Arrestee DNA and Rape: One Prosecutor's Story Arrives at Supreme Court

"This case is an excellent example of the need to balance competing interests," he says. "The nature of law enforcement is that they seek every tool possible to more effectively solve and prevent crime. It's the responsibility of the courts to draw a constitutional line to ensure that our most fundamental rights as American people are protected."

Benjamin says, "The Fourth Amendment requires both probable cause to believe that a search will yield evidence of a crime and a warrant. The collection of DNA from someone who has merely been arrested violates the Fourth Amendment because there is no reason to believe that the DNA they collect is evidence of a crime."

In court briefs, lawyers for the NACDL told the Supreme Court that those who have been arrested for a crime have broader rights than those who have been convicted. They say that Maryland is attempting to "shoehorn" a DNA search of an arrestee into the "exceptionally limited categories of warrantless, suspicionless searches" that the court has approved.

"Extracting a DNA sample from the inside of an arrestee's body, no less than an intrusion into the home, falls within the core category of searches historically considered unlawful absent a warrant and probable cause. And the search here does not involve an exigency or any other limited exception to the warrant requirement."

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But Ireland counters that swabbing the inside of an arrestee's mouth is not an invasive search. "Do you floss your teeth? Do you think that is intrusive? "It's a q-tip put in the corner of a person's mouth. How is that any more intrusive than fingerprints?" says Ireland.

Lawyers for the Department of Justice have filed a brief supporting the law. The government argues that the DNA collection advances an important government interest that outweighs an arrestee's privacy rights.

Solicitor General Donald B. Verrilli argues in court briefs that the swab is hardly invasive, instead it is collected from one of the arrestee's cheeks which is "visible to others when an individual speaks, yawns, or eats and accustomed to touching with a toothbrush."

Sandra K. Levick, a lawyer for the Public Defender Service for the District of Columbia, is worried about the national trend toward expanding DNA sample collection from those convicted of a crime to include arrestees. In briefs filed with the court, she criticized supporters of the law for equating the collection of DNA with the longstanding practice of fingerprinting arrestees at booking.

"Sampling arrestee DNA requires a far more significant physical intrusion than fingerprinting," Levick wrote in court papers. "It places in the state's hands a trove of private information that fingerprints do not."

She does not buy the argument that the DNA testing is done primarily to identify arrestees. She says the goal of the law is to solve cold crimes and the court could be taking a dangerous step.

"But ultimately, as this court has made clear, the state's ever-present interest in solving crimes is not enough on its own to justify a search into private realms. If it were, what prevents the state from invading the privacy of any person, with the assistance of any technology that makes that invasion more efficient than ever before?"

Ireland, who now works for a rape crisis center, has heard all of these arguments before. She is focused on the victim in her case. "I am experiencing the victim's anguish in my case. There are literally thousands of other victims that might be in her shoes depending on the outcome of this case."

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