A "lengthy, uncertain, and expensive process": a comparison of types of expungement from DNA databases of arrestees.
I. INTRODUCTION II. HISTORY & LEGALITY OF DNA COLLECTION UPON ARREST A. Arguments for and Against Collection upon Arrest B. Fourth Amendment ChallengesC III. TYPES OF EXPUNGEMENT PROCESSES IN VARIOUS STATES A. Expungement Through Application B. Automatic Expungement IV. ISSUES A. Indefinite Retention B. Unable to Expunge from Certain Databases C. Familial DNA Searching D. How to Know to Expunge V. CONCLUSION
Currently every state in the United States, as well as the Federal Bureau of Investigation, collects DNA data from persons convicted of enumerated crimes. (1) The success of DNA databases in helping to convict and prosecute the guilty and exonerate the innocent has rendered the collection of DNA among those convicted of crimes uncontroversial. (2) Building on that success, many states have passed, or are considering, laws that will collect DNA from arrestees before any conviction is obtained. (3) Currently, the total number of states that employ some version of this law is twenty-eight. (4) Proponents of DNA collection upon arrest believe the collection is beneficial to prevention of future crimes. (5) This attitude is expressed by the idea that if the arrestee has not actually committed a crime there is no reason for him or her to be hesitant about giving his or her DNA. (6) The benefits purportedly go beyond safety and include a fiscal aspect. A study shows that by expanding databases by including arrestees, Indiana can save nearly $50 million a year. (7)
While there are undoubtedly positive aspects to the legislation, there is also a growing movement that opposes the legislation. A fear exists that arrests will be made under questionable or illegal circumstances. (8) This would allow police to put an individual's DNA in the database when the individual has not been found guilty of the charges related to what could be a false arrest. (9) Additionally, it seems that there is a correlation between the disproportionate number of arrests that do not end in conviction and arrests of minorities. (10) There also exists concern in regards to privacy when using the process of familial DNA matching to catch criminals. (11) Furthermore, opponents express wariness of individual privacy when it comes to keeping someone's genetic material in a database. (12)
With concerns about privacy in the minds of the public, courts throughout the country have already considered whether or not DNA collection upon arrest violates the Fourth Amendment. (13) Despite courts overwhelmingly holding that DNA collection upon arrest is constitutional, there remains some concern about the process. (14)
States with statutes that allow or require the collection of DNA upon arrest have provisions for expungement of the DNA information from the database in cases where the person is not convicted, or the charges are dropped. (15) Expungement processes differ from state to state, but generally fall into two categories: upon request or automatically. (16) Though every state currently enacting a law relating to arrestee DNA collection has an expungement process outlined, the process is often ambiguous and difficult for the average person to navigate.
The United Kingdom has been practicing collection of DNA upon arrest since 2004. (17) Recently, the profiles of those considered "innocent" (those who were never charged nor convicted) were ordered to be deleted from the database. (18) Instead, the government decided to make the profiles "anonymous" rather than delete them entirely. (19) Not deleting the profiles would be a direct contradiction of a decision by the European Court of Human Rights. (20)
The European Court of Human Rights ruled in 2008, that the database violated Article Eight of the Human Rights Convention that allows respect for private and family life. (21) The Court of Human Rights was especially concerned because the DNA of arrestees who were found to be innocent had never been expunged, leaving innocent profiles forever in the database. (22) In an interview with the developer of DNA fingerprinting, Alec Jeffreys, Jeffreys expressed approval of the Court of Human Rights decision, noting that the database should not contain the data of innocent people as it is an invasion of privacy. (23) In response to the Court of Human Rights, the United Kingdom decided to eliminate profiles of unconvicted persons after a period of six years. (24)
DNA collected upon arrest has only been utilized in the U.K. database for less than ten years and it has already been subject to a massive expungement attempt. If the United States does not adopt a consistent policy of expungement, it may find itself in a similar situation in the future. It would benefit both innocent citizens and law enforcement agencies to create a cohesive policy that expunges in a consistent and effective way.
This note seeks to explore the process of DNA expungement for arrestees and determine what type of expungment process works best for balancing the rights of the individual with the public concern for safety. Part II of this note will analyze the history and legality of DNA collection upon arrest. Part III will explain the various processes used in different states to expunge DNA from their databases. Part IV will address some of the issues that arise from the retention of "innocent" DNA profiles within a database. The note will conclude by suggesting that the best policy to be employed by states and national agencies is one of automatic expungement for people who are never charged or convicted of a crime.
II. HISTORY & LEGALITY OF DNA COLLECTION UPON ARREST
A. ARGUMENTS FOR AND AGAINST COLLECTION UPON ARREST
Both proponents and opponents of DNA collection upon arrest have vigorous arguments. Proponents tend to argue for the safety of the populous and for the ability to prevent serious crimes from occurring. (25) Opponents generally point to an inherent right of privacy that would be violated by DNA collection of the innocent. (26)
In an effort to gamer support for the cause, proponents claim that DNA databases made upon arrest collections will allow law enforcement agencies to: stop violent crimes before they happen, identify and apprehend repeat offenders, reveal who is truly innocent, and lower costs associated with law enforcement. (27) All these objectives can be accomplished by a "simple cheek swab." (28)
The benefit of crime prevention in exchange for the simple cheek swab is bolstered by frightening statistics presented by proponents. For example, the City of Chicago compiled statistics on crime prevention that could be accomplished by collecting DNA upon arrest. (29) By using a sample size of eight individuals, the study determined that if their DNA had been collected upon arrest it would have prevented 60 crimes, 53 of those being violent crimes. (30) A similar study conducted by the Denver District Attorney's Office, using a sample size of five individuals, concluded that 52 violent crimes could have been prevented if DNA had been collected upon arrest. (31)
In addition to preventing crime, proponents advocate DNA collection upon arrest by pointing to its ability to save money. The assumption is that if DNA from arrest databases are made available to investigators, law enforcement agencies will have an easier time solving crimes and therefore require less man hours utilizing less misplaced costs to solve a crime. (32) If these resources were redirected, it would be easier to solve other crimes thereby accomplishing both money saving and crime prevention goals at the same time. (33) In Indiana it is estimated that it costs over $1.5 billion a year to run law enforcement agencies; one study states that nearly $50 million a year could be saved simply by expanding the known DNA database to include people who are arrested. (34)
Despite the potential benefits and claims of crime prevention, opponents are not persuaded that DNA upon arrest lives up to its claims. Among the concerns is the possibility of arrests made without just cause, particularly minorities. (35) There exists a fear that if the databases are not constricted to just violent crime there will be a disproportionate amount of people of color who are included, mostly for drug crimes occurring in populated urban areas, creating a disproportionate database despite the facially racial neutrality of the law. (36) This becomes particularly relevant when talking about expungement as most of the expungement laws include some kind of waiting period and would likely require the help of a lawyer, something the urban poor are less likely to be able to access. (37)
Perhaps one of the most articulated concerns is that inclusion of arrestees in the DNA database could give rise to "the potential for abuse of genetic information stored in databases." (38) Some people are uneasy due the apprehensions that the DNA in the database contains information related to a person's genetic makeup, health conditions, and information about one's family. (39) These concerns about genetic privacy have given rise to court cases that challenge the taking of DNA upon arrest on the basis of the Fourth Amendment.
