Taking the DNA of Arrestees:
Protecting the Public or Violating the 4th Amendment?

Table of Contents:

An arrestee is a person arrested for a crime and who has not yet been convicted for that offense. Currently, 21 states have passed legislation to make it legal for law enforcement to swipe an arrestee's inner cheek for DNA. The DNA is processed and its profile is entered into the state's CODIS DNA database (SDIS) to see if the person has a criminal record and if it can be linked to any previous unsolved crimes by matching it to "unknown forensic samples" in the DNA database.

The 21 states that presently allow this are:
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas Vermont and Virginia.

In these states and the others that have not yet passed similar legislation, the legality and ethics of taking DNA from arrestees continues to be debated.

Argument For Taking DNA From Arrestees

Criminals tend to be repeat offenders and numerous studies that have documented that the taking of arrestee's DNA helps to reduce and avoid crime, especially homicides and rapes. For example, in a recent Indiana Study each conviction of an offender prevented an average of seven to eight future crimes. And according to an article published in the Michigan Law Review in 1991 (Vol. 89, 1991), "Bright Lines, Dark Deeds: Counting Convictions Under the Armed Career Criminal Act," by James E. Hooper, 70% of American crime is committed by just 6% of its criminals.

Virginia's Arrestee's Experience

On January 1, 2003, the state of Virginia was the first state to collect DNA from people who were arrested for certain violent and sex crimes. This law was passed under the condition that if the person arrested was later found to be innocent or if the charges were dropped, the arrestees' DNA profile would automatically be destroyed and removed from Virginia DNA Database. The arrestee law has proven to be beneficial in catching repeat offenders. Between January 1, 2003 and December 31, 2009, a total of 559 hits to the Arrestee Database have been obtained. Eighty-nine of the hits were associated with sexual assault cases.

The Maryland Study

A study in Maryland, was performed in support of two bills, HB 370 and SB 211, to allow DNA to be taken from arrestees. The study was designed to examine the results of collecting DNA from felons arrested for crimes of violence and burglaries. The Maryland Study assessed the criminal histories of three offenders and found that if DNA samples had been required upon arrest, twenty crimes could have been prevented. These two bills were subsequently passed and as of January 1, 2009 DNA is being taken from arrestees.

The Denver Study

The Denver District Attorney's Office conducted a study that analyzed the criminal activities of five offenders. The analysis demonstrated that previously undetected crimes could have been prevented and/or solved had these offenders provided DNA upon their first arrest. The study concluded that the following crimes could have been prevented if DNA had been taken from just these five arrestees:

On May 21st, 2009, Colorado's Katie's Law, SB 09-241, was signed into law by Governor Ritter. (To learn more about this law please click on State Representative Scott Tipton's website.)

The Chicago Study

In 2005, the city of Chicago, performed a study on the criminal activities of eight repeat offenders over a 12-year period who were identified as being responsible for 60 violent crimes including 53 murders and rapes. By examining their criminal history it was concluded that these crimes could have been prevented if DNA had been treated as "the fingerprint of the 21st century." In each case, the offender had committed unsolved violent crimes that could have been solved immediately through a DNA match. However, the taking of DNA for sex crimes or sexual assaults, at the time of the offense, was not required at arrest and the following preventable crimes occurred:

These eight repeat offenders in Chicago accumulated a total of 21 felony arrests before finally being identified in violent crimes. Only seven of the prior felony arrests were for violent crimes – the remaining two-thirds were for non-violent felonies. However, in May 2009, even after this report was published, the Illinois legislature defeated a bill that would have mandated DNA collection from arrestees.

Washington State – The Serial Rapist Example

On January 17, 2005, legislators introduced two bills (HB 1135 and SB 5165) to allow law enforcement to collect a DNA sample from people arrested for felonies. After hearing testimony against this legislation from the criminal defense bar and the American Civil Liberty Union (ACLU), the Washington State Legislature chose not to pass this public safety measure.

In reaction to this, a study was published, "The Washington State Preventable Crime Study", which focused on the criminal activities of one serial rapist whose crimes could have been prevented had these two bills been passed. During the summer and fall of 2005, a serial rapist named Anthony Casper Dias was able to go on a crime spree before he was identified and arrested. On July 31, 2005, Dias was arrested for felony hit-and-run. No DNA was taken because there was no law that required it. Dias posted bond and was released from custody pending trial. One month later, on August 31, he raped a 19 year-old woman in her bedroom. DNA was collected from this rape, but the perpetrator could not be identified because there was no matching DNA in the DNA database. Dias continued with his crime spree that summer and raped a total of eight women and girls. He was finally arrested on November 8th, 2005, one day after raping two girls, aged 13 and 15, in their home. In September 2008, Dias was convicted of 20 felony counts and was sentenced to 227 years in prison. If authorities had been able to take Dias' DNA after the hit-and-run in July 2005 it is very likely that most if not all of the subsequent rapes would not have occurred.

