Many states have laws mandating DNA collection from people who get arrested. Once analyzed, the arrestee’s DNA profile can be added to a database for use in future investigations. Last term, the U.S. Supreme Court decided Maryland v. King and held that these compulsory DNA sampling laws are constitutional. Maine has a DNA testing law but it only requires samples from people convicted of certain crimes.
Vermont’s new DNA protections
Last week, Vermont’s Supreme Court decided State v. Medina and ruled that the Vermont Constitution prohibits this kind of DNA testing. Until Medina, that state required DNA sampling of people arrested for felonies.
The case involved seven criminal defendants who all challenged the Vermont DNA law. In the wake of King, the defense abandoned any challenge based on the federal constitution. Instead, they argued that the Vermont constitution gives citizens even more protection against government intrusion and thereby invalidates the statute.
The State’s Attorney argued, among other things, that a DNA sample, usually taken with a cheek swab, is the modern equivalent of a mug shot or fingerprint; procedures that have long been allowed under state and federal constitutions. The state also used an augment raised in King: as DNA technology improves, the profiles will allow quick, accurate ID confirmation. The Vermont court disagreed and stuck down the law.
We do not equate a procedure that takes a visible image of the surface of the skin of a finger with the capture of intimate bodily fluids, even if the method of doing so is speedy and painless. More important, despite the occasional usefulness of DNA samples for ordinary identification as described in King, the real functionality, and statutory purpose, is to solve open criminal cases or ones that may occur in the future.
DNA collection under the U.S. Constitution
The ruling here is specific to Vermont and is based only on state constitutional protections. It differs profoundly from the holding in King which applied the U.S. Constitution:
taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
The King opinion was surprising, not because collecting the sample was so intrusive, but because of the sheer volume of information contained in DNA. Unlike fingerprints, a genome can reveal every detail of your physical being and genetic history. It’s impossible to know what information tomorrow’s technology might extract from yesterday’s DNA swabs.
King is stranger still in light of the recent Riley v. California decision. There, the Supreme Court held that police can’t search an arrestee’s cell phone without a warrant. The court actually cited King for the proposition that, “Not every search ‘is acceptable solely because a person is in custody.’”
The Riley majority made four main points to distinguish cell phones from other items that are properly subject to search incident to arrest:
First, a cell phone collects in one place many distinct types of information…Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed…Third, the data on a phone can date back to the purchase of the phone, or even earlier…Finally, there is an element of pervasiveness that characterizes cell phones but not physical records…it is the person who is not carrying a cell phone, with all that it contains, who is the exception…Allowing the police to scrutinize [cell phone] records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case. Slip p. 18-19.
The court might have made the same argument to prevent warrantless DNA searches. They didn’t, so for now, the U.S. Constitution gives more protection to your iPhone apps than it does to your genetic code.
Image from flickr, creative commons
The post Your Genome is less protected than your iPhone, except in Vermont appeared first on Portland Press Herald Contributors.