B. FOURTH AMENDMENT CHALLENGES
The most common challenge to the collection of DNA upon arrest is under the Fourth Amendment. The Fourth Amendment states that there is:
[A] right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized. (40)
The country is currently split on how to interpret the privacy rights of individuals who are forced to give DNA samples upon arrest. In Anderson v. Commonwealth, the Supreme Court of Virginia found that while taking DNA upon arrest is more revealing than fingerprinting, it is still part of the routine booking process. (41) Because fingerprinting has long been considered part of the booking process, the court determined that taking DNA upon arrest is similarly minimally intrusive but can be justified by a legitimate government interest. (42) Because the taking of DNA and the taking of fingerprints were deemed analogous, the court held that there was no violation of the Fourth Amendment. (43)
In United States v. Pool, the Ninth Circuit came to a similar conclusion; though the decision was eventually vacated because the defendant pled guilty (thereby rendering the appeal moot), it nonetheless provided important information on how the Ninth Circuit views the controversy. (44) The court determined that the proper way to look at whether DNA collection upon arrest violated the Fourth Amendment was with a totality of the circumstances test. (45) In order to determine whether the action was acceptable, a Fourth Amendment approach that "examin[es] the totality of the circumstances to determine whether a search is reasonable" is used. (46) When using the test, the court has to carefully balance the intrusion upon the individual with the government's interest. (47) The court considered but rejected Pool's concerns regarding possible abuse of DNA in the database. (48) The court instead found that the government's interests in a less disguisable identifier than fingerprints, as well as the prevention of crimes, are particularly compelling.49 Because identification is the primary purpose of the DNA collection, and the government interests are so strong, the court determined that individual privacy concerns are not as great as the state's interest. (50)
In contrast, the Court of Appeals of Minnesota came to a very different conclusion regarding privacy in relation to government interest. The court, in In re Welfare of C.T.L., first stated that probable cause for arrest is not enough to warrant taking biological specimens. (51) The court also made a distinction between cases where DNA was collected from those already convicted, stating that those already convicted have a lesser expectation of privacy than people who have simply been arrested. (52) Because the person who is arrested is "presumed innocent until proven guilty," the court did not see a reason to lower an arrestee's expectation of privacy. (53) Since their expectation of privacy is not lowered, the court did not find that the state's interests outweighed the privacy interests of the individual. (54)
Though the different courts have voiced opposing views on the laws, the fact remains that a substantial number of states employ some version of DNA collection upon arrest. For those who have the misfortune of being arrested and having their DNA collected, but are innocent of the crime, there is still the failsafe of expungement. One's ability to have their DNA expunged from the database is at the mercy of the state in which he or she was arrested and its version of the expungement processes.
III. TYPES OF EXPUNGEMENT PROCESSES IN VARIOUS STATES
The expungement of DNA collected upon arrest from databases generally falls into two categories: (1) expungement through court orders or an application process or (2) automatic expungement when the individual is acquitted or not charged. (55)
A. EXPUNGEMENT THROUGH APPLICATION
States that collect DNA upon arrest and later have a process to expunge the DNA through an application process, take on the risk of making it difficult for the arrestee, who is later acquitted or whose charges are dropped, to fully understand what will happen to their DNA within the system. The statutory provisions used to expunge DNA can be difficult to decipher, particularly for a novice in the law. Below, using California as an example, the process for expungement where individuals must apply is examined.
California's Bureau of Forensic Services lauds the laws that allow for arrestees' DNA to be collected upon arrest for any felony, stating that "[expanding the DNA Database is an essential crime fighting tool." (56) California's Proposition 69 was passed by voters in November 2004, allowing DNA to be collected from arrestees when they committed an enumerated offense starting in 2009. (57) California was subjected to the typical arguments from both sides. Proponents praised its potential to solve cold cases as well as future crimes, while opponents expressed concern about privacy issues and the incredible expenses it would take to complete and sustain such a database. (58) From the inception of the program until June 30, 2012, California reported 2,017,964 samples of DNA collected and logged into the database created by Proposition 69.59 With such staggering numbers, the process for expungement becomes vitally important.
