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Grant M. Scheiner - Houston Criminal Defense Lawyer

Supreme Court Rules Police Can Take Arrested Person’s DNA Without Warrant

Alert: Supreme Court Ruling May Affect Your Privacy Rights

 

The United States Supreme Court ruled this week that police can take DNA from any person arrested for a “serious” crime — and they don’t need a warrant to do it! In a controversial 5-4 decision, the Supreme Court ruled in Maryland v. King that taking an arrestee’s DNA was akin to taking fingerprints or booking photos. Conservative Justice Antonin Scalia wrote a scathing dissent, in which Justices Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor joined.   This opinion threatens privacy and could result in questionable arrests of innocent people. There are at least several problems with the majority opinion.

First, the opinion erroneously compares DNA with booking photos and fingerprints. However, unlike photos and fingerprints, DNA can tell us many intimate details about a person (and perhaps even more details as DNA science develops), including pre-dispositions for disease, mental illness, miscarriage or alcohol and drug addiction. DNA may eventually tell us whether a person is gay or straight or whether a person is pre-disposed to certain types of behavior. We must carefully consider whether we want our government to have warrantless access to that kind of sensitive information, especially for people in the criminal justice system who are supposed to be presumed innocent. As Justice Scalia pointed out in dissent, routine DNA swabbing of arrestees will likely lead to a national DNA database. It’s hard to see how that would not be a greater privacy intrusion than mere fingerprinting or taking a booking photo.
A second problem with this ruling is it may encourage questionable arrests by police agencies eager to try and solve cold cases. (I.e., Police could simply arrest a person, take his DNA and see whether it matches DNA taken at crime scenes in unsolved cases.) For those who can’t see the potential harm, keep in mind that even when a wrongfully arrested person is found innocent and gets his records expunged, he must first spend time locked up in jail, then must usually post bail and usually must hire a lawyer. And, who knows whether an expungement of records would even successfully remove an innocent person’s DNA from a federal or state database.
A third problem is that while the Supreme Court held police may take DNA from any person arrested for a serious crime, the Court didn’t define “serious crime.” Of course, murder, sexual assault and indecency with a child might all be considered serious crimes. But what about a felony drug offense? Undoubtedly there are many trial court and appellate court judges who believe any felony drug crime is serious. However, many states (including Texas) treat possession of even a tiny amount of  cocaine (so-called “residue” cases) as a felony. This means that if police find a nearly immeasurable amount of cocaine on some device that someone left in your car, you could be arrested, jailed and have your DNA taken (and probably submitted into a federal database) without a warrant.
Requiring police to get a warrant in order to take an arrestee’s DNA is not a heavy burden. It’s only a matter of paperwork in a legitimate case. But the warrant requirement at least provides a small layer of protection against government abuse and invasion of privacy, because a neutral judge or magistrate must read the warrant and determine whether the police have probable cause. In this week’s ruling in Maryland v. King, the United States Supreme Court stripped its citizens of a small but very important protection: The requirement that police must have a warrant, supported by probable cause, if they want to take your DNA.