Scott Forsyth, The Daily Record Newswire
“DNA fingerprinting” — what is that? An invaluable tool to combat crime, so proclaimed Maryland and a bevy of amici, including the Department of Justice, to the Supreme Court last month, Maryland v. King, 425 Md. 550, cert. granted, 81 U.S.L.W. 3127 (U.S. Nov. 9, 2012) (No. 12-207).
At issue was Maryland’s swab of the cheek of a fellow arrested but not convicted of assault. From the cells collected, Maryland created a DNA profile of the arrestee. The profile matched DNA collected from an unsolved rape, leading to his conviction for two crimes. He argued the taking of his DNA was an unreasonable search in violation of the Fourth Amendment.
Maryland responded the swabbing of a cheek is no more intrusive than the rolling of fingers across a piece of paper. Like traditional fingerprinting, creating DNA profiles helps law enforcement to identify the arrestee and solve cold cases. The state does not need a warrant to swab the cheek or any suspicion the arrestee has committed a previous crime.
Unfortunately, the analogy of DNA collection to fingerprinting does not work. Here is why, but first some science and history.
Fifty states and the federal government require all persons convicted of a felony to turn over DNA. In 1994, Congress directed the FBI to establish a national database of DNA profiles taken from the convicted and from forensic evidence collected at crime scenes.
The FBI devised a standard DNA profile consisting of data from 13 different loci on an individual’s chromosomes. At that time, scientists believed the 13 loci did not correspond to any particular traits or characteristics.
DNA testing is growing: 28 states (but not New York) and the federal government require at least some arrestees to turn over DNA. The profiles of the arrestees are uploaded to the database.
Congress regularly appropriates money for this purpose, which encourages the states to expand their programs.
Not surprisingly, the database has exploded, from 400,000 profiles in 2000 to 11 million today, of which one million are of arrestees.
Government may collect DNA from convicted felons, because they have a diminished expectation of privacy, United States v. Kincaid, 379 F.3d 813 (9th Cir. 2004).
But a person just arrested is presumed innocent until proven guilty. He has the same expectations of privacy as you and me. Yes, he may be detained at the time of his arrest but he has not been tried and convicted.
Swabbing the inside of a cheek is an intrusion into the human body. Long ago, the Supreme Court ruled that such an intrusion is a search that cannot be conducted without a warrant based upon probable cause, absent an emergency, Schmerber v. California, 384 U.S. 757, 767-770 (1966) (drawing of blood). In contrast, traditional fingerprinting is not an intrusion into the human body and no court has considered the practice a search.
The Supreme Court has relaxed the warrant requirement and only demanded individualized suspicion in certain contexts, such as a stop and pat down for weapons on a street, Terry v. Ohio, 392 U.S. 1 (1968).
None of the 28 states nor the federal government require law enforcement to obtain a warrant or possess any level of suspicion that the arrestee has committed another crime before law enforcement swabs the cheek of the arrestee, analyses the cells collected, and transmits the coding to the database. There is no emergency present.
To Maryland, the search was reasonable in light of the “totality of the circumstances.” Its interest in identifying the arrestee and solving cold cases outweighed the modest intrusion on the privacy of arrestees.
Maryland overstates the benefits of DNA testing of arrestees. Unlike traditional fingerprinting, which is completed at the time of an arrest, Maryland did not test the DNA sample of the defendant in King until his arraignment, two months after his arrest for assault. The state knew much about him. What it did not know was he had raped a woman in another county six years earlier.
While the taking of the defendant’s DNA solved one cold case, it may be the exception and not the rule. Studies from the United Kingdom, which has the second-largest database in the world, and RAND conclude “widening the net” of profiles “has only a minimal deterrent effect” on crime. More “cost-effective” would be testing the backlog of samples from crime scenes.
To obtain the 13 loci government must collect the entire DNA of an individual. Nothing in Maryland’s law limits the state to using only the 13 loci. In its possession government has a “vast genetic treasure map,” as noted by the Maryland Court of Appeals. Recent research indicates the 13 loci may be more revealing than originally thought. The intrusion on the privacy of arrestees is great.
Look for a decision in June. The Maryland Court of Appeals divided on the issue and most likely the Supreme Court will too. If it upholds the practice, how it balances the interests at stake will have great influence on DNA testing in other situations.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
