DNA collection law raises concerns about infringement of right to be safe from unreasonable search

by Keith Barber

Gov. Beverly Perdue signs the DNA Database Act of 2010 into law during a ceremony on July 15. (courtesy photo)

A new law in North Carolina that requires state law enforcement officials to collect DNA from cheek swabs taken from suspects arrested for certain offenses has drawn praise from the law enforcement community and an equal amount of criticism from civil liberties groups.

House Bill 1403, or the DNA Database Act of 2010 was signed into law by Gov. Beverly Perdue on July 15. Perdue hailed the bill as a powerful tool for law enforcement officials to help solve crimes.

“We need to give our law enforcement officers the most advanced tools that we can when they head out on the streets,” Perdue said.

But some have criticized the bill as a direct violation of the Fourth Amendment.

“This new law creates an end run around the Fourth Amendment and flies in the face of the presumption of innocence by allowing law enforcement to take DNA without a search warrant from all individuals who are arrested — but not convicted — of many felonies and even some misdemeanors,” said Jennifer Rudinger, executive director of the American Civil Liberties Union of North Carolina.

The Fourth Amendment to the US Constitution guards against unreasonable searches and seizures. Some of the offenses that require a DNA sample from arrestees include murder, manslaughter, rape, human trafficking, burglary, arson, stalking and cyberstalking.

Guilford County Sheriff BJ Barnes said he’s been advocating for a DNA collection law for years, and believes the law will streamline the collection of vital evidence that could help solve cold cases.

“[DNA evidence] helps clear up cases,” Barnes said. “If you haven’t done anything wrong, you shouldn’t have anything to worry about. If you have done something wrong, it should assist us in making sure you get caught.”

Barnes referred to the fact that before the new law was passed, law enforcement officers were required to obtain a search warrant before gathering DNA evidence from an arrestee. Rudinger said when the new law takes effect on Feb. 1, 2011, that constitutional safeguard will be obliterated.

“The only way to strike the proper balance between the government’s desire to collect DNA and Americans’ constitutional right to privacy is to require law enforcement to get a search warrant based on probable cause before any person’s DNA can be taken, but this new law does away with that protection altogether,” Rudinger said.

Carol Turowski, co-director of the Innocence and Justice Clinic at Wake Forest University, said the controversy surrounding the new law underscores the tenuous balance between giving law enforcement the best crime-fighting tools to protect citizens and protecting the civil liberties of those same citizens.

“We have a presumption of innocence that we apply to every individual charged with a criminal offense, so how do we reconcile that with this idea that once you’re arrested we can demand your DNA to compare it against a state database?” Turowski asked. “It flies in the face of our basic understanding of how criminal jurisprudence always has and does operate.”

Capt. David Clayton of the Winston-Salem Police Department pointed out that there are safeguards written into the legislation, such as the provision that if a defendant is acquitted or the charges are dismissed, the suspect’s DNA profile is eliminated from the State Bureau of Investigation DNA database. As long as the DNA sample is lawfully collected, “no one’s rights will be violated,” Clayton said.

Collecting DNA from arrestees is a powerful tool, especially when there are no eyewitnesses to a crime, and investigators have to rely solely on physical evidence. The concerns of civil liberties groups notwithstanding, the new law will ultimately enhance the safety and security of all citizens, Clayton said.

“It allows us to identify suspects more quickly so that person doesn’t have an opportunity to commit other violent crimes,” Clayton said. “We’ve seen DNA evidence solve several cold cases — the evidence is powerful.”

House Bill 1403 did not receive unanimous support from the General Assembly.

Rep. Larry Womble (D-Forsyth) and Rep. Earline Parmon (D-Forsyth) were among 21 members of the NC House that voted against the measure.

“I think [the new law] might be an infringement or very close to an infringement of the Fourth Amendment, which guarantees people to be safe in their houses and safe from unreasonable searches,” Womble said. “I’m a supporter of DNA, but it was the way this bill was written and the potential for misuse and abuse of the DNA.”

Parmon said DNA evidence is of a highly sensitive nature and deals with a person’s ancestry and should therefore be protected by the Fourth Amendment.

“I think it’s unconstitutional to take someone’s DNA just because they’ve been charged,” Parmon said. “I think it goes too far. We should use whatever tools we have to make our communities safer, but taking DNA does not help prevent crime.”

Turowski said when the law takes effect next year, it could be challenged on the basis of both the Fourth Amendment and the Fourteenth Amendment, which grants all citizens due process and equal protection under the law.

Turowski said the law currently makes a distinction between someone who’s been convicted of a crime and someone merely arrested on suspicion of committing a crime.

“Convicted defendants have a lessened expectation of privacy, so there it’s understandable that the courts have upheld that it’s constitutional to take DNA from convicted defendants,” she said.

Turowski said the benefit of DNA evidence in overturning wrongful convictions is undeniable. The high-profile cases of Darryl Hunt and Joseph Abbitt — two men whose wrongful convictions were overturned with the help of DNA evidence — offer evidence that expanding the state’s DNA database is in everyone’s best interest. Still, there remains a divide in the legal community over this issue, Turowski said.

“Some might applaud the statute with the thought that we need to do everything

we can to expand the database, but I’m stopping the action at the moment that the arrestee is brought into the system,” Turowski said. “At the moment when the DNA is seized, is that constitutional? The broader implications are a different side of the argument. ”