Court Explores Constitutionality Of DNA Sampling On Anyone Arrested On Felony Charges

from the is-that-legal? dept

Thu, Jul 15th 2010 7:55am — Mike Masnick

Last month, we discussed the legality of so-called familial searches on gov't DNA databases, especially with states expanding their DNA collection practices. Specifically, familial searches involve noting similarities in DNA found at a crime scene to those in the database. However, without an exact match, police then use the results to look at relatives of whoever was in the database. Where it gets tricky is that many states, such as California, now take DNA from anyone accused of a felony, and keep that DNA -- even if they're never convicted.

Two recent stories update this discussion in interesting ways. The first highlights how a recently arrested serial killer was caught using just such a familial search, after the guy's son was arrested on a totally unrelated matter. While it's unquestionably a good thing that a serial killer has been arrested, it still raises questions about the legality of the method by which he was caught. His own DNA was never put into the database (though I'm sure it's there now), but it effectively got there because of his son.

Separately, a lawsuit is making its way through the courts exploring whether or not California's policy of storing the DNA on anyone accused of a felony is legal, and judges appear to be mixed on the matter right now, with some comparing it to taking fingerprints, but others questioning why the data should be stored if the person was never convicted of a crime. As the article notes, this is an issue that will almost certainly reach the Supreme Court eventually.

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Filed Under: dna, familial searches, partial match, privacy

24 Comments

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The i-Team (profile), 15 Jul 2010 @ 8:12am

In the UK...
The second item is something we've been debating in the UK. In Scotland the DNA is destroyed if there is no charge or conviction made. In England it is retained indefinitely even with no charge or conviction. This has since been declared illegal by the EU and may well be changed to allow a UK policy of destroying all DNA evidence if no charge is made.
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Dark Helmet (profile), 15 Jul 2010 @ 8:29am

Hmm...
" judges appear to be mixed on the matter right now, with some comparing it to taking fingerprints"

I'm not sure that holds water. DNA ostensibly comes from living or once living matter. At its most basic , it's a living extension of a person. Fingerprints are not. Personally, I can't imagine a more perfect violation of our right to secure our persons than this....
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j647 (profile), 15 Jul 2010 @ 8:29am

North Carolina
Interesting, the governor of North Carolina is signing a DNA bill today. http://triangle.news14.com/content/top_stories/628135/perdue-to-sign-bill-directing-dna-sample-after -arrest
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Revelati, 15 Jul 2010 @ 8:44am

C'mon big brother, get it over with put RFID tracking chips in children at birth. Everyone can trust the government! But if you don't you are obviously a dangerous criminal and subversive.

Nothing a few years of re-education can't fix!
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DMNTD, 15 Jul 2010 @ 8:55am

Some things just are not meant to be done.
Its true...a limit comes to every avenue of choices that can be made. Such extremes will only secure power in the wrong hands. I mean lets look at the small choices that have been made and see how bad it can get, income tax.
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BBT, 15 Jul 2010 @ 8:58am

"While it's unquestionably a good thing that a serial killer has been arrested"

an [i]alleged[/i] serial killer has been arrested, with the only known evidence against him so far being DNA evidence of questionable trustworthiness.

If he gets convicted by a competent jury, perhaps then you can call it "unquestionably a good thing". Until that day, though, he's innocent until proven guilty.
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NAMELESS ONE, 15 Jul 2010 @ 9:35am

be reasonable that if your not convicted IT GOES
if your convicted it stays and then they have another tool to ensure the public safety...for those shown to be criminal
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Anonymous Coward, 15 Jul 2010 @ 9:35am

always have vinegar on hand
yup splash it all over when your done that murder
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Another AC, 15 Jul 2010 @ 9:53am

DNA In Database
"His own DNA was never put into the database (though I'm sure it's there now), but it effectively got there because of his son."

Having heard this case on a local news radio station, the reporter stated that there was DNA collected in the original investigation, but had an unknown donor.It was still logged into database. Once the Son's DNA was collected and logged, it would have found a match to the unknown sample. Thus leading to an arrest and possible/probable conviction.

On the other side, DNA is providing a means to have innocent people who were arrested and convicted, exonerated and released.
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lux (profile), 15 Jul 2010 @ 10:00am

"Where it gets tricky is that many states, such as California, now take DNA from anyone accused of a felony, and keep that DNA -- even if they're never convicted. "

Considering the entire Justice Dept. is flawed (OJ Simpson anybody?), I don't mind keeping DNA on record for those who haven't been convicted. Just because you weren't convicted, doesn't mean you're innocent.

