An expected final word from the Supreme Court on state criminal justice DNA collection policies will provide long-awaited guidance for states, which have greatly expanded DNA collection policies over the last 10 years, says Stateling. Police officers take arrestee samples using a cheek swab, and the samples are processed and catalogued in a state database and sent to the national DNA database managed by the FBI. As of June 30, Virginia arrestee DNA samples have matched forensic evidence in 755 open cases since the state started collecting arrestee DNA in 2003. Since New Mexico began taking arrestee DNA in 2007, evidence from 200 cold cases has been matched to felony arrestee DNA.
Many share the concerns of the Maryland Court of Appeals that collecting DNA from arrestees violates their Fourth Amendment right to be free from unreasonable search and seizure and deprives them of their presumption of innocence. The National Association of Criminal Defense Lawyers says collecting arrestee DNA “flouts the presumption of innocence, misallocates resources, and greatly expands the potential for discrimination.” Beyond Fourth Amendment concerns, the effectiveness of collecting DNA from arrestees has come into question. Of the 10,666 samples that Maryland took in 2011, only 19 led to an arrest, and only nine of those arrested were convicted. Also controversial are the lack of uniform policies for what happens to a sample if an arrestee is not charged or convicted. Says Sara Katsanis of Duke University's Institute for Genome Sciences and Policy. “Most states have not offered automatic mandatory expungement of DNA samples,” Katsanis says, but rather put the onus on the people arrested to have their DNA removed from the databases. As of September 2011, only eight states automatically expungee a DNA sample if the arrestee was not convicted.