new legal developments regarding the collection of DNA evidence from those arrested, but not convicted, of crimes. As has been reported here, the expansive trend in the use of DNA evidence by the states has been to require those arrested for crimes to submit a DNA sample for inclusion in the state database. The crimes for which arrestees must provide samples vary by state, but at a minimum include many violent crimes. Recent court cases brought by those affected have made their way in the courts, with plaintiffs alleging a violation of their 4th Amendment rights against unreasonable search and seizure by characterizing the collection of DNA as violative of their privacy interests. In Haskell v. Harris, issued in February, the 9th Circuit upheld California’s DNA collection law which includes arrestees (see here). However, this week, the 9th Circuit set aside that ruling, and a full panel of the court will review the case. A contrary holding was issued by the Maryland Court of Appeals in King v. Maryland, where the court ruled that the practice was unconstitutional (see here). This week, the Supreme Court issued an order that granted Maryland’s request for a stay of the judgment pending its petition for certiorari (thus restarting its collection of DNA from arrestees). In granting the stay, Chief Justice Roberts noted that the Court was likely to grant the petition and that the decision faced a strong possibility of reversal. The order noted the conflicting opinions from the 3rd and 9th Circuits (although the Supreme Court had not granted cert for the 9th Circuit case) as backdrop for the likely reversal (but now the developments at the 9th Circuit indicate some instability there). The Court also seems to telegraph that it will disfavor the prospect of disparate collection practices among the states, partly because it undermines the cohesion of the national DNA database (CODIS). This does clash with state prerogatives to set the parameters for their criminal justice systems (within constitutional limits). However, the order this week seems likely to signal that the Court may endorse DNA collection from arrestees (as the courts have generally upheld DNA collection from parolees and inmates), with a likely reasoning that the privacy interest advanced by the plaintiffs does not outweigh a compelling government interest in the prosecution and deterrence of crime that expanded DNA collection practices provide.