Can the police collect your DNA and store it in a national database without any due process? In twenty-five states they can, if you are even a suspect in a felony case.
They even don’t need to wait until you are officially arrested, or until you are found guilty, and they don’t need a warrant to do it. This, many say, isn’t only an “unreasonable search,” but does away with the presumption of innocence—a cornerstone of our criminal justice system. For this, and other reasons, the United States Supreme Court is expected to decide the issue in coming months.
DNA collection at the time of arrest has led to many cold cases being solved. Advocates for the collection process point to this as the reason for keeping the collections in practice. According to Stateline, Virginia has matched arrestee DNA samples with 755 open cases since they began collecting the samples in 2003. New Mexico began collections in 2007 and has matched 200 samples to cold cases in that time.
When the DNA of an arrestee is matched to a rape or murder, it can be difficult to argue against it. After all, justice for these crimes is important. But, the integrity of the Constitution is even more important.
When the state collects DNA from a person before they are tried for a crime, they are not assuming the suspect is innocent until proven guilty; instead they are applying sanctions before the suspect has their day in court.
In addition, they are subjecting them to an unwarranted and unreasonable search and seizure.
According to attorneys who have taken the case to SCOTUS, the 10,666 DNA samples taken from Maryland arrestees in 2011 only resulted in 19 arrests and nine convictions. In other words, the other 10,647 DNA samples were collected from people that weren’t even under arrest.
“A program of warrantless collection and search of DNA,” King’s lawyers wrote in their filing before Chief Justice Roberts, “where 99.82% of the persons subjected to mandatory collection of their genetic blueprint are not arrested as a result of the search represents a substantial public interest in upholding Fourth Amendment protections that greatly outweighs the State’s claim of harm.”
Another issue: what happens to the samples after the fact? If you are taken into custody and swabbed without being arrested, does the state maintain your DNA on file indefinitely? In most states the answer is yes. Only eight states automatically get rid of the sample if you are not convicted of a crime.
Lower courts have disagreed on the constitutionality of these DNA collections. Chief Justice Roberts issued a short term ruling to allow them to stand, stating that the Court would likely be taking up the issue soon.
As individual rights seem to be whittled away at each day a little more, the court’s involvement in this issue is crucial.
About David Matson