stored CODIS records (i.e., a “re-search” of the database) may not constitute a “search” under the Fourth Amendment, and thus the Court may only be able to police the front door.111
Once included in
the database, the sample may be beyond constitutional reproach. Freed of constitu- tional restrictions such as the exclusionary rule—which itself is premised upon a de- sire to deter police misconduct (in seeming recognition that such misconduct does, in fact, exist)—officers may be willing to en- gage in the very practice that the Court re- fused to appreciate in Martin. Even if the Court accepts the state’s ar- gument that the DNA sample will only be used for identification, it should recognize that DNA sampling is about far more than just identification in the same sense as fin- gerprinting. The purpose of fingerprinting is to identify an individual so as to ensure that the individual in custody is the person law enforcement believes they have. The purpose of DNA sampling, on the other hand, is to obtain a permanent and unique DNA signature of that individual so as to help law enforcement solve past and fu- ture crimes. This may be termed “identifi- cation” in the colloquial sense, and it may even have the added benefit of ensuring that an individual is who they say they are during the pendency of criminal proceed- ings, but it is a far broader and more intru- sive form of identification than that allowed by the mere taking of fingerprints. With a clear-eyed understanding of what this stat- ute permits, the Court can then proceed with an honest analysis of the merits. Par-
ticularly given the potential for misuse of DNA samples, such honesty would be re- freshing.
The question may simply boil down to the limitations on a felony arrestee’s ex- pectation of privacy after arraignment. The case law goes either way—some courts have found a reduced expectation of pri- vacy while others have not.112
Regardless of
which line of cases the Court opts to fol- low, it must recognize that, with respect to the taking of a DNA sample, individu- als who have been charged with a crime are in no different position than the rest of the population. To uphold the statute, the Court would have to explain how a finding of probable cause for one crime allows the state to take DNA profiles for use in the in- vestigation of all other (entirely unrelated) crimes, for which no suspicion exists at all. Absent such an explanation, a decision up- holding the statute would put everyone’s privacy at risk.
Last but not least, the Court’s ruling also has a potential to impact decision-making in Washington. In November, the United States Supreme Court granted the state of Maryland’s petition for a writ of certiorari regarding the constitutionality of a similar state statute. Prior to the granting of cer- tiorari, the Court of Appeals of Maryland found the state’s DNA sampling statute unconstitutional on Fourth Amendment grounds and Chief Justice John Roberts subsequently ordered a stay in implement- ing the result of that Court’s ruling.113
In his
opinion on the application for stay, Chief Justice Roberts explained there is a “rea-
sonable probability” that the United States Supreme Court would grant certiorari and overturn the Maryland Court’s decision.114 Having granted certiorari, with a decision likely this spring, Chief Justice Roberts has already hinted that the United States Su- preme Court would likely find this type of DNA sampling statute constitutional. Ver- mont’s holding has the potential to affect the subsequent Supreme Court decision. But the converse may also be true. When the Supreme Court does reach this ques- tion, its decision may call into doubt any pre-existing Vermont decision to the con- trary. To avoid this result, the Vermont Su- preme Court should stress, as it did in Mar- tin, that the protections of the state con- stitution often exceed those of its federal counterpart. Having done so, the Court would be free then to reach its decision as a matter of state constitutional law, which would be unaltered by any subsequent United States Supreme Court decision. As this history demonstrates, the politics of DNA sampling in Vermont has led to a slow but steady increase in the practice. If the Vermont Supreme Court upholds the current statute, this march will only contin- ue. Vermont has slipped far enough down the slope. Let this be the end. ____________________ David Rangaviz, Esq., is a 2011 graduate of Harvard Law School and a law clerk at the Federal District Court for the District of Vermont. Eric Morgan is a third-year law student at
Vermont Law School. This past summer he worked as a law clerk at Ryan Smith & Car- bine, Ltd., in Rutland and is currently work- ing as a judicial intern at the Federal Dis- trict Court for the District of Vermont.
____________________ 1
We use the term “arrestee” to refer to an in- dividual whose DNA is eligible for collection fol- lowing arrest but prior to conviction. Under the new statute, a judicial finding of probable cause
must precede the taking of the DNA sample. 2
See State v. Gerrow, et. al, No. 391-6-11 Oscr (Vt. Super. Ct. Aug. 20, 2012) (Bent, J.), slip op.; State v. Hartz, et. al, No. 912-8-11 Wrcr (Vt. Super. Ct. June 29, 2012) (Zimmerman, J.), slip op.; State v. Abernathy, et. al., No. 3599-9-11 Cncr (Vt. Super. Ct. June 1, 2012) (Arms, J.), slip op.; State v. Hewitt, et. al, No. 1131-8-Rdcr (Vt. Super. Ct. Mar. 15, 2012) (Corsones, J.), slip op.; State v. Medina, No. 658-10-11 Ancr (Vt. Super.
Ct. Mar. 1, 2012) (Toor, J.), slip op. 3
1796 (1994). 4
See Violent Crime Control and Law Enforce- ment Act of 1994, Pub. L. No. 103-322, 108 Stat.
DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECH-
NOLOGY OF JUSTICE 25-29 (David Lazar ed., 2004). 5
See DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 114 Stat. 2726 (2000); see also United States v. Amerson, 483
F.3d 73, 76 (2d Cir. 2007). 6
7 See id. 114 Stat. at 2726. See Uniting and Strengthening American
by Providing Appropriate Tools Required to In- tercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
26 THE VERMONT BAR JOURNAL • WINTER 2013
www.vtbar.org
A Bridge Too Far: The Upcoming Mandatory DNA Sampling of Arrestees
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