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DNA as Search and Seizure

The US Supreme Court recently heard arguments in Maryland v. King concerning whether obtaining DNA samples from people as they are arrested violates Fourth Amendment protections against unreasonable searches and seizures. In The Nation, Jason Silverstein writes that a factor beyond privacy comes into play with the collection of DNA samples upon a person's arrest. "Because people of color are disproportionately stopped, searched and arrested, they will disproportionately bear the burden of this genetic dragnet," he writes. "And because DNA samples can be used to establish family relationships, it has the potential to widen the surveillance to entire communities."

Indeed, the Los Angeles Police Department has said that it was able to make an arrest in the 'Grim Sleeper' serial killer case because of a familial search. Christopher Franklin was arrested in conjunction with a weapons charge and his DNA test showed a similarity to samples from the serial killer case; his father Lonnie Franklin, Jr., was subsequently arrested and charged in the Grim Sleeper case.

However, Silverstein notes that such police DNA databases likely contain a significant portion of samples from people who were never convicted or sometimes even charged with a crime. The American Civil Liberties Union estimates that about 19 percent of people arrested in California for a felony were never charged with a crime, Silverstein writes. Getting removed from the database is also difficult, with the procedures differing from state to state.

The Court is expected to rule on the case this summer. How the Court votes, Silverstein says, may be unusual. "When Maryland's chief deputy attorney general, Katherine Winfree, recited the number of convictions won through DNA matches, Justice Antonin Scalia fired back, 'If you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. That proves absolutely nothing.'" On the other hand, Justice Stephen Breyer pushed back against King's attorney, saying DNA tests are "no more intrusive" than fingerprints but "much more accurate."

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