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DNA Collection at Arrest: Vital Crime Fighting Tool or Invasion of Privacy?

Would you feel your privacy rights were being violated if you had to submit a DNA sample upon being arrested? It's a debate hot button right now in Wisconsin.

If you are arrested for a felony or select misdemeanors should you automatically be subjected to having the police take a sample of your DNA? 

It’s a true hot-button issue and, recently, Wisconsin Attorney General J. B. Van Hollen wrote a column in which he argues that the state legislature should change the law to make this a reality.

In Wisconsin right now, when a court sentences somebody for a felony there is typically a requirement that that person be subjected to a DNA sample. Currently, if a DNA sample is ordered, the cost is covered by a DNA surcharge.

Clearly, there are other avenues where if somebody is a suspect in the case there can be a search warrant for a DNA sample. If there is probable cause to believe that the sample will somehow assist in determining whether the person was party to or somehow involved in a crime, the DNA is collected.  As a matter of principle, a person that is pulled over for a non-felony OWI, for example, is not subjected to a DNA sample. 

Typically, in my experience, a DNA sample is a swabbing of the mouth. In his column, the Attorney General writes, “With a simple swab inside an individual’s cheek to obtain a DNA sample, Wisconsin can do more to bring justice to victims and protect our citizens from offenders whose crimes have gone unsolved.”

I can certainly understand the thought process behind Attorney General Van Hollen’s proposal but what is not addressed here is that you are now, upon arrest, subjected to a warrantless search of your body by virtue of taking a DNA sample. That gets into a myriad of Fourth Amendment search issues as it relates to what is, without argument, the most protected search location that’s involved in the criminal justice system for being protected, your body, from unreasonable search and seizure.

We often hear about unreasonable searches of houses and vehicles. Here, we’re talking about a search of your bodily fluids.  This is a very highly protected

Fourth Amendment issue and I think there will be a lot of debate about whether it is sufficient by arrest alone to qualify for a DNA swab.

Bear in mind that not everyone who gets arrested is guilty of a crime.  The issue is that if somebody is arrested for a crime, their DNA will be available for the government to use in the future.  Is that reasonable in the big picture?  This is certainly debatable. People who examine such search issues may think that the fact that one bad guy gets off the street means that every person that gets arrested should be subjected to this.  That may be their thought process.

However, I have to believe that many other people believe this would be an intrusion into the sanctity of their bodies for what appears to be the goal of protecting everybody. This is not dissimilar argument-wise to the gun debate that is going on right now. Some people believe it’s a Second Amendment issue, that there shouldn’t be a database out there naming everyone who owns a gun. Others argue that such a database would serve the greater good.

Undoubtedly, there are plenty of victims out there who believe that if a person is arrested, collecting a DNA sample is fair game because that person may commit a crime in the future.  On the flip side, others will argue that even though I may have been arrested I still have a right to a presumption of innocence. Why, if I am presumed to be innocent, do the police get to take a sample of my DNA to put into a database for criminal justice purposes?

Personally, I cannot find a justification from a Fourth Amendment perspective to subject an arrested person, pre-conviction with no due process, to a DNA sample. I believe that with due process upon conviction it makes sense. But without due process and without some set of checks and balances other than just law enforcement arresting somebody, it becomes a very slippery slope.

Never mind all of the costs of maintaining such a database and the fact that the crime lab is so far behind right now it’s ridiculous, contrary to the assertions that were made during the Attorney General’s election that these backlogs will be rectified. More expense, more work and more backlogs are sure to follow.

From a legal perspective, the real nuts and bolts of the matter surround unreasonable intrusion into what we hold as the highest, most protected entity which is our body. I personally don’t agree with DNA collection upon arrest only. Undoubtedly, this debate won’t be going away any time soon.

About Attorney Mark Powers
Attorney Mark Powers is a partner at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha. Previously, Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office and is currently serving as a municipal judge in North Prairie. He focuses in the area of criminal defense, and has handled many cases involving operating a motor vehicle while intoxicated, domestic disputes, and drug offenses.

Powers attended Valparaiso University School of Law, where he received his Juris Doctorate. Prior to law school, Mark attended the University of Wisconsin, Lacrosse where he received his bachelor of science in Political Science.

