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Supreme Court: Police can take DNA samples

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Posted: Tuesday, June 4, 2013 12:00 am

The U.S. Supreme Court on Monday upheld the right of police to take DNA samples from people who are arrested for serious crimes but not yet convicted.

The ruling will likely strengthen California law allowing the controversial practice, which is opposed by those who feel it is too intrusive.

Among those critical of the practice is Peter Fox, San Joaquin County’s public defender.

“I think it’s premature to take a DNA sample from someone before they are convicted of anything,” he said. “It’s more intrusive than a fingerprint, but I’m not surprised at this decision.”

Fox said the DNA has been used to help solve roughly three cases in the county in the past 10 years. And he added that the county would solve the same number of cases if California didn’t have a database.

The San Joaquin County Sheriff’s Office has collected DNA from 88 people booked into the jail through April this year, according to Deputy Les Garcia, Sheriff’s spokesman.

The court backed DNA sampling on a 5-4 ruling.

“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.

The court’s narrow ruling upheld Maryland’s law that allows authorities to take DNA from someone arrested for a burglary or violent felony. The DNA is only recorded following an arraignment, and if the person is acquitted, the sample is erased.

The ruling fortifies California’s law, which is considered among the broadest in effect today.

Since 2009, if someone, including a juvenile, is arrested on suspicion of any felony, they are subjected to a cheek swab once booked into jail. The DNA collected is then packaged and sent to the California Department of Justice, where it’s entered into a statewide database.

Once in the system, authorities can match the DNA against any unsolved crimes.

However, even if the person is acquitted, the DNA sample isn’t automatically removed from the database. Instead, that person must submit a written request to have their DNA profile expunged.

There are 28 states that allow police to collect DNA from those arrested for felonies and other serious crimes. In California, the profile can be entered into a national database run by the federal government if the sample is requested by the U.S. Department of Justice.

In Maryland, police used DNA taken from a 2009 arrest to link a man to a rape committed in 2003. The Maryland Court of Appeals threw out the case, but Monday’s ruling upheld the conviction.

The ruling also comes as the American Civil Liberties Union is challenging California’s law on behalf of numerous people whose DNA was collected when they were arrested. But the Supreme Court’s decision makes it likely that the U.S. 9th Circuit Court of Appeals will uphold the current law, according to John Myers, professor of criminal law at the University of the Pacific’s McGeorge School of Law.

“The appeal states this is an unconstitutional search, but with this ruling the appeal should simply go away,” said Myers, who believes more states will now adopt similar DNA collecting laws. “The ruling balances the public’s privacy interests against the interest of law enforcement.”

Conservative Justice Antonin Scalia said the ruling could lead states to expand current DNA collecting laws.

“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 Associated Press contributed to this report.

Contact reporter Kristopher Anderson at krisa@lodinews.com.

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