In order to start the expungement process, California has arrestees file a form along with supporting documentation such as copies of court dockets or a letter from the district attorney. (60) While likely less of a hassle than some other methods, such as one requiring obtainment of a court order, this still provides an impediment to those who have little knowledge of the legal system and the methods and manner in which to expunge DNA from a database. (61)
In order to have their DNA expunged, an applicant has to send a copy of the form to the trial court of the county where the offense occurred, the DNA laboratory, and the prosecuting attorney, as well as provide proof of service to all those people. (62) The court then has discretion over whether or not to grant the request. If denied, the decision is unappealable. (63)
In order to actually destroy the specimen, the applicant is required to show the following: (1) the written request of expungement; (2) either a certified copy of the court order that dismisses the case or a letter from the district attorney stating that no charges were filed or pursued; (3) proof of notice to the Department of Justice and district attorney that there has been a request for expungement; and (4) a court order stating there is no retrial or appeal and that it has been 180 days or more since the applicant notified the prosecuting attorney and the Department of Justice of the expungement request and no objection to that request has been given by the prosecuting attorney. (64)
While this may seem like a simple process, there are extra steps not clearly enumerated in the statute. The role of the prosecutor in determining whether or not DNA is expunged is larger than what one might expect. It is the prosecutor who, upon receipt of the petitioner's letter, is the one that determines the eligibility of the petitioner. (65) While the prosecutor is supposed to rely on the petitioner's criminal history in making the decision, (66) this leaves an extraordinary amount of discretion to the prosecutor, without any real check by the court system to ensure that the prosecutor has properly relied on the criminal record and not his own prejudices toward the applicant. The court receives the letter from the prosecutor and if there is an objection to the denial of expungement, there is a hearing where the applicant bears the burden to prove that there should be expungement, rather than the prosecution having the burden to prove that there should not be one. (67)
At the point when all factors have been proven, it becomes the responsibility of the DNA laboratory to destroy the sample as well as any searchable profile that has been entered into the database. (68) There are still several ways, however, that the laboratory can refrain from destroying samples, including: if the person is subject to the database from a past qualifying offense, is obligated to submit a sample on a new or pending matter, or the destruction of that sample would also lead to the destruction of another sample that is evidence. (69) Additionally, "any identification, warrant, probable cause to arrest, or arrest based upon a data bank or database match is not invalidated due to failure to expunge or a delay in expunging records." (70) When the laboratory expunges the profiles, the applicant receives a notice confirming that the process is completed. (71)
California attempts to ameliorate the process of expungement by providing that defense counsel, including the Office of the Public Defender, is obligated to inform the defendant of their right to expungement. (72) While this seems an admirable attempt, it leaves out a significant portion of people that are arrested who do not ask for, or have, representation. If it is the defense attorney's obligation to tell the defendant about the expungement process and not the responsibility of the prosecution, it begs the question of what happens to those people who do not need attorneys or who are not represented by an attorney. How are they to find out about the provisions for expungement?
California is simply one example of the states that make arrestees actively campaign to remove their DNA from state created databases. The majority of states that collect DNA from arrested individuals employ this type of system. (73) Although this method of expungement is the most typical, it does not make it the superior method.
B. AUTOMATIC EXPUNGEMENT
While the majority of states use a system that requires an application process to expunge DNA from a database, a minority number of states employ a method that allows for "automatic" expungement, (74) or expungement that does not place the burden on the arrestee to prove their DNA should be removed from the system. Maryland provides an example of this automatic expungement system. (75)
Like California, Maryland recently passed new laws relating to DNA collection upon arrest. The bill was passed in 2008, expanding DNA collection to those who were arrested for a violent crime. (76) In order to pass the bill, the legislature had some tumultuous sessions. Led by the Legislative Black Caucus and the American Civil Liberties Union, concerns were raised about expungement. (77) The Caucus' main problem was that the original bill only called for the arrestee to be informed of their right to expungement; the Caucus sought automatic expungement. (78) The bill was a priority of Governor Martin O'Malley, who compromised with the Caucus to get the bill passed. (79) O'Malley touted the new law at a speech to law students, stating "it includes what we believe are some of the most significant privacy safeguards of any statute adopted in the country. DNA is not analyzed until after the first scheduled arraignment date and samples are automatically expunged from all databases upon acquittal or dismissal of charges." (80) The Governor's belief in the law seems to be vindicated by statistics provided by the Governor's Office of Crime Control and Prevention. Since the law went into effect on January 1, 2009 through the end of 2011, the Agency reported that there were 175 hits for charged offenders, resulting in 67 arrests. (81)
As enacted, the Maryland law provides that someone who is charged with crimes of violence, felony burglary, or any such attempt of these crimes, has committed a qualifying offense to have DNA samples taken. (82) Maryland's qualifying offenses include lesser crimes than California's more stringent list for what can be considered for a qualifying offense. (83)
Maryland's more liberal sensibilities toward DNA collected upon arrest are reflected not only in the smaller number of qualifying offenses but also in the automatic expungement policy the state implements. The statutory language provides the sample should be "destroyed or expunged automatically." (84) A person can qualify for expungement in three circumstances: if they are not convicted on the criminal charge, if the conviction is reversed, or if they are granted an unconditional pardon. (85) If the case is eligible for automatic expungement, the sample will be destroyed and the record expunged from all databases, including federal, state, and local. (86) Additionally, the sample must be purged within sixty days of any of the circumstances that qualify for expungement and a written notice must be sent to the arrestee whose DNA is being expunged. (87) Lastly, the statute makes it clear that the sample, if matched during or after the date that it is eligible for expungement, cannot be used for probable cause or in any proceedings. (88) These protections instituted by Maryland balance the intrusion placed on arrestees in having their DNA taken before they are convicted of any crime.
While the protections are enumerated in the statute, there remains the practicality of actually expunging the DNA from the database. The Department of Public Safety & Correctional Services' website reiterates for an arrestee that "MSP-FSD [Maryland State Police Forensics Services Division] will handle all expungement procedures for samples that qualify for automatic expungement." (89) But the question of what is meant by "automatic" expungement and how exactly it works remains. The Maryland State Police Forensics Sciences Division explains that the automatic expungement process includes tracking individuals through the court system to make sure their DNA is expunged at the appropriate time. (90)
Though Maryland's system takes away an element of "control" (91) when it comes to expunging one's record, the system provides a simpler means for expungement. Concerns over the average citizen's ability to navigate the legal system in order to have their DNA expunged are solved by making it so that the average person never has to worry about applying for expungement. In the case of Maryland, the state has balanced the concerns of fighting crime and victims' rights by attempting to ensure that those who are arrested do not have their DNA permanently retained in a database when they have presumably done nothing wrong. While this strategy is employed by a minority of states, it stands to reason that this system, which allows the states to further their interest in safeguarding their citizens through crime prevention while also allowing them to safeguard their citizens' rights in regards to DNA collection upon arrest is ideal.
