DNA Collection

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An interesting article appeared yesterday in the New York Times. You can read it here, but the gist of it is that the federal government and about 15 states are now collecting DNA from people who are charged with certain crimes, usually felonies, even if the individuals are not convicted. As the article observes, this raises some interesting legal questions, including whether the routine seizure of DNA from defendants who are not convicted violates the Fourth Amendment. There’s a Congressional Research Service report on this issue, available here, which concludes as follows:

This expansion is likely to alter the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent.

North Carolina law currently provides for the routine collection of DNA only of convicted defendants. See G.S. 15A-266.4 (providing for the collection of DNA upon conviction of any felony, assault on a handicapped person, stalking, or sexual battery). As far as I can tell, the statute has never been challenged, and challenges to similar statutes in other jurisdictions have generally been rejected. Courts uphold DNA collection from convicted defendants either on a “special needs” rationale or on a Terry-esque theory that the minimal intrusion of a blood draw is justified by the substantial benefit to law enforcement in maintaining a DNA database. See Wayne R. LaFave, Search and Seizure, s. 5.4(c) (4th ed. 2004).

Soon, however, North Carolina may jump on the bandwagon of collecting DNA from people who are charged but not convicted. HB 1403 would require the collection of a DNA sample upon arrest; you can see the current version of the bill here. (While we’re on the subject of DNA and the General Assembly, HB 1190 would alter the rules for retaining and preserving DNA and other biological evidence; it makes some substantial changes and clarifications and is probably worth a gander, especially as it has bipartisan sponsorship. You can see it here.)

This sets up a possible Fourth Amendment showdown, but the conclusion of the Congressional Research Service isn’t the only plausible view. Consider the fact that North Carolina, like many other states, permits the collection of other identifying information from people who have been charged but not convicted. For example, G.S. 15A-502 provides that any arrestee may be fingerprinted and photographed, even if arrested for a misdemeanor, regardless of the disposition of the case. And it requires that defendants who are charged with felonies shall be photographed and fingerprinted, again, regardless of disposition. I’m not aware of any great controversy about fingerprinting, and I can imagine a court concluding that taking DNA (or “genetic fingerprinting) isn’t really any different.

What do you think? Leave a comment to weigh in.

12 comments on “DNA Collection

  1. I know this is off-topic, but I figured I’d ask anyway. There was a recent SC case regarding vehicle searches…any chance you can review the actual case?

    http://www.policeone.com/legal/articles/1812910-Supreme-Court-limits-warrantless-vehicle-searches/

    • Done — see today’s post. It’s definitely a hot topic!

  2. I hope I am never a victim of false arrest if this passes!!!

  3. FM III: Well if you are, it appears that the existing provisions for expunging a person’s DNA records from the State DNA Database under G.S. 15A-146 (when charges are dismissed or a person is found not guilty) and G.S. 15A-148 (when charges are reversed on appeal or a pardon of innocence is granted) would survive the new legislation.

  4. Providing that you don’t plan on committing crimes, you should not worry about the DNA procedures stated in the blog post. Some may consider this a boon in unsolved rape and murder cases (ie. a devious serial murderer, steals a bottle of liquor, then gets caught – consequently relinquishing his DNA and solving 14 murders).

    On the other hand, its 2027 and the U.S. government discovers a method for solving PAST crimes through DNA and some cool “go back in time” technology (like on Minority Report</em). Misdemeanors become felonies in some states, and the law changes to encompass crimes decades past the statue of limitations. What then?

    Fingerprints, DNA, what’s the difference? Both serve as identifiers, both help catch criminals, but at the same time both forensic techniques can lead to false arrests and imprisonment. Watching Forensic Files I heard this statement: “forensic evidence doesn’t lie.” I agree with that, but at the same time I know that not all forensic evidence may pertain to the case in hand, thus becoming circumstantial forensic evidence (think of being in a car of a murder victim on the night of his death with your finger cut and bleeding on the dashboard- he drops you off at home and in the morning you find out he’s dead, and you’re the prime suspect).

    Both sides of the DNA debate present pros and cons and I feel the society as a whole will never be satisfied with any changes modifications to laws and procedures related to DNA, ever.