In February 2009, a new House Bill, HB 1382, was introduced in Washington to take DNA samples from persons arrested for felonies and other serious crimes.

The Indiana Study

In January 2009, a detailed study was published by Jay Siegel, Ph.D., Department Chair, Forensic and Investigative Science Analytical and Forensic Chemistry, IUPUI, and Susan D. Narveson, former Chief of the Investigative and Forensic Sciences Division of NIJ's Office of Science and Technology, now Chief Operating Officer at Strand Analytical Laboratories, entitled "Why Arrestee DNA Legislation can save Indiana Taxpayers over $50 Million per Year."

This study found that collecting DNA from arrestees would significantly reduce the financial burden on taxpayers. It would also make Indiana a "safer society" and more attractive for businesses and people to move there. In January 2009, before adopting the DNA Arrestee law, Senate Bill 24, a Senate Judiciary Committee, listened to a representative from Strand Analytical Laboratories explain that it could "save Indiana almost $20 million a year in law enforcement and judicial costs owing to the number of crimes being prevented, if the law is passed."

According to the study, criminals tend to be repeat offenders and each conviction prevents and average of 7 to 8 future crimes, yielding a potential fiscal benefit of over $13,000 per conviction. By comparing arrestee's DNA to the DNA database of unknown assailants (biological evidence found at crime scenes) a hit may occur. Such a hit can help solve a crime and by doing so also become a crime prevention tool.

According to Kristine Crouch, Indiana CODIS Administrator of the Indiana State Police, when biological crime scene evidence is uploaded to CODIS in search of potential leads, 40% of those searches yield a matching suspect. Increasing the number of "Known Persons" in a DNA database with DNA of arrestees will increase the number of crime-scene evidence matches.

After the Senate Judiciary Committee heard the benefits that it would have from taking the DNA from felony arrestees, Indiana passed Senate Bill 24 (SB 24) and started taking DNA of Arrestees on July 1, 2009. In addition, the committee amended SB 24 to include a provision allowing those arrestees whose cases never result in formal charges or were later dismissed or acquitted, to expunge their DNA from the database.

Cataloguing Criminals Early in Their Career

Recent studies have highlighted the importance of cataloguing criminals early in their career. These studies have found that by taking a DNA sample upon their first arrest can prevent future crimes and therefore save innocent people.

Using burglars as an example, studies have concluded that many criminals tend to be repeat offenders who escalate their offenses and that taking their DNA can prevent future burglaries. For example, between November 2005 and July 2007, funds where provided by the National Institute of Justice to five communities (Los Angeles, Topeka, Denver, Phoenix and California's Orange County) to study the effectiveness of DNA forensics in the investigation of property crimes. The project called The DNA Field Experiment: Cost-Effectiveness Analysis of the Use of DNA in the Investigation of High-Volume Crimes highlighted the importance of testing the DNA profile found at burglary scene because one burglar often commits many burglaries before being caught. A summary of the study can be found at Burglars Go Bust: The DNA Field Experiment.

In November 2005, with NIJ funding, the Denver Burglary Project was started. Two years into the project, nearly 100 prolific burglars were caught and convicted. This happened, in part, because the DNA found at the crime scene was quickly processed and was entered in the DNA database. This project calculated that these prolific burglars committed an average of 240 burglaries a year. As a result of the 100 convictions, the burglary rate in Denver dropped 26%. For more details and statistics on the project see: Effectiveness and Cost Efficiency of DNA Evidence in Volume Crime, Denver Colorado Site Summary.

And in Los Angeles, one burglary suspect was identified who, at age 53, had 35 prior arrests and 23 prior convictions for a wide variety of offenses. DNA from this individual might have helped put an earlier end to his criminal career.

Argument Against Taking DNA From Arrestees

Even with this powerful data in favor of taking DNA from arrestees, civil libertarians and others opponents argue that this is wrong. They generally have two arguments: 1) DNA is more than just identification and its taking starts down a slippery slope; 2) it is a violation of 4th Amendment Rights.

Is DNA More Than Identification?

On January 31, 2008, in front of the Maryland Senate Judiciary Committee, Stephen B. Mercer, a constitutional lawyer, warned during his testimony that, "DNA's genetic markers will soon be decoded for mental illness, sexual preference, substance abuse, and other personality traits, and it is quite likely that the emerging discipline of behavioral genetics will eventually assert the capability to predict, through DNA analysis, the likelihood of future violent or otherwise antisocial conduct."