The issues that arise from the different types of expungement are numerous. While both automatic and court order expungements have their problems; the majority of issues that arise are in regards to application expungement and not automatic expungement. In one example of both the futility and irony of expungement laws, a Pennsylvania public defender spent weeks trying to expunge a DNA profile that was collected upon arrest. (92) The client was a fourteen-year-old boy guilty of bike theft and assault whose DNA had been erroneously taken. (93) Stories such as this add to the public's confusion and fear. However, this is not the only kind problem that can arise.
A. INDEFINITE RETENTION
There are communities which oppose DNA database collection due to concerns of indefinite retention. (94) With indefinite retention comes a danger of "increase[d] ... risk of misuse or uninformed use of stored samples." (95) Recently, the Third Circuit declined to address the issues of expungement and DNA retention in United States v. Mitchell (96) Defendant Mitchell was charged with possession and intent to distribute cocaine; the government sought a sample of DNA before he was convicted of the crime. (97) Mitchell objected to the taking of the sample under the principles of the Fourth Amendment. (98)
The court, taking into account the opinion of other circuits, decided that the possibility of future risk related to the taking of DNA samples is not applicable when deciding the constitutionality of taking DNA samples. (99) Additionally, the defendant also raised a concern over the indefinite retention of DNA since there is no provision for what to do with the DNA when the subject is no longer in custody. (100) The court stated that there is a process for expungement where, upon court order, the sample must be removed from the database. (101) It also sidestepped the issue, however, by pointing out that the defendant was currently detained, had yet to have his sample taken, and was therefore not able to challenge its retention because he had not had the opportunity to ask for its expungement. (102) Ignoring the defendant's concerns, the court decided to "leave for another day the question of whether an individual may challenge the Government's retention of his DNA sample or profile." (103)
The dissent, however, had grave concerns about the implications of DNA collection upon arrest. Judge Rendell opined:
[I]f a person is arrested for a federal crime in a case of mistaken identity (an all-too-common occurrence), the Government has the automatic right to sample the arrestee's DNA, to analyze it, and to include a profile derived from the DNA sample in [the Combined DNA Index System ("CODIS")]. Under the majority's holding, the arrestee has no way to protest or to prevent the Government from taking his DNA; his only recourse is to wait and later provide the Government with a "certified copy of a final court order establishing that" the charges against him have "been dismissed or [have] resulted in acquittal," or that "no charge was filed in the applicable time period." Even then, although his DNA profile will be expunged from CODIS the Government will retain his DNA sample indefinitely. (104)
Judge Rendell, though focusing on the 4th Amendment and privacy issues, distinguished between those who are convicted and those who are simply arrested. (105) Even when a person is arrested in a case of mistaken identity, that person's DNA is now in the system; instead of waiting for conviction to prove that it was really the actor who committed the crime, a person's DNA is now indefinitely, or at least until they request its removal, in the system. (106)
In Smith v. State, the Indiana Supreme Court addressed the retention of DNA that was later used to implicate Smith in another crime. (107) Smith, after having his DNA collected in relation to a rape charge, was later acquitted by a jury. (108) Smith's DNA sample was then compared, after his acquittal, to unsolved cases where a match was found. (109)
The court determined that, even though the DNA was biological material taken from Smith, once it was taken, Smith no longer retained a possessory interest in it and it now rightfully belonged to the crime lab. (110) Additionally, the court also determined that the crime lab was allowed to then compare Smith's DNA with DNA related to prior unsolved crimes. (111) Smith relied on an Indiana statute (112) to claim that his information should have been expunged from the database when he was not convicted, as he did not fit into one of the listed categories. (113) However, the court questioned whether or not the crime lab that took the DNA was subject to the statute. (114) The court placed great concern on the societal value of having the ability to solve crimes effectively. (115) Though the court placed an emphasis on societal value, it neglected to see the societal issue regarding expungement. There is an inherent unfairness in allowing for expungement by statute for when DNA is taken, but limiting it if the crime lab does not fit within the statute. It makes it difficult for those exonerated or acquitted to prove their innocence and continue living their lives without constant fear of being implicated in another crime.
In one case, a defendant who wanted to have his DNA expunged, was forced to attempt an argument based on due process because of the lack of statutory authority allowing for expungement. (116) The defendant had been convicted of rape in 1987 and while incarcerated in 1994, had his DNA taken and stored in a databank. (117) In 1996, the defendant's conviction was overturned; however he was later convicted, based on his stored DNA of rape and burglary. (118)
The defendant argued that his DNA should have been expunged from the database and therefore unavailable for use when police were investigating the second set of crimes. (119) The court noted that there were two ways to get DNA expunged, by court order or by request application. (120) The defendant's problem was that the law governing expungement was not passed until 1998, four years after his DNA was taken in 1994. (121) Since his DNA was taken and he was arrested before the law was enacted, the defendant was unable to apply the expungement portion of the statute to his DNA profile. (122) Though the defendant attempted to use an argument that claimed a violation of due process rights, the court noted that the expungement law was passed four years after the DNA was taken and therefore did not violate any constitutional rights. (123) The court further stated that a constitutional violation cannot occur retroactively. (124)
This case illustrates one of the problems that occur without automatic expungement. If there is no statute in place to allow for expungement, the defendant therefore cannot apply for it, causing their DNA to stay in the system almost indefinitely. This indefinite retention, brought on by poor legislative statute drafting, endangers a person's ability to have their genetic information removed from a government system despite a lack of reason for its presence within the system.
B. UNABLE TO EXPUNGE FROM CERTAIN DATABASES
The potential for indefinite retention in Smith also highlights another problem at issue in several other cases: what happens when someone attempts to expunge their DNA from a database, but the expungement process does not apply to the database their DNA is in? This problem further complicates an already confusing process for applicants.
People v. Midgley presents an application of what happens when the expungement process does not apply to all databases. (125) After a woman claimed to have been raped, (126) specimens of DNA were tested and a match was located in the Office of the Chief Medical Examiner leading to the arrest of defendant Midgley. (127) The defendant's DNA was in the database because of a sample he had provided in connection with an earlier rape charge which he had been acquitted of. (128)
The defendant argued that the previous DNA profile should not have been used as identification because it should have been "sealed, destroyed and expunged" following his acquittal. (129) The court however found the situation to be analogous to when a photograph from a previous investigation is given over for the purpose of identification in another case. (130) New York has a provision to expunge DNA from the state database for nonprosecution, acquittal, or an overturned conviction. (131) Here, however, the court found the provisions of the statute did not apply because the statute governs the state database, not the medical examiner's database where the defendant's DNA was stored. (132) This is problematic; even if the defendant had pursued expungement, the statute would not have applied to the actual database within which his information had been stored. Effectively undercutting the protections offered to acquittees by the New York expungement provision.
