The United States Supreme Court rules that police may take DNA sample of persons who are being arrested during the police department’s normal booking procedure without the necessity of obtaining a search warrant. This decision is troubling in the sense that many people are arrested are later found not guilty of a crime or are in fact innocent. Police would nevertheless retain said individuals DNA profile and place it in their database, for comparison on a potential case unrelated to the person’s initial arrest.
Prior to the Supreme Court’s decision in Maryland v. King, (to read the Courts opinion follow link: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf ) Under the 4th Amendment to the Constitution, it was argued that police were not legally permitted to perform this type of intrusive search without obtaining a search warrant, or obtaining consent of the person who is providing the DNA swab. The decision in this case has carved out an exception that has a wide degree of magnitude when you consider that many states, aside from Maryland institute this procedure of obtaining DNA swabs from person who arrested for a crime. Any states that do not currently institute said procedure will surely be quick to follow.
Practicing primarily in Miami, Florida, but defending people who have been arrested throughout the State, for various crimes from misdemeanors like DUI or battery to more serious offenses like felony drug possession or trafficking, I have never heard of said practice being a part of the booking procedure anywhere in the State of Florida, and certainly not in Miami-Dade County or Broward County where I practice most frequently.
It is not uncommon for persons who have been found guilty of a felony, or persons that are convicted felons to have to provide DNA samples… often times this is collected right in the courtroom as part of the normal procedure after a defendant is found guilty. However, that is quite different that taking a DNA sample from someone who has been merely arrested. Moreover, putting aside the problem of potentially innocent people being coerced to provide a DNA sample, there is another aspect of this that can be just as troubling, if not more. As a long time criminal defense attorney, there have been countless times where I have represented people who arrested for failing to go to court, when, as it turned out, they had never been arrested or charged with a crime in the first place. In other words, there are many occasions where a person who is arrested, will provide false identification, or there may be some sort of clerical error in the booking process where the DNA sample is mistakenly assigned to a completely different/innocent person. Although this error may ultimately be corrected once the innocent person is positively identified, and a new DNA sample is taken, this procedure, approved by the court could potentially result in a completely innocent person being arrested, and sitting in the Dade County Jail for weeks or months before the case is rightfully dismissed.
In summation, the best defense against this type of injustice (although not in any way a perfect one) is the process of having a neutral judge review the evidence that police claim to have and make an informed decision as to whether or not there is sufficient evidence to permit the police, via signing the search warrant, to take the DNA sample. Shortcutting the 4th amendment, and carving out these wide exceptions will only erode our constitution rights, and lead to the potential of having even more innocent people arrested.