On February 26, the Supreme Court heard oral arguments in the case Maryland v. King, which raised the question of whether the Fourth Amendment permits warrantless DNA collection upon an individual’s arrest but without charge. The case began on April 10, 2009, when Alonzo King was arrested for pointing a shotgun at a group of people. He admitted his guilt, was originally charged with a felony assault and ended up pleading guilty to a misdemeanor.
At the time of King’s arrest, the police swabbed his mouth to gather a DNA sample, which matched DNA from an unsettled rape case four years prior – King was convicted of first-degree rape and sentenced to life in prison. His warrantless DNA sample was the only evidence linking him to the rape case; the police had no probable cause to sample his DNA. Patricia Millet, who heads the Supreme Court practice at Atkin Gump, explained this by saying ,”DNA is more commonly used not to identify the individual but to link the individual to other crimes for which he is not otherwise a suspect (or at least there is not probable cause to think he committed the other crime.”
There are several problematic facets to warrantless DNA collection, the first of which is that this specific form of testing appears unconstitutional according to our Fourth Amendment protections. This is the ground on which the Supreme Court will determine whether police can conduct DNA testing upon arrest, but there are far more complex issues beyond the simple constitutionality of this sampling.
Invasion of Privacy
Justice Stephen Breyer argued that DNA tests are “no more intrusive” than fingerprints but “much more accurate.” This is a gross overstatement on Breyer’s part – unlike fingerprints, DNA tracks an individual’s medical history, ancestry, gender – even whether or not an individual is adopted. It is a wonder that Justice Breyer argued DNA tests are “much more accurate,” being that in 2011, over 10,500 DNA samples were taken, only 19 of which led to arrests. Not only, then, are DNA samples fairly unproductive, resulting in a meager percentage of arrests, but they also expose some of our most personal information.
DNA tests are already used as racial dragnets among whole families and communities of color, The Nation argues. Because the majority of individuals stopped by police are African American and Latino men, DNA samples taken in these instances are inherently skewed, representing a disproportionate number of men of color. The Nation writes, “DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems. By 2008, Britain’s National Database stored DNA from 27% of the black population and 77% of black males.” It is imposible to overstate the racial, age and gender bias present in DNA databases.