Mercer's argument suggests an emerging discipline may open DNA markers to potential abuse similar to what we saw in the science fiction movie "Minority Report" where people are arrested before they commit a crime because violent propensities are identified. It is true that analysis of DNA genetic markers can reveal a person's hair color, eye color, genetic ancestry, and illnesses (e.g. HIV, hepatitis B). There has never been a case, however, of an offender's DNA being used to analyze his mental state, sexual preference or any other personal traits. Nevertheless Mr. Mercer's argument should remind lawmakers to take steps to ensure that this data is not abused or used for purposes for which it was never intended.

4th Amendment Concerns

Critics also argue that the taking of DNA from arrestees is in violation of the 4th Amendment. The 4th Amendment of the U.S. Constitution guards against unreasonable searches and seizures. People on both sides of the issues, whether they are civil libertarians or supporters of DNA arrestee laws, have strong opinions about what the 4th Amendment actually protects.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Civil libertarians argue that DNA from arrestees violates their 4th Amendment rights because it constitutes an unreasonable search and seizure. Proponents of DNA arrestee laws focus on the "probable cause" phrase in the Amendment. They claim that an arrestee's DNA can be taken because it is "probable cause" that caused them to be arrested in the first place. In recent years, as more and more states have passed legislation to take DNA of arrestees, some arrestees have challenged these laws on 4th Amendment grounds.

Charles Raines was indicted in Montgomery County, Maryland on charges of first degree rape, second degree rape and robbery. In August 2003, he filed suit. Raines claimed that the taking of his DNA was in violation of his 4th Amendment Rights. On January 29, 2004, the Circuit Court for Montgomery County granted the appellee's motion to suppress physical evidence because it found that the Maryland DNA Collection Act (Md. Code (2003), § 2-501 et. seq., of the Public Safety Article), was in violation of the Fourth Amendment. But on August 26, 2004, the appellate court overturned the lower court and ruled that the DNA Collection Act does not violate the Fourth Amendment. The court's opinion included: "The DNA profile thus serves the purpose of increasing the efficiency and accuracy in identifying individuals within a certain class of convicted criminals. The purpose is akin to that of a fingerprint". State v. Raines 857 A.2d 19, 33 (Md. 2004).

Similarly, on September 14, 2007, the Virginia Supreme Court, ruled in Anderson v. Commonwealth, that an arrestee's DNA sample, "is analogous to the taking of a suspect's fingerprints upon arrest and was not an unlawful search under the Fourth Amendment." Anderson had his DNA taken upon his arrest in 2003 on unrelated charges of rape and sodomy. When his DNA profile was passed through the DNA Database it produced a "cold hit" to a woman that was raped, sodomized, and robbed in 1991.

And on January 20, 2007, the Supreme Court of New Jersey handed down a decision, supporting the taking of DNA of an arrestee in State v. O'Hagen, 914 A.2d 267, 280 (N.J. 2007). In this case the defendant entered a guilty plea in the Superior Court to third-degree possession of a controlled substance (heroin) and his sentence included the requirement of submitting to DNA testing. The defendant challenged this requirement and the challenge made its way to the state's Supreme Court. The Supreme Court held that: (1) New Jersey's DNA Database and Databank Act of 1994 does not violate federal and state constitutional rights to be free from unreasonable searches, and (2) the Act does not violate equal protections under federal and state constitutions.

Should Arrestee's DNA Be Kept?

Another issue that is raised among civil libertarians is if an arrestees' DNA profile does not match any previous unsolved crime and the arrestee is not convicted or the case against him is thrown out, should his DNA be kept in the database? In fact, in some states the DNA sample is automatically destroyed and the DNA profile is removed from the database (e.g. Virginia). Other states handle this differently. For example, the law passed in Colorado permits the collection of DNA at booking, but samples may not be uploaded into the DNA database until there are charges. Also, the law requires the resulting DNA profile to be removed from the database if the person is not charged with a felony, the charges are dismissed, or if the person is found not guilty of the felony charge.

Other states require that the arrestee must petition the court to have their DNA profile destroyed and removed from the database (e.g. California). In some states, the DNA profile of the arrestee, will be catalogued and stored in the DNA Database indefinitely. The assumption being that, that certain arrestees may commit more crimes in the future and they can then be identified faster before more people are victimized.


Taking the DNA of arrestees can protect countless innocent people by catching and convicting criminals early in their criminal careers. In addition, it can save law enforcement and the justice system an enormous amount of money and resources. If thousands of crimes can be avoided by swabbing the cheek of those who are arrested, what is more important – the right of an individual not to give DNA or the right of a society not to be victimized? After all, law enforcement has been taking fingerprints from arrestees for decades. Admittedly, DNA can provide more information than a fingerprint, but if the appropriate protections are in place (i.e. purging the database where arrestees are found innocent or where charges are dismissed) this approach can provide law enforcement and the judicial system with a powerful forensic tool to help protect society.

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