Supreme Court case highlights differences in state DNA collection laws

At the heart of debate is whether taking DNA samples without a warrant represents a violation of Fourth Amendment protections, or if DNA is simply a futuristic fingerprint. Take a NEWS POLL.

View full size The U.S. Supreme Court will decide if taking a person's DNA sample without a warrant is a violation of Fourth Amendment rights. AP File Photo  

Saliva in a ski mask led police this week to a 2010 robbery suspect.

A bandanna kept a 2001 Phillipsburg rape case from going cold, and the man charged will be sentenced next month.

What’s left behind at a crime scene can sometimes double as a genetic calling card that not only opens up a person’s criminal history but can lead to future convictions.

A positive “hit” or match in a DNA database depends on whether the person’s profile already exists in the Combined DNA Index System (CODIS), the database used by federal, local and state law enforcement. States differ on when they collect DNA samples, some in recent years adopting laws that allow for swabs to be taken upon arrest.

The issue of taking pre-trial samples is before the U.S. Supreme Court, which heard arguments in February surrounding a Maryland law that allows authorities to take DNA samples before a person is convicted.

At the heart of debate is whether taking samples without a warrant represents a violation of Fourth Amendment protections against unreasonable searches and seizures, or if DNA is simply a futuristic fingerprint.

Convicts people but also clears them

Jennifer K. Wagner, a research associate at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies and an attorney based in State College, Pa., said that DNA identification as provided by CODIS markers can be a valuable tool for conviction and exoneration.

Wagner, who attended arguments Feb. 26 for Maryland v. King in Washington, D.C., said DNA testing upon arrest is not a violation of a person's Fourth Amendment constitutional rights.  

“For me, identification goes more broadly than your name, your age. I don’t think you have a reasonable expectation of privacy in your genetic markers analyzed by CODIS,” she said. “For me, I think there is a compelling government interest in getting this identification information.”

A database that includes profiles of people arrested could also help judges make more informed decisions during bail hearings. The judges could weigh what crimes the person has been associated with in addition to any previous convictions.

Wagner noted that DNA profiles should be automatically expunged if the charges are dropped or the person is acquitted.

DNA easier to get than ever

The national case casts light on how states have handled the issue.

About half of the country, including New Jersey, takes samples from individuals arrested on charges of murder and sexual offenses. This is a fairly recent development for New Jersey, which signed the change into law in 2011.

The changes are an expansion of the state’s DNA Database and Databank Act of 1994, which at first only called for storage of DNA samples of those convicted of sexual offenses.

The availability of DNA profiles and the evolution of technology in recent years has transformed how criminal investigations are conducted, said Warren County First Assistant Prosecutor Michael McDonald.

Investigators previously had to rely on the FBI for DNA analysis and needed to provide larger samples, he said. The results are now more conclusive, and New Jersey State police handle the county’s DNA lab needs, he said.  

Collecting samples from more people is generally viewed by investigators as a positive development, he said. Expanding the number of DNA samples favors authorities, he said.  

“From a general law enforcement standpoint, the more people you have to compare matches to, the greater chance you have of finding the right person,” he said.  

Warming up cold cases

The database is also useful to investigators in cases where evidence was collected but the crime remained unresolved.

This proved true in a 2001 rape case. Charles Mordan, 46, avoided arrest for four years after sexually assaulting a woman Aug. 30, 2001, in Phillipsburg. Authorities were eventually able to match his DNA to samples on a bandanna found at the scene. Mordan is scheduled to be sentenced April 26.

This week, Hellertown police announced the arrest of Rodney Amos Chery, of Allentown, who is charged in a 2010 robbery. Police said that saliva found in a ski mask matched Chery’s DNA.  

Pennsylvania law only requires that DNA samples be taken from people convicted of felonies and certain misdemeanor offenses.

Senate Majority Leader Dominic Pileggi, R-Chester/Delaware, has introduced a bill seeking to expand DNA sampling to people arrested for homicide, felony sex offenses and other serious crimes. The bill, which has been introduced in previous sessions, was approved Feb. 4 by the Senate Appropriations Committee, but there’s been no further action.   

"Recent technological advances allow us to make much better use of DNA to solve crimes and make our neighborhoods safer," Pileggi said in a statement released in January. "My bill will ensure that Pennsylvania's criminal investigators have access to the most current and efficient scientific tools.”

'At stake here is a fundamental right'

Major Mark Schau, director of forensic services for the Pennsylvania State Police, said that the state has seven labs, one of which handles DNA.

Schau said police support the concept behind the bill, since it gets samples into the system sooner, which ultimately helps investigators. He acknowledged that the legislation would weigh on an already heavy caseload and would require additional personnel to handle.

“The wheels of justice will actually come to a grinding halt because of the backlog,” said Andrew Hoover, legislative director for The American Civil Liberties Union of Pennsylvania.

Not only would the bill slow down the judicial process, but its application would represent an unlawful search, he said. He said that law enforcement should obtain a warrant before requiring a DNA sample from an arrested person.  

“What’s at stake here is a fundamental right that people are innocent until proven guilty,” he said. “It’s different from a fingerprint. DNA tells more about a person.”