In United States v. Davis, the District Court of Maryland examined a similar issue. (133) As part of an investigation into a shooting, police took Davis' clothing as he was in the hospital claiming to be a victim. (134) During a later homicide investigation, officers were asked if they still had the samples of Davis' clothing to test for DNA against unknown DNA in a current homicide. (135) Officers complied, made a DNA profile and it was found that the profile did not match the one in the current murder case. (136) Later however, in another murder investigation when DNA was run in CODIS, Davis' DNA profile, which had been created earlier for a separate investigation, was deemed to be a match. (137) The defendant sought to suppress the evidence based on Fourth Amendment violations. (138)
The court starts with analysis of whether or not Davis retained any interest in his clothing, eventually concluding that he still had a possessory interest in the clothing which had been taken by officers and later tested for his DNA. (139) However, the court also concluded that under the totality of the circumstances, taking into account the investigation into the shooting, that there was no Fourth Amendment violation in the taking of the clothing. (140)
The court declared the extraction of the DNA from the clothing and its subsequent testing to constitute a search and seizure under the Fourth Amendment. (141) The court afforded Davis privacy rights for the period when his clothing was taken because it was taken while he was a victim rather than a suspect in an investigation. (142) The government attempted to counter by arguing that Davis had abandoned his clothing when he did not pick it up at the station. (143) The Court was hesitant to accept such an argument, fearing that it would apply to any property located within a police station. (144) The court also found it difficult to apply abandonment principles to DNA samples because there needs to be a voluntary act of abandonment, which was not present in the case. (145)
Despite these problems the court indicated that it would still apply the totality of the circumstances test to determine whether or not there had been a violation of Davis' rights. (146) In balancing the interests, the court erred on the side of caution and recommended that it would be beneficial to obtain a warrant before performing any DNA testing on victims turned suspects. (147) While the court was wary of the manner in which the DNA was obtained, it still found the government's interests to be more compelling and the individual's privacy interest. (148)
The court also addressed concerns about the potential for indefinite retention of DNA samples within the local database. (149) Related to this is the process of expungement. Davis claimed that his DNA should be excluded based on Maryland expungement statutes that disallow databases from keeping DNA of those who are never convicted or have had charges dropped. (150) Because the DNA was taken when Davis was considered a victim, it is technically not covered by the statute. (151) Despite this, the court expressed concern for the fact that the statute was clearly intended to protect the privacy of ordinary citizens, which includes those who have not been arrested but have nonetheless had their DNA saved within a database anyway. (152) Therefore, while the court expressed concern about the privacy interest of the individual, it ruled that the interests did not outweigh the governmental interests nor were the violations of the Fourth Amendment so flagrant as to warrant suppression of the evidence. (153)
C. Familial DNA Searching
Very recently the issue of familial DNA searching has entered the public conscious through a high profile case in California. A serial killer, labeled the "Grim Sleeper," was caught when DNA database searches found a DNA profile of a man convicted of a weapons charge that closely matched the murderer's DNA; the two men were relatives. (154) Supporters praised the ability of familial DNA searches to aid in crime prevention, with one proponent claiming that the process could "reduce 300 stranger rapes per day, among other advantages." (155) Opponents however, take issue with an unregulated police process. (156)
Other concerns primarily focus on innocent relatives possibly becoming involved in the search for accused relatives. (157) Through potential false positives, there is also the possibility that certain relatives will be continuously harassed in investigations. (158)
Courts have yet to explore the constitutionality of familial DNA matching. (159) Currently only California, Colorado, and Virginia allow familial DNA matching, with Pennsylvania considering employing it. (160) While familial matching is currently supposed to be used as a last resort, there is trepidation that it may become the go to method for law enforcement officers. (161)
As states across the country begin to emulate those already using familial searches, it becomes increasingly important to examine the expungement process. For those states that do not automatically expunge arrestee DNA from their databases, it is more likely that innocent family members may be harassed. Along with indefinite retention concerns, this aspect of DNA collection argues in favor of having a system that provides for automatic expungement.
D. HOW TO KNOW TO EXPUNGE
Those who are able to identify the relevant statute pertaining to the DNA database from which they need to get their DNA expunged might still confront problems with actually figuring out how to go about the expungement properly.
In Fortune v. State, the Georgia Court of Appeals confronted the issue of what happens when a defendant claims that he or she is unaware of the expungement process. (162) The defendant had dropped a tube of lip balm at the scene of a crime and the DNA on it had been compared to a sample of defendant's that was in a database from an earlier charge of rape for which he had been acquitted. (163)
Fortune's contention is that he did not have the opportunity to expunge his DNA profile because he had no reason to believe his DNA profile had still been retained following his acquittal. (164) The court acknowledged the acquittal, but explained that the burden is on the individual to remove oneself from the database, rather than having the state bear the responsibility of expunging records. (165)
It is easy to imagine that others in similar circumstances as the defendant would be confused about the expungement process. If individuals are not given any kind of counseling as to how to use the expungement process, they will not understand how to have their DNA removed from the database. It is likely that people assume the expungement will be automatic and that no further steps are required of them.
California's information sheet for applicants seeking to expunge their records explains that "it is [the applicant's] responsibility to fde the petition correctly." (166) A judge will not review the petition if the applicant has filed out any piece of it incorrectly, nor will the petition be granted if there is an error. (167) In addition to filling out the application, the applicant must also show proof of service to the DNA laboratory and the district attorney's office. (168) If service is improper, the application will not be considered. (169) Petitioners in states like California face not only an application consisting of confusing and technical wording, (170) but they are also forced to navigate the legal system in order to understand how service of process works.
