Drawing a line on DNA sampling

The Gazette Editorial Board

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We were skeptical about a state legislative proposal allowing police to collect DNA samples from Iowans convicted of some aggravated misdemeanors, expanding the present law from felonies and sex crimes. That bill became law last month.

Then last week, a sharply divided U.S. Supreme Court ruled 5-4 (Maryland v. King) that it was OK to take DNA samples from anyone accused of a “serious” crime - regardless of whether there's an eventual conviction.

Raise the red flag higher. This looks like another potential expansion of intrusive government amid plenty of other privacy issues boiling in Washington these days.

The high court's ruling troubles us, first of all, because the majority argued that taking DNA is “like fingerprinting and photographing,” which are standard police booking procedures.

That's a big stretch. Those procedures are important to establish identity. But DNA samples provide a bevy of additional personal information well beyond a fingerprint or photo.

Then there's the Fourth Amendment's ban of unreasonable searches and seizures, requiring a judicially approved warrant based on “probable cause.”

As Barry Friedman, professor of law at New York University, notes in a June 5 Slate column, courts at various levels have upheld the constitutionality of some warrantless searches, such as airport security checks and drunk-driving roadblocks, because those searches' primary purpose is as a regulatory deterrent, and it's applied to everyone.

But, Friedman writes, police shouldn't be able to collect DNA from a particular group of arrestees without demonstrating good reason that those people were involved in unrelated crimes. With no probable cause, DNA sampling doesn't meet the threshold for investigative crime searches.

Neither does it fit regulatory searches - unless Congress requires everyone in this country, including politicians, to be in the national DNA databank. And that will never happen. ... Will it?

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