These statistics drive at the heart of the current issue on appeal; significantly more individuals will suffer from exposure to pri- vacy intrusions under the amended statute with no added value for law enforcement. Therefore, as Judge Corsones appropriate- ly found in Hewitt, “[t]he net effect is that the ‘new’ law currently under scrutiny does not result in any additional DNA samples being made available long-term for the da- tabase.”102
Should the Court conclude that the stat- utory amendment serves a “special need” of law enforcement, there are still many differences between this case and Mar- tin for the purposes of the application of the relevant balancing test. For example, the Court must consider the heightened privacy interests of those who have only been charged with a crime. An important distinction exists, for the purposes of pri- vacy expectations, between being for- mally convicted and being arrested.103
Al-
though post-arraignment a finding of prob- able cause has been made, that finding is entirely divorced from the actual search it purportedly supports: arraignment merely means that probable cause exists that the defendant committed the crime with which he or she has been charged, not to sample his or her DNA. The search remains entire- ly suspicionless. If the presumption of in- nocence is to mean anything, it should not only mean that an individual is not guilty of the crime charged (for which probable cause has been found), but also that he or she is innocent of any other crime (for which no degree of suspicion exists at all). Any limitations on privacy of an arrestee, as Judge Corsones accurately described, “are based on ensuring the defendant’s appear- ance at future court hearings and protect- ing the public, and are not based on giving tissue samples to help police solve future, as of yet, uncommitted crimes.”104
Proba-
ble cause to support a charge is different than probable cause to support a search. The former is a poor substitute for the lat- ter.
Beyond the profiling in CODIS, the Court should also recognize the truly intrusive na- ture of a buccal swab. In a recent Supreme Court decision, United States v. Jones, the Court signaled a turn toward a trespass theory of Fourth Amendment law.105
Given
this, the trespassory nature of the search involved, while minimal, should be regard- ed as an important consideration. Note also that, in the statute, the baseline is not a buccal swab, but rather the practice of “withdrawing blood.”106
The statute speci-
fies that blood withdrawal should be used “unless the department determines that a less intrusive means to obtain a scientifi- cally reliable sample is available, in which event such less intrusive means shall be used.”107
Much of the foregoing discussion 24 THE VERMONT BAR JOURNAL • WINTER 2013
has proceeded under the assumption, as the Court did in Martin, that the state will use buccal swabs, but the statute does not require this procedure be used. Particular- ly in light of the suspicionless nature of the search, the Court should recognize that a physical trespass upon the body is a partic- ularly intrusive Fourth Amendment search. With respect to the extent of the priva- cy intrusion, the difference in the record evidence, as compared with Martin, also bears mention. In Martin, the Court de- clined to consider an article cited in dissent that, by the dissent’s description, indicat- ed that “there is strong scientific evidence to suggest that the profiles may carry infor- mation about individuals’ genetic predis- position to certain diseases.”108
Here, the
record includes Dr. Wray’s testimony on the same subject, which allows the Court to consider the extent of information in- cluded in each of the CODIS loci, and the impact of this information on the privacy in- terests at stake. With this evidentiary issue resolved, the justices in the Martin majority may be swayed by the argument previously raised only in dissent by Justice Johnson, who concluded “DNA profiling involves a significantly greater intrusion of privacy than fingerprinting and other methods of criminal detection and identification.”109 The Court should reject the analogy to fingerprinting that the state urges it to adopt, as it did in Martin. Fingerprinting can only be used for identification; it has no other purpose. Based upon the testimo- ny of Dr. Wray, we already know that the thirteen CODIS loci for which a DNA sam- ple is obtained can be used for much more. The steady march of scientific progress al- most guarantees that additional uses for these loci will be identified in the future. Of course, were fingerprinting and DNA sam- pling truly interchangeable, there would be no need to take a sample at all—the fingerprint alone would suffice. In her or- der, Judge Toor correctly recognized this flaw in the state’s argument: “[t]he state offers no reason why both fingerprinting and DNA testing are needed for identifica- tion purposes at the time of arraignment. To the extent that the goal is for identifica- tion … fingerprints [already] serve that pur- pose.”110
While DNA is (as far as we know) immutable, the state may certainly move for a DNA sample when it has particular- ized suspicion that a person has altered their appearance or fingerprints. But this should not be a first resort.
The Court must not turn a blind eye to-
ward such concerns by simply assuming that state officials will follow the law, or that post hoc remedies will provide suffi- cient protection. While one hopes that this would be the case, hope does not provide constitutional protection. This is especial- ly important here because accessing the
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A Bridge Too Far: The Upcoming Mandatory DNA Sampling of Arrestees
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