The other day I was scrolling through photos of cute puppies, news headlines and a mess of other random posts on Facebook when I ran across a video post saying something to the effect of “Watch this cop get owned by some law student!” I was intrigued to say the least so I decided to watch the video. For the next three or so minutes I proceeded to watch this cocky kid, the type that I avoid like the plague in my current classes, sass a cop and recite a laundry list of criminal procedure cases in an attempt to prove he knew more about search and seizure than the officer. In any event, after finishing the clip, although convinced the kid was a fool, I couldn’t help but be that much more interested in criminal procedure and its implications for the general public.

May Police Obtain DNA Samples Prior to a Conviction?

Last week the Supreme Court heard arguments on whether the police may obtain DNA samples from arrestees prior to conviction. This issue is not something the average person grapples with on a daily basis, though as Justice Alito suggested this issue is significant to the current practice of criminal law.  “I think this is perhaps the most important criminal procedure case that this court has heard in decades,” he added: “This is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy.” Minimal intrusion? I don’t know about that Justice.

Justice Alito furthered his argument by likening this potential practice to the fingerprinting of the twenty-first century, but not without skepticism from his fellow justices. Justice Scalia took issue with his reasoning saying “I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.” Furthermore, Justice Ginsberg found that this practice could smack up against the fourth amendment, which has been interpreted to require warrants or reasonable suspicion before police officers may conduct a search of a suspect.

How the DNA/Fourth Amendment Issue Came to Light?

In 2009, Alonzo Jay King Jr. was arrested on assault charges in Wicomico County, Maryland. During his arrest a DNA swab was obtained and later matched to evidence from a rape reported in 2003; King was later convicted of the rape. In April of last year the Maryland Court of Appeals found that the Fourth Amendment was violated by a state law that authorized DNA collection from those arrested but not yet convicted. Kannon K. Shanmugam, Mr. King’s attorney, obviously unsupportive of the current state law, said that DNA swabs and fingerprint evidence are not one in the same, as Justice Alito would like us to think. He asserted that the purposes for each are quite different; fingerprints are used to identify suspects whereas DNA can be used to solve cases.

The main question to be decided by the court in Maryland v. King was whether the Fourth Amendment allowed collecting DNA from those presumed innocent; in other words those arrested but not yet convicted. Chief Justice Roberts is cautious about the implications of allowing such a practice and the slippery slope that could result. “Under your theory, there’s no reason you couldn’t undertake this procedure with respect to anybody pulled over for a traffic violation?” Chief Justice asked the state’s chief deputy attorney general, Katherine Winfree. Her response: those pulled over for a routine traffic violation have a reasonable expectation of privacy whereas someone arrested for a serious crime is not entitled to the same and those under arrest lose many rights afforded to the average citizen.

Reasonable Expectation to Genetic Material?

The question that seems to arise now is whether one has a reasonable expectation of to their genetic material in general. Chief Justice Roberts pondered the scenario of leaving a drinking glass behind full of genetic material and whether one has a reasonable expectation of privacy in that situation.

It seems that the Court has quite the predicament to ponder, perhaps most notably how to deal with the impending backlash regarding Justice Alito’s comment suggesting the intent of the law is “to catch the bad guys, which is a good thing.” adding, “the Fourth Amendment sometimes stands in the way.” Pardon me sir, but I appreciate the protection the US Bill of Rights affords citizens, including myself.

It will be interesting to see how the Court comes down on this matter. Until then guard your DNA folks!