COMMENTARY: No privacy in DNA

By Jermaine A. Wyrick A recent case diminished the privacy that individuals have in their genes. The crux of the controversy, as with any search, is whether "the promotion of legitimate governmental interests" against the "degree to which the search intrudes upon an individual's privacy." In a landmark decision, Maryland v. King, the United States Supreme Court decided that police can swab the cheeks of arrested individuals for DNA samples--samples that contain the intimate details of each person's genetic makeup, without violating the Fourth Amendment. In 2009, a 26 year old Maryland man, Alonzo King, DNA was collected after his arrest on assault charges. His DNA was later matched with a sample from a rape kit in another case, six years prior. Consequently, he appealed his rape conviction. The Maryland Supreme Court held the state law that authorizes the warrantless collection and use of the pre-conviction DNA sample was unconstitutional. Maryland is one of 28 states including Arizona, Louisiana, Michigan, Minnesota, Missouri, the Carolinas, and Virginia--to enact laws allowing the pre-conviction collection of DNA. Maryland Chief Deputy Attorney General Katherine Winfree argued a "Just trust us" defense that the law "enables the state to identify perpetrators of the crimes." Specifically, 225 DNA profile matches made led to 75 prosecutions and 42 convictions. Furthermore the Maryland law limits DNA data collection to suspects in cases involving violent crimes. Winfree distinguished between traffic stops, which are inherently "brief and temporary," from arrestees in police custody that are suspected of dangerous offenses. Moreover, Winfree argued, "The cornerstone of our argument is that when an individual is taken into custody on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him...surrenders a substantial amount of liberty and privacy." Conversely, Justice Elena Kagan stated however, "Just because you've been arrested doesn't mean that you lose the privacy expectations and things you have that aren't related to the offense that you've been arrested for." Attorney Kannon K. Shanmugan argued for the defendant that the Maryland statute violates the basic legal tenet that "warrantless, suspicionless searches are presumptively unconstitutional." Attorney Shanmugan stated that cheek swabs are a different matter, "There is an intrusion into the body that triggers the application of the Fourth Amendment." The Supreme Court decided that DNA sampling, after an arrest "for a serious offense" and when officers "bring the suspect to the station to be detained in custody," does not violate the Fourth Amendment prohibition of unreasonable searches. Moreover, the court reasoned that, "taking and analyzing a cheek swab of the arrestee's DNA is like fingerprinting and photographing, a legitimate booking procedure that is reasonable under the Fourth Amendment. Justice Alito, at the oral argument stated that DNA sampling, "involves a very minimal intrusion on personal privacy." Justice Roberts questioned whether the expectation of privacy in one's DNA information is reasonable, "when it's left everywhere you have been." Justice Stephen Breyer opined "It goes both ways." He questioned the practical application of a ruling that restricts the state's use of DNA evidence to solve crimes at a time when defendants increasingly seek the same type of evidence to exonerate them--all based on its' inherent accuracy." The court reasoned DNA testing may "significantly improve the criminal justice system and police investigative practices, by making it possible to determine whether a biological tissue matches a suspect with near certainty." Furthermore, from a practical matter, the "buccal swab" procedure, which is quick and painless, requires no "surgical intrusion beneath the skin, and poses no threat to the arrestee's health or safety." Interestingly, even conservative Justice Antonin Scalia who usually sides with law enforcement over individual rights dissented in favor of individual rights. He stated, "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection." He stated at oral arguments, "To catch the bad guys is a good thing. But you know the Fourth Amendment sometimes stands in the way." ---------------- Attorney Jermaine A. Wyrick can be reached at 313-964-8950, or by e-mail: Attyjaw1@Ameritech.net. Published: Fri, Jul 5, 2013