Fourth Amendment Searches: DNA Collection

Tuesday, April 2, 2013, by Cara Richards

Twenty-eight states and the federal government have enacted laws that provide for automatic  DNA collection when an individual is arrested. The issue that arises with these types of laws is whether it is constitutional to collect DNA samples without a warrant, if the entire purpose is to compare the DNA with other samples in a national database. It is well-established that police can conduct such tests once an individual is convicted. The Supreme Court is considering whether a DNA sample can be taken from people arrested, but not yet tried or convicted.

In this case, Maryland vs. King, Maryland’s DNA Collection Act permits police to collect genetic material without a warrant from those who have been arrested, but not yet convicted of a crime. The case was argued before the Supreme Court on February 26, 2013. The Supreme Court is currently reviewing the constitutionality of the Act and a decision is expected in the coming months. Privacy advocates fear that a ruling in the state’s favor could open the gates to more extensive use of an individual’s DNA for government purposes. Civil liberties groups worry inadequate testing by overwhelmed lab technicians can lead to errors. In the current case before the Court, Alonzo King Jr. was arrested four years ago on an assault charge and a DNA sample was taken which linked him to another sexual assault. King moved to suppress the DNA evidence, but was convicted of the sexual assault offense.

At its core, this case places “modern technology against notions of personal privacy.” The Fourth Amendment grants the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The parties in the case agree that the DNA swab was a search under the Fourth Amendment, so the issue lies in whether or not the search was reasonable. In determining this, there needs to be a balance of legitimate law enforcement interests with the privacy rights of individuals. This Fourth Amendment area of law is often confusing and complicated. The Maryland Court of Appeals agreed with King, holding that suspects under arrest have a higher level of privacy than a convicted felon, outweighing the state’s law enforcement interest. The process of taking King’s DNA was not for identification purposes and was more invasive than fingerprinting.

One possible outcome would be for the Court to break down the search into two separate searches. The DNA swab would count as one search and the analysis of the sample in the DNA database would count as a second search. Breaking down the search would allow the court to create a more narrow decision. Overall, this is an important decision for the Court that will affect states across the country that have laws similar to Maryland’s.