Police Can Seize DNA From Suspects Without Warrant

By Melissa Daniels | PA Independent

HARRISBURG — A cotton swab, a bit of saliva and the constitutionality of government collecting genetic material are sources of worry over a law that could weaken Fourth Amendment protections.

Law enforcement supports the practice as a means to lock up criminals. Although 26 states allow the practice in some form, civil liberties advocates continue to call out constitutional violations of unreasonable search-and-seizure protections.

The Pennsylvania Senate voted, 39-8, Tuesday to pass legislation requiring the collection and storage of DNA samples upon arrest for certain crimes. Passage of Senate Bill 150 comes shortly after the U.S. Supreme Court affirmed the constitutionality of pre-conviction DNA collection.

Last year, Senate Majority Leader Dominic Pileggi, R-Delaware, sponsored a similar bill, which the House gutted. This time, Pileggi said he thinks the House will be more supportive, their concerns eased by the Supreme Court.

Taking a swab of DNA sample from the inside of a cheek is no different from other booking procedures, such as mug shots and fingerprinting, the majority opinion says.

“The court was very clear in that principle they were articulating,” Pileggi said.

Law enforcement in Pennsylvania has long lobbied for pre-conviction DNA collection. Greg Rowe, legislative liaison for the Pennsylvania District Attorneys Association, said DNA evidence is “extraordinarily reliable” when it comes to closing cases.

DNA is already collected after conviction in Pennsylvania. The DNA of more than 289,000 Pennsylvanians has been swabbed and stored in a federal database, according to FBI statistics. The same statistics say these profiles have helped in 4,742 investigations.

Rowe said expanding the practice is within constitutional limits, and legislation is tailored to allow DNA to be used for law enforcement purposes only.

“This is not Draconian,” he said. “This is a pretty narrow bill with the purpose of holding offenders accountable and promoting conviction integrity.”

But the legislation in Pennsylvania isn’t a carbon copy of a Maryland law, which could leave it open to constitutional questions.

Andy Hoover, legislative director for the Pennsylvania chapter of the American Civil Liberties Union, said what’s proposed would apply to a larger number of crimes — all felony crimes and select misdemeanors that would require registration as a sex offender.

“The whole thing comes with legal and practical problems,” Hoover said. “They’re taking a huge risk by making it more expansive.”

The act of entering a suspect’s DNA into state and federal databases would happen a bit earlier. Maryland collects DNA at the time of booking and enters it into a state database after the arraignment. In Pennsylvania, the sample would get processed at the time of booking.

If passed, the law could be challenged at the state level, where privacy case law has its own history. The Pennsylvania Supreme Court, Hoover said, has four separate decisions in the past 22 years upholding a high level of search-and-seizure protections in the state constitution.

But Hoover is optimistic it won’t get to that point, noting opposition from House lawmakers last year.

Still, some lawmakers are worried about the legislation’s reach. One of the eight senators who voted against the bill, Sen. Anthony Williams, D-Philadelphia, cited practical and philosophical reasons for his opposition.

When it comes to DNA, Williams said, lawmakers need to be “cautious in their overreach.” He questioned the fate of young college students arrested because of reckless behavior. They, too, will wind up getting swabbed, their genetic keys stored in a database somewhere.

“There is something to the fact that we have a constitution,” Williams said. “There is something to the fact that we are Americans, and there is something to the fact that now, in the times we live, Big Brother is around us more than we have ever felt before.”

Contact Melissa Daniels at melissa@paindependent.com