DNA Swabbing After Arrest for Serious Crime OK'd by Supreme Court

Tuesday, 04 Jun 2013 03:03 PM

By Gina Roberts-Grey

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Move over mug shots. A 5-4 ruling handed down by the highest court in the land has given cops the ability to swab DNA samples from anyone arrested for a serious crime.

Victims’ rights advocates applaud the decision, as they’ve pressed for more regulated, widespread testing of those apprehended for alleged rapes, murders, and other violent crimes.

The DNA samples would be obtained via mouth swab at a police station.

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Maryland Attorney General Doug Gensler has referred to DNA collecting as "the fingerprinting of the 21st century," and told U.S. News the ruling will help police match unresolved crimes with their perpetrators. "These are cold cases that for the most part would not be solved ever" without DNA, he said.

But privacy experts caution the decision could open the door to a "Big Brother" society that strips away a person’s right to privacy.

The vagueness of the ruling about who can or cannot be swabbed is what’s drawing the most scrutiny. Some speculate the decision could spur an uptick in arrests so police can gather DNA samples. Others worry the samples may be used for non-judicial purposes like government tracking of citizens.

The Supreme Court’s ruling said DNA can be taken in case of "serious arrests," however it stopped short of listing arrests excluded from the decision. Currently 28 states already allow DNA swabs for serious arrests; some allow it for misdemeanors.

Justice Antonin Scalia joined liberal colleagues Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor in a scathing dissent that warns the court's decision paves the way for the creation of an invasive police state.

In the dissent, Scalia referred to the decision's scope as "vast" and "scary," and said the DNA collection is an unequivocal violation of Americans' Fourth Amendment right to be free from "unreasonable searches and seizures" of their bodies and homes.

"Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason," he wrote.

"If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light," Scalia said in court.

However, the Supreme Court’s majority likened DNA sampling to the current practice of collecting fingerprints during the arrest booking process.

Justices Anthony Kennedy, John Roberts, Samuel Alito, Clarence Thomas, and Stephen Breyer wrote that police do not need a warrant to obtain a DNA sample because it is a "legitimate police booking procedure." Their view is DNA, like fingerprinting, helps authorities determine the identify of a suspect and better flesh out a link to any past crimes committed or convicted for.

Parents like Jayann Sepich are expressing gratitude for the ruling. Sepich’s daughter Katie was raped and murdered in 2003. Her attacker went unidentified for years and was only finally connected to the crime when a DNA swab for a separate crime matched his DNA. In January of 2006 New Mexico passed "Katie's Law," with the help of lobbying by Sepich. The law requires DNA sampling for most felony arrests to go into the FBI’s DNA database.

"We're very happy with this decision. We believe this will encourage the rest of [the states] to begin testing as well. This will help stop crime and save lives," Sepich told the LA Times.

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