Is Warrantless DNA Collection Violating Citizens’ Rights Against Unreasonable Search and Seizure?

There have been incredible advances in technology and science within the past few years. Law enforcement officials merely have to rub a swab inside a criminal suspect’s cheek in order to gain a wealth of information about the person. States such as California and Maryland have laws that permit law enforcement officials to obtain a person’s DNA without a warrant. Does collection of DNA without a warrant violate a citizen’s right to privacy? It is considered a violation of a citizen’s Fourth Amendment right against search and seizure? Time will tell. Two upcoming cases in the California appellate court and the U.S. Supreme Court will likely answer that question.

Lily Haskell was arrested at an anti-war rally in San Francisco. California Proposition 69 permits law enforcement to collect a DNA sample from people who have been charged with committing a felony. According to the law, an arrested person will be charged with a misdemeanor if he or she refuses to cooperate with law enforcement officials while they attempt to take a DNA sample. Lily Haskell decided she would rather be charged with a misdemeanor than submit to the DNA collection procedure.

In 2009, the district court weighed the arrested person’s privacy interests against the government’s interest in collecting DNA samples to help prosecute cases. The district ruled that Proposition 69 is legal and should continue to be enforced. The district court stated that the DNA database has proven to be an effective resource that has helped law enforcement identify criminal suspects, solve crimes and prevent future crimes from being committed by repeat offenders.

In February 2012, the 9th Circuit appellate court agreed with the district court’s ruling and held that Proposition 69 is constitutional. The 9th Circuit appellate court narrowed their ruling by stating that it only applies to DNA collection as it exists in its current form. Future developments in DNA collection and how the law is executed could be rendered unconstitutional. In July 2012, a majority of the federal court judges in the 9th district decided they would reconsider the decision rendered in the February appellate court ruling. On September 17, 2012 the U.S. Court of Appeals for the 9th Circuit will rehear the case of Haskell v. Harris.

Criminal defense attorneys and privacy rights advocates have expressed their concerns that the DNA database could potentially be abused by the government. Supporters of DNA collection have stated that DNA is analogous to fingerprinting. Privacy rights advocates argue that fingerprints don’t have nearly the same amount of identifying information as DNA. Fingerprints can identify who a person is but DNA reveals a person’s blood type and genetic predispositions. DNA is being used to investigate people while fingerprints are merely used to identify criminal suspects. The Department of Justice will keep the DNA samples indefinitely and there is no indication of how all of that private information could be used.

The U.S. Supreme Court will likely address this legal issue in the case of Maryland v. King. Police officers collected Alonzo Jay King’s DNA sample without a warrant and used it to get a conviction for a 2003 rape case. The U.S. Supreme Court has permitted police officers to still enforce the Maryland DNA Collection Act until a ruling is made on the case. The U.S. Supreme Court will likely make a decision in the case in October 2012.