Legal Insights: Supreme Court Decision Sanctions DNA Collection Upon Arrest

In a 5-4 decision earlier this month, the Supreme Court ruled that police may take DNA samples from people arrested in connection with serious crimes. Right now, the federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes.

But in his dissent, Justice Antonin Scalia pointed out that the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime.  “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench.

My reaction to the Supreme Court’s ruling was not so much surprise as it was disappointment. Now, if the police believe they have probable cause that a person has committed a crime, even though this does not mean the person is guilty, they can still take that person’s DNA and enter it into a national database.

We need to be mindful that this is all very personal information. Consider the debates going on right now in this country about the government looking into our cell phone records and moving to create new ways to collect personal information about our citizens.  In my estimation, collecting our bodily fluids and putting them into a national database is one more intrusion into our privacy.

What is the next step?  Where does this end?

I can certainly understand why many people believe the DNA samples should be taken to hopefully resolve current and previously unsolved crimes. It’s a very good tool when used correctly for that reason. However, it can be a slippery slope because those of us who haven’t committed crimes and certainly haven’t been found guilty certainly have a right to a higher level or privacy. 

This ruling won’t change the way attorneys practice because the DNA collection happens before the attorney gets involved. Typically, attorneys get involved post-arrest and during the charging portion of the case. The ruling literally opens up the door to authorities taking your DNA sample without due process. It comes down to an officer who believes that taking a DNA swab amounts to the same thing, under the Fourth Amendment, as taking a fingerprint or photographing. 

In some cases, this may be true but I would ask you to take a long, hard look into what happens if, for example, you find yourself walking outside a bar at the time of a fight inside the establishment. You walk by and all over a sudden an officer says, ‘Hey, you were involved in that. You are now under arrest.’

Of course, you weren’t involved, but the police are going to take your DNA with no due process and leaving you no way to explain yourself.  Basically, you will have no way to undo what has been done at that point.

So, what’s my advice to citizens in the wake of the Supreme Court’s ruling? Just hope that the police don’t think you were involved in a crime. It’s sad but that’s where we’re at if this legislation is passed in Wisconsin.  If they do suspect you of a crime and place you under arrest, your DNA is going to be taken and there’s not a thing you can do about it.

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.