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Are DNA samples unconstitutional?

Today, the U.S. Supreme Court is deciding whether to hear a case that asks if authorities have the right to take DNA samples from people accused of serious crimes or whether it infringes defendants' Fourth Amendment rights.

The case before the Court comes from the Maryland Court of Appeals, which determined that defendants have "a weighty and reasonable expectation of privacy against warrantless, suspicion-less searches." DNA testing, the Court held, infringes that expectation. Under the Fourth Amendment, defendants have a right against unreasonable search and seizure. If, however, the public's interest outweighs that right, then a search may be appropriate.

Maryland prosecutors argued that a mouth DNA swab is similar to fingerprinting, which has been deemed constitutional. The Court disagreed, stating that DNA samples include a genetic map not found through fingerprinting, including information regarding a defendant's propensity for violence.

Should the U.S. Supreme Court decide to hear Maryland's decision, 21 states and the federal government would potentially be affected, as they all have laws or regulations allowing DNA sampling after an arrest. These samples are then kept in databases.

In the past, the Supreme Court has upheld taking DNA samples from convicted criminals but has also held that officials need a warrant or exigent circumstances to conduct "intrusions of the body," such as blood alcohol testing.

If you have been arrested for an alleged crime and the police officers took a mouth swab, this case applies to you. Your criminal defense lawyer should watch the case closely to determine how it affects your charges.

To learn more about issues in criminal defense, please visit our web pages on MD criminal defense.

Source: Wired, "Supreme Court weighing genetic privacy," David Kravets, Nov. 8, 2012

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