‘Reasonable under the 4th Amendment’
The U.S. Supreme Court ruled 5-4 in 2013 that Maryland’s DNA Collection Act did not violate the Fourth Amendment, which prohibits unlawful search and seizure. The act enables law enforcement to collect a DNA sample from people arrested for “serious” crimes. Justice Anthony Kennedy wrote for the majority. Justice Antonin Scalia was joined by the liberal justices Ginsburg, Sotomayor and Kagan in his dissent.
Ruling
Kennedy: The Court concludes that 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.
Dissent
Scalia: The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for "serious offense[s]." … Make no mistake about it: as an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.
The DNA collected from five rape victims in Augusta indicated that a single predator was at work.
But the predator himself, an exceptionally violent rapist who forced two of his victims into an Augusta cemetery before sexually assaulting them, remained unknown.
Authorities did finally collect the DNA of Michael Christian Clay as he entered state prison after a conviction unrelated to the rapes. (He had beaten his girlfriend and was driving her to the hospital when he ran over a teenager walking to catch his school bus.)
Once Clay’s DNA profile hit the database, the predator in Augusta was unmasked. He is now serving life in prison for multiple convictions on charges of rape, aggravated sodomy, kidnapping and false imprisonment.
What if Clay’s DNA profile had already been entered into law enforcement databases — not when he was sent to prison in 2009, but many years earlier?
Richmond County District Attorney Ashley Wright believes Clay would have been arrested before two of the rapes occurred. He would have been in prison instead of on the road, running down a teenager with his car. The final rape victim linked to him, who later died of injuries she suffered during the attack, might still be alive.
“We have an unsowed resource,” Wright said of DNA samples taken at arrest. “It’s a way to protect people in the future and to provide closure to people who have been affected. It’s a way to stop violent predators.”
Many Georgia prosecutors, like Wright, can point to examples of crimes that might not have happened if Georgia allowed the collection of DNA upon arrest. Thirty-one states, with Mississippi being the most recent, take genetic samples of people arrested for at least some crimes, and prosecutors in Georgia are pushing to do the same thing here for people arrested for violent crimes, drug offenses and burglary.
Civil libertarians and others are suspicious of the laws, arguing that they violates Fourth Amendment prohibitions on searches and seizures. They also say that the laws enable the state to collect extensive information on people who might never be convicted of a crime.
Since at least 2011, legislation to enable DNA collection upon arrest has been proposed in Georgia’s General Assembly, but each time the bill has failed to pass both chambers. Similar legislation is awaiting legislators again as they convene next month.
‘Concerns as to how far states might go’
The U.S. Supreme Court ruled in 2013 that taking DNA upon arrest was constitutional, no different than taking fingerprints. Yet pockets of opposition, especially from civil libertarians, remain.
“Even if it’s constitutionally permissible, they (opponents of testing on arrest) feel it isn’t something we need to do,” said state Sen. Josh McKoon, R-Columbus, who sponsored bills in 2011 and 2013 and is a co-sponsor of the pending legislation.
Duke University researchers wrote in a report earlier this year one fear is DNA profiles on file could be used to search for relatives of suspects, also making family members targets of criminal investigations.
“Some argue that certain current or potential forensic uses of DNA jeopardize U.S. citizens’ privacy and presumption of innocence,” Duke researchers Mike Gloudemans and Nachi Shamaprasad wrote. “There are some concerns as to how far states might go to catch criminals.”
At least four states allow stored DNA profiles to also be used to search for relatives who also could be involved in a crime under investigation. But “some worry that as familial searching becomes more commonplace, these states might gradually ease some of these restrictions,” Gloudemans and Shamaprasad wrote.
‘We take fingerprints of everyone arrested’
It’s all about balance, said GBI director Vernon Keenan, whose agency analyzes DNA samples and then sends the profiles to CODIS, the FBI’s Combined DNA Index System.
“We take fingerprints of everyone arrested and we maintain those fingerprints whether they are convicted or not,” Keenan said, making a frequently used comparison. “It gets down the point (of) do you want public safety or are you more concerned about big brother privacy issues?”
Scientific advances have made it possible to secure DNA evidence even if a criminal has simply touched something, not just from blood or semen left behind.
"The more access to DNA, the more cases we can solve," said Clayton County prosecutor Tracy Graham Lawson, president of the Georgia District Attorneys Association. "It's an investigative tool that will give victims closure."
For example, prosecutors say, DNA recovered at the scene of a 2012 burglary in Clayton County matched blood droplets found two years earlier at a Coweta County burglary. But there was no DNA profile in the national database so the cases remained unsolved until last year.
Shawn Lamar Harris became a suspect — and was later convicted — when prison officials took a swab from his cheek as he began a sentence for a Fayette County burglary. By then, Harris had been arrested 21 times over 20 years, but his DNA had never been collected, according to Coweta County District Attorney Pete Skandalakis.
“I know some people are afraid this is an intrusion of government,” Skandalakis said. “DNA at arrest would help us solve a number of crimes and also would exonerate a number of people from being suspects. It’s a double-edge sword.”
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