How Post-Arrest DNA Swabs Threaten Innocent People’s Privacy
Unless you’re living under a rock—or just don’t watch TV—you’re probably familiar with the mugshot and fingerprint steps of booking. Fewer are aware of the latest addition: the mouth swab.
On Friday, Herbert Stanback pleaded guilty to the hit-and-run that killed Ruth Buchanan 32 years ago. Investigators with the Charlotte-Mecklenburg Police Department identified Stanback by running DNA collected from a joint found in the hit-and-run vehicle through the Combined DNA Index System (CODIS). The FBI describes CODIS as a tool that enables “federal, state, and local forensic laboratories to exchange and compare DNA profiles electronically, thereby linking serial violent crimes to each other and to known offenders.”
The term “known offenders” might be a bit misleading. The DNA Fingerprint Act of 2005 requires all adults arrested—not convicted—of a federal crime to provide a DNA sample. Stanback’s genetic profile was available for comparison because he was previously incarcerated for larceny as a habitual felon in 2004, which placed his DNA in the National DNA Index System (NDIS), the national component of CODIS.
Requiring convicted felons to forfeit their identifying genetic information is hard to object to—convicted felons already lose certain privacy and liberties. But those merely suspected of a crime are presumed innocent until proven otherwise. Entering their DNA into a federal database for comparison with crime scene samples challenges this presumption of innocence.
The Supreme Court disagrees. In 2013, the Court ruled in Maryland v. King that taking DNA upon arrest does not violate the Fourth Amendment’s protection against unreasonable searches and seizures. Since then, warrantless DNA collection and comparison has been widely practiced, much to the chagrin of civil liberties groups such as the American Civil Liberties Union.
According to data from the National Conference of State Legislatures, 20 states do not collect DNA upon any arrest. Of the remaining 30 states that do, most limit this collection to felony arrests, while eight also include specif
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