Supreme Court Still Wrestling with DNA Collection Upon Arrest

Which is more important: taking advantage of modern technology to take an even bigger bite out of crime or preserving centuries-old protections against unreasonable searches?  That is the question now sitting before the U.S. Supreme Court as it hears the case of Maryland v. King.  If you are arrested, should the police have the right to take a swab of your DNA even if you have not been convicted?

The issue, of course, is the concept of the presumption of innocence.  Being arrested on a felony charge, the standard is very low. Law enforcement has to make the decision whether it’s more probable than not that a felony was committed and that the person they are arresting is the person who committed that felony.

I think the part of this that ruffles the most feathers, if you will, is that we would now have a database of individuals who have not been convicted of any crime, felony or non-felony.  The government would have that database without any due process to collect the samples. The process is pretty invasive in obtaining personal information from a person without a warrant or any other reason than a subjective probable cause determination by law enforcement.

All of this certainly raises legitimate concerns and there are two sides to the story. I suspect many people believe the DNA samples should be taken to hopefully resolve previously unsolved crimes. However, this can be a slippery slope. Many in the defense bar point to lack of due process and this, of course, is the crux of the case now facing the Supreme Court in the case of Maryland v. King.  They will determine whether police can take a DNA sample from someone who’s been arrested but not convicted of a crime.

Clearly, this is a sensitive topic since the Supreme Court has taken up the case to determine whether peoples’ rights need to be protected under a variety of constitutional claims. Personally, I have no problem with DNA being collected after the person has been convicted because at that point, due process has taken place. People have been found one way or another to have committed a crime. Once convicted of a crime, your rights are severely limited.

The concern is that an arrest is a very easy slope to slide down where a lot of people are being arrested and the net result will be that they have to give a DNA sample. There may be improper felony arrests and I just truly believe that people have a variety of constitutional rights, particularly fourth amendment rights against unreasonable search and seizure that are on the books to protect us.

For example, if someone is carrying an Oxycodone pill and they don’t have their prescription or a way to prove it right then and there, if they are searched they are now technically in possession of a narcotic without a prescription. Should they have to submit to  DNA collection?

Perhaps, people should think this through a bit more regarding the ease with which law enforcement could arrest somebody in that regard as opposed to some of the more extreme cases we think about including sexual assault, homicide or robbery. It becomes a bit clearer in the course of day to day life that some people will be arrested for benign reasons. This reality can be very scary and slippery slope.

Regardless of my personal thoughts or those of anybody else, the Supreme Court will have the final decision, possibly in June.  It will be interesting to see how it all plays out.

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.