DNA Sampling Lawsuit Raises Questions as DNA Helps Locate Serial Killer

July 19, 2010 by David S. Seltzer

As a Fort Lauderdale cyber crime criminal defense attorney, I was interested to see two news items out of California about the conflict between defendants’ right to privacy and the growth of DNA technology. Last week, the Ninth U.S. Circuit Court of Appeals heard arguments in a lawsuit challenging California’s practice of taking DNA samples from everyone in that state arrested for -- but not necessarily convicted of -- a felony. According to the San Francisco Chronicle, the American Civil Liberties Union argued that this is a violation of privacy and may not work, given that one-third of Californians arrested for felonies are never convicted. California attorney general Jerry Brown, who is running for governor, called a news conference calling DNA “the fingerprint of the 21st century” and no more invasive.

The ACLU represents Elizabeth Haskell of Oakland, Calif., who was arrested at an antiwar rally. The police originally suspected her of trying to free another person who was arrested, but the charges were dropped. She initially refused to give a DNA sample, which is taken through a cheek swab, after her arrest, but relented when she was told she would be arrested for another crime if she refused. California’s DNA law, which was passed by ballot proposition in 2006, allows people like Haskell to petition to be removed from the database, but only after three years. A judge or prosecutor may deny such requests. The ACLU argued that taking such samples from people without a conviction is an unreasonable search and seizure, a violation of the Fourth Amendment.

The state’s argument got a major boost earlier this month when Los Angeles police used the DNA database to find a suspected serial killer in that city. Lonnie Franklin Jr. is accused of killing at least 10 young women since 1985. He was identified through a family DNA match, after his adult son was convicted on a felony weapons charge. At oral arguments, the Ninth Circuit asked the ACLU whether this type of breakthrough was worth the “minor intrusion” of DNA testing. One judge compared the practice to fingerprinting, as Brown did. The ACLU argued that fingerprints carry far less personal information than DNA and don’t require allowing foreign objects in the mouth. Another judge asked the state of California why it keeps the DNA of people not convicted. The deputy attorney general on the case said the database helps solve crimes and has a deterrent effect for people who know the state already has their DNA.

I very much doubt the deterrent argument. People committing crimes out of strong emotion or for sexual reasons are unlikely to think about bureaucratic details before they act. The state may have a stronger argument about solving crimes, but as a Miami-Dade cyber crime criminal defense lawyer, I believe the privacy argument is also very strong. Our justice system is built around the concept of presuming innocence unless the suspect is proven guilty. People convicted of crimes lose privacy and freedom, but we almost never subject people who are merely accused of crimes to probation, sex offender registration, weapons restrictions or other invasive criminal penalties. When we do, the invasions are limited and controversial, as they should be.

As the ACLU noted, it’s true that the police will be able to solve more crimes if they have access to DNA samples of people who were never convicted. In fact, they could solve even more crimes if everyone in America had to give a DNA sample -- but the public wouldn’t stand for that, because it would violate some of our founding principles. I believe retaining DNA from people who were not ultimately convicted is a smaller-scale version of the same thing. After all, as many of my clients can tell you, the police don’t always arrest the right person. The Ninth Circuit does not have the power to invalidate Florida’s DNA sampling law, but its decision could set a precedent for other courts to follow, especially if this case ends up at the U.S. Supreme Court. As a West Palm Beach cyber crime criminal defense attorney, I hope the court’s decision does not trample privacy rights.