The issue of forcing children who are presumed innocent to give their DNA is one in which courts have disagreed, and when courts uphold the constitutionality of the law, there has been disagreement among the individual judges. The high court will hear arguments on May 1.
“The courts are deciding it both ways, and always by a close margin,” said David Euchner, an attorney with Arizona Attorneys for Criminal Justice, who filed an amicus brief in the case.
Maryland’s highest court on April 24 ruled as unconstitutional that state’s law permitting the collection of DNA from arrestees of serious crimes. Minnesota has also struck down a law similar to Arizona’s.
The Arizona Court of Appeals ruled in a 2-1 opinion in October that the law is constitutional because the DNA collection requires a finding of probable cause the juvenile committed a crime, state interests trump the privacy rights of the juveniles and taking a sample is no more intrusive than taking fingerprints.
The case before the Supreme Court involves five teenagers who stand accused of various sex offenses and burglaries.
Attorneys for the juveniles argue that the DNA collection is a search without a warrant and far more intrusive than taking a fingerprint because a DNA sample contains genetic information such as disease, disorders and paternity. Typically, a sample is taken by rubbing a swab on person’s cheek inside the mouth.
“A suspicionless search of the DNA of an unadjudicated juvenile does not fall under any valid exception to the warrant requirement,” the attorneys for the juveniles argued.
The Court of Appeals was wrong to support its decision by relying on case law that allows the government to take DNA from people on parole and probation, the juveniles’ attorneys argued.
“By making the jump from parolees and probationer to unadjudicated children, the Court of Appeals has carved out a new exception to the Fourth Amendment warrant requirement,” attorneys wrote.
The state is represented by the Maricopa County Attorney’s Office, which argued that, when a juvenile is charged, there has been a court finding of probable cause a crime was committed. The juvenile then has a lesser expectation of privacy than the general population and the state has an interest in supervising him, Deputy County Attorney Linda Van Brakel argued.
Arizona is among 30 states that allow the collection of DNA from juveniles, and the state has followed the national trend of adding more people to state and federal databases.
Retired Maricopa County Superior Court Judge Ron Reinstein, an expert on DNA legal issues, said the first laws in the nation requiring DNA collection targeted only convicted sex offenders.
States began adding to the list of felonies and eventually arrestees as more innocent prisoners, some on death row, were exonerated by way of DNA.
One of the more celebrated cases involved Ray Krone, a former Phoenix man who spent 10 years in an Arizona prison, including 3.5 years on death row, for the 1991 murder of Phoenix bartender Kim Ancona. DNA evidence implicated Kenneth Phillips, who pleaded guilty to the crime and was sentenced to 53 years to life in prison.
But Reinstein, who served on the National Commission on the Future of DNA Evidence, said it was more than the exonerations that propelled the expansion of DNA collection.
“It was probably from all angles people thought this was a good idea,” Reinstein said.
Police wanted a better tool for solving cases, including cold cases, the victim community wanted it and so did the Innocence Project, a New York-based organization that broke ground in the use of DNA to exonerate people, Reinstein said.
The 2007 Arizona Legislature added people who are arrested on suspicion of homicide, sex offenses and residential burglaries to those required to give samples. A year later, juvenile arrestees for those same type crimes were added, but then in 2011 the law was changed to juveniles who are “charged” with those crimes. All of those bills passed overwhelmingly.
Former Senate Majority Leader Chuck Gray, a Mesa Republican who sponsored the 2007 and 2008 legislation, said the idea behind the bills was to provide a more accurate method of identifying people who are suspected of a serious crime than physical characteristics and fingerprints.
Gray, a former police officer, said it is common for people who are arrested on serious, violent offenses to have committed other similar crimes before that have gone unsolved. The DNA samples can be compared to evidence from unsolved crimes, he said.
The samples are entered into a state database and the Combined DNA Index System, or CODIS, a national database managed by the FBI.
“This is not a law specifically against juveniles,” Gray said. “This is a law against arrestees of serious crimes, which means we’re treating everyone equal — we’re not discriminating based on age.”