OnPolicing Blog

To solve crimes and unearth new leads for cold cases, law enforcement agencies across the country learned to properly and efficiently use deoxyribonucleic acid, or DNA. DNA technology, vital to ensuring accuracy and fairness in the criminal justice system, can be used to solve crimes in two ways. In cases where the suspect is identified, the suspect’s DNA sample can be used to compare it to other evidence. In cases where there is an unknown perpetrator, DNA obtained at a crime scene can be cross-referenced through DNA databases to help identify a potential match.

Many law enforcement executives promote using databases as not only a way to solve crimes and identify offenders, but also to help determine individuals’ innocence. Even relatively small databases have seen positive results for law enforcement. Opposition to the collection and indefinite maintenance of DNA in databases, however, remains.

The argument to expand the scope of DNA collection and increase the scope of DNA databases is that it will allow law enforcement officials to easily obtain a so-called “cold hit” for unsolved crimes. Opponents argue that because DNA contains more intimate information than, say, fingerprints, it is both a violation of the Fourth Amendment and affords the potential for endless misuse by law enforcement.

Look no further than the case of the Idaho quadruple murder that captivated the nation. Reports indicated that investigators may have been able to obtain a sample of the perpetrator’s DNA left at the scene. They next found a cold hit in a commercial database, subsequently cross-referring another sample from the perpetrator himself.

In the late 1980s, the federal government laid the groundwork for a system of national, state, and local DNA databases for the storage and exchange of DNA profiles. This system, the Combined DNA Index System (CODIS), maintains DNA profiles obtained under federal, state, and local systems in a set of databases available to law enforcement agencies across the country—for law enforcement purposes. CODIS can compare crime scene evidence to a database of DNA profiles obtained from convicted offenders and link DNA evidence obtained from different crime scenes.

In 1992, the United States Court of Appeals for the Fourth Circuit upheld Virginia’s constitutionality of its version of the DNA database system. In Jones v. Murray, the court said that the suspect’s identity “is relevant not only to solving the crime for which the suspect is arrested but also for maintaining a permanent record to solve other past and future crimes” (Jones v. Murray, 962 F.2d 302, 306 [4th Cir.1992]). This case has had lasting effects on the rest of the country. In just 10 years, the other 49 states embraced a DNA databank, collecting samples from convicted felons and misdemeanor offenders.

Collecting samples from prisoners is also imperative. In fact, all 50 states compel law enforcement officials to collect DNA from criminal offenders, allowing them to build and maintain a DNA database. Samples are retained indefinitely in state repositories even after a DNA profile is generated. State databases are also linked to CODIS, which allows a user to access profiles in all systems nationwide. Collecting DNA from arrestees and felons, however, is only helpful if it can be traced back to a crime scene.

When law enforcement officials collect DNA from a crime scene, part of the process is to ensure that the evidence is properly obtained so it will not only be accurately analyzed but will also be admissible in court. The physical location of the crime is crucial to the perpetrator’s prosecution and must be handled appropriately. Most issues that arise from evidence collection at crime scenes include, but are not limited to, Fourth Amendment considerations of crime scene searches, chain of custody issues, and particular standards for the admissibility of scientific testing.

The Supreme Court recognized that Fourth Amendment privacy rights are limited and that law enforcement agencies have the authority to conduct searches and seizures. Law enforcement also has the authority to collect DNA from public areas and crime scenes. Critics of DNA collection and DNA databases claim that maintaining such data is a violation. Opponents state that DNA sampling and collection from a prisoner is the same as any other form of search and seizure, meaning it would require a warrant and be subject to all reasonable constraints. This reasonableness analysis is a balancing test that weighs the individual’s Fourth Amendment protections against the government’s interest.

Thus, the state may infringe upon an individual’s Fourth Amendment interests—albeit within limits—even if less than probable cause exists so long as the intrusion is minimal and connected to an investigation.

When Alonza Jay King, Jr. was arrested and charged with assault in Maryland, the arresting agency swabbed his mouth to collect a sample of DNA for the state’s database (Maryland v. King 567 US 1301 [2012]). When the results revealed a match with an unsolved rape case, King sought to suppress the results under a Fourth Amendment violation. The case reached the Supreme Court in 2013, and in a 5–4 decision, the Court disagreed with King. They said, “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.”

This decision had a sweeping impact across the country. Although the laws regarding DNA databases may vary, the Court said that because the laws are so similar, “this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.”

