By Steven Wiley | June 03, 2013 at 04:54 PM EDT | 2 comments
In a 5-4 opinion authored by Justice Kennedy and over a spirited dissent authored by Justice Scalia, the U.S. Supreme Court has held that the collection of DNA samples from persons arrested for "serious offenses" does not constitute an unreasonable search and seizure under the Fourth Amendment to the U.S. Constitution. The majority and dissenting opinions in the case, entitled Maryland v. King, 569 U.S. ___ (2013), can be found here: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf.
Essentially, the Court's opinion opens the door for expanded national collection of DNA samples via mouth swabs from persons arrested for serious crimes, in much the same manner as arrested persons are routinely photographed and fingerprinted. As occurred in King, the DNA samples may then be compared to DNA samples on file associated with prior crimes (the DNA samples taken from Mr. King in conjunction with his assault arrest resulted in his indictment and conviction for a rape several years earlier).
As noted in the majority opinion, currently all fifty states require DNA samples be taken from, at the minimum, persons convicted of certain felonies. Twenty-eight states and the federal government authorize DNA samples to be taken from some or all persons arrested.
In West Virginia, DNA samples are to be taken from persons convicted (or found not guilty by reason of insanity or mental defect) of certain felonies, or any other crime for which they would need to register as a sex offender. The DNA is then to be kept in a database and can be used for various purposes and in concert with other states or the federal government. A link to the West Virginia's "DNA Database and Databank Act of 1995," codified at W. Va. Code §§ 15-2B-1, et seq. may be found here: http://www.legis.state.wv.us/wvcode/code.cfm?chap=15&art=2B. A 2012 legislative effort to expand DNA collection to arrestees failed.
In comparison, Virginia law allows for the taking of DNA samples from persons arrested for violent felonies. See Va. Code 19.2-310.2:1, available at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-310.2C1. In a the 2007 case of Anderson v. Commonwealth, the Supreme Court of Virginia upheld the taking of DNA samples from an arrested individual, and its subsequent use in his conviction for a years-old rape, under reasoning very similar to the decision in King. Anderson may be read at http://www.courts.state.va.us/opinions/opnscvwp/1062051.pdf.
With the Supreme Court's decision in King, as well as federal grant incentives for states to expand DNA sample acquisition contained in the recently-signed "Katie Sepich DNA Collection Act," it is likely that increased DNA sampling will soon spread nationwide and that West Virginia will eventually join Virginia in requiring expanded DNA collections.
Just something I noticed recently: some circuit judges in WV are advising defendants at sentencing for all felony crimes (not just sex crimes and serious crimes; not quite sure if misdemeanors are included as well) that they are subject to DNA sampling by the sheriff's department at their own expense. It's not quite as expansive as the Court has allowed in this case, but it was an interesting thing I've just noticed in the last two months or so.
Have you been aware of anyone challenging DNA collection in these cases? I suppose it could be interesting down the road if someone is tied to a crime and convicted due to DNA that may have been taken in a situation outside of the scope of the statutes.