The National Pulse

An Arresting Development: Courts Split Over DNA Testing for Those Merely Charged with a Crime

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Illustration by Viktor Koen

DNA “fingerprinting” has become so crucial to linking individuals to crimes that many wonder how far law enforcement will push it. Criminals who raped and murdered years—even decades—earlier have been caught and convicted based on DNA collection, analysis and matching.

Courts, meanwhile, have generally upheld DNA collection and testing of individuals convicted of certain crimes. In 2004, a sharply divided 9th U.S. Circuit Court of Appeals sitting en banc expanded the limit even further, holding in U.S. v. Kincade that mandatory DNA testing of parolees under certain circumstances does not violate the Fourth Amendment.

Now the judiciary is looking at taking another step in compulsory testing, requiring DNA samples from individuals who have been arrested in—but not convicted of—a particular crime. So far, the courts have been divided as to whether it is unreasonably intrusive to force an arrestee to produce a sample.

“This process of DNA testing of arrestees is relatively new and controversial,” says David Steinberg, a law professor specializing in search and seizure issues at Thomas Jefferson School of Law in San Diego. “As technology becomes more advanced, to what extent is the Constitution going to limit the use of technology, and to what extent are we going to limit the use of technology?”

Steinberg argues that the Fourth Amendment is irrelevant in the DNA cases. “The Fourth Amendment was enacted to do one thing and one thing alone,” he says, “and that was to prevent unreasonable physical trespasses into houses.”


Other legal scholars disagree, finding that the Fourth Amendment should apply and, in fact, that the government intrusion is too great to justify DNA collection from arrestees.

“Gathering DNA evidence is a serious intrusion because you can learn a good bit about a person from their DNA,” says Robert Bloom, who teaches civil and criminal procedure at Boston College Law School. “It’s similar to fingerprints, but it’s much more intrusive.”

The United States maintains the largest DNA database in the world. Managed by the FBI, the Combined DNA Index System contained more than 5 million offender profiles as of January 2008. CODIS software makes it possible for local, state and federal crime laboratories to share and compare DNA data.

The DNA Analysis Backlog Elimination Act of 2000 authorized federal officials to collect DNA samples from individuals who were convicted of violent federal offenses nationwide. Since then, federal law has continued to expand the perimeters of that collection. Recent legislation extended the reach of DNA collection to include arrestees and individuals detained under U.S. authority who are not U.S. citizens or are not lawfully in the country.

States also require and share DNA samples. According to the National Conference of State Legislatures, all 50 states require that convicted sex offenders provide DNA samples. Increasingly, according to the conference, states are expanding these policies to include all felony convictions, and even some misdemeanors as well.

In addition, the conference notes that the trend is to allow DNA collection from arrestees. As of 2009, 21 states—including California, Louisiana, Minnesota, Virginia and Texas—had laws mandating collection of DNA from people charged with particular crimes. In 2009 Arkansas also authorized the collection of DNA for those individuals arrested in murder and sex-crimes cases.

Law enforcement advocates have argued, and some courts have agreed, that DNA sampling should be regarded as similar to fingerprinting, which is completed at the time of arrest.

But arrestees have challenged those states and the federal government over the practice of collecting DNA evidence.


In July, a closely divided 3rd Circuit upheld the constitutionality of the collection of DNA samples from those who have been arrested. A petition of certiorari in U.S. v. Mitchell has been filed with the U.S. Supreme Court.

The case involves a man facing a federal charge of attempting to possess and distribute cocaine. He had been required under federal law to submit a DNA sample to law enforcement.

“As arrestees have a diminished expectation of privacy in their identities, and DNA collection serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment,” wrote Judge Julio M. Fuentes for the 8-6 majority in the Philadelphia-based court.

But one month later, in People v. Buza, a state appellate court in San Francisco found unconstitutional a California law requiring that police take DNA samples from people arrested for felonies.

The U.S. Supreme Court “has never permitted suspicionless searches aimed at uncovering evidence of crime outside the context of convicted offenders,” wrote Presiding Justice J. Anthony Kline for the unanimous appeals panel.

The San Francisco-based 9th Circuit has heard arguments in another case, Haskell v. Brown, involving the California law on the collection of DNA; as of late November, it had not yet ruled. California’s Proposition 69 added a stipulation, beginning in 2009, that requires the collection of a DNA sample from adults arrested for or charged with any felony offense.

In the last few years, as noted in a memo posted by U.S. Attorney General Eric Holder on the U.S. Department of Justice website, the issue has been litigated with mixed results. In U.S. v. Pool in 2010 the 9th Circuit rejected a constitutional challenge to the DNA sample collection from federal arrestees and defendants.

But in U.S. v. Frank, also in 2010, a federal district court in Washington state took an opposing view on the issue of DNA collection of arrestees. In Frank, the government wanted to compel DNA samples of two men arrested for allegedly being involved in an altercation that resulted in another man’s death. The federal district judge denied the motion, finding that “compulsory DNA sampling of those facing charges is unreasonable.”

Some legal observers say that the conflicting rulings make the issue ripe for U.S. Supreme Court review. If the high court does pick up the question, some academics predict that the justices will side with law enforcement.

“The government will say, ‘What an opportunity to investigate and solve unresolved crimes,’ ” Bloom says. “I think the Supreme Court would be very sympathetic to that type of government argument.”

“DNA testing for felony arrestees is an important public safety tool,” says Lisa Hurst, a Washington, D.C.- based governmental affairs consultant who specializes in forensic DNA issues. “It is vital to ongoing public safety because it provides law enforcement with an opportunity to accurately identify who the person in their custody truly is and then subsequently make decisions on that person’s release or lack thereof.”


Some legal observers and privacy rights advocates find the intrusiveness far out weighs government interest. DNA testing provides far more information than fingerprinting. A person’s DNA can reveal diseases, for example, or a genetic predisposition to certain diseases.

“People are a little concerned that the government has a little too much of their personal information when they don’t know how well it will be protected,” says Sheldon Krimsky, a Tufts University professor who has written extensively on the links between science, ethics and public policy.

Krimsky co-authored Genetic Justice: DNA Data Banks, Criminal Investigations and Civil Liberties, published in November 2010, which analyzes the constitutional, ethical and sociopolitical implications of expanded DNA collection. He points out that there is a wide range of types of arrestees. Should a person who smashed a window have his DNA taken from him? What about a person who was arrested for participating in a protest?

“There’s a balancing act,” Krimsky says. “But the question is: Why, if you are arrested, should you all of a sudden be treated like somebody who has been convicted of a crime? Some people are not comfortable with that value.”

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