Judge Fletcher of the Ninth Circuit has voiced concern that California's expungement process is "lengthy, uncertain, and expensive." (171) Even if charges are not filed, applicants still need to wait until the statute of limitations runs for the felony, sometimes as long as three years, before they are able to apply for expungement. (172) If the charges are filed and then dropped, applicants are able to file immediately after the charges are dropped. (173) After a request is submitted, 180 days must pass before the state can act. (174) The court then determines whether the expungement will be granted or denied; denials are unappealable. (175) Additionally, a prosecutor may make an objection that would then prevent the expungement from taking place. (176) People wishing to expunge their profiles are individually responsible for all costs and potential lawyer fees required to complete the process. (177)
Though one does not necessarily require a lawyer to get a DNA profile expunged, the confusing and complicated process makes it in a person's best interest to have representation. Completing this process should not be so demanding and confusing as to require the average person to retain counsel. Although it may be in their best interest, it is likely that many of the people who are arrested, especially falsely, would be of a socio-economic state that would be financially restrained from retaining counsel in order to expunge their DNA profiles.
The process that should be used by states when expunging DNA from databases should be automatic rather than placing the burden on the petitioner with an application process. The Ninth Circuit declined to entertain any hypothetical future situations about what would happen if the DNA in the databases were to be misused in the future, reasoning that it was not an applicable analysis to whether the law was constitutional today. (178) These are exactly the concerns that need to be taken into account however.
While United States courts continually apply a balancing test in order to determine if the DNA databases violate any constitutional rights, and the majority of circuits currently hold that it does not, there are still questions to be answered. As over half the states in the union now employ DNA collection upon arrest, there needs to be a comprehensive way to deal with expungement. (179)
The issues that arise need to be balanced with the need to solve criminal cases. As the country becomes more dependent on technology in daily lives, people put more faith in the same technology to solve crimes. Erin Murphy, a U.C. Berkeley professor stated "We're putting too much faith in a new technology whose limitations and uncertainties we don't yet fully understand." (180)
Realistically, the use of DNA databases in order to identify criminal suspects will not stop anytime soon, in fact it will likely expand. As its usage expands, the country must be aware of some of the important implications such as the disparate racial nature of the database, including minorities comprising forty percent of the federal database while only comprising thirteen percent of the population. (181)
Additionally, concerns such as indefinite retention, familial DNA searching, the inability to expunge from certain databases, and the unfamiliarity of the process to most defendants will need to be addressed. While there is likely no perfect solution to these
problems, what some states have employed with automatic expungement is working better than others. It puts the burden on the state to make sure that the DNA they collect from arrestees is properly removed when the person has clearly not committed a crime. This is the method that is the most efficient and the method that is the most fair to defendants.
Author's Addendum: On June 3, 2013, the Supreme Court ruled on the constitutionality of taking DNA samples from arrestees with a five-four split. (182) The majority held that DNA samples taken from arrestees was "part of the routine booking process" akin to fingerprinting or photography. (183) The Court reasoned that there was minimal intrusion to arrestees with a simple cheek swab. (184) The dissent however found the intrusion into privacy much greater than the majority. (185) The dissent also expresses displeasure that the group of people who will truly be hurt by this intrusion are those that are acquitted whose DNA will be stored despite their acquittal. (186) While the two sides debate the value in collecting the DNA and the privacy intrusion, neither side mentions the expungement process. (187)
(1.) Seth Axelrad, Survey of State DNA Databases, Am. Soc'y Law, Med. and Ethics, http://www.aslme.org/dna_04/grid/guide.pdf (last visited May 14, 2013).
(2.) Sarah B. Berson, Debating DNA Collection, 264 Nat'l Inst. J. 9, 9 (2009), available at https://www.ncjrs.gov/pdffilesl/nij/228381.pdf.
(3.) See id.
(4.) Julie Samuels et al., Collecting DNA From Arrestees: Implementation Lessons, 270 Nat'l Inst. J. 18, 18 (2012), available at https://ncjrs.gov/pdffiles1/nij/238482.pdf.
(5.) See Ronnie Garrett, DNA Saves, OFFICER.COM (Feb. 1, 2009), http://www.officer.com/article/10233867/dna-saves.
(7.) Jay Siegel & Susan D. Narveson, Why Arrestee DNA Legislation Can Save Indiana Taxpayers Over $50 Million Per Year, DenverDA, 1 (Jan. 2009), http://www.denverda.org/DNA_Documents/Arrestee_Database/Indiana%20Arrest ee%20Legislation%20-%20Jan%2013%202009.pdf.
(8.) Michael T. Risher, Racial Disparities in Databanking of DNA Profiles, Council for Responsible Genetics, http://www.councilforresponsiblegenetics.org/GeneWatch/GeneWatchPage.aspx? pageId=204 (last visited May 14, 2013).
(11.) David Templeton, Familial DNA Considered Big Help in Solving Crimes: Opponents Call It an Invasion of Privacy, Post-Gazette.COM (Mar. 30 2012, 12:49 AM), http://www.post-gazette.eom/pg/11134/1146566-115-0.stm.
(12.) Berson, supra note 2, at 9-10.
(13.) See infra Part II.B.
(14.) See infra Part II.B.
(15.) DNA Laws Database: Table 1. DNA Arrestee Laws, Nat'l Conf. St. Legislatures (2010), http://www.ncs1.0rg/portals/1/D0cuments/cj/Table1DNAArresteeLaws.pdf.
(16.) Id. See also infra Part III.A-B.
(17.) The UK Police National DNA Database, GeneWatch UK, http://www.genewatch.org/sub-539478 (last visited May 15, 2013).
(18.) Christopher Hope & Robert Winnett, Innocent People's DNA Won't Be Deleted After All, Minster Admits, The Telegraph (July 26, 2011, 6:30 AM), http://www.telegraph.co.uk/news/uknews/law-and-order/8660821/Innocentpeoples-DNA-profiles-wont-be-deleted-after-all- minister-admits.html.
(21.) Peter Walker, European Court Rules DNA Database Breeches Human Rights, The Guardian (Dec. 4, 2008, 5:55PM), http://www.guardian.co.uk/uk/2008/dec/04/law-genetics.
