Monday, October 18, 2021

DNA can be used to investigate unrelated crimes


Police don’t need a warrant to use DNA voluntarily given in one case to investigate an unrelated crime, Maryland’s highest court ruled yesterday, the Baltimore Sun reports.

The case, which made it all the way to the Maryland Court of Appeals, involved George Varriale, a homeless man who voluntarily provided a DNA sample to Anne Arundel County police in 2012 as they were investigating a rape. The sample cleared him of the rape, but police entered his DNA profile into a database called CODIS, which is used to solve crimes by matching DNA profiles of people arrested for serious crimes with those of samples taken from crime scenes.

His profile matched that of a sample taken from the scene of a burglary in 2008, which was unrelated to the rape for which his DNA was collected in the first place.

The Fourth Amendment protects Americans against unreasonable searches and seizures, and how “reasonable” a search is usually depends on comparing how much it intrudes on a person’s expectation of privacy with how strong the government’s interests are in conducting the search:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause. …

“In this case, we shall hold that, where Varriale’s consent to search was not expressly limited by him, by the state, or by law, the Fourth Amendment does not preclude the state from storing and using his voluntarily provided DNA sample and resultant DNA profile for additional, unrelated criminal investigations,” Court of Appeals Judge Clayton Greene wrote for the court.

One glitch in that argument, though, is that while the Fourth Amendment doesn’t specifically preclude anyone from storing a DNA profile in a database, the Constitution does tend to favor the issuance of warrants for searches in solving crimes. Indeed, several courts and state legislatures have given police the authority to search databases that store personally identifying information, such as fingerprints or DNA, to solve unrelated crimes.

DNA is a little different, though. Sure, police only store profiles from certain loci in the DNA, but that may be just too much personally identifying information for the Fourth Amendment. That is, a DNA profile is a very intrusive search. The interest the state has in conducting the search—here, to solve a burglary from 2008—has to be weighed against how intrusive the search was, and I’m just not sure the Maryland Court of Appeals got this one right.

Let’s look at what the state says its interest is in collecting DNA samples:

The state uses the DNA for identification purposes, which, in turn, helps the state determine whether someone they arrested committed prior crimes. Through that long string of events, DNA collection helps the state perform other functions related to the arrest of the person: to set bail, to provide for security for arrestees not released, and to set the terms and conditions of community supervision for arrestees who are released.

The state says DNA collection and the DNA database also help it solve crimes more quickly. A database search, that is, can be very efficient and return a result very quickly in considering a multitude of crimes from which samples have been collected. The burglary here was unsolved going all the way back to 2008, but as soon as Mr Varriale provided a DNA sample and police searched the CODIS database, a hit came up. It was that quick.

Should the Maryland General Assembly or Supreme Court act in response to this case? Why or why not? What laws could be passed to ensure that the state doesn’t intrude too much on a person’s privacy while still working to solve crimes of cold cases? See Common Core writing standard WHST.11-12.1.B for more information.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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