The Future of Criminal DNA Collection in 2015

DNA can reveal an extraordinary amount of private information about you, including familial relationships, medical history, predisposition for disease, and possibly even behavioral tendencies and sexual orientation. While DNA testing in a criminal context has some benefitssuch as supporting innocence claimsthe mass, suspicionless collection, testing, and storing of genetic material from large populations creates a danger for privacy that only grows with each new scientific discovery in the field of genomics. In this post, EFF Senior Staff Attorney Jennifer Lynch discusses state and federal cases that addressed DNA collection in 2014, following the Supreme Court's landmark ruling in Maryland v. King.

2014 was a banner year for DNA cases. In the wake of Maryland v. Kingthe 2013 U.S. Supreme Court case upholding warrantless, suspicionless DNA collection from arrestees under Maryland state lawthe constitutionality of DNA collection in the criminal context has continued to present challenging issues for courts.

Many of the courts that addressed DNA collection in 2014 followed the Supreme Court's reasoning in King and held that DNA profiling upon arrest is a means of "identification" because it might help law enforcement to learn about a person's past criminal behavior (read what we think of that analysis here). For example, in Haskell v. Harris, the Ninth Circuit Court of Appeals reviewed a challenge to California's DNA collection law, which requires DNA collection from all individuals arrested for a felony, and upheld the statute's constitutionality in light of King. And in State v. Raynor, the Maryland high court went one step further than bothKing and Haskell to uphold warrantless DNA collection from someone who hadn't even been arrested for a crime. Glenn Raynor voluntarily came to the station to answer questions in a rape case, and after he refused to provide a DNA sample, the cops extracted DNA without his consent from tissue he left behind on a chair.

However, late in 2014, in People v. Buza, the California Court of Appeal refused to follow this path. Instead, it held that California's DNA Act (the same statute the Ninth Circuit addressed inHaskell), "unreasonably intrudes such arrestees' expectation of privacy" and therefore violates the search and seizure provision of the California Constitution, California's equivalent to the Fourth Amendment. Similarly, earlier in 2014, the Vermont Supreme Court held in State v. Medina, that Vermont's law mandating DNA collection and analysis from anyone arraigned for a felony after a probable cause determination violated the Vermont state Constitution.

Although Maryland v. King appeared to create a blanket rule that DNA collection from arrestees is always constitutional under the Fourth Amendment, the Buza court left open the possibility that DNA collection statutes could violate the federal as well as state constitution. The court highlights key differences between California's law and Maryland's (which the Supreme Court upheld in King) that greatly increase the law's impact on privacy. These include:

The court found these and other differences combined to "significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment."

Nevertheless, after quoting liberally from Scalia's scathing dissent in King and noting that King"eviscerated protections against suspicionless searches long recognized under both the federal and state constitutions," the Buza court seemed to acknowledge what it was up against and stepped back from deciding the case on Fourth Amendment grounds.

Instead, Buza and Medina both limited their holdings to their respective state constitutions. This was likely a strategic decision. Not only do the California and Vermont constitutions offer greater privacy protections than the Fourth Amendment, the cases can't be appealed to the federal Supreme Court if they're decided purely on the basis of state law. Further, other courts post-King that have addressed arrestee DNA collection statutes under the Fourth Amendment (like Raynor and Haskell), have invariably found those statutes pass constitutional muster.

Although the California Court of Appeal's opinion is thorough and welcome, several of the facts the court focuses on may change as technology advances, and this could undermine the applicability of the court's decision in future cases.

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The Future of Criminal DNA Collection in 2015