Wash. considers collecting DNA upon arrest

By GENE JOHNSON
Associated Press

A bill before the Legislature would have Washington join a growing
number of states that automatically collect DNA from people when
they're arrested for a serious crime, rather than waiting until
they're convicted.

Anthony Dias is the poster boy for why police and prosecutors hope
Washington will join a growing number of states that require people to
give DNA samples as soon as they're arrested for a serious crime,
rather than waiting until they're convicted.

In 2005, Dias was released on bail while facing a felony hit-and-run
charge in Pierce County. He went on to commit crimes against 19 more
people before the year was up, including a half-dozen rapes. If he had
given a DNA sample after his hit-and-run arrest, detectives could have
caught him after the first rape - not the last.

"By the time he committed his next rape crime, he could have been
identified, arrested and taken off the streets," Charisa Nicholas, who
was tied up and forced to watch as her roommate was raped, told
lawmakers recently. "My case would have been the first case
prevented."

Nevertheless, the rush to expand DNA's use in criminal investigations
worries privacy advocates, and courts around the country have
disagreed about whether such laws violate the 4th Amendment to the
U.S. Constitution, which protects people from unreasonable searches
and seizures. Many judges have found that routinely collecting DNA
from convicts is OK because, among other reasons, committing a serious
crime reduces their expectation of privacy. It's not clear that
reasoning would extend to people who have not been convicted and who
are presumed innocent.

"The way judges come out depends in a sense on how much trust they
have in the government," says Penn State Law School professor DH Kaye,
who tracks the issue. "Some judges say, `What's the big deal? It's
like a fingerprint.' But DNA samples contain a lot of information, and
other judges say that sooner or later somebody is going to abuse the
system."

Under bills before Washington's Legislature, the state would collect
DNA from people when they're arrested for nearly all felonies or for
violating a domestic violence protection order. Once a judicial
officer finds that the arrest was supported by probable cause, the
State Patrol crime lab could test the DNA to create a profile and
enter that profile in a nationwide database used to help solve crimes.
The cost of the measure - more than $400,000 a year - would be paid
with money from traffic tickets.

If the person is exonerated or not charged, they could petition to
have the crime lab destroy their sample and profile. The lab would be
obligated to do so, but could run a check on the profile first.

About half the states and the federal government have similar laws.

The 3rd U.S. Circuit Court of Appeals in Philadelphia, the highest
federal court to rule on the issue so far, closely upheld the federal
law 8-6 last summer in a case that could be headed for the Supreme
Court. The majority found that although crime labs typically maintain
the actual DNA samples, the profiles entered into the national
database comprise only a small portion of the information available in
the sample. There's no indication that the government has any intent
to use the full samples, judges said.

The judges reasoned that the government has a right to confirm the
identities of the people it arrests, and there are two parts to
someone's identity: who they are, and what they've done. Using the DNA
profile to see if arrestees have committed other crimes is a part of
the government's interest in their identities, the judges said.

The dissent argued that the government doesn't need the DNA profile to
identify arrestees. Officials want to be able to conduct an intrusive
search of a person's body - taking their DNA - without a warrant and
without suspicion, in hopes of finding evidence unrelated to what the
person has been arrested for.

"We do not view a finding of probable cause for one crime as
sufficient justification to engage in warrantless searches of
arrestees' or pretrial detainees' homes for evidence of other crimes,"
the dissent noted.

That's one of the analyses offered by Doug Klunder, privacy counsel at
the American Civil Liberties Union of Washington.

"It's collecting really sensitive information about an individual
without there being reason to suspect that person of a crime," he
says. "There are many ways that law enforcement could collect
information that would help solve crimes. They could rifle through my
house every day and maybe they'll find it, but we don't allow that
without a warrant. Certainly going into my body is as intrusive as
going into my house."

Virginia's Supreme Court has upheld that state's law, and an appeals
court in Arizona has OK'd the law there. However, California and
Minnesota appeals courts have rejected their laws, and a panel of the
9th U.S. Circuit Court of Appeals has yet to rule on a federal
challenge to California's law, even though the arguments took place 18
months ago.

Washington's proposal could face an even tougher legal road if passed,
because the state Constitution is even more protective of people's
right to be free from intrusion by the government.

"There's not a definite answer on the constitutional questions," says
Pierce County Prosecutor Mark Lindquist. "But the merits of this are
so obvious it's worth having it go up to the courts."

For more information on these matters, please call our office at 305 548 5020.

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