The Fourth Amendment and Warrantless DNA Testing

Lady JusticeOn February 26, the Supreme Court heard oral arguments in the case Maryland v. King, which raised the question of whether the Fourth Amendment permits warrantless DNA collection upon an individual’s arrest but without charge.  The case began on April 10, 2009, when Alonzo King was arrested for pointing a shotgun at a group of people.  He admitted his guilt, was originally charged with a felony assault and ended up pleading guilty to a misdemeanor.

At the time of King’s arrest, the police swabbed his mouth to gather a DNA sample, which matched DNA from an unsettled rape case four years prior – King was convicted of first-degree rape and sentenced to life in prison.  His warrantless DNA sample was the only evidence linking him to the rape case; the police had no probable cause to sample his DNA.  Patricia Millet, who heads the Supreme Court practice at Atkin Gump, explained this by saying ,"DNA is more commonly used not to identify the individual but to link the individual to other crimes for which he is not otherwise a suspect (or at least there is not probable cause to think he committed the other crime."

There are several problematic facets to warrantless DNA collection, the first of which is that this specific form of testing appears unconstitutional according to our Fourth Amendment protections.  This is the ground on which the Supreme Court will determine whether police can conduct DNA testing upon arrest, but there are far more complex issues beyond the simple constitutionality of this sampling.

Invasion of Privacy

Justice Stephen Breyer argued that DNA tests are "no more intrusive" than fingerprints but "much more accurate."  This is a gross overstatement on Breyer's part - unlike fingerprints, DNA tracks an individual's medical history, ancestry, gender - even whether or not an individual is adopted.  It is a wonder that Justice Breyer argued DNA tests are "much more accurate," being that in 2011, over 10,500 DNA samples were taken, only 19 of which led to arrests.  Not only, then, are DNA samples fairly unproductive, resulting in a meager percentage of arrests, but they also expose some of our most personal information.

Racial Bias

DNA tests are already used as racial dragnets among whole families and communities of color, The Nation argues. Because the majority of individuals stopped by police are African American and Latino men, DNA samples taken in these instances are inherently skewed, representing a disproportionate number of men of color.  The Nation writes, "DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems.  By 2008, Britain's National Database stored DNA from 27% of the black population and 77% of black males." It is imposible to overstate the racial, age and gender bias present in DNA databases.

By 2011 in the United States, African American individuals made up 40% of the Combined DNA Index System (CODIS). Researchers at Duke University’s Center for Genome Ethics, Law and Policy found that because these individuals make up such a large portion of CODIS' database, it would be possible to use the database to identify 17% of the country's entire African American population.

By having information on such a large percentage of African Americans, the database effectively codes that population as inherently criminal and therefore in need of further surveillance. Because CODIS already overrepresents these individuals, it will likely encourage law enforcement to aggressively pursue warrantless DNA testing on a predominantly African American and Latino population. This database is also used to identify family members of those arrested and DNA tested. These family members are often used for police investigations,which is why Howard University has dubbed DNA databases "probable cause generators."

Human Fallibility

Though we may think of DNA tests as the ultimate scientific evidence, they are subject to human missteps, which drastically reduce the accuracy of DNA sampling.  One case in Nevada found a man wrongfully imprisoned for four years because a DNA analyst had accidentally switched DNA samples in the lab. There were three other cases in which erroneous DNA data testing led to wrongful convictions that were only overturned with subsequent DNA tests.  Between cross-contamination and accidental switching, DNA tests are no more reliable than most other forms of identification.

Though the idea of a "master" scientific test is appealing, and though the DNA sampling in King's arrest closed a case that had long gone unresolved, our criminal justice system should not rely upon it as heavily as the state of Maryland may be inclined to.

Not only is warrantless DNA testing a breach of Fourth Amendment protections, but it is subject to drastic inaccuracies and human error. Most importantly, though, it perpetuates an enormous racial, class, gender and age bias that plagues our justice system already. DNA testing upon arrest could very well extend this bias even further by surveilling whole families and communities of color, effectively coding them as criminals and worthy of further surveillance and DNA testing in the future.

No matter the state's arguments in Maryland v. King, no matter the fact that the case's warrantless DNA testing closed a formerly unresoved case, the Supreme Court cannot allow DNA testing upon arrest to continue - it is simply harmful and unconstitutional.

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While DNA certainly contains much more information fingerprints, in the justice system it is used only like fingerprints, nothing more, to identify DNA left at crime scenes by perpetrators. The rest of the arguments are erroneous. Witnesses to crime are allowed to testify, and are notorious for proviing misinformation. Do you want to outlaw them?