The ability of law enforcement to take DNA samples from a person arrested for a felony offense will soon be under review by the United States Supreme Court.
On November 9, the United States Supreme Court decided to take on Maryland v. Alonzo Jay King, Jr., a case that could have national implications for law enforcement regarding how arrested subjects are processed, what biological or biometric samples may be taken from those subjects, and what investigative use may be made of those samples.
The Case in Brief
In 2003, a man broke into the home of a woman and raped her. She reported the crime and submitted a rape exam where semen samples were collected. These samples were subjected to DNA analysis and entered into the Maryland state DNA database, but no results were returned, according to court documents.
In 2009, Alonzo King was arrested on unrelated assault charges. Under Maryland law, police swabbed his cheek to collect a DNA sample and entered it into the state database.
King’s DNA was found to match the sample of the 2003 rape.
He was charged with the crime and later convicted. He appealed the conviction and the Maryland Court of Appeals ruled that the arrest DNA sampling of King violated the Fourth Amendment and reversed the rape conviction.
The Primary Question
The Supreme Court will soon decide whether a subject who has been arrested for a felony offense, but not convicted, may be subject to the taking of a DNA sample without a search warrant, in the same manner that arrested persons are photographed and fingerprinted.
The Court’s decision will affect whether or not arrested subjects can be identified through DNA samples collected at arrest.
Impacts on Police Investigations
“The Court’s decision could have major implications on police procedures and the critical investigation tool of DNA sampling,” said Kevin Metcalf, who is a deputy prosecuting attorney in Arkansas.
In addition to being an attorney, Metcalf is also a former law enforcement officer with more than 20 years of experience as a police officer, Border Patrol Agent, SWAT team member as well as a Federal Air Marshal. He is also a professor at American Military University, teaching courses in public safety and legal studies.
Metcalf said the ruling of this case could have major implications on the number of crimes police are able to solve. As of July 2012, the nationwide DNA databank, called the “Combined DNA Index System,” or CODIS, produced more than 185,000 hits. These results have assisted in more than 177,500 investigations, according to a report by the FBI http://www.fbi.gov/about-us/lab/codis/ndis-statistics .
Requiring police to wait for convictions before they collect DNA samples could largely impact the amount of these results.
In many cases of violent crimes, it is difficult for police and investigators to collect enough evidence or get witnesses to testify to convince a jury to convict a suspect. Therefore, not everyone who is arrested and charged with a violent crime is convicted. If the Supreme Court rules that a person must be convicted of a crime before a DNA sample is collected, Metcalf argues there could be a significant reduction in the number of crimes police are able to solve using DNA.
Law enforcement agencies and associations around the nation agree that DNA is a critical tool for police.
“This collection of DNA from citizens who have been arrested for certain enumerated crimes is a critical and effective modern tool that assists law enforcement in solving crimes, identifying perpetrators, and eliminating errors,” wrote the Maryland Chiefs of Police Association, Maryland Sheriffs’ Association, and Police Chiefs’ Association of Prince George’s County in court documents.
DNA evidence plays a substantial role in exonerating the innocent and arresting the guilty and the prompt identification of arrestees allows law enforcement to narrow the focus of criminal investigations and effectively solve cases, new and old, more quickly, the associations wrote.
If the Court requires law enforcement officers to obtain warrants before they are allowed to take DNA samples, it could defeat the purpose of DNA databases.
“DNA is considered the gold standard for identification purposes and is incredibly important tool for police to solve cases,” said Metcalf.
Limiting this investigation tool further reduces the already limited resources available to many police departments around the nation.
Is Collecting DNA more Invasive than Fingerprinting?
Another question raised by this case is whether or not collecting DNA is an invasive procedure. Metcalf argues that collecting DNA by conducting a buccal (or cheek) swab is minimally intrusive and actually could be considered less involved than other commonly accepted arrest procedures such as fingerprinting.
“Fingerprinting involves physically inking a person’s fingers and standing there and rolling each one of their fingers. You have to handle and take control of the person and even when using more modern machines with glass plates, it’s still the same procedure,” said Metcalf.
On the other hand, swabbing someone’s cheek is a simple and quick process, not much different than brushing one’s teeth.
Who Are We Trying to Protect?
“This case represents a sensitive and important balance between the public interest and the privacy of persons of interest,” Metcalf said. “What privacy interest are we protecting?” he asked.
“Someone arrested for a felony, based on probable cause, has a reduced expectation of privacy that does not include their identifying information. Identifying information is not limited to a person’s name and social security number — it includes anything a person can leave behind at a crime scene that specifically identifies that person such as fingerprints and DNA,” he said.
The identification of a person accused of a crime is a legitimate and recognized state interest.
In addition, Metcalf believes there needs to be a distinction in how the collection of DNA is viewed. It should not be considered as a search, incident to arrest — that should be reserved for the collection of evidence or weapons. Rather, this should be viewed as the routine collection of information that does nothing more than provide another way of identifying a specific person.
It is now up to the Supreme Court to determine if police agencies across the nation must change how they collect and use DNA samples from suspects. The Court is expected to argue this case in early 2013.