DNA: The Fingerprint of the 21st Century? - Investigation - LawOfficer.com

DNA: The Fingerprint of the 21st Century?

The Maryland DNA Collection Act allows LEOs to take DNA samples from a person who’s arrested, but not yet convicted, for violent crimes or burglary.


Laura L. Scarry | From the August 2013 Issue Thursday, July 25, 2013

Editor’s note: This U.S. Supreme Court decision may well be the most important ruling for public safety in many decades. With the increasingly pivotal role DNA plays in the identification of suspects, having a larger and continually growing database with which to compare samples means that more crimes will be solved in less time, and fewer suspects will be able to continually victimize innocent people. This is particularly important in the areas of rape, robbery and homicide. The reality of today’s forensics means that a properly processed crime scene will likely yield a suspect at some point in time. Maryland v. King was a good decision: Obtaining a cheek swab during the booking process is so minimally intrusive that it’s the 21st century version of fingerprinting. The U.S. Supreme Court has empowered us with a tremendous tool to fight crime. 
 
Now, here’s the challenge: If your state doesn’t already allow for the gathering of DNA evidence during booking, you need to start those wheels rolling to make it happen. And, just as importantly, it’s imperative that departments across the country gear up to effectively gather DNA at crime scenes. Doing so will ensure that we truly protect and serve.
 
Is DNA the “fingerprint” of the 21st century? So it seems according to Justice Anthony Kennedy in the 5-4 opinion he delivered a few weeks ago in the closely monitored case of Maryland v. King.
 
The U.S. Supreme Court ruled that, notwithstanding the Fourth Amendment’s prohibition against unreasonable searches and seizures without a warrant, states can require that a DNA sample be taken from individuals arrested for a serious crime. Justice Samuel A. Alito Jr. previously described the case as “perhaps the most important criminal procedure case this court has heard in decades.
 
The Facts
Police arrested Alonzo King in 2009 in Wicomico County, Md., for first- and second-degree assault as a result of menacing a group of people with a shotgun. As part of the booking procedure for serious offenses, King’s DNA sample was taken by applying a cotton swab or filter paper3 to the inside of his cheek pursuant to the Maryland DNA Collection Act. The Act allows law enforcement officers to take DNA samples from a person who’s been arrested, but not yet convicted, for violent crimes or burglary. 
 
Two months later, King’s DNA report was uploaded to the Maryland database. Three weeks later, his DNA profile was found to match a DNA sample collected in an unsolved 2003 rape case. That information was presented to a grand jury that indicted him for the rape. After obtaining a search warrant, police acquired a second sample of King’s DNA, which again matched the DNA from the rape. 
 
King moved to suppress his DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The trial court found the statute is constitutional. King was convicted and sentenced to life in prison without the possibility of parole. 
 
The Maryland Court of Appeals reversed King’s conviction, holding that the DNA evidence was improperly taken as part of an unreasonable search. The appellate court found that the search violated the Fourth Amendment because King’s expectation of privacy was greater than the state’s interest in using King’s DNA to identify him. Maryland appealed the case to the U.S. Supreme Court.
 
The U.S. Supreme Court took this case to resolve the conflict among federal and state courts, which have reached differing conclusions about whether the Fourth Amendment prohibits the collection and analysis of DNA samples from persons arrested, but not yet convicted, on felony charges. As of now, approximately 28 states, along with the federal government, allow the taking of DNA samples in these situations. As Justice Anthony Kennedy stated, “this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the nation.
 
Supreme Court Opinion
Kennedy first outlined what the Maryland Act requires. Once arrested (for a serious crime), the arrestee is subjected to a “quick and painless” procedure wherein a “swab touches inside an arrestee’s mouth, but it requires no ‘surgical intrusion beneath the skin.
 
 He then addressed the procedure within the framework of the Fourth Amendment. No doubt, swabbing the inner tissue of a person’s cheek in order to obtain a DNA sample is a search. “The fact that an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term.
 
According to Kennedy, deeming the process a search didn’t end the Fourth Amendment analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.
 
He then found that the Maryland Act served a legitimate government interest: the need for law enforcement officers to process and identify the persons they must take into custody. Without question, “probable cause provides legal justification for arresting a person suspected of a crime [which was done in King’s case], and for a brief period of detention to take the administrative steps incident to arrest.”8 In that context, individual suspicion isn’t necessary because “the constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.
 
Kennedy recognized that DNA technology was just another scientific advancement in the identification process. For example, after fingerprinting became the gold standard for identification, courts had no trouble finding that fingerprinting was a natural part of the booking procedure. Then, “by the middle of the 20th century, it was considered ‘elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.
 
Kennedy found that DNA technology is far superior to fingerprint identification. He also found that the additional intrusion (the buccal swab) upon the arrestee’s privacy beyond that associated with fingerprinting is insignificant. 
 
Conclusion
In sum, “DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is ‘no more than an extension of methods of identification long used in dealing with persons under arrest.
 
To be sure, those states that don’t currently have a DNA collection statute should be encouraged to enact one.
 
References
  1. 569 U.S., 133 S.Ct. 1958 (2013).
  2. At oral argument, February 26, 2013.
  3. This is commonly referred to as a buccal swab.
  4. 133 S.Ct. 1958, Section II.B.
  5. Id., Section II.A.
  6. Id., Section III.A.
  7. Id., Section III.B (emphasis added).
  8. Id., Section IV.A.
  9. Id.
10. Id., Section IV.B.
11. Id. 
 
 
Don’t construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue. 
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Laura L. ScarryLaura L. Scarry, Law Officer's Legal Eagle columnist, is a partner in the law firm of DeAno & Scarry, with offices located in Wheaton and Chicago, Ill.

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