On June 3, 2013, the Supreme Court upheld the power of government at all levels to take DNA samples from every person legally arrested for a “serious” new crime. What a suspect may have done in the past, the Court majority ruled, is a part of the profile that police may constitutionally begin to assemble at the time of arrest for a separate offense.
Justice Anthony M. Kennedy, writing for a five-four majority, insisted that the ruling in the case of Maryland v. King (docket 12-207) involved little more than what happens when police take a suspect’s fingerprints or mug shot.
One of the most significant scientific advances made in law enforcement techniques is the development of the capacity to test an individual’s genetic markers and thus to learn that person’s identify. Because an individual’s DNA is in some ways entirely unique to that person, revealing that person’s genetic profile is solid evidence of who that individual actually is. Thus, DNA can almost unerringly identify an individual by links to physical evidence obtained at a crime scene and, on the other hand, can completely rule out that individual if there is no match.
The Supreme Court clarified the power of police — under the Constitution’s Fourth Amendment limit on police searches — to take a DNA sample from a person accused of crime, but not yet convicted of that crime. At issue was a Maryland law that required routine DNA sample of every person arrested by police for what that law defines as a “serious crime.” In New Jersey, in order to require a person to give a DNA sample, they must be guilty of an indictable offense, not simply “arrested for a serious offense.”
The way the Maryland law works is that, if police have sufficient reason to believe that an individual has committed such a “serious” crime, that will justify taking that person to a police station to hold them there for further investigation of that crime, to see if charges are to be filed and prosecuted. Once such a person is going through the police station “booking” procedure, according to that law, police must take a DNA sample. Such samples are collected, and matched against a national database. It is possible that a match will turn up, linking that arrested individual to a crime, even though police had no specific suspicion that the individual was involved. The match can be used as evidence to place the arrested individual at the scene of that earlier crime.
Maryland’s highest state court had ruled that taking the DNA sample without a court order and without the arrested individual’s consent is a violation of that person’s right of privacy under the Fourth Amendment.
The implications of this decision for individuals accused of crimes in New Jersey may be far reaching. The definition of serious crimes will certainly be the subject of further appeals.
What the New Jersey State legislature will do now in light of the Supreme Court ruling in Maryland v. King is the subject of considerable debate. However, if the legislature passes a requirement that persons arrested in New Jersey must provide a DNA sample, then New Jersey criminal lawyers should be aware that any such requirement should be objected to, pending a ruling from the New Jersey Superior Court-Appellate Division, and ultimately, no doubt, from the New Jersey Supreme Court.