Gov. Scott Walker unveiled his budget proposals last week in a speech before the Legislature. Many of his proposals have received criticism throughout the state, including those on tax cuts, Medicaid coverage and school vouchers. Although his budget proposal to collect DNA from people arrested on felony and certain misdemeanor charges has also been criticized, this criticism seems to have been largely lost in the maze of other controversial proposals Walker advocated. Considering the privacy concerns associated with collecting DNA from those who police have only arrested and the courts not yet convicted, the Legislature shouldn’t fund Walker’s expanded DNA collection proposal.
Obtaining an arrestee’s DNA without a warrant and individualized suspicion before a conviction involves significant privacy concerns. As Chris Ahmuty, executive director of the American Civil Liberties Union of Wisconsin, said, “It’s really a government intrusion that undermines the notion of the presumption of innocence. If you don’t have to be convicted and the government can come and do this to you, it offends a lot of people.” Not only does it undermine presumption of innocence, the DNA collected from a person can, according to the Electronic Information Privacy Center, “be used to identify the individual’s family members and to implicate the individual’s family members in investigations in which they would not otherwise be involved.”
If you didn’t already know, the U.S. Supreme Court is hearing oral arguments today in the potentially landmark case Maryland v. King. The Supreme Court will decide if “the Fourth Amendment allow[s] the States to collect and analyze DNA from people arrested and charged with serious crimes[.]” Wisconsin Attorney General J.B. Van Hollen is confident the Supreme Court will find Maryland’s DNA collection upon arrest law constitutional, although he may believe this because Wisconsin filed a brief with the Supreme Court in support of upholding Maryland’s DNA law as constitutional. Further, Van Hollen also believes Walker’s proposed plan is also constitutional.
For the sake of argument, let’s assume the Supreme Court did find Maryland’s law constitutional on narrow grounds. That doesn’t necessarily mean Wisconsin’s law would also meet constitutional muster. Wisconsin’s DNA collection proposal is much broader than Maryland’s law — Maryland requires DNA collection from a person arrested and charged with certain violent felonies, while Wisconsin’s proposal requires DNA collection from a person arrested and charged with any felony and certain misdemeanors.
I’m getting ahead of myself, though, because I’m not certain the Supreme Court will uphold Maryland’s law. Even if the Court does uphold Maryland’s DNA law, it would seem to go against its own precedent in Fourth Amendment cases. Both parties in the King case have agreed obtaining a person’s DNA by using a cheek swab is a search under the Fourth Amendment. Yet there was no search warrant or individualized suspicion to authorize the search in King. This would seem to make the search unreasonable. As the Supreme Court wrote in Katz v. United States, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions.”
Maryland’s two main arguments for the search being constitutionally reasonable are essentially that first, someone who is arrested has a lower expectation of privacy than the general public and second, the collection of DNA from an arrested person serves an important government interest in solving crimes. Balancing the privacy interests of people against legitimate government interests, Maryland argues the search was reasonable. Their first argument relies on two cases holding that people on parole or probation have a lower expectation of privacy than the general public in regards to searches but seems to forget people on parole or probation have already been convicted of a crime. The fact remains: King’s DNA was obtained without a warrant before he was convicted of the crime he was arrested, not after. In this regard, Maryland’s first argument seems weak.
Maryland’s second argument has more teeth. Obtaining DNA from someone who is arrested helps the police in solving crimes, certainly a legitimate government interest. But the real question still remains: does the police’s need to obtain DNA without a warrant from someone who is only arrested and not yet convicted of a crime outweigh the privacy interests of those who are arrested? The empirical evidence suggests no.
According to the Washington Post, most of the convictions under Maryland’s DNA arrest law would have occurred anyway under their older DNA conviction law. But even more on point is the amicus brief from “14 Scholars of Forensic Evidence.” Their brief cites a RAND Corporation report which “found that database [DNA] matches are more strongly related to the number of crime-scene samples than to the number of offender profiles in the database.” Thus, if the government wants to solve more crimes, it should collect more DNA samples at crime scenes instead of collecting DNA from people only arrested for crimes and not yet convicted. Yet, the focus of the government seems to be the opposite. According to Slate, “evidence is not collected from eight out of 10 crime scenes for other serious offenses, like burglary, robbery and aggravated assault.”
It is one thing to collect DNA from someone who has already been convicted of a crime. It is entirely another thing to collect DNA from an arrestee without either a warrant or individualized suspicion. Our Legislature must not pass Walker’s DNA budget proposal, which violates the Fourth Amendment.
Aaron Loudenslager ([email protected]) is a first year law student.