  5. Agreed. However, i suppose my false arrest issue (even thought I did not completely state my thoughts) surrounds this issue: Person A commits a crime and there DNA is found at the crime scene. The police have no idea who did it, just have the DNA of the suspect. Person A is then falsely arrested for an unrelated felony. When the DNA is placed in the Database guess who is suspected of the unsolved crime, person A! Bingo, fruit of the P tree issue!? Possibly?

  6. This is absolutely ridiculous that they are collecting DNA from people who are charged with crimes. To make the matter worse, even if you aren’t convicted they are still doing this? The person is completely innocent, you can’t just take away their rights. The government is getting out of control. We really need to start doing something to stop all of this.

  7. In N.C., in 2006 was DNA being taken from felons of non-violent crimes?

  8. listen up, the probation system is back up , yes in some cases it will help Maybe bring some evidence to some cases. BUT check this out i wa son probation for 2 years with a felony. I was susposed to go in and give my DNA untill i did that i still had to be on probation.. well some how i NEVER DID THIS and i got OFF probation? WHY??? HOW???
    i mean I DONT WONT TO AND IM NOT GIVING AWAY MY DNA BUT…. were is the LAW? i mean why was i taken off probation with out submiting my DNA?? how many REAL serial hobiest murders who migth of not got caught but had gotton caught with maybe drugs and put on probation but then never had to give a DNA sample then taken off probation then continued to kill randomly up and down the east coast ??

    Our probation system is full of SLAKIES!! has any one been to a probation office? people are just siitng around collection paychecks. the whole judicial system is BULL SHIT.

    THE NC STATE GOVERNMENT CAN BE BOUGHT AND SOLD WITH ANY LARGE AMOUNT OF MONEY OR FAVOR’s ITS EASY LIKE SUNDAY MORNING. EASY.
    NEVER PUT YOUR TRUST IN ELECTED OFFICIALS, THEY GET THERE ASS’s WIPED AND KISSED By THESE BIG BUSSINESS LOBBYST . IT MAKES ME SICK.

    So yeah whos responsible for the slip up of my probation officer who never made sure i sent in my dna?? i guess it doesnt matter. well just Build a BIGGER AND BETTER JAIL INSTEAD!!! yay!!

  9. That was a stupid comment by criminal justice online who said as long as you dont plan on committing crime you should not worry. As long as you cant sue police, sheriffs, judges, prosecutors, they can be idiots and you cant stop what happens to you now or in the future. It is a invasion of privacy period. You dont know how this technology might be used in the future and with special interests groups running everything it cant be good. Research has always shown that police and prosecutors are 30 times more likely to use loopholes than defense. You can be arrested because your tags were stolen and you have a cardboard copy in your window. You can be arrested for drunken driving because a cop dont like you and he says you were weaving , when the construction zone you are in required you to weave. Police, judges and prosecutors can abuse theyre power and be idiots and will continue to do so because you can not sue them. If you could sue them they would not be walking on liberties first and putting people through things because they can get away with it. You would not be arrested for filming them if they were honest. Heres one back at you criminal justice online. Cops have nothing to fear of a camera if they are not planning on committing a crime. I keep reading about people arrested and found not guilty or charges being dismissed but the person already was strip searched and clothes forcefully removed and also the opposite sex cop watching or filming and even putting fingers up someone pulling out maxi pads looking for eveidense I guess and I listen to the same type folks as criminal justice online saying its ok you have nothing to fear if you dont plan on committing crimes. I think if someone admits to being suicidal in jail it now means a automatic strip search. If that person were not suicidal they will be by the time cops are done. I think criminal justice online should give his dna and allow the sbi and others to keep it and the same for his family. Then he can talk but I think it will make him look more stupid. Now with dna testing being done on homeowners when theyre home is broken into what happens to that homeowners dna. Where is the right to be sure big brother does not keep that. Of course you can bet they are running that dna through the national crime base too. In northcarolina I dont know if the sbi keeps it when they are done as they dont talk to civilians. Trust cops and big brother. I dont think so and its a invasion of privacy.

  10. be very useful to know about the kinds of kinds of DNA

  11. Are DNA samples collected for 90-96 cases where the charge would be considered a felony if a conviction was entered?

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