For more information, please call 262.549.5979 or visit  www.waukeshacriminalattorneys.com.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Lyle Ruble February 04, 2013 at 03:02 AM
The impact of taking DNA to be placed in a data bank based on suspicion only is an antithesis to the 4th amendment. In our system of justice, one is innocent until proven guilty beyond a reasonable doubt. Mere suspicion is not necessary not sufficient to justify an abridgement to one's fourth amendment rights. We should resist every effort to any statute that calls for collection of DNA without a search warrant.
Jaime Lannister February 04, 2013 at 03:31 AM
For one thing fingerprints are a image-- with fingerprints the state is not physically taking part of someone's body tissue to include in their database like they are with DNA.
JACK JACKSON February 04, 2013 at 04:59 AM
My pont was that the government already has all of the listed information and it has yet to be taken and/or hacked and used against me. Sure, mistakes can be made. I just believe that the certainty of catching more sex offenders, rapists, murders, thieves, burglars, robbers, etc, outweighs the minute possibility of me wrongfully becoming accused of a crime. If there is a problem with the data, the sample that they collected, or the methods they use, that's what a defense attorney is for. Hell, during criminal investigations people get exonerated by DNA evidence with far greater frequency then they get arrested. I'm also not sure you really understand how DNA evidence works. If you think it can put me anywhere at any time, you're mistaken. DNA evidence does not have a date stamp, therefore it can't be used to pinpoint a specific time without other data (It's the same with fingerprints). You keep going back to a claim about my age. It seems rather ignorant of you to assume that age has any barring on the validity of any argument. I submit that an argument stands on it's own merits not matter the age, race, religion, hight, weight or shoe size of those making the argument. If you think otherwise, please let all of us know. If someone makes a good point, it doesn't matter if they are 15 or 60.
JACK JACKSON February 04, 2013 at 05:16 AM
It's a handle man, relax. Slow deep breath in, hold for five, slow breath out. Repeat until clam. I'm not angry, i'm having a discussion with you about the 4th amendment. You keep making wild assertions that I have no idea of what the 4th amendment is. In actuality, the 4th amendment is rather short... 54 words. Putting aside the mountains of case law, it should boils down to what we, the people of this county, as a collective whole, decide is a reasonable and an unreasonable seizure (technically it is decided by what the supreme court judges determine is unreasonable, but should be reflective of what the majority believes is unreasonable). The constitution of this country was written ambiguously, using words like "unreasonable," but we accept as reasonable and unreasonable can change, will change, and has changed over time. The question here is what do we think is reasonable. I think one thing, you think another. A good discussion is necessary for us to understand each others points. I'm not angry, just call me happily inquisitive.
Jaime Lannister February 04, 2013 at 05:55 AM
Jack, I think you have a little too much trust in any governments concern for your freedom, liberty and pursuit of happiness. I'm glad that you have not been personally abused or your essential liberty infringed upon by big brother yet. That doesn't mean that it hasn't happened to others or can't happen to you in the future though.
Jaime Lannister February 04, 2013 at 05:59 AM
Jack, whether DNA can be used to solve crimes is a moot point here. The same 'solving crimes' argument could be used to install GPS tracking on every citizen, their private vehicles etc. The issue revolves around whether a government should be allowed to take and catalog tissue samples from it's citizens. I would rather live in a dangerous world than surrender any more of my own and my childrens rights.
$$andSense February 04, 2013 at 10:15 AM
JACK I do love the DNA evidence not having a date stamp comment. The police collected a pubic hair sample at the murder scene in an apartment where your former girlfriend lived 10 years ago. It was yours but you had not contact with her for over a year prior to her demise. Today, your DNA sample matches it upon your arrest for a crime of which you are found innocent. Too late, JACK had no issue with the law taking his DNA prior to his acquittal. Bingo, JACK is our man! Now the family of the murder victim has closure despite JACK not even being guilty of either crime! JACK, you are pure genius! But really, your defense attorney still wants their $500,000. You have the money, don’t you? The bank already turned down your request and the DA will not return your calls for restitution. Happy now?
$$andSense February 04, 2013 at 10:30 AM
Lyle Though I do pick on you from time to time, I also agree with you from time to time. You nailed this one clean from my perspective. Thank You!
$$andSense February 04, 2013 at 10:57 AM
JACK eh? Are you a Canadian as they are the only ones that respond with "eh"? I like Canadian's. Just don't like their socialist politics.
