California appellate judges decided earlier this month in People v. Buza that a voter-approved state law requiring police to collect DNA samples from adults arrested, though not convicted, for felony offenses is unconstitutional. Justices agreed that forcing arrestees to give up DNA samples, which are subsequently stored and searchable in a state criminal database, constitutes warrantless search in violation of the Fourth Amendment.
The decision distinguishes between DNA collection upon arrest and post-conviction, noting that while convicted felons have “severely constricted expectations of privacy relative to the general citizenry,” the same is not true for those who have not yet had their day in court.
But not everyone seems to agree — either in the courts, in state legislatures, or on the streets. Two federal cases, US v. Pool and Brown v. Haskell, have ruled to uphold arrestee DNA collection laws. In a third case, justices of the Third Circuit agreed to allow DNA collection from unconvicted arrestees only under very specific conditions — after a judge or a grand jury has determined that there is probable cause to charge the arrestee with a felony. The case left unanswered the pivotal question of whether an officer’s probable cause to arrest someone off the streets suffices to permit DNA collection.
In addition, a growing number of state legislatures are passing arrestee DNA collection laws. And more and more office-holders and candidates (including three democratic New York governors) are touting their support for expanding DNA databases to include arrestees.
Unfortunately, the mass appeal for unfettered use of DNA in criminal justice contexts is propelled by high-profile, highly emotional cases such as the Katie Sepich rape/murder, which was solved by DNA evidence, and the resultant advocacy efforts such as the Sepich family’s “DNA Saves” group. In fact, the DNA Saves website catalogues a list of court cases from across the country in which judges have determined that DNA collected from a cheek swab is akin to fingerprints and thus a desirable, even-more-accurate means by which to identify suspects.
But DNA contains much more information than fingerprints in that when samples are retained in addition to creating a CODIS profile, other personal information remains accessible to the government. In 2008, Jerry Brown advocated state forensic labs’ widespread use of “familial searching” because of the rising number of violent crimes in California. This forensic technique uses a DNA sample not only to search for the individual from which it came, but also for their close blood relatives who may be stored in the DNA database.
Familial searching and obligatory DNA collection from those who are — or ought to be — “presumed innocent” are disquieting examples of genetic forensic applications that put privacy and civil rights at risk. Looking to the future, those risks could certainly get worse. An up-and-coming forensic technique called molecular photofitting, which claims to be able to derive phenotype (facial structure, skin color, overall appearance) using only a DNA sample, could exacerbate privacy incursions to chilling effect.
The pressure to open the floodgates for new DNA forensic applications is enormous, and could easily sweep our criminal justice system even further into the territory of high-tech public surveillance. The California court’s insistence that innocent people’s DNA cannot be collected for police databases is an important step back from the brink.
Previously on Biopolitical Times:
Posted in Bioethics, California, DNA Forensics, Emily Stehr's Blog Posts
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