Supreme Court gives OK to DNA swabs taken from arrestees; already takes place in Utah

Published: Monday, June 3 2013 4:35 p.m. MDT

This June 27, 2012 file photo shows an American flag flying in front of the Supreme Court in Washington.

Alex Brandon, Associated Press

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SALT LAKE CITY — The U.S. Supreme Court says states that collect DNA from suspected violent offenders can keep collecting the samples even if the person hasn’t officially been charged with a crime.

The American Civil Liberties Union argued collecting such information violates the Fourth Amendment, which guards against unreasonable searches and seizures. But the Supreme Court, by a 5-4 ruling Monday, said the practice that takes place in 28 states — including Utah — can continue.

"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority.

Utah passed a law in 2010 allowing police to collect DNA of suspected violent criminals if the suspect’s specimen isn’t already on file. The DNA cannot be processed until a trial is set or a grand jury issues an indictment.

Jay Henry, director of the state crime lab, said the lab has approximately 100,000 samples it has accumulated over the course of 10 years. He said the samples can be invaluable to law enforcement officials.

“It removes the subjectivity of a witness ID or statement made by somebody,” Henry said. “It removes the human error, what we derive are facts.”

The DNA sample could also clear a wrongly accused person.

“In about a third of our cases that are submitted here, the defendant is excluded as actually having committed a crime, or actually having left that sample behind at a crime scene, so that’s pretty important information,” Henry said.

He said some people get anxious about DNA samples because they're used for so many different medical purposes, such as testing for medical conditions, genome and research, but the testing the crime lab does is only for identification.

The four dissenting justices said the court was allowing a major change in police powers, with conservative Justice Antonin Scalia predicting the limitation to "serious" crimes would not last.

"Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," Scalia said. "This will solve some extra crimes, to be sure, but so would taking your DNA when you fly on an airplane. Surely the TSA must know the 'identity' of the flying public. For that matter, so would taking your children's DNA when they start public school."

The ACLU said the court's ruling creates "a gaping new exception to the Fourth Amendment."

"The Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime — and all nine justices agreed that DNA testing is a search — without individualized suspicion," said Steven R. Shapiro, the group's legal director. "Today's decision eliminates that crucial safeguard.”

Email: mrichards@deseretnews.com

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