A July Bredemarket post on Facebook has garnered some attention in September.
I wanted to answer some questions about rapid DNA use in a booking station, how (and when) DNA is used in booking (arrests), what an “investigative lead” is, and whether acquiring DNA at booking is Constitutional.
(TL;DR on the last question is “yes,” per Maryland v. King.)
Are rapid DNA booking stations a Big Brother plot?
The post in question was a Facebook post to the Bredemarket Identity Firm Services Facebook group. I posted this way back in July, when Thermo Fisher Scientific became the second rapid DNA vendor (of two rapid DNA vendors; ANDE is the other) whose system was approved by the U.S. Federal Bureau of Investigation (FBI) for use as a law enforcement booking station.
When I shared this on Facebook, I received some concerned comments:
“Big brother total control”
“Is this Constitutional??? Will the results of this test hold up in courtrooms???”
I’ll address the second question later: not just in regard to rapid DNA, but to DNA in general. At this point, however, I will go ahead and say that the use of rapid DNA in booking was authorized legislatively by the Rapid DNA Act of 2017. This was followed by over three years of procedural stuff until rapid DNA booking station use was authorized this year.
To accurately state what “rapid DNA booking station use” actually means, let me refer to the FBI’s language, starting with the purpose:
The FBI Laboratory Division has been working with the FBI Criminal Justice Information Services (CJIS) Division and the CJIS Advisory Policy Board (CJIS APB) Rapid DNA Task Force to plan the effective integration of Rapid DNA into the booking station process.
By way of definition, a “booking station” is a computer that processes individuals who are “booked,” or arrested. The FBI’s plan was that (when authorized by federal, state, or local law) when an arrested individual’s fingerprints were captured, the individual’s DNA would be captured at the same time. (Again, only when authorized.)
The use of the term “reference sample buccal (cheek) swab” is intentional. The FBI’s current development and validation efforts have been focused on the DNA samples obtained from known individuals (e.g., persons under arrest). Because known reference samples are taken directly from the individual, they contain sufficient amounts of DNA, and there are no mixed DNA profiles that would require a scientist to interpret them. For purposes of uploading or searching CODIS, Rapid DNA systems are not authorized for use on crime scene samples.
“CODIS,” by the way, is the Combined DNA Index System, a combination of federal, state, and local systems.
“Rapid DNA” is an accelerated, automated DNA method that can process DNA samples in less than two hours, as opposed to the more traditional DNA processes that can take a lot longer.
The FBI is NOT ready to use rapid DNA to solve crimes, although some local police agencies have chosen to do so. And until February of this year, the FBI was not ready to use rapid DNA in the booking process either.
So what has been authorized?
The Bureau recognizes that National DNA Index System (NDIS) approval of the Rapid DNA Booking Systems and training of law enforcement personnel using the approved systems are integral to ensuring that Rapid DNA is used in a manner that maintains the quality and integrity of CODIS and NDIS.
Rapid DNA Booking System(s) approved for use at NDIS by a law enforcement booking station are listed below.
ANDE 6C Series G (effective February 1, 2021)
RapidHIT™ ID DNA Booking System v1.0 (effective July 1, 2021)
If you read the FBI rapid DNA page, you can find links to a number of forensic, security, and other standards that have to be followed when using rapid DNA in a booking environment.
But those aren’t the only restrictions on rapid DNA use.
Can ANY law enforcement agency use rapid DNA in booking?
Um, no.
According to the National Conference of State Legislatures (2013; see PDF), not all states authorize the taking of DNA after an arrest. As of 2013, 20 states did NOT allow the taking of DNA from individuals who had been arrested but not convicted. And of the 30 remaining states, some (such as Connecticut) only allowed taking of DNA for “serious felonies,” some (such as California) for all felonies, and various mixtures in between. Oklahoma, for example, only allowed taking of DNA for “aliens unlawfully present under federal immigration law.”
Now, of course, a rogue police officer could take your DNA when not legally authorized to do so. Then again, a rogue restaurant employee could put laxatives in your food; that doesn’t mean we outlaw laxatives.
An “investigative lead”
So let’s say that you’re arrested for a crime, and your state allows the taking of DNA for your crime at arrest, and your local law enforcement agency has a rapid DNA instrument.
Now let’s assume that your DNA is searched against a DNA database of unsolved crimes, and your DNA matches a sample from another crime. What happens next?
If there is a match, police will likely want to take a closer look.
Wait a minute. There’s a DNA match! Doesn’t that mean that the police can swoop in and arrest the individual, and the individual is immediately convicted?
Um, no. Stop trusting your TV.
It takes more than DNA to convict a person of a crime.
While DNA can provide an investigative lead, DNA in and of itself is not sufficient to convict an individual. The DNA evidence usually has to be supported by additional evidence.
