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Does the 4th Amendment Promise a Right to Be Secure in Your DNA?

By Robyn Hagan Cain | Last updated on

It's easier for the government to take your DNA than it is for the government to take your diary.

That's weird, right?

Both contain your deepest, darkest secrets. But if you're arrested in a state like Maryland or California, the cops can automatically collect a sample of your DNA and store it in a database. Even if you're never convicted. Or charged.

But the Supreme Court could change that this term. Later this month, the Court will consider whether the Fourth Amendment allows states to collect and analyze DNA from people arrested and charged with serious crimes.

The ruling in the case, Maryland v. King, could have broad implications. Twenty-one states have statutes requiring DNA samples from those arrested for murder or sex crimes, according to an article in the Hastings Science and Technology Law Journal. The federal government and California, along with 10 other states, require DNA samples from those arrested for any felony. If charges are dropped, dismissed, or if the arrestee is found not guilty, 12 states provide expungement of the DNA profile upon request and 8 states expunge the DNA profile automatically.

The courts have mixed opinions regarding the DNA database laws.

Last February, the Ninth Circuit upheld California's DNA Act. (The appellate court is currently reconsidering that ruling en banc.) A Maryland appellate court decided in 2012 that Maryland's DNA collection policy violated the Fourth Amendment because an individual's expectation of privacy outweighed the state's interests. In July, Chief Justice Roberts stayed that opinion, CNN reports.

In his four-page order, the Chief Justice wrote, "Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population. Crimes for which DNA evidence is implicated tend to be serious, and serious crimes cause serious injuries. That Maryland may not employ a duly-enacted statute to help prevent these injuries constitutes irreparable harm."

The Chief Justice seems open to interpreting the Fourth Amendment liberally when it comes to DNA.

Yes DNA evidence is often crucial to solving crime. A DNA swab helped the cops catch a serial killer in my hometown. DNA evidence is important. But warrants are also important.

So will the Court decide to stand by a blanket collection policy, or will it decide that the warrant requirement isn't just a quaint relic of a bygone era? Check back for the Court's first impressions after oral arguments on February 26.

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