DNA Arrestee laws authorize law enforcement to collect DNA upon arrest and authorize the analysis of said DNA, but many of the laws’ provisions vary from state to state. These include which crimes qualify, whether a probable cause hearing is first required, and whether that decision will be made by a judge or a grand jury. Provisions also specify when the DNA can be analyzed – in some states, DNA can be uploaded right away but in others, the suspect must be charged first. DNA Arrestee laws have been passed by 33 states and the federal government.
These state laws outline 3 main parts: qualifying arrests, probable cause hearings, and expungement. Crimes that qualify for DNA collection may be any combination of misdemeanors (down to eavesdropping in South Carolina) and felonies, depending on the state. Half the states consider all felonies to qualify. Some states explicitly exclude minors from having DNA collected upon arrest, others only allow it if the minor is charged, while the remaining include DNA collection for any minor upon arrest. “Ten states require an arraignment, indictment, or judicial determination of probable cause before collection or analysis can occur.” (Ojp.gov)
If an individual is not charged with the crime, is acquitted, or ends up being charged for a crime that does not qualify for DNA collection, their DNA profile is eligible to be expunged from CODIS. The removal of DNA profiles from CODIS in most states requires the individual to begin this process, as “few expungements occur in states that require individuals to initiate the process.”
DNA Arrestee laws have implications not only for the offender but for state labs and collecting agencies. The NCSL states, “Expanding the classifications of arrests that qualify for DNA collection can exceed capacity at forensic laboratories, creating a backlog of unanalyzed samples,” which impacts the overall effectiveness of processing samples.
Opponents of DNA Arrestee Laws have cited the Fourth Amendment protection against unreasonable searches and seizures and its requirements for a warrant.
The constitutionality of these laws in terms of the Fourth Amendment was challenged, but in 2013, the Supreme Court made its first ruling on the right to genetic privacy. It sided with Maryland’s DNA Arrestee laws, stating that taking a DNA sample without a warrant from a person who has been arrested for a serious crime is not a violation of the Fourth Amendment. In this specific case, the Court deemed that taking the DNA sample from the cheek swab, as was the defendant’s case, was similar to fingerprinting and thus was reasonable. However, some criminal defense attorneys argued that “the case’s language was so broad that it opened the floodgates for all states to permit DNA sampling of people arrested, even if they are arrested only on a minor charge.” (AZ Attorney)
In California, Proposition 69 requires that DNA be collected from all people convicted of a felony, and for most people arrested. Under this law, a new policy was passed to mandate DNA collection from anyone arrested for a felony, even if they were not convicted or charged. As a result, law enforcement arrested Elizabeth Haskell during a peaceful political demonstration for obstructing officers. She refused to submit for DNA testing and sued, but the Ninth Circuit ruled that Prop 69’s provisions were constitutional. In 2014, when the California Court of Appeals ruled that Prop 69’s mandatory DNA collection of arrestees was unconstitutional, the California Supreme Court reversed the decision 4 years later.
In another debate on Fourth Amendment rights in DNA collection, the ACLU argues that “law enforcement must first get a warrant before extracting and analyzing unavoidably shed DNA” Police have often followed suspects until they can gather DNA on items left behind by the suspect – notably having used a Basking Robbin’s spoon, a used napkin, spit, and colostomy pouches to gather a DNA profile on suspects, and later arrest and convict them of rape, assault, and murder.
Many have pointed to this setting a dangerous precedent. Groups like the ACLU further reason that Supreme Court rulings that required police to have warrants before attaching thermal-imaging and GPS tracking devices to suspects’ property extend to other “modern technologies that increase police capabilities,” such as DNA collection and analysis.
Sources:
https://www.ncbi.nlm.nih.gov/books/NBK232607/
https://www.nealdavislaw.com/criminal-defense-guides/texas-dna-collection-law.html
https://aizmanlaw.com/can-police-force-give-dna-sample-arrested/
https://oag.ca.gov/bfs/prop69/faqs
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