You may be familiar with a recent U.S. Supreme Court ruling holding that DNA may be collected from defendants arrested – though not yet convicted – of serious criminal offenses, mainly felonies.
However, what you may not be aware of is that many local police agencies were already doing this – and much more – in a largely unregulated process that is governed by departments’ own rules and sometimes even involves the collection and storage of DNA by unsuspecting people who have never been arrested for a crime.
Our Fort Lauderdale criminal defense attorneys aren’t clear on exactly how many cases are prosecuted using these clandestine samples, but we see ample opportunity for a strong legal challenge in the future – in spite of the recent ruling in Maryland v. King.
Keep in mind that there are both federal and state crime labs that maintain their own DNA databases of potential suspects. Local labs tend to fly under the radar, with DNA collected sometimes with the donor’s knowledge and sometimes without it. In some cases, the DNA belongs to individuals who have been arrested or convicted in relation to serious offenses. In some cases, the DNA belongs to crime victims who have no idea their DNA has been saved for future searches.
To give you an idea of the scope of this issue, we know that New York City has its own database of some 11,000 criminal suspects. Orange County, California has a amassed about 90,000 profiles – most of those from defendants who committed misdemeanor crimes and agreed to submit to a DNA sample in exchange for lesser charges or for having those charges dropped.
In Central Florida, we don’t have an exact count, but we do know that law enforcement agencies have pooled their resources to create a regional database. What that means is that these agencies may not be relying upon only state and federal databases, which are run according to stricter standards.
Police chiefs give various reasons for compiling their own databases. Some of them gripe that it takes too long for the state to test evidence and submit DNA profiles into the larger database. Other police leaders say they don’t want to have to wait until someone is arrested or convicted before gathering their DNA so they can nab them on lower-level offenses. Police say the samples kept in state and local databases belong to people already going to prison – not those with whom they are dealing day in and day out.
The concern is that unregulated databases may violate privacy and Fourth Amendment rights, even if they are used to successfully solve a crime. For someone accused of a crime on the basis of such evidence, an argument might be made on the basis of the fruit of the poisonous tree doctrine. That is, if police had no right to collect that sample in the first place, any evidence that came about subsequently would become inadmissible in court.