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Genesee Valley Chapter — DNA: TMI?


By Scott Forsyth Assemblyman Joe Morelle, my assemblyman, is sponsoring a bill, entitled Katie’s Law, that would require all persons charged with a felony to give up a DNA sample, no warrant necessary. Current New York and federal law only require persons convicted of a felony and under the supervision of government, inside or outside of prison, to provide a sample. The purpose of the bill is to solve cold cases. The bill is bad policy and maybe a violation of the Fourth Amendment’s prohibition on unreasonable searches. But it is good politics for somebody running for reelection. Usually DNA sampling begins with the drawing of blood or the scraping of the inner cheek. The specimen collected goes to a lab for analysis. A technician constructs a genetic profile based on thirteen “junk” genetic markers on the DNA. The markers are considered junk because up until recently they were not thought to reveal sensitive medical characteristics. The markers are tied to a person’s identity. The odds that two individuals will have the same profile is one in a billion. In spite of this probability, DNA evidence is fallible. Humans must analyze the sample and report the profile to the state’s database and ultimately to a nationwide database. Other humans compare the profile to the DNA collected at crime scenes. False positives occur because humans mix up samples, contaminate crime scene DNA or misinterpret the computer-generated graphs, seen on CSI, that constitute the matching process. Ambiguities have been known to be resolved in favor of the prosecution’s theory of the case. The consequences of an error can be grave because DNA evidence is perceived as infallible. Beyond the risk of error, there is the fact that government is collecting and storing more personal data about persons not convicted of a crime. Joe assures us that the samples “are held under strict security” and can be accessed only by law enforcement for legitimate purposes. We have to take his word on that. Joe also assures us that “individuals exonerated by the courts may have their samples removed” from the database. The key word is may. California adopted Katie’s Law by referendum in 2004. Its version of the law delays the removal of the profile until the statute of limitations has run on the crime with which the person was charged and then exonerated. Also, a prosecutor may object to the removal. Invading a person’s body, by taking his blood or by swabbing his mouth, is a search. Schmerber v. California, 384 U.S. 757 (1966) (blood). The Fourth Amendment requires law enforcement to obtain a warrant to do so, unless an exception applies. As forcefully stated by the Supreme Court, “(t)he mere chance that desired evidence might be obtained” does not overcome the individual’s “interests in human dignity and privacy which the Fourth Amendment protects.” Id. at 769-70. Courts have split over the constitutionality of extracting DNA from arrestees. Three have upheld it and four have struck it down. The courts that uphold the law find an exception to the warrant requirement. They argue that the search is reasonable “gauged by the totality of the circumstances.” The profiling merely identifies the person charged, who he is and what he has done. The process of collecting the DNA is no more intrusive than fingerprinting or photographing an arrestee. Besides identifying the person, profiling serves a second, significant public interest — the solving of cold cases. The courts draw on a long line of cases that uniformly hold that government may compel convicted felons to turn over DNA material. See, e.g., Haskell v. Brown, 2009 WL 5062184 (N.D.CA 2009). The courts striking down the law point out that the rationale for taking DNA from convicted felons — knowing whom the government is supervising — does not apply to persons out on bail or detained awaiting trial. The courts do see the profiling to be more intrusive than fingerprinting because DNA can reveal “a host of medical facts” not exposed through traditional methods of identification. The junk markers may not be so worthless according to very recent research. They may be capable of telling more besides identity, such as family ties, health risks, and propensity for violence. Suspicionless searches of persons for reasons other than prison security are just anathema to the Fourth Amendment. See, e.g, Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009). Oddly, Haskell was decided after Friedman and the lower court refused to follow the higher court decision for its circuit. The plaintiffs in Haskell have appealed with the assistance of the ACLU. The Ninth is the only federal circuit court to rule on the subject. Joe, you might want to reconsider your sponsorship of Katie’s Law. There are practical and legal reasons for backing off.

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