Why Collection of Arrestee DNA Violates the Fourth Amendment
JURIST Guest Columnist Christen Giannaros, St. John's University School of Law Class of 2015, is the twelfth author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development.
Giannaros discusses the Fourth Amendment rights violations implicit in
DNA collection upon arrest...
In 2010, Alonzo King
was arrested on assault charges. At the station house, a police officer
took a cotton swab and ran it against King's inner cheek, collecting
his DNA. Police were acting pursuant to a federal statute, which allows
for the collection of DNA from arrested individuals. When King's DNA was
processed, police discovered that it matched the DNA found at a 2003
rape crime scene, and subsequently prosecuted him for that crime. 
Most individuals who hear about King's eventual capture would be relieved: they feel safer, they feel better protected and they feel that justice has been served. But there is a bigger, more serious concern lurking in the background: DNA collection from arrestees violates the Fourth Amendment. The Fourth Amendment prohibits searches and seizures executed without a warrant or probable cause. This important protection is explicitly violated each time law enforcement collects and processes an arrestee's DNA, because there is no probable cause to search the arrestee for any crimes other than the one he was arrested for.
Unfortunately, this concern fell on deaf ears when the US Supreme Court, in Maryland v. King, determined that arrestee DNA collection is constitutional because it helps law enforcement confirm an individual's identity. But the court relied almost entirely on a false premise in reaching this conclusion. As Justice Scalia pointed out in his dissent, an arrestee is not "identified" when his DNA sample matches an unknown DNA sample recovered from an unsolved crime scene. Rather, an arrestee is "identified" through the process of fingerprinting, measurements and photographs. The majority's decision rests on shaky grounds, and the constitutional deprivations that will follow are extremely worrisome.
The first flaw in the court's decision is its mischaracterization of an arrestee's expectation of privacy. The Supreme Court has previously held that in order for an individual to contest a search, that individual must have an "expectation of privacy" in the area to be searched. The majority asserted that since arrestees are in the custody of the police, they should necessarily expect that their privacy will be intruded upon (i.e., have their DNA collected and searched), the argument goes. But this lack-of-privacy argument fails to recognize that although arrestees are in police custody, they are not similar to convicts or parolees, who have already been proven guilty of a crime and justifiably retain no expectation of privacy. (Prior Supreme Court cases have established that convicts and parolees have a diminished expectation of privacy.) Instead, arrestees are presumed innocent until proven guilty, a basic tenet of American criminal law, and thus retain an expectation of privacy.
As such, the collection of arrestee DNA is unjustifiably intrusive. But criminals like King are not the only ones that should be worried about the court's recent decision. Falsely accused individuals, offenders of non-violent crimes and completely innocent arrestees must have their DNA collected too. In addition to the wrongful use of a person's DNA to search for a link to unsolved crimes, what makes the collection objectionable is that the federal DNA statute is silent about what happens to the DNA sample. Currently, the DNA information from the sample gets stored as a DNA "profile" on a nationwide database for criminals. If an individual is later found innocent or not prosecuted, the government must destroy the DNA profile after the arrestee obtains a final court order stating that he may have his profile removed. The actual DNA "sample," however, is indefinitely retained by the government—meaning that law enforcement retains unbridled access to the sensitive, private information that DNA stores. I can't help but reference the Orwellian undertones evident in this limitless grant of police authority.
Further, because DNA contains sensitive genetic information, it can be used to perform familial searches. A familial search is a partial search in which law enforcement, who cannot match a recovered DNA sample from a crime scene to a DNA sample in the nationwide database, search the database for someone who might be related to the recovered sample. If a familial relationship between the known individual in the database and the unknown sample is shown, law enforcement can find and investigate the known individual and his family in efforts to find the true perpetrator. This has serious privacy implications. First, it subjects purely innocent individuals to harassment and investigation by law enforcement. Secondly, African Americans are more likely to be the subject of this harassment, since they represent about 40 percent of people convicted of felonies each year. One study showed that 17 percent of African Americans could be identified through familial searches—a stark contrast to the 4 percent of Caucasians who could be identified through familial searches.
Are you still unconvinced of King's serious consequences? Let's say you are falsely arrested for a crime you did not commit. At the station house, you are cornered into an impossible choice: either submit a DNA sample which the government can retain indefinitely (for a crime you did not commit), or refuse to submit a DNA sample and be charged with a class A misdemeanor. You should not have to choose between having your Fourth Amendment rights violated and being charged with a crime. Despite these serious implications, the court justified using arrestee DNA for identification purposes, even though effective "identification" measures already exist: fingerprinting, photographing and body measurements.
The Fourth Amendment is the heart of our protections against intrusions by the government. As such, a search incident to arrest may only be executed to yield either weapons or evidence that the individual may destroy, or evidence that is relevant to the crime of arrest. In searching an arrestee for his DNA, none of these objectives are satisfied. That the government can come up with a practical need for requiring arrestee DNA collection is not a reason to eviscerate our exceptional Fourth Amendment rights.
Christen Giannaros earned a B.A. in Political Science and Sociology from Queens College. Christen interned with Sony Music's Legal Department, and currently serves as a law clerk for Bondi Iovino & Fusco. Christen also serves as an Internal Competition Director for the St. John's Moot Court Honor Society.
Suggested Citation: Christen Giannaros, Why Collection of Arrestee DNA Violates the Fourth Amendment, JURIST - Student Commentary, Feb. 18, 2015 http://jurist.org/student/2015/02/christen-giannaros-fourth-amendment-dna-collection.php
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