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The Ongoing Debate About Collecting DNA After An Arrest, But Before A Conviction

By Nicole Cain M.S., full-time faculty member at American Military University

Does the collection of DNA samples from those arrested for specific offenses—but not convicted—encroach on the Fourth Amendment protection against unreasonable search and seizures or is it an effective investigative tool?

The goal of criminal investigators is to identify and apprehend criminal offenders. Investigators achieve this goal by determining the truth about what occurred at a crime scene. Reviewing the crime scene and evidence collected by crime scene technicians, interviewing victims and witnesses, and examining other pertinent clues are all necessary in order to determine the truth.

In some cases, bodily fluids, skin or other biological material is recovered from the crime scene which can be used to extract a DNA profile. DNA recovered from a crime scene can be used in two ways.

First, if there is a known offender, the “forensic unknown profile” can be compared to the suspect’s DNA profile (The Federal Bureau of Investigation, 2014). The suspect’s DNA is most often recovered by obtaining consent from the offender or by obtaining a search warrant. If there are no known suspects, the “forensic unknown profile” is submitted to the FBI’s Combined DNA Index System (CODIS), which is searched against the respective state’s convicted offender and arrested offender (where applicable) DNA profiles (The Federal Bureau of Investigation, 2014).

Herein is the controversy: Twenty-eight states and the federal government have enacted laws authorizing the collection of DNA samples from persons arrested, but not convicted, for certain serious crimes.

Each state statute differs in language and procedure, but the basic premise is the same (Davies, 2012). These laws authorize law enforcement to collect a person’s DNA, generally via buccal swab, post-arrest. These samples, in accordance with their respective state statute, are then submitted to CODIS.

This is a big departure from the generally accepted procedure of collecting DNA samples from offenders post-conviction.

Advocates claim that expanding the DNA database in this manner will “save lives, prevent violent crime by recidivists, save costly investigative resources, improve identification procedures, reduce misidentifications, reduce convictions based on false confessions, and clear numerous cold cases” (Wallentine, 2010).

Opponents argue that post-arrest DNA collection statutes violate the Fourth Amendment because the government cannot compel a person who is only under arrest for a crime, but not convicted, to provide a DNA sample without first obtaining a search warrant or consent.

The U.S. Supreme Court disagreed with this contention. In a 5-4 decision, the Court held in Maryland v King (2013), that while taking DNA samples from arrestees is considered a search under the Fourth Amendment it is not “unreasonable.” The concluded Court following:

DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment (Maryland v King, 2013).

The dissenting opinion, written by Justice Scalia, implies the true goal of obtaining DNA samples. He writes, “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous” (Maryland v King, 2013). He further explains that in this particular case, King’s DNA was submitted to the Forensic Index of CODIS, which includes crime scene DNA profiles, rather than the Convicted Offender & Arrestee Indices. If in fact, the goal was to identify King, as the Court held, rather than to solve unsolved crimes then his DNA profile would have been submitted to the latter.

DNA is an incredible tool and expanding the DNA database will undoubtedly assist investigators in solving crime, but at what cost?

Justice Scalia states in his dissenting opinion, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail” (Maryland v King, 2013).

About the Author: Nicole Cain has more than 14 years of law enforcement experience serving in a variety of capacities including patrol operations, uniform crime scene, community-oriented policing (COP), and criminal investigations. She is currently assigned to investigate violent crimes that include: homicides, sexual batteries, robberies, aggravated batteries, and aggravated assaults. During her career in law enforcement, she has authored police reports, arrest affidavits, and search warrants, observed autopsies, testified in court, processed crime scenes, interviewed witnesses and conducted interrogations. Nicole is currently full-time faculty member at American Military University and American Public University teaching courses in criminology and forensics.

References

Davies, E., Holand, A., Pope, D, & Samuels, J. (2012, June). Collecting DNA from Arrestees: Implementation Lessons. National Institute of Justice, v 270. Retrieved from http://www.nij.gov/journals/270/Pages/arrestee-dna.aspx

Federal Bureau of Investigation, Laboratory Services. (2014, March). Frequently Asked Questions on the CODIS Program and the National DNA Index Program. Retrieved from http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet

Maryland v. King, 569 U.S. 12 (2013).

Wallentine, K. (2010, January). Collection of DNA Upon Arrest: Expanding Investigative Frontiers, Police Chief Magazine, v 77. Retrieved from http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1982&issue_id=12010

Leischen Kranick is a Managing Editor at AMU Edge. She has 15 years of experience writing articles and producing podcasts on topics relevant to law enforcement, fire services, emergency management, private security, and national security.

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