(23.) Asher Mullard, UK DNA Database Needs Overhaul, Nature (Dec. 8, 2008), http://www.nature.corn/news/2008/081208/full/news.2008.1288.html.
(24.) Bigel Morris, The Big Question: Why Is Britain's DNA Database the Biggest in the World, and is it Effective?, The Independent (Nov.
12, 2009), http://www.independent.co.uk/news/uk/home-news/the-big-question-why-isbritains-dna-database-the-biggest-in-the-world- and-is-it-effective-1818878.html.
(25.) See Why Pass This Law?, DNA SAVES, http://www.dnasaves.org/dna_law.php (last visited May 16,2013).
(26.) See Berson, supra note 2, at 9-12.
(27.) Why Pass This Law?, supra note 25.
(29.) The City of Chicago, Chicago's Study on Preventable Crimes, DNA Resource (2005), available at http://www.dnaresource.com/documents/ChicagoPreventableCrimes-Final.pdf.
(31.) Denver District Attorney's Office, Denver's Study on Preventable Crimes, DenverDA, http://www.denverda.org/DNA_Documents/Denver's%20Preventable%20Crimes %20Study.pdf (last visited May 16, 2013).
(32.) Why Pass This Law?, supra note 25.
(34.) Siegel & Narveson, supra note 7, at 1.
(35.) Risher, supra note 8.
(38.) Berson, supra note 2.
(39.) Will Guzzardi, Illinois Bill Could Allow State to Collect DNA from Those Presumed Innocent, Marking Nationwide Shift, The Huffington Post (May 26, 2011, 9:29 AM), http://www.huffmgtonpost.com/2011/05/25/illinois-dna collection_n_867088.html.
(40.) U.S. Const, amend. IV.
(41.) Anderson v. Commonwealth, 650 S.E.2d 702, 705 (Va. 2007).
(42.) Id. at 706.
(44.) United States v. Pool, 621 F.3d 1213 (9th Cir. 2010), vacated, 659 F.3d 761 (9th Cir. 2011).
(45.) Id at 1218.
(46.) Samson v. California, 547 U.S. 843, 848 (2006) (quoting United States v. Knights, 534 U.S. 112, 118 (2001) (internal quotation marks omitted)).
(47.) Pool, 621 F.3d at 1218.
(48.) Id at 1220-22.
(49.) Id at 1222.
(50.) Id. at 1223.
(51.) In re Welfare of C.T.L, 722 N.W.2d 484, 490 (Minn. Ct. App. 2006).
(52.) Id. at 491.
(53.) Id. at 491-92.
(54.) Id. at 492.
(55.) DNA Laws Database, supra note 15.
(56.) DNA Forensic Technology Solving Crimes, St. of Cal. Dep't. Justice Office of Att'y Gen., http://oag.ca.gov/bfs (last visited May 19,2013).
(57.) Proposition 69 (DNA), St. Cal. Dep't. Justice Office of Att'y Gen., http://oag.ca.gov/bfs/prop69 (last visited May 19, 2013).
(58.) John Wildermuth, Proposition to Take DNA at Arrest Stirs Privacy Fears/Mandatory Sampling on November Ballot, SFGate (June 12, 2004, 4:00 AM), http://www.sfgate.com/cgi bin/article.cgi?f=7c/a/2004/06/12/MNGOB7598Tl.DTL.
(59.) Proposition 69 DNA Data Bank Program Report for Second Quarter 2012, St. Cal. Dep't. Justice Office of Att'y Gen., http://oag.ca.gov/sites/all/files/pdfs/bfs/quarterlyrpt.pdf? (last visited May 19, 2013).
(60.) State of California, Streamlined DNA Expungement Application Form (Feb. 2011), available at http://ag.ca.gov/bfs/pdf/expungement_app.pdf.
(61.) See infra Part IV.D (describing problems with the system of forms and knowing exactly how to expunge).
(62.) Expungement Policies and Procedures for Los Angeles County: Penal Code Section 299 Agency Responsibilities, Cnty. of L.A., 2 (May 2009), available at http://da.co.la.ca.us/pdf/DNA_Expungement_Manual.pdf.
(64.) Id. at 2-3.
(65.) Id. at 5.
(67.) Id. at 7.
(68.) Id. at 3.
(69.) Id at 3.
(71.) Id. at 8.
(72.) Id. at 11.
(73.) See State Laws for Arrestees DNA Databases, DNA Resource (Aug. 10, 2010), http://www.dnaresource.com/documents/ArresteeDNALaws-2010.pdf. As of August 2010, the states that have expungement by private initiation are: Alabama, Arizona, Arkansas, California, Colorado, Florida, Kansas, Louisiana, Michigan, Minnesota, New Mexico, Ohio, South Dakota, Texas, and Utah. Id. States that have automatic expungement as of August 2010 are: Alaska, Maryland, Missouri, South Carolina, Tennessee, Vermont, and Virginia.
(75.) Md. Code Ann., Pub. Safety [section] 2-511 (West 2011).
(76.) John Gramlich, Despite Objections, DNA Sampling Expands, PEW Charitable Trusts (Mar. 28, 2008), http://www.stateline.org/live/details/story7contentIcN295643.
(77.) Anne Bartlett, Black Caucus Members Protest DNA Bill Process, Wash. Post (Mar. 19, 2008, 8:01 AM), http://voices.washingtonpost.com/annapolis/2008/03/black_caucus_members_prot est_d.html.
(79.) Gramlich, supra note 76.
(80.) Martin O'Malley, Governor of Md., Speech at the University of Baltimore School of Law: DNA & a Government That Works (Sep. 9, 2009), available at http://www.govemor.maryland.gov/blog/?p=5289.
(81.) See DNA Statistics, Governor's Off. Crime Control & Prevention, http://www.goccp.maryland.gov/dna/statistics.php (last updated Feb. 12, 2013).
(82.) Maryland DNA Legislation, Governor's Off. Crime Control & Prevention, http://www.goccp.maryland.gov/dna/legislation.php (last updated Jan. 12,2011).
(83.) See supra Part III.A.
(84.) Md. Code Ann., Pub. Safety [section] 2-511(a)(l)(West 2011).
(85.) Pub. Safety [section] 2-511(a)(l)(i)-(iii).