With this statement, it can be inferred that this decision was intended not just to decide the particulars of the Maryland law, but to be broad enough to address the issue of DNA collection throughout the rest of the country.

The Court offered five reasons why DNA collection plays a critical role in serving the public interest.

First, the Court emphasized the identification of perpetrators. DNA collection is similar, if not more accurate, than fingerprinting or matching a perpetrator’s face to a wanted poster.

Second, the Court referenced the safety of officers and prison staff. Only through DNA testing can officials understand who they are dealing with and the potential dangers they present to others or themselves.

Third, the government has a substantial interest in protecting its citizens by determining if the new arrestee has committed previous crimes. This information can be, and has in the past been, obtained by DNA evidence in a database.

Fourth, the arrestee’s past conduct must be known to assess any danger he or she will pose to the public if released on bail.

Fifth, the DNA collection may not only positively identify a perpetrator in a crime but may also help release an innocent person.

Additionally, it must be noted that several cases were pending that challenged the constitutionality of DNA collection laws across the country prior to the King decision (Angela Foster, Maryland v. King: Has Mandatory DNA Testing Been Resolved?, N.J. Law., February 2014, at 18).

In the Ninth Circuit, Haskell v. Harris challenged California’s mandatory DNA collection from felony arrestees, calling it unreasonable (Haskell v. Harris, 669 F.3d 1049 [9th Cir. 2012]). California’s Proposition 69 required all adults arrested—not just convicted—for felonies to provide a DNA sample for analysis. Failing to do so would result in a misdemeanor charge. Id. A class action case was filed. “The district court denied the plaintiffs’ request for preliminary injunction and held: 1) the balancing weighed in favor of the defense, 2) injunctive relief would not be in the public interest, and 3) the plaintiff could not prove a likelihood of success on the merits, as a matter of law, because the California DNA law did not violate the Fourth Amendment.” Id.

The Haskell court viewed this case through the lens of the totality of the circumstances. Id. The Ninth Circuit ruled in favor of the state, finding warrantless collection of DNA for analysis does not violate the Fourth Amendment. Id. Swabbing a cheek to obtain and collect DNA is necessary. It is neither degrading nor intrusive. Id. “Balancing the plaintiffs’ privacy interests against the governmental interest in prison administration and law enforcement, the court held that DNA sampling provides identification of arrested persons, solves past crimes, prevents future crimes and exonerates the innocent.” (Foster, op cit.)

The Court in King did not address whether the decision applied to individuals arrested for serious crimes or any arrestable offense, leaving these questions to be answered by lower courts. Therefore, the Ninth Circuit requested a supplemental briefing on the applicability of the King decision and was the first to rule on the Constitutionality of DNA collection for database analysis post-King. It is important to note several key differences, however, between both Maryland and California’s DNA laws. Maryland’s DNA law “allows analysis of DNA only after the arrest is validated by a judicial finding of probable cause. California’s DNA law provides for the immediate analysis of a DNA sample after an arrest.” Id. Further, the expungement process is somewhat different throughout the country. Maryland requires automatic expungement if a case is dismissed, while California arrestees “must await the expiration of the statute of limitations for the crime(s) for which he or she was charged before requesting expungement, unless the prosecutor dismisses the charges sooner.” Id. In 2014, The Court of Appeals held that California’s DNA Act did not violate the Fourth Amendment, even with notable differences between the California and Maryland statutes. (Haskell v. Harris, 745 F.3d 1269 [9th Cir. 2014]) The Ninth Circuit stated that the plaintiffs failed to present any meaningful difference between Maryland’s and California’s law. Id. at 1273. The Court strongly affirmed the constitutionality of California’s DNA database law.

Conclusion

Since the King decision, it appears as if collecting DNA from arrestees and convicted criminals for analysis in DNA databases is here to stay. Because obtaining samples through a swab of the cheek is not considered an intrusive violation of the Fourth Amendment, DNA can be cross-referenced with collected samples and analyzed in databases. A Minnesota case, however, distinguished itself from King—potentially opening the door for further federal decisions. (In re Welfare of C.T.L., 722 N.W.2d 484, 486 [Minn. Ct. App. 2006]). In In re Welfare of C.T.L., the court held that officials seeking to collect DNA from any individual charged with a crime must have probable cause before obtaining a sample. Id. This legal issue has not yet been addressed federally. It is, therefore, possible that future litigation will determine what limitations on DNA collection and databases will be imposed upon law enforcement and government entities.