By: Aaron Weiss, Op-Ed Winner
“The privacy and dignity of our citizens [are] being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen — a society in which government may intrude into the secret regions of a [person’s] life.” Justice William Douglas
Over one-third of Americans will be arrested by age 23. Every one of these arrestees will be brought into a courtroom and instructed by a judge of his rights. The United States Constitution guarantees all citizens the right to a speedy trial, an impartial jury, and an attorney. In every one of these criminal trials the accused will retain the presumption of innocence: the principle that he is considered innocent until proven guilty. This presumption is one of the foundations of our nation, and something that must never be taken away.
In 2005 Congress passed the DNA Fingerprint Act, which allows the Attorney General to “collect DNA samples from individuals who are arrested or detained under the authority of the United States.” Twenty-nine states followed Congress, passing similar legislation in their own state codes. Pennsylvania is currently attempting to pass similar legislation in its House of Representatives, making this issue all the more relevant today.
In 2003 a man broke into a woman’s home in Maryland, and raped her at gunpoint. No arrests were made, and the trail for the perpetrator went cold. Six years later, a man named Alonzo King was arrested for assault. Based on Maryland’s DNA Collection Act, King was subjected to a buccal swab the day of his arrest. Four months later, his DNA profile was matched to a sample collected from the 2003 rape. Based solely on this DNA evidence, a grand jury indicted King on the 2003 rape. King filed a motion to suppress his DNA evidence, arguing Maryland’s DNA Collection Act violated his Fourth Amendment right to privacy.
Federal and state courts have been divided regarding “whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges.” The United States Supreme Court granted certiorari in King’s case to help resolve this fundamental conflict. In a divided 5:4 opinion, the Court held:
“When officers make an arrest supported by probable cause to hold for a serious offense and 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.”
There are three strong arguments as to why this holding is incorrect. First, DNA is not a legitimate police booking procedure analogous to fingerprinting. Four key distinctions between fingerprinting and DNA are: (1) DNA contains far more personal information, (2) DNA is for investigation purposes, not identification, (3) the time required to retrieve a DNA analysis is significantly longer, and (4) a DNA swab is much more intrusive than a fingerprinting procedure. Second, the Fourth Amendment requires “individualized suspicion” for a search to be lawful. At the time of arrest, there is no suspicion of an individual for previous cold crimes. Third, in conducting a balancing test of the individual’s privacy interests against the government’s interests, those of the individual are superior. State interests include: (1) identity, (2) prison safety, (3) availability, (4) public safety, and (5) freeing wrongful convicts. Conversely, while individual arrestees have less of a right to privacy than average citizens, they still enjoy more rights than those who have had a fair trial and were convicted of a crime. Many courts in weighing these interests have found the arrestee’s rights to overpower those of the government.
The majority’s holding in King opens the door for the unconstitutional collection of presumptively innocent individuals’ DNA. Fortunately, the simple solution to this troubling holding is that federal and state legislatures should amend their DNA laws to wait for an arrestee to become convicted before taking a DNA swab. This will ensure that each individual’s privacy interest and presumption of innocence are not thrown aside in favor of the state’s broad interests of crime solving and safety. By doing so, these legislatures will accommodate each party’s interests while still honoring the Fourth Amendment right to privacy.
Aaron’s article was selected as the winner of the Third Annual Juris Magazine Op-Ed Writing Competition. The other submissions can be viewed on the Juris Blog at www.sites.law.duq.edu/juris.
