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High Court rules juveniles’ DNA samples can be taken, but not analyzed


Police can’t analyze the DNA of juveniles arrested in connection with murders, sex crimes and burglaries until after they have been found guilty, the Arizona Supreme Court ruled today.

The court said that obtaining DNA without a warrant from someone who is presumed innocent is a two-stage search in which one part is constitutional and the other is not. Taking the sample on a cotton swab from the inside of someone’s mouth is legal, the justices ruled, but extracting the cells from the sample and analyzing them is more intrusive and violates the Fourth Amendment.

“This is the first court in the country to make the distinction along these lines,” said David Euchner, an attorney with the Arizona Attorneys for Criminal Justice, whose organization filed an amicus brief in the case. “This is one of those ‘split the baby’ decisions.”

Courts across the country have generally been split on the issue of forcing pre-trial arrestees to give DNA. Maryland’s Supreme Court on April 24 struck down a statute requiring arrestees to give DNA.

Euchner said defense attorneys are now going to watch how police and prosecutors apply the court’s decision to adults. Statutes pertaining to pre-trial adults arrested for serious crimes are nearly identical to those for juveniles.

The case involved five teenagers who stand accused of various sex offenses and burglaries. The Supreme Court overturned a Court of Appeals decision that found the law constitutional on the grounds that, since there is probable cause for the arrest of a juvenile, the state’s interests trump their privacy rights, and taking a DNA sample is no more intrusive than taking fingerprints.

The Supreme Court said it was following logic found in search and seizure cases outside of the DNA context. In U.S. v. Chadwick, the U.S. Supreme Court found that the seizure of a trunk was legal, but opening it and searching it was not. The Arizona Court of Appeals also made a similar ruling involving a purse in the 2007 case RE: Tiffiany O.

Vice Chief Justice Andrew Hurwitz wrote in the court’s opinion that, even when there are urgencies that allow for a “limited intrusion on Fourth Amendment protected interest,” there needs to be a greater showing for the second, more intrusive search.

The two-tiered approach works well with DNA, Hurwitz wrote.

“The seizure of buccal cells is a physical intrusion, but does not reveal by itself intimate personal information about the individual,” he wrote. “The later search of the sample, however, reveals uniquely identifying information about individual genetics. That second search is, in effect, the analog to opening the steamer trunk in Chadwick and the purse in Tiffany O to see what is inside.”

Hurwitz said the state has no compelling interest in processing the DNA, or conducting the second, more intrusive search, in the short window between arrest and trial. The state’s access to the profile won’t be delayed by waiting until after a juvenile has been found guilty. And while the Court recognized that obtaining DNA from arrestees is useful in solving cold cases, a person doesn’t surrender Fourth Amendment protections when it comes to uncharged crimes.

“An arrest for vehicular homicide, for example, cannot alone justify a warrantless search of an arrestee’s financial records to see if he is also an embezzler,” Hurwitz wrote.

Arizona has followed the national trend over the years of adding more people to the list of those required to provide a DNA sample. The Legislature added people who are arrested on suspicion of homicide, sex offenses and residential burglaries in 2007. A year later, juveniles arrested for those same crimes were required to provide DNA.

The law for juveniles was changed in 2011 to include only those “charged” with those crimes.


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