Bill Would Let Police Collect DNA Upon Felony Request

On behalf of Raymond Giudice P.C. posted in Criminal Defense on Monday, February 17, 2014.

Georgia lawmakers are considering allowing law enforcement officers to collect DNA samples of anyone arrested for a felony, a practice found constitutional by the U.S. Supreme Court last year.

Senate Bill 135, sponsored by Sen. Josh McKoon, a civil litigator and Republican representing Columbus, would allow police and other officers to take DNA samples upon arrest rather than conviction, which is the state’s current practice.  Under the proposed legislation, collections may be done via blood sample or oral swab and only after a magistrate or grand jury has determined that probable cause exists for the arrest.

The bill passed the Senate last year and is now before a House panel.

McKoon, who chairs the Senate Judiciary Committee, said DNA collection would allow law enforcement to better solve cold cases and protect the innocent from wrongful arrest.

“The impetus for bringing this bill is to provide closure to the countless Georgia families who have been victims of violent crime,” said McKoon.  In Maryland v. King, 133 S. Ct. 1958, the Supreme Court split 5-4 to hold that taking DNA samples of felony arrestees did not breach the Fourth Amendment.

Justice Anthony Kennedy wrote for the majority that officers taking DNA upon arrests was akin to fingerprinting and photographing detainees.  Breaking the court’s typical ideological breakdown among conservatives and liberals, Justice Antonin Scalia argued in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayer and Elena Kagan that such DNA collections were essentially suspicionless searches.

Although McKoon filed the bill prior to the Supreme Court ruling, he noted that several states have since passed similar laws.

“One of the principal objections to this bill [last spring] was that it violated the Fourth Amendment protection against unlawful search and seizure.  That objection was resolved last summer in King v. Maryland, where the U.S. Supreme Court ruled that Maryland’s version of this law, far broader that my proposed bill, was constitutional,” McKoon said.  “The only thing that has changed since I first introduced this bill in 2011 is that then 22 states had a version of this law on their books today 28 states have adopted it.”

While Georgia criminal defense lawyers don’t like the bill, there’s not much they can do about it, said Sandra Michaels, a lawyer and lobbyist for the Georgia Association of Criminal Defense Lawyers.

“Although GACDL has historically taken the position that taking a person’s DNA upon arrest as opposed to taking DNA upon violent felony convictions is overreaching, not a good use of law enforcement’s limited resources and would not lead to a significant increase in identifying perpetrators, the fact the Supreme Court has ruled on this issue closes any meaningful opposition to the proposed law,” Michaels said.  “However, just because the Supreme Court says it is not a violation to take DNA upon arrest does not require states, including Georgia, to do so.”

Georgia prosecutors have not taken an official stance on the bill but are inclined to view it in a favorable light, according to Chuck Spahos, executive director of the Prosecuting Attorneys’ Council of Georgia.

“I believe the premise that DNA samples should be taken from all those arrested for a felony is a concept that makes good sense and serves a legitimate law enforcement purpose,” Spahos said.  “I believe that if it is acceptable to take fingerprints from an arrestee then it should be acceptable to take an oral swab.”

Spahos added that the bill adequately outlines how to handle cases in which DNA is collected but the arrestees are not ultimately prosecuted or have their charges reduced to misdemeanors.

“The procedures in the bill… would prevent the government from keeping this information of individuals that are not convicted,” Spahos said.  The bill would require the samples to be destroyed and all related records to be expunged from the data bank.

“DNA has proven to be a valuable tool for solving crimes and, in some cases, establishing that an individual did not commit the crime for which they were charged,” Spahos said.  “I believe that Georgia prosecutors can support the concept of a broader base of DNA collection.”

With the Senate passing the bill last year, SB 135 now rests with the House Judiciary Non-Civil Committee, which vets bills that affect the practice of criminal law.

Committee Chairman Rich Golick, an insurance lawyer and Republican representing Smyrna, said he expects to call a hearing for the DNA bill this session.  Golick said he believes there will be “compelling arguments on both sides,” especially regarding “the specific circumstances that would require purging of an individual’s DNA profile.”

SOURCE: www.dailyreportonline.com ” Bill Would Let Police Collect DNA Upon Felony Request,” John Disney, February 17, 2014.