Taking DNA Samples at Arrest? Not a Problem.

dna

On May 8, 2005, we were having a party.  It was our birthday, and our firstborn had just turned 1 a few days before, so it called for a big celebration with friends and family.  For us, it was a time of new beginnings.  But for Jerry Hobbs, May 8 2005 was the end.  He found his 8-year-old daughter and her 9-year-old friend brutally stabbed to death, in a park in Zion, Illinois.  He immediately called the police, who immediately made him their number-one suspect.  He’d just gotten out of jail in Texas, after all, so why investigate further?  He was subjected to a long, intense interrogation, and eventually made a statement that sounded like a confession.  He recanted the statement, saying it was coerced, but that didn’t matter, and he was charged with the murders.

Shortly after his interrogation, the police found DNA on the girls’ bodies that didn’t match Hobbs.  The DA discounted it, saying it must have been cross-contamination and couldn’t have been relevant to the crime.  But the DNA was in semen found on the girls’ bodies — and inside one girl’s vagina — and that’s not cross-contamination.  The DA insisted that it was still irrelevant, and that the semen must have been on the ground before the attack.  Seriously.  Hobbs remained in custody, charged with the double murder, for more than five years, though his case never went to trial.

He was in jail until a couple of hours ago, that is.  As it happens, that DNA on the girls’ bodies was extremely relevant.  Jorge Torrez, who had lived in Zion at the time, was arrested in Arlington, Virginia a few months back, and charged with the abduction and repeated rape of one woman as well as attacking another woman.  Virginia, unlike Illinois, takes DNA samples along with fingerprints when someone is arrested.  The DNA taken at Torrez’s arrest went into the database, and popped up as a match to the DNA found on the girls.  The Illinois prosecutors dithered for weeks, but this morning they finally released Hobbs from prison (though they refused to issue an apology, insisting they and the police had done everything right).  Still, an innocent man went free at last.

And if Torrez’s DNA had not been swabbed on arrest?  Hobbes’ coerced, false confession might well have resulted in yet another wrongful conviction.

This raises a lot of issues.  There’s the misuse of DNA evidence, and there’s the false confession, but those are topics for another time.  (If you’re interested in learning ways to defend such cases, you can check out our “Hope for Hopeless Cases” CLE series, particularly lectures IV and V.)

Today, however, our beef is with the civil liberties argument against taking DNA samples at arrest.

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The argument is that people who haven’t yet been convicted of a crime should not be compelled to give DNA samples.  It smacks of “Big Brother” and “Minority Report.”  The government might conceivably misuse the data.  It’s discriminatory, because blacks and Hispanics get arrested disproportionately more often, and so would be over-represented in the database.  The police might arrest people for bogus reasons, in the hope that cold cases might get solved.  It’s an unreasonable search.  It should require a court order.  It’s a penalty imposed on people who are still presumed innocent.  (See this Chicago Tribune article for these and other arguments being made.)

The speculative arguments are the easiest to deal with.  The police “might” make b.s. arrests and hope for the best?  That argument is foolish, even though it is well-founded.  The police do make b.s. arrests and hope for the best.  Happens all the time, whether or not DNA samples will be taken.  The mere fact that the police can and do abuse their authority is the civil-liberties problem here, not the reasons why they might do so.  The fact that the police can abuse something doesn’t make that thing inherently unconstitutional.  And as for the argument that the government “might” mis-use the information, that just shows an ignorance of the data actually being collected.  DNA samples are not being sequenced for their entire genome.  That takes forever and is prohibitively expensive.  All they do is run a standard test kit, which only looks at a handful of “noise” locations on the genome, and counts the number of times a sequence happens to repeat there.  No private data about the person is revealed or analyzed.  So there’s nothing for the government to really abuse.

The DNA data that is kept is fundamentally no different than the fingerprint data that automatically gets taken at arrest.  A handful of known locations are looked at, and what’s found there is what goes into the database.  We routinely fingerprint people at arrest, to see if there’s a match in the database to pending cases or open warrants, and to generate a rap sheet.  Nobody throws a hissy fit about it.  It’s generally accepted.  Few would take seriously an argument that fingerprinting arrestees violates their civil rights.

But doing the same thing with DNA?  ACLU attorney Michael Risher is quoted in that Chicago Tribune article as saying “it treats innocent Americans like convicted felons,” and somehow violates their Fourth Amendment rights, and at the very least should require a court order.

We defend people in court all the time.  We’ve been pretty successful dealing with DNA issues, we practice in a state that does not automatically take DNA samples, and we’ve fought hard to prevent the taking of any such samples from our clients.  But we just can’t buy the ACLU’s arguments here.  Taking DNA samples from arrestees doesn’t treat innocent people like convicted felons.  It is not a punishment.  No liberty is restricted.  No property is seized.  It’s an administrative task, nothing more.  As for the 4th Amendment issue, it’s no more violated than in any other post-arrest search, which can be a heck of a lot more invasive than the taking of fingerprints and an oral swab.

No, these arguments are just silly.  The potential for exoneration of the innocent, on the other hand, and the more certain identification of the guilty, are powerful considerations.  If all you’re going to weigh against them are silly arguments, you’re going to lose.

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There are valid concerns here, but they are not unique to DNA sampling.  They have to do with all the identification data taken on arrest — mug shots and fingerprints, names, addresses, dates of birth, not just DNA swabs.  The big issue is the risk of false identification.

Let’s say a cop nabs you for spitting on the sidewalk, and you aren’t carrying I.D., so he can’t just write a ticket but has to book you and fingerprint you.  Your mugshot is going to be in the system forever.  And eyewitness identifications being what they are, the odds aren’t bad that someone, somewhere down the road, is going to put her finger on your picture and swear that you’re the one who knocked her down and stole her purse.  It happens plenty.

And DNA evidence gets interpreted wrong all the time, too.  Evidence is handled poorly, technical errors happen in the lab, and bad conclusions are drawn.  So if your DNA is in the system, the odds just went way up that someone, somewhere down the road, is going to screw up and say your DNA was found at a crime scene.

But that doesn’t make the taking of your DNA swab a civil-liberties violation, any more than the taking of your mugshot.  It’s ancillary to the simple fact of life that getting arrested once dramatically increases your chances of being falsely identified later.

Are we fans of the idea of taking DNA samples at arrest?  Not really.  We’d prefer to limit it to those convicted of violent or sexual crimes — keep the database limited to people we’re pretty sure have already committed conduct of the sort where DNA evidence comes into play in the first place.  DNA evidence is not used to solve stock frauds, so there’s really no point to taking DNA off someone suspected of a white-collar offense.  We think it would be impractical and unnecessary to take DNA samples at most arrests.  But it wouldn’t be unconstitutional if states chose to do so.

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