A little-known provision of a law designed to prevent sex abuse has riled civil liberties advocates.
Act 1, the statute that passed in the wake of the notorious rape and murder of 12-year-old Brooke Bennett of Braintree, requires that suspects who are arraigned for any felony charge or a misdemeanor sex offense be subject to DNA testing.
Prior to the passage of the law, DNA samples could only be collected from convicted felons, or if police obtained a warrant signed by a judge.
When the law went into effect on July 1, 2011, Vermont became one of 25 states that allow DNA sample collection of felony suspects and some alleged misdemeanor sex offenders.
DNA samples taken from “arraignees” are sent to the Vermont Forensics Laboratory where a profile is created. The sample is entered into a statewide database called CODIS, as well as the federal CODIS database run by the Federal Bureau of Investigation. If the arraignee is acquitted of the charge, or charges are dropped, the DNA sample is to be expunged from the databases.
Allen Gilbert, executive director of the Vermont American Civil Liberties Union, says the provision is an infringement of Vermonters’ rights to freedom from search and seizure without probable cause under the Fourth Amendment of the U.S. Constitution and Title 11 of the Vermont Constitution, which more stringently restricts unlawful searches.
“Police need a warrant to take DNA,” Gilbert said. “No warrant, no DNA.”
Convicted felons, on the other hand, have diminished privacy rights, Gilbert said. But “arraignees” who are accused of certain crimes, he said, should not be suspects for other offenses.
“With DNA on the table, it goes against the idea of being ‘innocent until proven guilty,’” Gilbert said. “You become a suspect for any crime.”
State Sen. Richard Sears, D-Bennington, was a co-sponsor of the bill and disagreed with Gilbert, saying that DNA testing helps clear people’s names and eliminates false charges, while making it easier to catch criminals.
“You want to get the guilty person, and that’s what it’s all about to me,” Sears said. “Our intent was not made for cold cases. The intent was that after the suspect was found not guilty, the DNA could not be used against them.”
DNA samples from accused criminals, however, can be used to find perpetrators associated with cold cases. Arraignees’ profiles can be run through the CODIS databases during the time of the criminal investigation, and the suspects’ DNA profiles can be matched to all other crimes.
According to the statute, if the DNA sample is matched to another DNA sample during the course of a criminal investigation, “the record of the match shall not be expunged even if the sample itself is expunged.”
Vermont’s Defender General Matthew Valerio said he suspects that if there is a DNA match to another case, the data will be issued even if an arraignee’s DNA sample is eliminated.
Valerio said that even when a sample is expunged, law enforcement can obtain another warrant for a new sample and use the original match as probable cause.
The issue will likely end up in the trial courts, and one way or another the constitutionality of DNA sampling will be tested at the Vermont Supreme Court, which, in 2009, deemed the collection of DNA of convicted felons constitutional in the case of State v. Martin by a split vote of 3-2.
Margaret Schwartz, senior forensic scientist at the Vermont Forensic Laboratory, said she was not sure yet how effective the law will be.
“Most of the people (arraignees) end up here as convicted felons, but it may get them off the street sooner, preventing the potential for more crimes,” Schwartz said.
