DNA, crime fighting and the Fourth Amendment

By Associate Professor Kevin Lapp

On Feb. 26, 2013, the U.S. Supreme Court heard oral argument in Maryland v. King, a case that Justice Alito called "the most important criminal procedure case this Court had had in decades." The case involves the constitutionality of warrantless, involuntarily DNA collection from individuals who have been arrested for a felony, but not yet charged or convicted. It is uncontested that DNA collection constitutes a search for purposes of the Fourth Amendment. This case asks whether compelling such searches in the absence of a warrant, and the absence of a criminal conviction, is reasonable.

Maryland, together with 27 other states and the federal government, has statutorily mandated law enforcement to collect a DNA sample from certain individuals upon arrest. The DNA extraction happens not because the state has any articulated suspicion whatsoever that the search will produce evidence of criminality. Were that so, the state could get a warrant to compel a DNA sample. Instead, the law requires arrestees to submit to DNA collection (typically by a buccal swab) based merely on the fact of the arrest. It is done so that law enforcement can analyze the DNA sample and compare it to the thousands of DNA profiles already in state and federal databases, in the hopes that the arrestee's DNA will match as-yet unidentified DNA evidence related to unsolved crimes.

Such "suspicionless" searches are generally unreasonable. Indeed, they are precisely the kinds of searches that the Fourth Amendment was intended to stamp out when the Founding Fathers made it part of the Bill of Rights. But the lure of an effective crime-fighting technology has proved irresistible to many courts asked to rule on the constitutionality of compelled, warrantless DNA collection from individuals upon arrest.

I have criticized elsewhere the competing rationales and analytical shortcomings of decisions finding pre-conviction DNA collection to be constitutional. In short, courts are relying on a false analogy to fingerprinting (more than one Justice at oral argument referred to DNA collection as a fingerprint, with Justice Alito twice calling it "the 21st century fingerprint"); they are conflating identification (who the person is) and investigation (what that person has done); and they fail to properly distinguish, and accord appropriate weight to, the difference between the seized DNA sample, which includes a person's entire genetic code and which the government can retain indefinitely, and the more-limited DNA profile generated by the initial analysis of the DNA sample. When this is added to the dubious crime-fighting value of adding arrestee samples to the database, there are both strong constitutional and policy reasons to find that the Fourth Amendment bars the practice.

Perhaps the biggest concern with the position taken by Maryland and the Department of Justice, which was granted the opportunity to make oral arguments in favor of the Maryland law alongside the State of Maryland, is that their position offers no limiting principle whatsoever. As the government sees it, the crime-fighting potential of DNA profiling is so great that it overcomes any countervailing privacy interest. Such a position, as more than one Supreme Court Justice noted at oral argument, could justify warrantless, compelled DNA collection from anyone pulled over for a traffic violation, seeking a driver's license, or from anyone under state control, including school children. Should the court uphold the Maryland law, the steady expansion of DNA collection from those convicted of only the most serious offenses, to those convicted of felony offenses, to those convicted of felony and misdemeanor offenses, to those merely arrested for crimes will be complete. More unnervingly, as the Justices foresaw in their questioning, the path to DNA collection from those with no connection whatsoever to the criminal justice system will have begun.

It was a bit of a surprise, for a couple of reasons, that the Court agreed to hear this case at all. Normally, the Supreme Court prefers that an issue percolate in the lower courts before it acts. And despite the hotly contested nature of the issue of pre-conviction DNA collection, there is surprisingly little caselaw on the issue. Not only that, but the Court has expressed caution about deciding the fate of new technologies until experience has allowed us to better understand their scope. While not brand new, DNA analysis and profiling is a rapidly evolving technology. DNA profiles can be compiled much more quickly than in the past, and scientific knowledge about just what a person's genetic profile can tell us increases by the month. As a result, what may seem today like a rather unobtrusive search for an apparently non-sensical string of "junk DNA" may soon be information from which we can glean sensitive and revealing personal information.