Virginia law provides that persons arrested for certain violent felonies shall have DNA samples taken on their arrest. Va. Code Ann. § 19.2-310.2:1:
Every person arrested for the commission or attempted commission of a violent felony as defined in § 19.2-297.1 or a violation or attempt to commit a violation of § 18.2-31 [capital murder], 18.2-89 [burglary], 18.2-90 [“Entering dwelling house, etc., with intent to commit murder, rape, robbery or arson”], 18.2-91 [same; “with intent to commit larceny, assault and battery or other felony”], or 18.2-92 [same; other misdemeanor], shall have a sample of his saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. After a determination by a magistrate or a grand jury that probable cause exists for the arrest, a sample shall be taken prior to the person’s release from custody. The analysis shall be performed by the Department of Forensic Science or other entity designated by the Department. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the Department in a DNA data bank and shall be made available as provided in § 19.2-310.5. (bracketed material added)
The Virginia Supreme Court, relying on all cases permitting the taking of DNA samples after conviction [indeed, no case has found taking DNA after conviction unconstitutional], and finding the taking of DNA no different than fingerprinting, finds the taking of DNA on arrest to be minimally intrusive and not a violation of the Fourth Amendment. Defendant was linked to a rape occurring in 1991 after his DNA was taken when he was arrested for rape in 2003. Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702 (2007), aff’g 48 Va. App. 704, 718, 634 S.E.2d 372, 379 (2006):
Some state appellate courts have also concluded that DNA samples should be treated like fingerprints. See State v. Raines, 857 A.2d 19, 33 (Md. 2004) (“The purpose [of the DNA profile] is akin to that of a fingerprint. As such, appellee and other incarcerated individuals have little, if any, expectation of privacy in their identity.”); State v. O’Hagen, 914 A.2d 267, 280 (N.J. 2007) (“We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person …. [T]hat intrusion is no more intrusive than the fingerprint procedure and the taking of one’s photograph that a person must already undergo as part of the normal arrest process.”); and State v. Brown, 157 P.3d 301, 303 (Or. Ct. App. 2007) (“Because [using a swab to take a DNA sample from the mucous membrane of an arrestee’s cheek] is akin to the fingerprinting of a person in custody, we conclude that the seizure of defendant’s DNA did not constitute an unreasonable seizure under [the Constitution.]”).
Fingerprinting an arrested suspect has long been considered a part of the routine booking process. Similarly, the taking of a DNA sample by minimally intrusive means “is justified by the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 Wayne R. LaFave, Search and Seizure § 5.3(c), at 168 (4th ed. 2004).
offenses involved in this appeal. He maintains that the taking of saliva was a “suspicionless” seizure[fn2] contrary to the Fourth Amendment and that all evidence flowing from such a search must be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). In support of his argument, Anderson cites City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000), wherein the Supreme Court of the United States held that “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints … stops can only be justified by some quantum of individualized suspicion.”
2. While Anderson refers to the taking of buccal swabs as a “seizure,” it is more appropriately referred to as a “search.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-17 (1989); Cupp v. Murphy, 412 U.S. 291, 295 (1973); Schmerber v. California, 384 U.S. 757, 767-68 (1966). See also United States v. Amerson, 483 F.3d 73, 77 (2nd Cir. 2007).
Further, Anderson relies upon Ferguson v. City of Charleston, 532 U.S. 67 (2001), for the proposition that searches conducted for general law enforcement purposes cannot be excepted from requirements of probable cause. Ferguson involved a cooperative program between hospital authorities and law enforcement officers to gather evidence of pregnant women using illegal drugs. Id. at 69-73. The analysis used by the Court focused upon a line of cases comprising the so-called “special needs doctrine” justifying suspicionless searches in narrowly defined circumstances. The Court, in Ferguson, rejected the argument that the cooperative program between hospital personnel and law enforcement officers met the test of the “special needs doctrine.” Id. at 84.
Anderson’s reliance upon Edmond and Ferguson is misplaced. As previously established, the taking of a DNA sample pursuant to § 19.2-310.2:1 is permissible as a part of routine booking procedures. As such, no “additional finding of individualized suspicion” much less probable cause, must be established before the sample may be obtained. Jones, 962 F.2d at 306.
Comment: Taking of DNA is hard to compare to fingerprinting. But, that was the easiest way for this court to affirm. As the Supreme Court said in Arizona v. Hicks, 480 U.S. 321, 325 (1987), “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” If we look at Skinner v. Railway Labor Executives Assn., 489 U.S. 602 (1989), a BAC test of a railroad worker was a search, but it was reasonable if conducted on suspicion after an accident:
Unlike the blood-testing procedure at issue in Schmerber, the procedures prescribed by the FRA regulations for collecting and testing urine samples do not entail a surgical intrusion into the body. It is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. …
Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.
The Skinner Court held that:
This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also “require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed.” Griffin v. Wisconsin, supra, at 875. The question that remains, then, is whether the Government’s need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.
Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. See New Jersey v. T.L.O., supra, at 340. When the balance of interests precludes insistence on a showing of probable cause, we have usually required “some quantum of individualized suspicion” before concluding that a search is reasonable. See, e. g., United States v. Martinez-Fuerte, 428 U.S., at 560. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. Id., at 561. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here.
Also, Ferguson v. City of Charleston, 532 U.S. 67 (2001), distinguished by the Virginia court, almost compels the opposite result. That court found reliance “misplaced” but then utterly fails, without any convincing language, to say why.
What happens when the cold case is solved based on an arrest and the person is tried on the cold case first? The defendant should get to try the suppression hearing of the current case in the cold case, but it does not really matter to Virginia because the question of probable cause or reasonable suspicion is irrelevant. The accused would have to be acquitted of the current crime to suppress. Even then, I am sure the Virginia court would find a way around that.
Obviously a dangerous precedent.
