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Thursday, October 08, 2009
Law - "ACLU Says Extracting DNA From Suspects Unconstitutional"
David Kravets reports in Wired's Threat Level:
California’s law requiring the authorities to take a DNA sample from every person arrested on felony accusations was challenged in federal court Wednesday as an unconstitutional privacy breach.The Wired article also provides this link to an 18-page, January 23, 2009 Congressional Research Service report, "Compulsory DNA Collection: A Fourth Amendment Analysis."A lawsuit filed by the American Civil Liberties Union on behalf of two Californians who were arrested and released, seeks to overturn a voter-approved law that became effective this year. Proposition 69 requires detainees to provide a saliva or sometimes a blood sample upon felony arrest. The sample is stored in state and FBI databases, even if the arrested person is never charged or convicted of a crime.
The challenge, if successful, threatens to derail similar laws in other states. According to DNAResource.com, 10 other states have such statutes. They are Alabama, Alaska, Colorado, Florida, Kansas, Louisiana, North Dakota, South Carolina, South Dakota and Vermont. * * *
Wednesday’s lawsuit does not challenge DNA sampling for convicted felons or for those required under a court order. Rather, the case challenges “the mass, programmatic DNA testing of hundreds of thousands of persons — persons not convicted or who are otherwise not under supervision of the criminal justice system — as to whom the long-recognized constitutional prerequisites to such searches and seizures have been established.”
The ACLU says DNA sampling is different from the compulsory fingerprinting upon arrest that has been standard practice in the U.S. for decades. A fingerprint, for example, reveals nothing more than a person’s identity. But much can be learned from a DNA sample, which codes a person’s family ties, some health risks, and, according to some, can predict a propensity for violence.
What’s more, in California the authorities are allowed to conduct so-called “familial searching.” That is when a genetic sample does not directly match another, so authorities start investigating people with closely matched DNA in hopes of finding leads to the perpetrator. * * *
The courts have already upheld DNA sampling of convicted felons based on the theory that the convicted have fewer privacy rights. Still, the U.S. Supreme Court has held that when conducting intrusions of the body during an investigation, the police need so-called “exigent circumstances” or a warrant. That alcohol evaporates in the blood stream is the exigent circumstance to draw blood from a suspected drunk driver.
“Our position is before you take somebody’s genetic information, you need either a warrant or that person needs to be convicted of a felony with all the procedural protections anybody gets when you are charged and tried with a felony,” the ACLU’s Risher said.
[ILB - but see Sept. 30, 2-1 Indiana COA decision in Garcia-Torres here]
Posted by Marcia Oddi on October 8, 2009 01:58 PM
Posted to General Law Related