Mr Lundt February 04, 2013 at 12:35 PM
See Lyle--We can agree!
mau February 05, 2013 at 12:15 PM
There is a movement, among genealogy researchers, to willingly submit their DNA to organizations like Ancestry.com and the Family History Center (Mormons) with the intent of tracing their lineage. They submit their DNA with a spit sample. From what I have been reading is it is not an effective means of zeroing in on your specific ancestors. So now here we have a DNA databank, into which people around the world are willingly submitting their samples, with no promise or guarantee of security.
Carbon Bigfuut February 05, 2013 at 04:40 PM
Not true, Jaime. They could have you spit into a cup to obtain the DNA sample, and there is no tissue taken.
Carbon Bigfuut February 05, 2013 at 04:43 PM
I agree with you on the misuse of the DNA sample for government-mandated healthcare choices. All the more reason to keep the government out of healthcare.
JACK JACKSON February 06, 2013 at 12:37 AM
Lol, you sound like dave chapelle... "CHECK IT FOR SEMEN!!" I was pointing out that you don't seem to understand the concept of how DNA works if you think that it can place someone at a certain place - ***at a certain time.*** Forgive me for trying to educate the ignorant on how DNA really works. If my DNA was really at the scene, sure, i'd have questions to answer... I SHOULD have questions to answer. If I didn't have a good reason why my DNA was there, it still isn't proof that I committed the murder. Any piece of crap *free* public defender can convince a jury of that fact. Like I said before, I believe that the certainty of catching more sex offenders, rapists, murders, thieves, burglars, robbers, etc, outweighs the minute possibility of an innocent person wrongfully becoming accused of a crime. It's a risk, sure. But it's one I think we should require, at minimum, criminals, to take.
JACK JACKSON February 06, 2013 at 12:40 AM
What about for convicted criminals? Sex offenders? Rapists?
$$andSense February 06, 2013 at 02:14 AM
JACK Looks like the public defender is your choice for defense. If so, their money is drying up fast so you: either will try to defend yourself (which is akin to self incrimination because it usually works against you), or you have some other method like a family member willing to invest in your future. You are young and naive, no doubt about it. The law cares not about how your DNA got there or when, it only cares that you were there and any connection you had with the victim. Plumber, boyfriend, carpet cleaner, etc., etc.? You can post smart and smarmy all you want. The gummit likes naive like you ‘cause it makes their job easy! This isn't a LOL moment . When your ass is on the line, we will see.
JACK JACKSON February 06, 2013 at 01:12 PM
By "the law," are you talking literally about the statutes? The police? The prosecutors? The judge? The jury? It's hard to discuss things when you refuse to cite your sources. If all you do is make assertions without anything to back up any your claims, we're probably not going to make any progress. Your continued attempt to make this about age, experience, or being "smart and smarmy," are childish. I seriously question you are older than 25. Either way, the discussion of age is pointless and is clouding the real issues and discussion. If you can't see that, and can't have an adult conversation, then move along and let the grown ups talk.
Lyle Ruble February 06, 2013 at 02:31 PM
I am all for taking as many criminals off the streets as anyone else. However, the collection of information is a slippery slope, once collected then all control is lost on how the data is distributed. Data can be collected for one reason, but can be used for other purposes. Mau, brought into the discussion the voluntary collection of DNA for the use of tracing genealogy; the key concept is voluntary. However, I, personally would not contribute to the Mormon Genealogy data base, either directly to the church or to Ancestry.Com, which is Mormon owned. They use genealogical information for temple rituals. I am surprised that Van Hollen hasn't pushed to have DNA samples taken on all newborns. That will probably be next.
The Donny Show February 06, 2013 at 02:50 PM
If you are not a criminal you have nothing to hide.
Bob McBride February 06, 2013 at 02:53 PM
I am surprised that Van Hollen hasn't pushed to have DNA samples taken on all newborns. That will probably be next. *************** Would that be the worst thing in the world? If I'm not mistaken, the likelihood of developing certain conditions and afflictions can be determined from examining DNA samples (not to mention confirmation of paternity). I'm sure when it was first decided to take blood tests and record other information at birth, there were those who viewed doing so as an invasion of privacy. We don't seem to balk at those now. Given that we appear to be moving in the direction of universal, government provided healthcare it should be of even less of a concern. One way or the other, they're going to have access to your health history and other records that are far more invasive and provide more hard information than does a DNA test.
mau February 06, 2013 at 02:55 PM
I mistakenly deleted my comment. If anyone could restore it for me I'd appreciate it.
Jay Sykes February 06, 2013 at 03:01 PM
