The United States Supreme Court handed down somewhat of a shocking decision this week in the case of Maryland v. King, regarding the constitutionality of law enforcement collecting DNA of arrestees without a warrant.
At issue was a Maryland state statute, which allowed for the warrantless collection of DNA from a suspect following an arrest for a “serious offense,” which under Maryland law includes crimes of violence or burglary.
Here is what is deeply disturbing about this decision, and why all Americans should be concerned– this law does not require a warrant for the taking of your DNA. Under this law, and those being passed across the country, the collection of DNA is being treated in the same manner as the collection of your finger prints or booking photograph.
What’s so wrong with that, some might ask? What’s troubling about that is the fact that the burden for making an arrest is already low, and the potential for misuse or misplacement of DNA samples, and thus potential for abuse to an individual’s unique DNA is incredibly high. Leaving wholly aside the way in which this revelation could completely circumvent constitutional rights of individuals implicated in other crimes, we are now saying that it is ok to collect DNA after what could be an almost non-existent criminal case.
For example, if an individual happens to be present at the scene of the crime, and the police arrive following an anonymous 911 tip, the fact that the person is there could alone raise a strong suspicion, and thus provide a probable cause for an arrest. Even if you were not involved in the burglary at all, the fact that you are there could supply the probable cause for an arrest, and now the government can lawfully collect your DNA. Does that scenario bother you? It should. So much so that one of, if not the, most conservative justices on the court, Antonin Scalia, sided with three of the most liberal, Ruth Bader Ginsburg, Elena Kagan, and Sonya Sotomayor, in a scathing dissenting opinion, which he personally read aloud in the courtroom.
Regarding the argument of using DNA in order to identify suspects, Justice Scalia pointed out the fact that in the defendant’s case, the government waited a full three days before completing a DNA swab– suggesting it was not done in order to identify him, but rather to investigate. Completing invasive searches and seizures of a person in order to gather evidence against them without a warrant are impermissible, and squarely fall within the protection of the Fourth Amendment against such unconstitutional intrusions. Justice Scalia also pointed out, and governmental officials confirmed in their arguments, that the transition from collecting DNA from serious crimes to all crimes is not only a possibility, but would track the exact same logical arguments.
The argument in favor of these sorts of DNA collection laws is that they help solve “cold cases,” given the potential for individuals to be repeat offenders. Thus, by entering the DNA into the database, government officials may receive “hits” on prior unsolved crimes.
Let us be clear, the distinction here is not whether collection of DNA by the government of suspects in criminal cases is a perfectly legitimate exercise: clearly it is. The issue of contention is whether the government may collect DNA evidence without first procuring a warrant. Furthermore, if the government cannot prove that there is sufficient evidence to procure a warrant, which requires a probable cause showing that there is reason to believe that they will find incriminating evidence, and describing with specificity the person to be searched and things to be seized, and why this particular person may be implicated, why should they be able to circumvent the Constitutional requirement? Merely for convenience?
What is really boils down to is a game of chance, heavily favoring the government. Perhaps the DNA collection will turn up results, perhaps it will not. Whichever the case, once your DNA is entered into the database, it is there to stay, forever, whether you committed any crime or not.
If you have been accused of or are facing criminal charges in the Boston area, you will want to ensure that you have an aggressive, knowledgeable, and experienced Boston defense attorney on your side. With nearly 20 years of experience as a defense attorney, Patrick J. Murphy will fight to secure the most favorable result possible in your case. Contact the Law Office of Patrick J. Murphy, Esq. today in order to schedule a free and confidential legal consultation. You can contact us by calling 617-367-0450 or through our website.
More Blog Posts:
Boston “Gang Sweep” Leads to Arrest of 33 Individuals, Boston Criminal Defense Lawyer Blog, published May 23, 2013
4 Defendants Sentenced in 2011 Boston Armed Robbery/Shooting Case, Boston Criminal Defense Lawyer Blog, published May 16, 2013