Debate forum, 6/11

Debate forum, 6/11

Debate Forum Center: Supreme Court says your DNA is not private matter

 By Alex Culpepper
 Illustration: Chris Britt

In 2003, a woman was raped and robbed in Salisbury, Md. Her assailant was never caught. That is, until 2009, when Alonzo King was arrested for an assault in a town near Salisbury. At that time, Maryland had a law allowing police to take a DNA swab of those arrested for felonies, and they found a match to the 2003 rape when they gathered King’s DNA. King was charged and convicted of rape and sentenced to life in prison. A problem came up, however, because King pleaded guilty to a lesser charge for his 2009 crime, and by law it was considered a violation of his Fourth Amendment rights to be swabbed for that lesser crime. King went free.

The King case is the center of a June 3 U.S. Supreme Court decision allowing police to take DNA from people arrested for “serious” crimes, such as murder and rape. Up until this time, all states took DNA from convicted criminals, and 28 states allowed DNA samples to be taken upon arrest. However, this ruling now allows throughout the country DNA extraction based solely on arrest. Further, the ruling means “your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” according to Justice Antonin Scalia.

The court’s ruling has produced some critics. Opponents of the ruling cite several problems – one of them being the ruling amounts to allowing a warrantless search without probable cause. Opponents also don’t like the open-ended wording in the ruling because it includes no specific language about which arrests are excluded. Privacy advocates are wary of the “Big Brother” situation the ruling presents because they fear DNA profiles open the door for citizens to be tracked.

Supporters say the DNA gathering is no different than taking fingerprints and photographs during a police booking and is reasonable under the Fourth Amendment. They say more states than not already do it, and the Federal Bureau of Investigation (FBI) swears by their DNA profile system to solve crimes. According to some supporters, this is the best tool for solving rape cases. They also say there is no need to fear Big Brother because the DNA profile alone will reveal nothing about a person because only 13 markers out of three billion are captured, which reveals limited personal information.

In the end, reports say this case in the Supreme Court was essentially about whether a person’s DNA could be collected before conviction and without a judge issuing a warrant. Supporters of the ruling say no rights are trampled, and the benefits are huge in terms of solving crimes. Opponents say protecting citizens’ constitutional rights is the most important goal in these situations, even at the expense of law enforcement.

Debate Forum Question of the Week:

Per a 5-4 decision June 3, the United States Supreme Court has interpreted and ruled on the Constitution’s Fourth Amendment (“search and seizure”) and now permits police to collect and permanently store your DNA in a national database if you’ve been arrested for a “serious” crime (murder, rape, etc.). Was this a good ruling as hailed by law enforcement? Or, as Justice Antonin Scalia warned in his dissenting opinion, is this Supreme Court ruling a gateway toward eventual DNA harvesting when a person is arrested for less serious crimes (such as theft) down the road?


Debate Forum Left: A 5-to-4 blow to privacy

By Rana Odeh

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized” (U.S. Constitution, Amendment IV).

When the Supreme Court ruled that the police can collect DNA samples from people upon arrest – even before they are convicted of a crime – in a 5-to-4 ruling last week, they violated the Fourth Amendment, which clearly states that a warrant should be issued for the search and seizure of specific items in specific places.

Based on the idea of solving open investigations, which could most greatly affect unsolved rape cases, and the thought that there is not much harm that could come from a cotton swab to the cheek after an arrest, I am tempted to see some good in the decision. However, it seems outright unconstitutional and leaves room for great misconduct and breaches of privacy. I am not against the idea of having more effective policies to solve cold cases, however, taking someone’s DNA upon arrest for any crime that a police officer deems fit and trying to match that DNA with a prior case is not constitutional. Just like a police officer needs a warrant to search an arrested suspect’s house for a specific item, and for each particular crime for which he or she is in custody, police should also obtain a warrant to collect DNA for each crime for which a person is detained.

As Justice Elena Kagan has argued, the police are technically required to obtain a warrant for the search and seizure of places and items, and in order to get that warrant, they must have probable cause to believe that they will find specific evidence that will connect their detainee to the particular crime for which he or she is in custody. The police cannot constitutionally randomly rummage through an arrestee’s belongings hoping to find something, thus they should not be able to randomly swab for DNA hoping to find something that would match that person to a cold case. Not only did the Supreme Court just decide that this would now be legal, but they also left the language very vague, allowing unqualified individual police officers to decide what type of arrest justifies a DNA swab. This could lead to more arrests, the targeting of specific individuals or minority groups and the planting of evidence.

I realize I am not writing the “Conspiracy Theorist” column here, but there are situations in which the police planted evidence at crime scenes to frame people. Who is to say that this free-for-all DNA swabbing and storing of our genetic information does not put us at a greater risk of being framed by the police? There have been cases in which police officers found the personal belongings of arrestees in the back seat of their squad cars, placed those items at crime scenes, and then alerted investigators of their “find.” Michael Sullivan, a former Elgin police officer pleaded guilty to doing just that in 2011 with a cell phone that was left in the backseat of his squad car. While Sullivan is one of few officers who have pleaded guilty to framing people, there are many other cases suggesting this practice of framing, known to the NYPD as “flaking,” is more systematic. A former New York City narcotics detective testified in court that planting drugs on innocent people was “common practice,” a quick and easy way to reach arrest quotas.

