Well, it happened. The Supreme Court has ruled in the case of Maryland V. King where an individual was arrested for an assault charge when his DNA was taken from a swab of his mouth and was used to convict him of an unresolved rape case. While convicting a rapist is certainly good for the public, the broader issue of personal security and Constitutional rights against unreasonable searches leaves this Raleigh DWI Attorney with a heavy heart.
The issue at hand in this case was whether the swabbing of the mouth of an arrestee could be taken without first establishing probable cause to procure this evidence through a 'search.' Now, the State argued that this did not constitute a 'search' in the Constitutional sense but rather that it was more of a booking process like finger printing and photos being taken of arrestees. However, booking procedures are used to ensure identity of the individual they have in front of them. If the person arrested gave a false name at the time of the arrest, the Officers can cross reference the name with a DMV photo and physical description and the finger prints can be verified against any prior finger prints taken from the arrestee and/or the person who's name was given. DNA evidence, on the contrary is very limited in it's ability to verify the identify of the arrestee in that there is no running database of individuals DNA make up in addition to the fact that the testing is expensive makes this argument flawed.
However, regardless of where you may fall on the State's argument, the intrusion involved in this case cannot be understated. The Constitution provides all people in America the protection from unreasonable searches and seizures. For various levels of actions performed by the State, they must meet a 'standard of proof' which will justify an action that would otherwise be deemed unconstitutional. Many people are aware of 'reasonable suspicion' and 'probable cause.' These two standards of proof dictate when a police officer can stop an individual and when they can search that individual, their car, home, etc. These standards of proof are in place to try and prohibit the State from acting without restriction in their pursuit of criminals. We, as the general public, should not live in fear that we will be stopped for no good reason or searched just because. If the State is unable to prove they had reasonable suspicion to stop or probable cause to search, then any evidence acquired as a result of these stops and/or searches is deemed inadmissible. The routine swabbing of an individuals mouth to collect their DNA information of an ARRESTEE is unconstitutional and performed without probable cause.
In our great nation, an individual arrested for a crime enjoys the right of being held innocent until proven guilty. The sheer fact that an individual has been arrested does not, in any way, imply they are guilty of the crime as far as our justice system is concerned. Unfortunately, in our society, the perception is to the contrary and people assume those arrested are in fact guilty, otherwise why were they arrested in the first place. However, after handling hundreds of cases as a Raleigh Criminal Defense Lawyer, I can tell you that innocent people do, in fact, get arrested.
Individuals who are arrested, innocent or not, enjoy the same protection. That protection includes the right which prohibits the State from performing a search without first determining there was probable cause to search. The probable cause must be that it is more probable then not that the individual being searched or the items searched for, are related to the crime for which the individual is being charged or location being searched. A routine swab of arrestees mouths is not with probable cause as the State, in most cases, will struggle in proving that the evidence of the individuals DNA makeup would futher assist them in their prosecution of the individual.
I'm certain that many proponents for this DNA swabbing are excited about the prospect of all the cold cases that may be solved as a result of this not, Supreme Court sanction actions. However, convictions of crimes alone are not enough to justify the State exceeding their reach over our Constitutional Rights. As Justice Scalia pointed out during arguments, a whole plethora of cases could be solved if we set aside standards of proof and allowed the State to proceed without limitations in their detaining and searching of individuals, but that end does not justify the mean.
As a Wake County DWI Attorney and Criminal Attorney, it has been my pleasure to serve as the defense attorney for individuals facing charges in the Raleigh Courthouse. If you are in need of a criminal attorney, contact my office for a free consultation at 919-335-5291.
