Genetic Dragnet: Constitutional?

Introduction

DNA is a wonderful thing, when found at a crime scene it becomes the key to solving that crime. A sample of DNA is like a fingerprint; no two people have the same genetic code, except for identical twins. Unlike a fingerprint, however, DNA can provide a great deal more information that We The People may not want the State to take like it takes fingerprints.

The gene is the fundamental unit of heredity. It instructs the body cells to make proteins that determine everything from hair color to our susceptibility to diseases. Each gene is actually composed of DNA specifically designed to carry out a single body function. [a]

In the United States, the Criminal Justice System has come rely on DNA evidence, and the science behind it. However, DNA evidence alone is not enough to get a conviction. It must, along with other evidence, be put before a jury. A person suspected of a crime need not turn over a sample of his DNA unless ordered to by the court. This is called Due Process of Law. It is way our system works. The system is being tested by something called a genetic dragnet.

Genetic Dragnet

Let’s say a murder has been committed on Mainstreet in Smalltown USA. Here is what the police know:

A twenty-year-old woman has been murdered. No identification of the victim found at the crime scene.
Blood that is not the victim’s was found at the crime scene.
The same DNA profile from blood and semen found at the crime scene.
And a hunch, the killer lives in Smalltown.

Here is what the police are lacking:

Eyewitnesses
Motive
Other physical evidence

Faced with the murder of a young woman and the only physical evidence a DNA profile of the killer, the police of Smalltown went door to door asking people if they saw or heard anything. In addition to those basic questions, the police "asked,” one by one at the police station, all men in Smalltown to "volunteer" a DNA sample to compare to the DNA profile they had.

Does the above sound like a chapter from 1984? While the case above is fiction, there are cases in which the police have a DNA profile, and little else to go on. In fact, mass DNA testing has been used in Maryland, Miami, and San Diego. In San Diego, a genetic dragnet was used when police took DNA samples from nearly a thousand men to catch a serial killer. More than two thousand men, in Miami, were tested in another serial murder case, but none of them were the killer. Police say the testing did, however, eliminate potential suspects, according to NBC’s Dateline[b]. All this sounds great mass DNA testing can help police find killers and rapists, and everybody wants that, but does mass testing go too far?

The Genetic Dragnet and the Bill Rights

"Some legal experts say that mass DNA testing is like police asking to search your home without a warrant."[c] The Fourth Amendment clearly states:

The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[d]

DNA is part of one’s person, and one should not have to give up a sample without a court order. This also finds support in the Fifth Amendment, which states in part, "No person shall be deprived of life, liberty, or property, without due process of law…."[e]

Meanwhile, back in Smalltown police are still looking for a killer. While many men have come into give police a sample of their DNA there are many men still untested, and police have no match. Then one man, John Doe, came in to answer police questions, but would not give them a DNA sample. John Doe asserted his Fourth Amendment right. He came in on his own, and was not under arrest, and was highly offended that the police would ask for a DNA sample. Now, does Doe become the prime suspect in the case simply because he did not "volunteer" a DNA sample? According to John Farrell, chief of police Prince George’s County, Maryland, "Not necessarily."[f] But, "that is exactly the way police often identify culprits in a DNA dragnet, by investigating anyone who will not ‘voluntarily’ cooperate,"[g] according to Superintendent Colin Jones of Wales, Great Britain. Note the only clear answer given is yes. The answer "Not necessarily" leaves a gray area. Both answers could leave the innocent having to prove that they are—innocent.

For example, a man, by the name of Blair Shelton, was caught up in a DNA dragnet in the town of Ann Arbor, Michigan. Police in Ann Arbor were looking for a serial rapist and murder stalking women. The only description police had of the suspect was that he was black. The police went to Shelton's employer on his day off, and stated to his manager that he was a strong suspect in a serial rape investigation; based on, according to police, only the fact that Shelton is African American. Shelton, shocked, but having nothing to hide called police to say he would be in for questioning. When Shelton went in for questioning, he was told that he would have to submit a DNA sample. He was never told it was voluntary, however, he was told if he did not give police a DNA sample, they would get a court order. Shelton did give police a DNA sample. He was fired from his job the next day[h]. Shelton was never arrested and never had any problem with law in his life before. Yet, his life was turned upside down, and for what? He did not do it.

The police could not have gotten a court order they did not have probable cause, for if they did they would have gone to Shelton's home and arrested him, and then gotten a court order for a DNA sample. Instead, police frightened him into volunteering a DNA sample to prove he was not a rapist.

Conclusion

The above example is an extraordinary case, however, it is just the kind of case that disproves mass DNA testing is voluntary. In fact, mass DNA testing in the above context can put anyone in the position that if they assert their rights it looks like they are hiding something, so they comply out of fear. That is an abuse of State power that the Fourth Amendment and The Bill of Rights designed to protect the people against. This is not to say, mass DNA testing has no place in the toolbox of law enforcement, however, as with any new tool it takes time to learn how to use it properly. Police must take care not to step on the Fourth Amendment and the Due Process clause of the Fifth Amendment. It is State job to solve crimes and try criminals on the basis of evidence gathered through investigation, and not through the around up people who fit a general characteristic in a case and asking for a DNA sample. That is just like police, before the use of DNA, questioning someone and saying prove you did not do it. That would be a violation of that person’s rights, and the same is true with mass DNA testing.

Some would ask, if mass DNA testing puts killers and rapists behind bars, then what is wrong with a few people being inconvenienced? Ask Blair Shelton! The basis of the United States Criminal Justice System is—innocent until proven guilty. Mass DNA testing makes it all too easy for that to be turned into guilty until proven innocent. And the minute that happens all is lost. The Supreme Court will, someday, have to define in what cases mass DNA testing should be used, and how that testing should be conducted.

Those who would give up their Liberty for a bit of temporary safety deserve neither Liberty, nor safety—Ben Franklin c. 1776.