An ounce of prevention is worth a pound of cure.
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Anonymous Coward, 15 Jul 2010 @ 10:41am

Re:
The police will be by this afternoon to collect a DNA sample from you. Just because you weren't arrested doesn't mean you're innocent, citizen.
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known coward, 15 Jul 2010 @ 11:14am

we may as well as rip up the constitution and just
take the DNA at birth. Who needs probable cause to make an arrest or an investigation, as long as we get the right result right?! No one who is not guilty ever gets invertigated for a crime. After all where there is smoke there is fire.

/sarcasm off
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Lee, 15 Jul 2010 @ 11:31am

DNA sampling
Take samples at birth and keep them on file. I have nothing to loose. I obey the law only those who are scum bags and try to do the crime without doing the time have anything to fear from this. At the very least to get any form of state or federal ID you should have to submit a sample, and some way to store a digital rendition of it on that ID should be invented so when you present an ID it can easily be verified. I understand that at this time that DNA sequencing takes quite some time but I’m sure that in the near future it will come down to a near instantaneous check.
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Anonymous Coward, 15 Jul 2010 @ 11:52am

OK... while I feel like I should be "OMG don't collect DNA from everyone!" I honestly... can't... why not?

Please tell this confused AC what's wrong here! So they have a catalog of everyone... great? What's the deal? How can they abuse this?

Honestly just confused here please no flames or snide comments of "Oh well police will be over soon citizen!"
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lux (profile), 15 Jul 2010 @ 12:04pm

"The police will be by this afternoon to collect a DNA sample from you. Just because you weren't arrested doesn't mean you're innocent, citizen."

Go for it.
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PRMan, 15 Jul 2010 @ 12:30pm

Re:
They just took your kids away because you have many signs of mental disease markers in your DNA.

Also, your health insurance just got canceled because the insurance company found out that you have too many markers of expensive-to-treat diseases. You see, they gave many campaign contributions to Congress, who enacted legislation that these poor companies shouldn't have to suffer from covering people with "obviously defective" genes.

I could go on... but hopefully you get the point.

If not, watch Gattaca.
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JD2005, 15 Jul 2010 @ 1:08pm

DNA at Birth
I see no reason why DNA shouldn't be collected from all citizens at the time of their birth. If you are a law abiding person then why worry about it causing you any harm? Similarly, capturing DNA from new births would assist in the future capture of existing criminals as existing DNA from unsolved crimes is compared to an ever growing database of families as new generations enter the database. If anything, it may create a deterence factor never before seen, as criminals would need to take into account that they could leave behind evidence that will definitely catch up to them one day.
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Dark Helmet (profile), 15 Jul 2010 @ 1:51pm

Re: DNA at Birth
For the love of Christ, please tell me this is sarcasm....
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BearGriz72 (profile), 15 Jul 2010 @ 1:55pm

"If you have nothing to hide, you have nothing to fear" FAIL
1) Debunking a myth: If you have nothing to hide, you have nothing to fear

2) If you have nothing to hide, you have everything to fear

3) When governments become paranoid, everybody has something to fear.
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lux (profile), 15 Jul 2010 @ 3:39pm

Re: Hmm...
@2

"DNA ostensibly comes from living or once living matter. At its most basic, it's a living extension of a person. Fingerprints are not."

What?
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Joe Smith, 15 Jul 2010 @ 4:41pm

the march of science
The Dad's dna was in the system from a series of rapes and murders - they just did not know who it belonged to.

The son was arrested for a weapons offence. It was perfectly legitimate to take a dna sample from the son, just like you would take fingerprints, and run it through the system looking for matches. The fact that the program was told to look for close matches rather than perfect matches is not unfair to the son since it has no effect on him and is certainly not unfair to the father (serial killer scum bag that he apparently is).

Wait ten or twenty years and they won't need to do this. The crime scene dna will be used to generate a "photograph" of the perpetrator which can then be run on facial matching through the DMV database.
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BearGriz72 (profile), 15 Jul 2010 @ 6:02pm

Re: the march of science
Do you think that is a GOOD thing????
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Anonymous Coward, 15 Jul 2010 @ 6:59pm

Re: North Carolina
Another reason to never go there
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Joe Smith, 16 Jul 2010 @ 12:10pm

Re: Re: the march of science
"Do you think that is a GOOD thing????"

I do think it is a good thing but whether I think it is good or not is beside the point since I think it is inevitable.
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