of a profile once notified; and (4) ensuring the profile matches the individual once a “hit” occurs.71


Most importantly for present purposes,


Dr. Schwartz also testified about the poten- tial use for a DNA profile by law enforce- ment. According to Dr. Schwartz’s testimo- ny, these thirteen loci are highly variable and provide only enough information to identify an individual, nothing more.72


As a


consequence, even if a rogue officer decid- ed to misuse the DNA profile, it would be a scientific impossibility. Dr. Gregory Wray, an expert in molecular biology and genetics, professor and Direc- tor of the DNA Sequencing Core Facility at Duke University, disagreed.73


In his testimo-


ny for the defense, Wray explained that the thirteen loci CODIS uses for identity pur- poses hold significantly more information than previously thought.74


Due to advance-


ments in biotechnology, scientists are now better able to assess the information found in these specific loci.75 plained:


In particular, he ex-


CODIS loci … provide a statistical as- sociation linking particular allele to a particular condition. Knowledge about an individual’s CODIS genotype, that is, information from all the CODIS al- leles, would provide some understand- ing about a person’s medical condition or ancestry.76


For example, the thirteen CODIS loci could potentially offer information regard- ing an individual’s predisposition for cer- tain diseases.77


These include susceptibil-


ity to schizophrenia, diabetes, Meckel-Gr- uber Syndrome, Alzheimer’s, and coronary heart disease.78


Information found in these


loci could even reveal “associations with externally visible traits, including skin col- or, hair texture, hair color, and eye color.”79 Dr. Wray, in stark contrast to the testimony of Dr. Schwartz, concluded that the infor- mation that could be extracted from these DNA profiles goes well beyond mere iden- tity.80


Equipped with this evidentiary record,


Judge Alison Arms of the Chittenden Su- perior Court, in State v. Abernathy, et. al, concluded that a special need existed (al- beit a much weaker need than in Martin), but the statute failed the applicable bal- ancing test.81


Judge Arms acknowledged


that both the Medina and Hewitt courts did not have the benefit of an evidentia- ry hearing on the issue.82


In a subsequent


case, the Windsor Superior Court adopted the holding and reasoning of Judge Arms in its decision.83 Lastly, in State v. Gerrow, et. al, the Or- leans Superior Court, having “reviewed the same evidentiary record” that was present- ed in the Chittenden Superior Court, con-


22 THE VERMONT BAR JOURNAL • WINTER 2013


cluded that the scales of the special needs balancing test tipped in favor of the defen- dants’ privacy rights.84


Judge Robert Bent


began his analysis of the issue, as did the Vermont Supreme Court in Martin, by dis- tinguishing Fourth Amendment and Article 11 jurisprudence.85


Judge Bent explained,


“ … [e]ven if the [United States] Supreme Court were to decide warrantless suspi- cionless DNA sampling from persons ar- rested for felonies is permissible under the Fourth Amendment, that decision would not necessarily dictate an identical result under the Vermont Constitution.”86


Based


upon his review of the Chittenden record, Judge Bent similarly found, contrary to the Vermont Supreme Court in Martin, that the information contained in the DNA samples goes beyond identity.87


Therefore, Judge


Bent held “seizure of an individual’s DNA is a qualitatively greater intrusion into that person’s privacy than fingerprinting, pho- tographing, and other commonly-em- ployed identification processes used upon arrest.”88


Because the statute has been held un- constitutional in every challenge to its use, the state has implemented a temporary stay of the procedure, disallowing law en- forcement officials from extracting DNA samples from felony arrestees until the Ver- mont Supreme Court weighs in on the con- stitutionality of the statute this spring.89


An Assessment: The Upcoming Vermont Supreme Court Decision


Because this case is largely similar to the challenge raised in State v. Martin, the state will, no doubt, treat this case as identical to its earlier counterpart and try to fit the amended DNA sampling system into the “special needs” doctrine. So, at the outset, the Court will have to address whether the new system serves any special needs of law enforcement. As argued by the state, these special needs will likely be the same four it identified in Martin: “(1) deterrence of all criminal conduct, (2) accurate identification of perpetrators, (3) exclusion of innocent suspects, and (4) assistance in the identifi- cation of missing persons.”90


In Martin, the


three-justice majority bought the state’s ar- gument.


At this step in the analysis, the state, in its brief, turns the suspicionless nature of the search to its advantage. According to the state, the DNA sample may aid in the identification of a perpetrator of an old crime, but because the sample is not col- lected during the investigation of a specific crime, it is not being obtained in further- ance of normal law enforcement purpos- es.91


specific past crimes must be supported by probable cause, while searches to investi- gate all past crimes fall under the “special


www.vtbar.org


In other words, searches to investigate


A Bridge Too Far: The Upcoming Mandatory DNA Sampling of Arrestees


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