By Jeremy Gruber

Police can routinely collect DNA samples from people who are arrested and charged for a crime, a divided U.S. Supreme Court recently ruled, limiting privacy rights and giving police unprecedented access to Americans' DNA.

The justices, voting in a close 5-4 decision, upheld Maryland's DNA Collection Act, which was expanded in 2008 beyond DNA samples of people who were convicted of a felony to include anyone arrested for a crime of violence or burglary. The law is representative of a growing trend of states across the country massively expanding their collection of DNA samples. The federal government and at least 26 states allow DNA collection at arrest or have legislation pending that would allow it. Many more may now adopt the practice. Because only a fraction of those who are arrested are ultimately convicted, however, this practice necessarily will permit the government to collect DNA from innocent people. That the government would obtain DNA from any innocent person is disturbing, but the practice visits a special and severe harm upon minorities. Members of minority groups are arrested in disproportionate numbers, and a disproportionate percentage of innocent arrestees are therefore likely to be minorities. 

In Maryland v King, the Court has now carved out a dangerous exception to the bedrock principle of Fourth Amendment jurisprudence in this country that requires police have probable cause to believe that a suspect has committed a crime before a search can take place. Rather than waiting for the criminal justice system to sort out who is guilty and who is not, "a suspect's criminal history is a critical part of his identity that officers should know when processing him for detention," Justice Anthony Kennedy wrote for the majority. He likened DNA sampling to fingerprinting, calling DNA "a markedly more accurate form of identifying arrestees." In so ruling, the majority failed to examine the robust informational content in every person's DNA. As Justice Scalia noted in his scathing dissent, the decision's scope is "vast" and "scary."

The Court also failed to acknowledge the practical reasons that police take DNA from suspects-to investigate unsolved crimes. In a series of cases, the Supreme Court has concluded that searches without probable cause are lawful if the government has "special needs," and if the "primary purpose" of the search is not collecting evidence for ordinary law enforcement. Citing special needs, the justices and the lower courts have upheld a plethora of practices, from drunk-driving roadblocks to drug testing of students and transportation workers. In this case, the Court failed to distinguish between investigative searches and regulatory searches.

"The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence," Scalia wrote. "That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment."

Kennedy said states could collect DNA from people arrested for "serious offenses," and the Court did appear persuaded by some of the safeguards the Maryland law had in place, including automatic expungement of a DNA profile upon an acquittal. However, many other states collect DNA upon arrest without even these limits in place; limits Scalia said were meaningless anyway. He said the logic behind the majority's reasoning would permit DNA to be taken from someone arrested for a traffic offense.

"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," he wrote.

Stephen B. Mercer, chief attorney within the Maryland Public Defender's Forensics Division, said he believes the decision could set the stage for a universal DNA database made up of all citizens.

"All Marylanders who care about their genetic privacy should be alarmed and ready to   explore political options," Mercer said.

The Council for Responsible Genetics was an amicus in the case, submitting a brief to the Court on the racial justice implications of collecting DNA upon arrest, citing the wealth of empirical and social science evidence documenting the harms to minority populations from this practice. 

CRG's brief is available here.

Jeremy Gruber, JD, is President and Executive Director of the Council for Responsible Genetics.

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