(86.) Pub. Safety [section] 2-51 l(b)-(c).
(87.) Pub. Safety [section] 2-511(d)-(e).
(88.) Pub. Safety [section] 2-511 (f)(i)-(ii).
(89.) DNA, Md. Dep't. Pub. Safety & Corr. Servs., http://www.dpscs.maryland.gov/publicservs/dna.shtml (last visited Mar. 18, 2013).
(90.) 2011 Md. State Police Forensics Scis. Div., Statewide DNA Database Annual Report 2 (2012).
(91.) Control in the sense that, in the other system, the arrestee controls when to file for expungement.
(92.) Solomon Moore, F B I. and States Vastly Expand DNA Databases, N.Y. Times, Apr. 18, 2009, at Al, available at http://www.nytimes.com/2009/04/19/us/19DNA.html.
(94.) See generally Erica Solange Deray, The Double-Helix Double-Edged Sword: Comparing DNA Retention Policies of the United States and the United Kingdom, 44 Vand. J. Transnat'l L. 745 (2011).
(95.) Rosemary Walsh, The United States and the Development of DNA Data Banks, Privacy Int'l (Feb. 20, 2006), available at http://issuu.com/theresistance/docs/-np-dna-banksl.
(96.) United States v. Mitchell, 652 F.3d 387,412 (3d Cir. 2011).
(97.) Id. at 389.
(99.) Id. at 408.
(100.) Id. at 412.
(104.) Id. at 420 (Rendell, J., dissenting) (alteration in original) (citations omitted).
(105.) Id. at 421.
(106.) Id. at 420.
(107.) Smith v. State, 744 N.E.2d 437,438 (Ind. 2001).
(108.) Id. at 439.
(112). The statute authorized creation of a database of DNA from "convicted criminals, crime scene specimens, unidentified missing persons, and close biological relatives of missing persons." Id. at 441 quoting Ind. Code Ann. [section] 10-1-9-8(a) (1998)(Repealed by P.L. 2-2003, SEC. 102)). The statute was recodified in 2003 and currently reads "(a) The superintendent may establish a data base of DNA identification records of: (1) convicted criminals; (2) crime scene specimens; (3) unidentified missing persons; and (4) close biological relatives of missing persons." Ind. Code Ann. [section] 10-13-6-8(a) (West 2005).
(113) Smith, 744 N.E. 2d at 441.
(115). Id. at 442.
(116). People v. Baylor, 118 Cal. Rptr. 2d 518, 521 (Cal. Ct. App. 2002).
(117). Id. at 520.
(118). Id. at 519-520.
(119.) Id. at 520.
(123.) Id at 521.
(125.) People v. Midgley, 763 N.Y.S.2d 419 (N.Y. Sup. Ct. 2003).
(126.) The female victim recanted her initial complaint prior to the DNA specimens being taken and then subsequently reaffirmed her original complaint following defendant's arrest. Id. at 420-421.
(128.) Id. at 421.
(130.) Id. at 423.
(131.) Id. at 425.
(132.) Id. at 426.
(133.) United States v. Davis, 657 F. Supp. 2d 630 (D. Md. 2009).
(134.) Id. at 634.
(136.) Id. at 634-35.
(137.) Id. at 635.
(138.) Id. at 636.
(139.) Id. at 637.
(140.) Id. at 639.
(141.) Id. at 643-44.
(142.) Id. at 647.
(144.) Id. at 648-49.
(145.) Id. at 649.
(146.) Id. at 651.
(147.) Id. at 653.
(148.) Id at 654.
(150.) Id. at 659.
(153.) Id. at 667.
(154.) Templeton, supra note 11.
(157.) See Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 317-18 (2010).
(158.) See Id.
(159.) Templeton, supra note 11.
(161.) David Kaye et al., Family Feud: The Familial DNA Search Controversy Continues, Forensic Magazine (Sept. 23, 2011), http://www.forensicmag.com/article/family-feud-familial-dna-search-controversy-continues?page=0,2.
(162.) Fortune v. State, 685 S.E.2d 466,469-470 (Ga. Ct. App. 2009).
(163.) Id. at 468-69.
(164.) Id. at 469.
(165.) Id. at 470.
(166.) Superior Court of California, County of Riverside, Information Regarding Petitions for Expungement of DNA (Penal Code [section] 299) (Dec. 17, 2010), available at http://www.riverside.courts.ca.gov/selfhelp/299_infosheet.pdf.
(168.) Superior Court of California, County of Riverside, Instructions Regarding How to Complete Petitions for Expungement of DNA (Penal Code [section] 299) 2 (Dec. 17, 2010), available at http://www.riverside.courts.ca.gov/selfhelp/299_instructions.pdf.
(170.) See Judicial Council of California, Petition for Expungement of DNA Profiles and Samples (Pen. Code, [section] 299) (Jan. 1, 2009), available at http://www.courts.ca.gov/documents/cr185.pdf.
(171.) Haskell v. Harris, 669 F.3d 1049, 1068 (9th Cir. 2012) (Fletcher, J., dissenting).
(172.) Id. at 1068-69.
(173.) Id. at 1069.
(178.) See id. at 1077.
(179.) Osagie K. Obasogie, The Dangers of Growing DNA Databases, L.A. Times (Apr. 9, 2010), http://articles.latimes.com/2010/apr/09/opinion/la-oe-obasogie9-2010apr09.
(182.) Nina Totenberg, Supreme Court Rules DNA Can Be Taken after Arrest, NPR (June 3, 2013, 3:00PM), http://www.npr.org/2013/06/03/188397999/supreme-court-rules-arrest-dna-collection-reasonable?live=1.
(183.) Maryland v. King, No. 12-207, slip op. at 28 (U.S. June 3, 2013).
(185.) King, No. 12-207, slip op. at 18 (Scalia, J., dissenting).
(187.) See generally, King, No. 12-207.
Valerie Werse, J.D. Rutgers School of Law--Newark, 2013; M.A. Central Connecticut State, 2010; B.A. Gettysburg College, 2007. Thank you to: my family for their love and support, the RCTLJ staff for their hard work, A.M. for coffee during late nights of writing, M. V. for laughs, and my friends for their patience.
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