Vermont Supreme Court Upholds Law Authorizing Collection of Felon's DNA

Vermont's Supreme Court upheld last Friday a law, 20 V.S.A. §§ 1931-1946, requiring convicted nonviolent felons to provide DNA samples for inclusion in both the state and the federal DNA databases.

The Vermont law authorizes the taking of DNA samples for three purposes. The DNA can be used to identify an individual, for administrative purposes, or to identify a dead individual. Article 11 of the Vermont Constitution, as the 4th Amendment, protects against unreasonable searches and seizures: (...)"the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure (...)"

The State argued that it had special needs, namely, the deterrence of all criminal conduct, the accurate identification of perpetrators, the exclusion of innocent suspects, and the assistance in the identification of missing persons.”

The special needs test is a totality of the circumstances test, where a court balances the invasion of the plaintiff’s privacy against the State interest in searching without a warrant supported by probable cause. The U.S. Supreme Court held in Griffin v. Wisconsin, in a case involving the warrantless search of a probationer’s home, that a “special needs” operation does not eliminate the Fourth Amendment all together, but the warrant-and-probable cause requirement is relaxed: a state’s operation of a probation system(…) presents “special needs” beyond normal enforcement that may justify departures from the usual warrant and probable –cause requirement. In Indianapolis v. Edmond, the Supreme Court held that the police cannot operate a program of random vehicle checkpoints to find drugs, and, in Ferguson v. City of Charleston, that an hospital cannot share positive drug test results of pregnant women with the police. The Vermont Supreme Court concluded last Friday that "DNA sampling and analysis to assist in identifying persons at future crime scenes is a special need beyond normal law enforcement."

The Vermont Supreme Court also noted that the DNA sample is taken in non intrusive way, a blood sample. But the intrusiveness of the procedure upon our bodies is not an indication of the intrusiveness of the procedure upon our civil liberties. The 9th Circuit used also that faulty reasoning in U.S. v. Kincade. It is especially dangerous to use that reasoning since taking a DNA sample can be made in the least intrusive way, as picking a stand of hair off someone's coat lapel. The Courts should always cosuch ncentrate on the intrusiveness of the procedure's results, namely, the ability to "super-identify" us, every single one of us, in the name of security.