The Supreme Court recently ruled on a case that implicates serious constitutional issues that affect every person ever charged with a crime.  In Maryland v. King, the Court heard argument on the State of Maryland’s assertion that it should have the right to collect DNA from any suspect arrested for committing a serious felony, not just those convicted of such crimes.  Opponents say that this is an invasion of privacy and that a judge needs to issue a warrant in order for a defendant’s rights to be protected.  I’d like to weigh in on the matter as this is a crucial issue that will shape the future of American criminal justice.

The proponents of warrant-free, forced DNA collection support the measure since it is clear that the practice will help solve crimes.   It is also clear that by taking a suspect’s DNA, cold cases will probably also be solved since the collected DNA will be run through the DNA data banks (which match the defendant’s DNA sample against samples taken from past crime scenes).  In this breath, the argument is hard to refute.  It is clearly an effective investigatory technique and will solve many crimes.  But so will drones flying over our property and photographing us in our houses and back yards, and police tapping into our cell phones to listen to our private conversations (with mom, dad, or the terrorist next door).

The question, which certainly applies to all these potential law enforcement techniques, is: what cost for our privacy are we willing to pay?  I, for one, feel that forced DNA collection and drones take the matter too far.  If law enforcement wants to take my DNA or fly a drone over my property to spy on me, then they should have a good enough reason that obtaining a warrant wouldn’t be a problem.  If not, they are violating my and every other American’s, civil rights.  I’m not arguing that DNA collection shouldn’t be utilized as a lawful law enforcement tool, but that probable cause and a warrant should be required elements of the process.

Those who are against this warrantless DNA collection investigatory tool don’t approach the issue as a matter of it being ineffective, but a matter of violating criminal defendants’ rights.  We as a nation strongly believe in the right of American citizens to have some level of privacy.  We know that law enforcement officials require a warrant to enter our abodes, we know that if we request an attorney that the police can’t continue to interrogate us, and we know that we are allowed to remain silent.  But wouldn’t the right to remain silent and the right against being compelled to incriminate oneself also apply to allow someone to jam a swab into your mouth to find out if you have committed a crime, either now, or decades in the past?  It just seems wrong.  If the police require a warrant to search my car, they also should need a warrant to search my DNA.

Some have argued that forced DNA collection is nothing different from when law enforcement fingerprints and photographs someone while booking them.  After all, a photo and fingerprints can certainly be used to aid in the investigatory process.  The problem, though, is that there are legitimate security concerns which, at least in my mind, override objections to fingerprinting and photographing an arrestee.  These being that the arrestee needs to be documented well enough so that they can be identified, placed into custody, and have records reviewed to ensure that the person is not wanted by law enforcement for an outstanding warrant (there’s that word again).  I highly doubt that law enforcement would use DNA for the same booking purposes.  After all, it currently takes several weeks to run a DNA panel.

The trend toward less privacy and more options for law enforcement to probe into our lives is growing.  Ten years ago we were having arguments about whether law enforcement should be able to read our emails or listen into our phone calls without a warrant (the Patriot Act allows exactly this).  Now, we are arguing about if law enforcement should be allowed to fly drones over our houses and force DNA collection tools into our mouths without a judge’s permission or oversight.  These are scary times we live in.  And unless we stand up for our civil and constitutional rights, we’ll soon live in a land where papers — and I can see the parallels with immigration here — are required to cross state lines or even those of county lines.  Being a convicted felon, I, for one, have a feeling that my government-issued pass card or authorization book won’t contain the stamp required to cross any of them.

Warrantless DNA collection is simply un-American.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

Leave a Comment