@mau... your wish is my command... your deleted post.... If push came to shove I am sure they would be forced to turn over the DNA to the government, that you voluntarily gave for the purpose of genealogy. Just like the phone companies, utilities, banks, Facebook, The Patch and others are compelled to do so with user's activities. They have been collecting the foot prints of babies for many years. Parents were willing having their children finger printed in school in the event they were abducted. I am sure they have the DNA already on record for all newborns through blood samples. In the 1980's genetic testing was already an option when a pregnancy was deemed problematic. There will need to be a tragic event for the public to beg for this, in the name of security
mau February 06, 2013 at 03:03 PM
Thank you. I was hoping someone had it. If push came to shove I am sure they would be forced to turn over the DNA to the government, that you voluntarily gave for the purpose of genealogy. Just like the phone companies, utilities, banks, Facebook, The Patch and others are compelled to do so with user's activities. They have been collecting the foot prints of babies for many years. Parents were willing having their children finger printed in school in the event they were abducted. I am sure they have the DNA already on record for all newborns through blood samples. In the 1980's genetic testing was already an option when a pregnancy was deemed problematic. There will need to be a tragic event for the public to beg for this, in the name of security"
vocal local 1 February 06, 2013 at 03:37 PM
IS everyone missing the main point: DNA WILL BE TAKEN UPON ARREST NOT JUST UPON CONVICTION OF A FELONY AS IS NOW THE LAW. State Criminal DNA testing will not tell you if your genetic code is abnormal for diseases or any other conditions of abnormality. If I were a criminal I'd protest. Without conviction I'm not cooperating and neither should you. Tell big brother to take a hike and your elect to vote this down.
Bottom Line February 06, 2013 at 03:54 PM
@Lyle ... "the collection of information is a slippery slope, once collected then all control is lost on how the data is distributed. Data can be collected for one reason, but can be used for other purposes." Sounds like you've adopted the convictions of many gun owners.
AWD February 06, 2013 at 05:08 PM
Democrats must spend, spend, spend, and spend. It’s in their DNA.
Frank McGruber February 06, 2013 at 06:11 PM
"No conviction does not necessarily mean no crime." Legally, it does for the person being accused. If they were not convicted, they didn't commit the crime. Legally. Now, we likely know otherwise, as evidenced by O.J Simpson. I'm fine with DNA evidence being taken from a suspect if a warrant is issued for it, but taken at arrest, no way. It's more invasive and personal than a fingerprint.
$$andSense February 07, 2013 at 12:20 AM
Well JACK, if you read Lyle's post, I postulate that wisdom comes with age and young people do not tend to think things through like those that have been around awhile. For those arguing that DNA is no different than fingerprints or blood samples being collected, think again. It is hard to fake someone's finger prints at a crime scene and blood used to only give a match on the type, not the person. Now they do the DNA on the blood. If I wanted to screw you over or anyone else for that matter, all I have to do is raid your trash can without your knowledge and find your used condom, hair, kleenex you blew your nose with or a napkin you wiped your mouth with, plant it at the site of a crime, and make an anonymous tip to the police that it was you. I guarantee they will swab you and bingo, you are in big trouble and will have some expensive attorney fees to get out of that one. But, if you are innocent, no worries, right? Do you trust the gummit as being flawless? That their databases cannot be hacked into? Hackers have gotten into the FBI, CIA and SS sites. I asked our local police chief about the DNA database and he said once they have your DNA, you are never getting it expunged because there are so many agencies that share and catalog it. Now get off your age deflection diatribe on the matter and deal with this one. Go get yourself voluntarily swabbed. Pronto. Be a person of conviction and principle.
$$andSense February 07, 2013 at 02:39 AM
OK Patch. Let’s try this again if you didn’t like my earlier comment you wouldn't post. I steal any kind of DNA evidence from some one’s trash can I do not like, plant it at a crime scene, and call the local PD anonymously to report the person I am trying to get indicted. They will be arrested and swabbed. They will pay enormous legal fees to extract themselves from “guilt”. This is my problem with non-convicted arrests. OK ? You get it now?
vocal local 1 February 07, 2013 at 10:27 AM
$$ANDSENSE, IF YOUR HAVING A PROBLEM WITH THE EDITOR OF THE WAUKESHA PATCH DELETING YOUR POSTS ON CONTENT CONTACT THE REGIONAL PATCH MANAGER FOR ASSISTANCE. PATCH EDITORS ARE TO FOLLOW THE PATCH NETWORK RULES NOT CREATE THEIR OWN. ALSO, HERE IS A LINK THAT MAY HELP YOU DETERMINE WHAT SHOULD AND SHOULD NOT BE ALLOWED. http://www.firstamendmentcenter.org/faq/frequently-asked-questions-press

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