Supreme Court: DNA Collection from Arrestees is Constitutional
Today, the Supreme Court issued its opinion in Maryland v. King, a constitutional challenge to Maryland’s statute authorizing DNA collection from those arrested for a “crime of violence, an attempted crime of violence, a burglary, or an attempted burglary.” Maryland processes the DNA sample obtained from an arrestee and uses it for identification by comparing it to DNA profiles held in the federal DNA database, CODIS. In addition to storing offender profiles, CODIS contains DNA profiles from crime scene samples, so the comparison of a DNA sample to those from unsolved crimes might yield a “hit” on an otherwise cold case. The collection of DNA from arrestees has expanded to 28 states and the federal government (with most statutes restricting collection to those accused of felonies or violent crimes). When King was arrested on a assault charge, his DNA was taken and his profile compared to those of unsolved crimes. It matched an unsolved rape case from years earlier (and others), and King was charged with rape (and convicted). His legal challenge alleged that the warrantless and suspicionless search accomplished by his DNA collection at arrest violated a reasonable expectation of privacy, and thus King’s 4th Amendment rights (see here). The court ruled that the practice does not violate the 4th Amendment's prohibition against unreasonable searches and seizures. The 5-4 opinion was written by Justice Kennedy:
In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
The basis for claims that a reasonable expectation of privacy is violated by the DNA collection has encompassed both the collection procedure and the state's access to a DNA profile of the accused. Pivotal to these challenges is how the reasonable expectation of privacy is defined for a particular claimant – parolee, arrestee, etc. Challenges to DNA profiling of those convicted of crimes have largely failed, with courts defining and relying on a diminished expectation of privacy held by parolees, probationers, and now, arrestees. Here, as in earlier DNA cases, the Court did not consider the actual procurement of the sample by cheek swab to be intrusive. With respect to the claim of privacy to the DNA profile itself, the Court noted that “while science can always progress further, and those progressions may have Fourth Amendment implications” and that “the argument that the testing at issue in this case reveals any private medical information at all is open to dispute,” it followed the general consensus that the 13 short tandem repeat (STR) sites used in DNA profiling are not generally informative beyond establishing identification. It further noted that the authorizing statute prohibits the use of DNA profiling for purposes other than identification:
In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment.
The ruling will likely undermine challenges to the constitutionality of other state DNA collection statutes authorizing collection at arrest. What certainly lies ahead will be deeper scientific insight into the human genome, such that previously uncharacterized regions of the genome will be characterized as revealing medically or physically informative attributes of the individual (see here). To the extent that the forensic sites of interest (currently the 13 CODIS STR sites) are further annotated by genomic science, one part of the constitutional argument alleging a privacy violation will be strengthened by claims that medically revealing information could be obtained. However, it is still likely that a court could rely on the statutory limitations to the uses for a DNA profile in finding that 4th Amendment safeguards are sufficient. The practical implication of today’s rulings are immediately apparent: likely, more states will expand their DNA collection practices to include arrestees. An increased ability to solve crimes with high recidivism is likely, as advocates of arrestee DNA testing and advocates for sexual assault survivors have argued (and with particular force for sexual assault crimes, where serial crime patterns have been established through crime scene sampling (even decades-old), but for which no perpetrator identity has yet matched to a series of profiles. The ruling particularly impacts efforts to reduce violence against women. The City of Chicago conducted a study on preventable crimes in 2005, concluding that DNA sampling on arrest could have prevented at least 53 murders and rapes committed by those with multiple (and unprofiled) felony arrests (similar results were reported in a study by the Denver District Attorney).
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