Florida Governor Charlie Crist has signed a new bill into law (SB 2276) requiring people "arrested" for felony offenses to provide a DNA samples to be placed into a statewide database. Prior to this enactment, only those citizens "convicted" of specific felony offense were required to provide DNA. Just so you know, the State keeps the DNA in a database to be used, possible against you, in future crimes. Or to be used in unsolved crimes.
Think this is an intrusion on your privacy? Wondering what happened to "innocent until proven guilty"? Me too. Apparently, if you are found innocent, AFTER YOU ARE ARRESTED, you can go through a petition process to have your DNA removed. Sound counter - American?
The real problem however is a legal one. In 1966 the U.S. Supreme Court decided the case of Schmerber v. California, 384 U.S. 787 (1966). This case essentially discussed whether it was an unlawful violation of an arrested citizen's 4th Amendment rights to be free from unreasonable search and seizure, if a police officer took a blood sample from them after a DUI accident. A major factor the Supreme Court considered was the fact that during the time it would take to obtain a warrant to get the blood, evidence would be destroyed (i.e. the alcohol level in the blood after the accident). However, the Supreme Court also noted that searches after arrest, though reasonable for weapons and officer safety, have little applicability to searches "involving intrusions beyond the body's surface". Think about the recent US Supreme Court case where they said searching a girl's underwear at school was an unnecessary intrusion.
The major issue here is this: when a citizen has simply been "arrested", should they legally lose the same rights that a "convicted" person has lost? In L.S. v. State, (Fla. App. 2001), the First District Court of Appeals concluded that it was not unreasonable to demand a DNA sample from a convicted felon. Two major points of rationale were that the search was minimally intrusive to a person who has a lesser expectation of privacy since they are a convicted felon, and, that from a 14th Amendment Equal Protection perspective, a convict has a lesser expectation of privacy, therefore, a rational basis test (as opposed to strict scrutiny) is appropriate. (i.e., does the law bear a rational relationship to the State's legitimate interest in collecting the sample for law enforcement's future needs). (For a more in depth answer to what the heck the "rational basis test" or the "strict scrutiny" standards are, call me or go to law school. I happen to be one of the few who loves Constitutional Law)
Arrested citizens should be innocent until proven guilty. They have the right to be free from unreasonable searches and seizures under the 4th Amendment, especially if the crime they are being investigated for bears no relationship to the police officer's need for a DNA sample to solve the current crime. My suggestion? Call your representatives and VOTE - or for those of you who no longer have that right - call us and we'll tell you how to get your civil rights reinstated.
