DNA and the Fourth Amendment

Is DNA protected from illegal search and seizure by the Fourth Amendment?

If you are arrested for, say, drunk driving, do the police have the right to take a swab of your DNA and put it into police databanks?

The Supreme Court says “yes,” and that answer has set off a predictable firestorm on both sides of the civil liberties aisle.

We’ve been debating this issue most acrimoniously for several years in the Oklahoma House of Representatives. Proponents of taking DNA from people who have been arrested compare it to taking a fingerprint. Since fingerprints are routinely taken at the time of every arrest and put into databanks, why not DNA? Opponents express concerns about forced self-incrimination and illegal search and seizure.

There is no right answer to either set of arguments. Both positions have merit. Both concerns are valid.

This is the sort of disagreement that good people get into when they try to make laws. For several years running, the opponents of this legislation have carried the day. Oklahoma finally passed a weakened version of the original legislation that allowed law enforcement to take DNA samples from convicted felons.

I understand the problem with putting people’s DNA into police databanks. If it is abused, it can be tantamount to fishing expeditions where police round up “all the usual suspects” in hope that something pops us. On the other hand, I also understand that DNA is more accurate than fingerprints. I doubt that it’s foolproof. Nothing is. But if it is processed and interpreted by people who are both honest and who know what they are doing, it is more reliable than any other kind of evidence we have today.

DNA is particularly useful in solving violent crimes against persons such as rape and murder. It can pinpoint a rapist. It can turn around and free an innocent person who has been wrongly accused. DNA has been used to free a number of men who have been convicted of rapes they didn’t commit, as well as a several men (Everyone I know about who has been freed this way is a man.) who were convicted of murder.

I voted for this legislation for these reasons, albeit with some trepidation. Police state fears and mis-use of evidence are not paranoia. They are a reality in much of the world and throughout history. For instance, we had a scandal here in Oklahoma in which Joyce Gilchrist, Oklahoma City Police Department forensic chemist, was convicted of falsifying evidence.

It’s difficult to balance the needs of criminal justice to gather the evidence they need to successfully prosecute criminals with the right of the populace to not be afraid of their government. Inserting DNA into this will complicate the situation and require a major re-thinking of what protections are needed.

When the Supreme Court ruled that law enforcement may take DNA swabs from people who have been arrested, it made this job of thinking and re-thinking both imminent and necessary. I assume that when a Supreme Court Justice votes on a ruling, he or she does it with the same awareness that I have when I vote on legislation. I know that no matter how much I try to weigh the pros and cons, I may make the wrong decision. I have made wrong decisions. No matter how hard I try to do my best, I will make wrong decisions again.

Such is the human condition.

Whether or not the Supreme Court was wrong with this ruling depends on how it’s used by law enforcement. Whether it opens the door to abuses, or it ushers in an era of much more accurate prosecutions depends on the integrity of the men and women who use it. Given that we are fallen people living in a fallen world, abuses are inevitable. That is why we need strong safeguards.

Imposing those safeguards is first of all in the hands of state legislators like me. This discussion leads directly to the reason why I pray the Rosary every day. My constant prayer is that God will protect me — and everyone else — from my own stupidity.

I expect I will vote on issues that arise concerning the enforcement of this recent Supreme Court ruling. Legislators all over the country will be doing the same thing. Congress will probably get into the act, as well.

The goal in all this is public safety. Public safety has, as it always does, two components. The first is safety from the bad guys out there who hurt people. The second is safety from the government itself.


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  • http://ashesfromburntroses.blogspot.com/ Manny

    Rebecca, I’m not sure it’s clear from your blog what it means to have “voted for this legislation.” Does that mean you support taking the DNA or not? We don’t have the wording of the legislation in front of us.
    I would support taking DNA with a swab. You can say the same thing about fingerprinting as a fishing expedition. I’m not sure what the abuse would be. If someone commited a crime, then let’s match that crime with the correct person.

    • hamiltonr

      Manny, there were many versions of this legislation that stretched over several years. The bills kept getting defeated and the author kept coming back with new versions.

      I support taking DNA because I see it is a 21st Century version of fingerprints. My concerns lie primarily with the way the evidence is handled and how accurately it is interpreted. Also, I can see situations where the police might round up a large number of people for the express purpose of taking their DNA, which to me is a clear abuse of civil liberties.

      There are other problems with DNA that have nothing to do with crime, per se. DNA contains a lot of information about a person, and the information we can get from it will almost certainly grow in time. Without safeguards, there are all sorts of problems that could come from this.

      Remember Manny: Arrested is not convicted, and people can be and are arrested for all sorts of trivial things.

      These kinds of problems have to be addressed legislatively. That’s what I was talking about.

      • http://ashesfromburntroses.blogspot.com/ Manny

        Ok, we basically agree. I do see now that there is some distinction with fingerprinting. It does raise personal issues for people who may be innocent.

      • Rebecca Fuentes

        How would this affect people who get fingerprints taken for purposes of a background check? In both Wyoming and Texas, fingerprints are taken when someone applies for a teaching certificate (I’m guessing other states too). I admit to being less easy about my DNA being taken instead of my fingerprints int hat situation because it seems more intimate. On the other hand, a teacher in a district where I taught was raided and arrested by the FBI for being part of an international child porn ring, and I wonder if taking his DNA before granting his certificate would have flagged something and prevented him from access to more victims.

  • Bill S

    I support a DNA swab to be taken along with a photograph and fingerprints. I find the fact that we can be identified by our facial features, fingerprints and DNA to be a deathblow to the new atheists who don’t believe in intelligent design. I am between them and those that insist that the intelligent designer is the Christian God.

    • Zeke

      How does the fact that we can be identified by facial features, fingerprints and DNA support intelligent design, or that the designer is the Christian God?

      • Bill S

        I don’t know what the designer would be but there is too much erroneous information about the Christian God. Either it is the Christian God and it is totally misrepresented or it isn’t the Christian God at all. According to Darwinian evolution, recognizable faces, fingertips and DNA came about through natural selection. I can’t see how these traits would have given our ancestors any advantage over those without them. It’s as if they are designed to help law enforcement.

        • Zeke

          Quite wrong Bill. Read more about evolution.

          • Bill S

            If you think that recognizable faces, fingerprints and DNA can be explained by Darwinian processes alone, you are dreaming. They are the product of an intelligence. No doubt about. This intelligence, however, does not match the description of the God described in the Bible. It doesn’t have a chosen people or a son through whom this all came about.

  • tedseeber

    It isn’t foolproof yet. It will be eventually.

  • D. A. Christianson

    Not an easy one. If I understood, you guys have it legal upon conviction. I think that to be a good spot. I have no problem if somebody wants to volunteer, without conviction, but forced before seems to me to be pushing the guarantee.

    I like when you do these, it helps us to see the pros and cons which are sometimes obscure.