There are not only quotas for arrests, but people like to see results; they like to feel safe and protected by their police departments, and thus they like to see high conviction rates for crimes. With the newly-legal DNA swabbing and database recording of arrestees at each police officer’s discretion, the police could easily find at least one of the 50-100 hairs lost per day of an arrestee in the back of their squad cars, could save that hair for any occasion and plant it at a crime scene. Once a person’s DNA is stored in a gigantic – perhaps inefficient and costly – database, all it takes is one strand of hair to place that person at any other crime scene. Knowing that the police frequently plant evidence at crime scenes for higher arrest rates and higher conviction rates, this scenario is completely plausible. Considering that minorities are more often the victims of such “flaking,” or framing, the civil liberties of minorities could be at an even greater risk.

While collecting the DNA of some arrestees based on probable cause could solve many open investigations, it is also an invasion of privacy, a breach of our Fourth Amendment, and the decision leaves plenty of room for misconduct and corruption. Knowing that the government could potentially have access to all of our DNA, and that the police could use that information for corrupt purposes, is worrisome. The fact that the Supreme Court favored this decision, which seems to forthrightly challenge the Fourth Amendment, is puzzling to say the least.

Rana Odeh is a DCP Debate Forum freelance writer. She holds a BA in English and Philosophy from UD and is currently a graduate student in the ICP Program at Wright State University. Reach Rana at RanaOdeh@DaytonCityPaper.com or view her work at RanaOdeh.com.

Debate Forum Right: High court ruling just allows the law to progress

By Rob Scott

Technological innovation, from photographing to fingerprinting, has long made identifying suspects easier for law enforcement. DNA testing is no more than the latest development in that progression.

Modern DNA analysis has been a godsend to the criminal justice system, as documented in news reports and any “CSI” episode. By making it possible to identify suspects who leave behind biological material at crime scenes, it allows police and prosecutors to accurately implicate the guilty, particularly in murders and rapes. It has also exonerated hundreds of people who were wrongly convicted because of misleading evidence or false claims.

The potential of this tool is only starting to be realized fully. However, there is a backlog for this new crime-fighting tool. A Department of Justice study estimated that around 900,000 requests for biological screening, mostly DNA testing, were behind nationally at the end of 2009, the most recent year for which data is available.

In Ohio, the state attorney general turns DNA around in under 20 days for law enforcement agencies. The Attorney General’s Bureau of Criminal Investigation has reduced turnaround times for DNA evidence from an average of 125 days to 20 days over the past two years.

Last week, the U.S. Supreme Court made a landmark decision in Maryland v. King that will change the criminal justice system forever.

The case centers around a Maryland law under which anyone arrested for a serious crime is subject to a cheek swab for DNA, which is checked against a database of samples. In 2009, Alonzo King, arrested for brandishing a shotgun, was matched to DNA recovered from a 2003 rape victim. He was convicted of rape and sentenced to life without parole.

King appealed, arguing that taking his DNA was an unconstitutional search under the Fourth and Fourteenth Amendments, since the police had no basis to suspect him of the rape. The state court of appeals agreed with King, concluding that because he had not been convicted, King had a “weighty and reasonable expectation of privacy against warrantless, suspicion less searches” – making the DNA invalid and inadmissible.

But in a 5-4 decision, the U.S. Supreme Court said that taking DNA from felony arrestees is permissible. The majority took the view that such material is valuable in establishing the identity of the person arrested, which helps in assessing if he should be granted bail. Someone implicated in a murder, for example, would warrant different treatment from someone’s DNA that doesn’t match any in the database. The majority likened a person’s DNA to nothing more than routine booking procedures like taking fingerprints from a suspect, asking them their social security number and taking their picture.

The dissenting justices argued that the real purpose of the swab is to let law enforcement get evidence of crimes for which suspects have not been arrested. That may be true – but it is also true of fingerprints, which police have been taking from suspects for decades without any objection from the high court.

Also, King alleged an invasion of privacy from the taking of his DNA. Remember, we are talking about individuals who have been arrested and who may be strip-searched to make sure they are not carrying weapons or contraband. The privacy in a jail cell is near minimal when the person shares the cell with 12 other inmates and one toilet.

Taking a DNA sample is not anymore intrusive than taking a fingerprint and is even easier. It’s hard to think of a good reason fingerprinting should be allowed, but DNA swabs should be forbidden. The dissenting justices seem to be more suspicious of DNA because it’s new and relatively unfamiliar.

However, the use of DNA should not be so open that law enforcement gets careless or trounces on constitutional rights. Taking into account what the dissent in the case said, there are protections for privacy written into the specific Maryland law that was being challenged. The DNA collection applies only to those arrested for crimes involving violence or burglary. Police are not allowed to put the samples into the database unless and until the suspect has been arraigned in open court. If the defendant is not convicted, the sample is destroyed. And the DNA may not be used for any other purpose.

There are states that now allow for the collection of DNA after an indictment, and Ohio already has a similar law under Ohio’s DNA Testing Law, which passed last year. The law mandates the collection of those arrested for felonies in Ohio. Similarly, bills to broaden DNA collection to include those arrested for serious crimes have been introduced over the years in several states.

The high court’s ruling will undoubtedly cause the use in DNA as a tool that helps only the innocent and endangers only the guilty. Justice Samuel Alito, during oral arguments, underlined the importance of the case calling it “perhaps the most important criminal procedure case that this court has heard in decades.”

With the appropriate constitutional safeguards in place, the high court’s decision is appropriate and allows the law to come into the 21st century.

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is Chairman of the Montgomery County Republican Party and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or gemcitylaw.com.


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