In 2011, citing Fourth Amendment concerns, the Georgia legislature gutted a Senate bill that would have allowed collection of DNA evidence upon arrest for those charged with felonies.
In the latest Supreme Court examination of a Fourth Amendment concern, justices ruled 5-4 that laws in Maryland and 28 other states allowing collection and databasing of DNA — done by swabbing the inside of an arrestee’s cheek — are a reasonable search upon arrest.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...” reads the Fourth Amendment, and the key word is “unreasonable,” Gainesville attorney John Breakfield said.
“Essentially, you can’t look for criminal conduct without specific individualized suspicion,” said Breakfield, who practices both criminal defense and Gainesville municipal court prosecution.
Justice Anthony Kennedy, writing for the majority, said, “Yes, it’s a search, but we’re only going for identification.”
District Attorney Lee Darragh agreed, equating a cheek swab to taking fingerprints.
“Taking a person’s DNA upon his or her arrest is no more intrusive from a Fourth Amendment perspective than taking fingerprints from the same person, which has been constitutionally done for decades,” Darragh said.
The 2011 Georgia law did expand post-conviction DNA collection to all felonies. Previous statutes only allowed certain felonies, mostly sex-related, to warrant such collection.
“It will enlarge the database significantly, leading to solving many more crimes than are already solved through post-conviction DNA collection, and can help clear possible suspects as well in certain cases,” Darragh said of preconviction DNA collection. “The Supreme Court correctly decided the issue, in my view.”
Justice Antonin Scalia, siding with more liberal Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg, scathingly asserted that because tested and stored DNA can be applied for purposes of criminal investigation, the intent of DNA collection is a search, and thus unconstitutional.
The odd breakdown of how the nine justices ruled piqued the curiosity of legal scholars.
“The thing about Scalia is he really isn’t ‘conservative’ in the ideological sense. He’s a strict constitutionalist,” Breakfield said. “On any Fourth Amendment issue before the court, he’s been known to take the strictest interpretation regardless of the issue.”
Kennedy sided with traditionally conservative Justices Clarence Thomas, Samuel Alito and Chief Justice John Roberts, joined by usually liberal Justice Stephen Breyer.
Next year’s legislative session, with a supermajority of Republicans in the Senate and a wide majority in the House, is likely to pass the provision, Breakfield said, now that questions of constitutionality have been settled by the highest court.
“They’ve essentially appeased the concerns for constitutionality, giving the green light for the Georgia legislature to pass this,” he said.
Breakfield noted that Georgia’s version created some safety valves for discarding DNA; in the case of a thrown-out charge due to lack of evidence at a probable cause hearing, and in the case of a thrown-out charge by a grand jury.
Technology and national security are continuously pushing the framework within which the federal government, and through incorporation by way of the 14th Amendment, the states, can make criminal justice and investigation rules and enforce them, Breakfield explained.
The latest ruling is another instance of technology prompting a judgment call, Breakfield said.
“This wasn’t a 9-0 decision, or even a 7-2 decision — it was 5-4. It wasn’t a light issue, and I understand the concerns that people have,” he said. “In my view, 30 years from now, collecting DNA will be as accepted upon arrest as fingerprint collection is now.”