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The Fourth Amendment and limits on DNA sample collection

DNA evidence cuts both ways. It can exonerate an innocent person. But it can also link someone to a crime.

Because of the latter possibility, law enforcement authorities in New York and across the country are eagerly building DNA databases. They seek to add as many DNA profiles as they can, in the hopes of maximizing the chances for matches in individual cases.

But does the Fourth Amendment to the U.S. Constitution allow police and prison officials to extract DNA from anyone they want? Of course it doesn't. But the U.S. Supreme Court is currently considering a case that raises the question of whether authorities may take DNA samples from people who have been arrested but not yet convicted.

The case is called Maryland v. King. It arose from a case in which police arrested a man for one offense, took his DNA - and then charged him with rape in an unrelated incident. Law enforcement authorities in Maryland said they did this because his DNA sample matched DNA taken from a different crime scene.

To be sure, taking a DNA sample does not essentially involve physical pain. As law enforcement officials are quick to point out, little more is required to get the evidence than a swab of the cheek.

But physical pain is not the real issue. The real issue is personal dignity and the right to be free on unwarranted searches and seizures. Many people would argue that requiring someone to give a DNA sample before there has even been a criminal conviction is a violation of personal privacy and a violation of the Fourth Amendment's protection against unreasonable intrusion into that privacy.

The Supreme Court is expected to rule on the case later this year.

Source: "The Mother of DNA Databases," Eric Posner, Slate, 3-5-13

Our firm handles situations similar to those discussed in this post in New York. To learn more about our practice, please our main criminal defense page.

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