DNA samples may now be taken from people who have been arrested, but not convicted, for certain crimes
On Nov. 15, Kim Cope was driving her car during her lunch break when she was suddenly pulled over by members of the Fort Worth police department. Although the traffic stop was routine, its purpose was utterly unprecedented. According to the Dallas Observer and Fort Worth’s television station 5 NBC, during the stop, the police asked Cope to provide a voluntary DNA sample from a swab of her cheeks. Moreover, they offered to pay her $10 for the sample. As things turned out, this motor vehicle stop was part of the 2013 National Roadside Survey of Alcohol and Drugged Driving, a periodic study undertaken by the federal National Highway Transportation Safety Administration. The local Fort Worth
police who made the traffic stop in Cope’s case were working off-duty on behalf of the federal government. Ultimately, Cope declined to provide the DNA sample and was permitted to go on her way. In the coming months and years, Cope’s experience may become a matter of routine in New Jersey, as law enforcement agencies seek to collect more and more DNA samples from vast numbers of people who have not been convicted of any offense. This procedure has been made possible as a result of a decision in June by the United States Supreme Court, Maryland v. King, 133 S. Ct. 1958 (2013). The court’s late-term decision in King did not attract any significant media attention when it was announced and failed to generate anything approaching the high level of public interest associated with the Defense of Marriage Act decision in United States v. Windsor, 133 S. Ct. 2675 (2013), or the Voting Rights Act holding in Shelby County v. Holder, 133 S. Ct. 2612 (2013). Yet, over time, the ruling in King may prove to be one of the court’s most important decisions, affecting tens of millions of average people in the United States for decades to come. For crime fighters it is a godsend, and for Fourth Amendment
purists, it is yet another invasion on our sacred expectation of privacy. At issue in King was a Maryland statute that permits police agencies to secure a DNA sample via a cheek swab from individuals who have been arrested for certain serious criminal offenses. The respondent, Alonzo King, was arrested in 2009 on charges of aggravated assault and, as part of the routine booking procedure, he provided the police with a cheek-swab DNA sample. The sample tied King to an unsolved rape from 2003. In 2003, King broke into a woman’s home in Salisbury, Maryland, and raped her at gunpoint. The only evidence left at the scene was King’s DNA sample obtained from the victim. He was subsequently successfully prosecuted for the rape on the basis of the 2009 DNA evidence and sentenced to life without the possibility of parole. King moved to suppress the DNA match, arguing that the Maryland statute violated his Fourth Amendment right to be free from unreasonable searches, but the Circuit Court judge held the statute constitutional. Thereafter, the Maryland Court of Appeals set aside the conviction based on the fact that the DNA taken during the 2009 arrest was an unlawful seizure because the use of a buccal swab to take DNA from the inside of King’s mouth was an unreasonable search of his person. The Supreme Court granted certiorari and reversed the judgment of the Maryland court. In sustaining the constitutionality of the Maryland statute, the court held (in a 5 to 4 decision) that the collection of a DNA sample is akin to the fingerprinting and mug shot procedures that are routine, reasonable and necessary adjuncts to police booking procedures. Accordingly, 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 a legitimate police booking procedure that is reasonable under the Fourth Amendment. Writing for the majority, Justice Kennedy went on to note that the utility of DNA samples in advancing the work of the criminal justice system is vast and vital. He stressed that the extraction of the sample is minimally intrusive and can provide complete accuracy in identifying suspects and arrestees. Correct identity and associated criminal case histories are essential components of bail, detention, classification and sentencing decisions. Law enforcement efforts are also served through the use of DNA in the neverending effort to solve crimes, locate fugitives, free the wrongly-convicted and eliminate the innocent from suspicion. According to the court, all 50 states have some procedure for collecting DNA samples from people who have been convicted of criminal offenses. Many fewer have statutory procedures that authorize the taking of a sample from those who have been merely arrested and charged with a criminal offense. In New Jersey, the collection of DNA samples in a criminal case is controlled by the DNA Database and Data
bank Act of 1994, N.J.S.A. 53:1:20.18 et seq. Although every adult and juvenile convicted of a criminal offense in New Jersey is required to provide a DNA sample, the taking of a sample following an arrest is permitted in only a few limited circumstances. Under an amendment to the statute that went into effect in February of this year, preconviction DNA samples may now be taken as a condition of release from adults and juvenile defendants who have been arrested for the following: • murder, N.J.S.A. 2C:11-3; • manslaughter, N.J.S.A. 2C:11-4; • aggravated sexual assault and sexual assault, N.J.S.A. 2C:142; • aggravated criminal sexual contact and criminal sexual contact, N.J.S.A. 2C:14-3; • aggravated assault of the second degree, N.J.S.A. 2C:12-1; • kidnapping, N.J.S.A. 2C:13-1, • luring or enticing a child, N.J.S.A. 2C:13-6; • engaging in sexual conduct which would impair or debauch the morals of a child, N.J.S.A. 2C:24-4. The decision in King will afford our legislature the opportunity to expand the taking of DNA samples in the criminal justice system by gargantuan proportions. The legislature could conceivably now require DNA samples from every person who has been arrested for any crime, serious disorderly persons offense or even
drunk driving. While the law enforcement benefits of tens of thousands of additions to the general DNA database could be substantial, the loss of privacy and worries about governmental misuse of the data should also be of great concern. For example, DNA information could be used to predict future health challenges, life span and susceptibility to certain diseases. These data could be used to gauge premiums for life and health insurance. They could even affect potential employment or suitability for political office. In sum, as technology advances at light-speed, DNA samples may reveal much more than we’re prepared as a society to share with the government. So, let the debate begin. Although there is no denying the importance and utility of DNA evidence in the criminal justice system, the civil liberties issues and privacy risks are stark. As Justice Scalia noted in his stinging dissent in King: Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane, applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
Peyrouton is a criminal-defense and immigration attorney in Union City.
Reprinted with permission from the DECEMBER 23, 2013 edition of New Jersey Law Journal . © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.