Especially since there may be other explanations of how the DNA got there.
In 2011, Adam Scott’s DNA matched with a sperm sample taken from a rape victim in Manchester—a city Scott, who lived more than 200 miles away, had never visited. Non-DNA evidence subsequently cleared Scott. The mixup was due to a careless mistake in the lab, in which a plate used to analyze Scott’s DNA from a minor incident was accidentally reused in the rape case.
Then there’s the uncomfortable and inconvenient truth that any of us could have DNA present at a crime scene—even if we were never there. Moreover, DNA recovered at a crime scene could have been deposited there at a time other than when the crime took place. Someone could have visited beforehand or stumbled upon the scene afterward. Alternatively, their DNA could have arrived via a process called secondary transfer, where their DNA was transferred to someone else, who carried it to the scene.
But there is a DNA case that was (originally) puzzling. Actually, a whole bunch of DNA cases.
There is an interesting case, known as the Phantom of Heilbonn, that dates from 1993 in Austria, France and Germany. From that year the DNA of an unknown female was detected at crime scenes in those countries, including at six murder scenes, one of the victims being a female police officer from Heilbronn, Germany. Between 1993 and March 2009 the woman’s DNA was detected at 40 crime scenes which ranged from murder to burglaries and robberies. The DNA was found on items ranging from a biscuit to a heroin syringe to a stolen car.
Then it got really weird.
In March 2009 investigators discovered the same DNA on the burned body of a male asylum-seeker in France. Now this presented something of an anomaly: the corpse was male but the DNA was of a female.
You guessed it; it was the swabs themselves that were contaminated.
So a DNA match is just the start of an investigative process, but it could provide the investigative lead that eventually leads to the conviction of an individual.
Perhaps you’ve noticed that I use the phrase “investigative lead” a lot when talking about DNA and about facial recognition. Trust me, it’s important.
But is the taking of DNA at booking Constitutional?
Obviously this is a huge question, because technical ability to do something does not automatically mean that you are Constitutionally authorized to do so. There is, after all, Fourth Amendment language protecting us against “unreasonable searches and seizures.”
Is the taking of DNA from arrestees who have not been convicted (assuming state law allows it) reasonable, or unreasonable?
Alonzo Jay King, Jr. had a vested interest in this question.
Alonzo Jay King Jr…was arrested in 2009 on assault charges. Before he was convicted of that crime, police took a DNA sample pursuant to Maryland’s new law allowing for such collections at the time of arrest in certain offenses….
I want to pause right here to make sure that the key point is highlighted. King, an arrestee who had not been convicted at the time of any crime, was compelled to provide evidence. At the time of arrest, collection of certain types of evidence (such as fingerprints) is “reasonable.” But collection of certain other types of evidence (such as a forced confession) is “unreasonable.”
So King’s DNA was taken and was searched against a Maryland database of DNA from unsolved crimes. You won’t believe what happened next! (Actually, you will.)
The DNA matched a sample from an unsolved 2003 rape case, and Mr. King was convicted of that crime.
Sentenced to life in prison, actually.
Wicomico County Assistant State’s Attorney Elizabeth L. Ireland said she requested the court impose a life sentence on King, not only because of his past criminal convictions, but also because it turned out that he was a friend of the victim’s family. She said this proved King was a continuing danger to the community.
Before you say, “well, if he was the rapist, he should be imprisoned, legal niceties notwithstanding,” think of the implications of that statement. The entire U.S. legal system is based upon the premise that it is better for a guilty person to mistakenly go free than for an innocent person to mistakenly be punished.
And if that doesn’t sink in…what if YOU were arrested and convicted unlawfully? What if a plate analyzing YOUR DNA wasn’t cleaned properly, and you were unjustly convicted of rape? Or what if a confession were coerced from YOU, and used to convict you?
So King’s question was certainly important, regardless of whether or not he actually committed the rape for which he was convicted.
King therefore appealed on Fourth Amendment grounds, the Maryland Court of Appeals overturned his conviction (PDF), and the State of Maryland brought the case to the U.S. Supreme Court in 2013 (Maryland v. King). In a close 5-4 decision (PDF) in which both conservatives and liberals were on both sides of the argument, the Court ruled that the taking of DNA from arrestees WAS Constitutional.
But that wasn’t the end of the argument, because a new case arose in the state of California. But the California Supreme Court ruled in 2018 that the practice was allowed in that state.
So the taking of DNA at booking is not only authorized (in some states, for some charges), it’s also Constitutional. (Although the Supreme Court’s opinion is still widely debated.)
So anyone who gets arrested for a felony in my home state of California should be ready for a buccal (cheek) swab.
Bredemarket 