2012 08 06 NYT DNA and the Fourth Amendment – NYTimes.com
DNA and the Fourth Amendment
Earlier this year, Maryland’s highest court held that collection of DNA samples from people arrested but not yet convicted violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. Last week, Chief Justice John Roberts Jr. stayed that ruling while the Supreme Court decides whether to hear Maryland’s appeal of the state court decision. The Supreme Court should take up this case, but there was no good reason for the chief justice to allow the police to continue collecting DNA while the case is on appeal.
The justices should hear the case because the privacy issues raised are significant and there is disagreement among state and federal courts that have considered the question. Currently, 24 states and the federal government have laws allowing DNA sampling before conviction.
Some courts say that collecting DNA by swabbing someone’s cheek before conviction is permissible because the physical intrusion is minimal. Others say it is invasive and can be performed only with a warrant.
Most courts seek to balance the defendant’s interest in privacy against the state’s interest in effective law enforcement. But too often that analysis is imprecise and fails to explain or justify the value of obtaining DNA from someone before he is convicted. The jeopardy to privacy is substantial because DNA data in vast repositories could potentially become public.
Chief Justice Roberts’s decision to stay the Maryland court’s ruling rested partly on a judgment that the state would suffer irreparable harm if it could not use this “valuable tool for investigating unsolved crimes.”
As he noted, of the 10,666 DNA samples Maryland collected last year from people arrested, fewer than 10 led to convictions, less than one-tenth of 1 percent. That tiny number makes it difficult to conclude that Maryland would suffer much harm if it were prohibited from taking DNA from people who had not been convicted.